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| {{#Wiki_filter:NUREG-0386 DIGEST No. 5 REVISION No.1 UNITED STATES NUCLEAR REGULATORY COMMISSION STAFF PRACTICE AND PROCEDURE DIGEST Commission, Appeal Board and Licensing Board Decisions July 1972 - September 1988 O | | {{#Wiki_filter:}} |
| Manuscript Completed: March 1989 Date Published: April 1989 Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555
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| 'O R P RE8Ali *
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| * PDR 0386 I
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| AVAILABILITY NOTICE Availability of Reference Materials Cited in NRC Publications Most documents cited in NRC publications will be available from one of the following sources:
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| : 1. The NRC Public Document Room, 2120 L Street, NW, Lower Level, Washington, DC 20555
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| : 2. The Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082
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| : 3. The National Technical Information Service, Springfield, VA 22161 Although the listing that follows represents the majority of documents cited in NRC publica-tions, it is not intended to be exhaustive.
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| 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 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.
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| 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.
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| Documents available from public and special technicht 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.
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| 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.
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| 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.
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| Nuclear Regulatory Commission, Washington, DC 20555.
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| Copies of industry codes and standards used in a substantive manner in the NRC regulatory l 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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| UNITED' STATES' NUCLEAR REGULAT09Y COP 9 FISSION L.;
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| STAFF PRACTICE AND PROCEDURE DIGEST (The December, 1988 Update includes Commission, Appeal Board, and Licensing Board Decisions issued from July 1, 1972 through September 30,1988.)
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| O NRC STAFF PRACTILE AND PROCEDURE DIGEST UPDATE, DECEMBER 1988 '
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| INSTRUCTIONS FOR REPLACEMENT OF PAGES Section Remove Paaes Insert New Paaes*
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| Preliminary Pages i, ii, iii i, ii, iii TABLE OF CONTENTS 3-13 Table of Contents 3-13 Prehearing Matters Table of Contents 1, ii, iii i, ii, iii PREHEARING MATTERS 2.0 69-88, 107-112, 59-88, 107-112, 129-137 129-137 Hearings Table of Contents i, ii i, ii HEARINGS 3.0 7-48, 63-64 7-48, 63-64 POST HEARING MATTERS 4.0 9-10, 17-18, 9-10, 17-18, 21-24 21-24 Appeals Table of Contents 1, ii, iii i, ii, iii APPEALS 5.0 13-71 13-71 General Matters Table of Contents i - iv i - iv
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| , GENERAL MATTERS 6.0 5-113 5-114 Indexes FACILITY ALL ALL CITATION ALL ALL CFR ALL ALL STATUTES ALL ALL CASE LAW ALL All OTHER LEGAL CITATIONS ALL ALL
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| *Where a replacement page is back-to-back with an unchanged page, both have been included for insertion.
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| PREFACE This Revision 1 of the fifth edition of the NRC Staff Practice and Procedure Digest contains a digest of a number of Commission, Atomic Safety and Licensing
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| , Appeal Board, and Atomic Safety and Licensing Board decisions issued during the period from July 1,1972 to September. 30,1988 interpreting the NRC's Rules of Practice in 10 CFR Part 2. This Revision 1 replaces in part earlier' editions and supplements and includes appropriate changes reflecting the amendments to the Rules of Practice effective through September 30, 1988.
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| The Practice and Procedure Digest was originally prepared by attorneys in.the NRC's Office 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 pub _lish 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.
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| Persons using this Digest are placed on notice that it may not be used as an authoritative citation in support of any pocition before the Commission or any of its adjudicatory tribuncis. Persons using this Digest are also placed on p notice that it is intended for use only as an initial research tool, that it
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| ,-- may, and likely does, contain errors, including errors in analysis and interpretation of decisions, and that the user should not rely on the Digest analyses and interpretations but most 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.
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| 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. Sor topical headings contain no decision citations or discussion. It is anticipated that future updates to the Digest will utilize these Madings.
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| This edition of the Digest will be updated in the future. The updates will be prepared in the form of replacement pages.
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| 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.
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| Office of the General Counsel O U.S. Nuclear Regulatory Commission iii i
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| 2.9.4 Interest and Standing for Intervention Pre.40-2.9.4.1 ,
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| Judicial Standing to Intervene Pre 42 2.9.4.1.1 " Injury-in-Fact" .and " Zone of Interest'' Tests: for Standin9 to Intervene .
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| 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
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| .2.9.4.1.4: Standing to Intervene in Specific factual Situations 'Fre 55 l2.9.4.2 Discretionary Intervention- Pre 53-2.9.5 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:
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| 2.9.5.4 Material Used in Support of Contentions Pre 73
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| .2.9.5.5 Timeliness of Submission of Contentions Pre 74 2.9.5.6 Contentions Challenging Regulations Pre 85 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.
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| 2.9.5.11 Discovery to Frame Contentions Pre 90 2.9.5.12 Stipulations on Contentions (Reserved) Pre 90 3 2.9.5.13. Appeals of Rulings on Contentions Pre 90 !
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| 1 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 j 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 !
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| 2.9.9.5 Attendance at/ Participation in Prehoaring Conferences / Hearings Pre 98 2.9.9.6 Pleadings and Documents of Interveners Pre 99 2.9.10 Cost of Intervention Pre 10.0 2.9.10.1 Financial Assistance to Interveners Pre 100 2.9.10.2 Interveners' Witnesses Pre 102 i i
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| 2.9.11 Appeals by Interveners Pre 102 1 g 2.9.12 Intervention in Remanded Proceedings Pre 102 l DECEMBER 1988 TABLE OF CONTENTS 3
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| < O 2.10 Nonparty Participation - Limited Anoearance and Interested States Pre 102 2.10.1 Limited Appearances in NRC Adjudicatory ProcecJings Pre 102 2.10.1.1 Requirements for Limited Appearance Pre 102 2.10.1.2 Scope /f.i 't-t 4 'ns of 1.imited Appearances Pre 103 2.10.2 Particip .w oy 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 132 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 131 2.11.6 Appeals of Discovery Rulings Pre l's?
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| 3.0 HEARINGS H1 3.i 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 Authorit., 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 14 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 26 3.1.3 Quorum Requirements for Licensing Board Huaring H 30 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 DECEMBER 1988 TABLE OF CONTENTS 4
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| 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 39 !
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| 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 5.3.2.4 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 ;
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| 3.3.5 Location of Hearing (Reserved) H 42 3.3.5.1 Public Interest Requirements re Hearing Location (Reserved) H 43 3.3.5.2 Convenience of Litigants Affecting Hearing Location H 43 l
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| 3.3.6 Consolidation of Hearings and of Parties H 43 f3 3.3.7 In Camera Hearings H 44
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| k- ' 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 i 3.4.3 Issues Not Addressed by a Party H 51 3.4.4 Separate Hearings on Special Issues H 51 ,
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| 3.4.5 Construction Permit Extension Proceedings H 52 '
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| 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 ?
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| 3.5.3 Summary Disposition Rules H 64 3.5.4 Content of Summary Disposition Order H 67 ,
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| 3.5.5 Appeals from Rulings on Summary Disposition H 68 3.6 Attendance at and Participation in Hearings H 68 l /O 3.7 Burden and Means of Proof H 70 f (' 3.7.1 3.7.2 Duties of Applicant / Licensee Intervenor's Contentions - Burden and Means of Proof H 71 H 72
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| I DECEMBER 1988 TABLE OF CONTENTS 5
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| Specific Issues - Means of Proof H 74 S
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| 3.7.3 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 (SfE 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 (Dearce of Proof) H 79 3.8.1 Environmental Effects Under NEPA H 80 3.9 Stipulations H 80 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 3.12.1.1 NRC Staff es Witnesses H 89 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
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| 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 4.0 POST llEARING 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 i
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| 4.3 Initial Decisions PH 3 l 4.3.1 Reconsideration of Initial Decision PH 6 I '') 4.4 Reopenina Hearinas PH 7
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| 's 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 ;
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| 4.4.3 Reopening 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 1191 ions to Reconsider PH 20 4.6 Sua Sponte 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
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| : 5. How to Apppg1 App 4
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| ('~'g 5.4 Time for Fili.n $pp;;1; App 4
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| 'd SEPTEMBER 1988 TABLE OF CONTENTS 7
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| 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 ADDeal Board Action App 11 5.6.1 Role of Appeal Board App 11 5.6.2 Parties' Opportunity to be Heard on Appeal App 17 5.6.3 Standards for Reversir.g 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 5.6.7 Disqualification of Appeal Board Member App 22 5.7 Stavs Pendina Apocal App 22 5.7.1 Requirements for a Stay Pending Appeal App 25 5.7.2 Stays Pending Remand After Judicial Review App 32 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 l 5.8.3.2 Rulings Curtailing Discovery App 36 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 37 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 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 39 5.8.14 Director's Decision on Show Cause Petition App 39 5.8.15 Findings of Fact App 39 i
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| 5.9 Perfectina Appeals App 39 5.9.1 General Requirements for Appeals from Initial Decision App 40 i
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| l DECEMBER 1988 TABLE OF CONTENTS 8
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| N l9 p' 5.10: .
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| 5.10.1 Briefs ' on Anoeal -
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| Necessity of Brief .
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| . App 40 App.40 5.10.2 Time for Submittal of Brief App 41~
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| 5.10.2.1 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' B 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 ADDeals App 49 l- 5.12.I' Motions to Reconsider App 49
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| -5.12.2 Interlocutory Reviews App 50' 5.12.2.1 Directed Certification of Questions for Interlocutory '
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| Review _
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| 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 5.12.3 Application to Commission for a Stay After Appeal Board's Denial of Stay App 60
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| - 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 62 5.13.2 Briefs on Appeal .
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| App 62 5.13.3 Effect of Failure to File Proposed Findings App 62 5.13.4 Motions to Strike Appeals App 63
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| .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 66 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 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 68 kJ DECEMBER 1988 TABLE OF CONTENTS 9
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| 5.19 Procedure On Remand App 69 1 5.19.1 Jurisdiction of the Licensing Board on Remand App 69 l 5.19.2 Jurisdiction of the Appeal Board on Remand App 70 4 5.19.3 Stays Pending Remand App 70 i 5.19.4 Participation of Parties in Remand Proceedings App 71 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 6.1.2 Amendments to Research Reactor Licenses (Reserved) GM 1 6.1.3 Matters to be Considered in License Amendment Proceedings (Reserved) GM 1 6.1.3.1 Specific Matters Considered in License Amendment Proceedings GM 2 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 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 7 6.2 Amendments to License / Permit Applications 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 Procedures in Special Disqualification Hearings re l 6.4.2.2 i Attorney Conduct GM 18 l 6.4.2.3 Conflict of Interest GM 19 6.5 Communications Between Staff / Applicant /Other Parties /
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| Ad_iudicatory Bodies GM 20 1
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| 6.5.1 fx Parte Communications Rule GM 20 6.5.2 Telephone Conference Calls GM 21 6.5.3 Staff-Applicant Communications GM 22
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| ! DECEMBER 1988 TABLE OF CONTENTS 10
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| 11 6.5.3.1 Staff Review of Application' GM 22 6.5.3.2 Staff-Applicant Correspondence GM 23 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 Revitw Procedures GM 26 6.6.1 Scope of Early Site Review .GM 27 i
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| 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 30 6.9.1 Consideration of Generic Issues in Licensing Proceedings GM 30 6.9.2 Effect of Unresolved Generic Issues GM 32 6.9.2.1 Effect'of Unresolved Generic Issues'in Construction Permit Proceedings GM 32 6.9.2.2' Effect.of Unresolved Generic Issues in Operating License Proceedings GM 33 6.10 Inspection and Enforcement GM 33 6.10.1 Enforcement Actions GM 34
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| -6.10.1.1 Civil Penalties GM 36 6.10.1.2 Show Cause Proceedings (SEE 6.24) GM 37 6.11 Masters in NRC Proceedings GM 37 6.12 !Laterial False Statements in Applications GM 38 (SEE 1.5.2) 6.13 Materia'Is Licenses GM 38 6.14 Motions in NRC Proceedings GM 41 6.14.1 Form of Motion GM 41 6.14.2 Responses to Motions GM 42 6.14.2.1 Time for Filing Responses to Motions GM 42 6.14.3 Licensing Board Actions on Motions GM 42 6.15 NEPA Considerations GM 43 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 6.15.3.1 Effect of Failure to Comment on Draft Environmental Statement (DES) GM 54 DECEMBER 1988 TABLE OF CONTENTS 11
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| 6.15.3.2 Stays Pending Remand for Inadequate EIS GM 54 6.15.4 Alternatives GM 55 6.15.4.1 Obviously Superior Standard for Site Selection GM 57 4 6.15.4.2 Standards for Conducting Cost-Benefit Analysis l Related to Alternatives GM 59 GM 60 I 6.15.5 Need for Facility 6.15.6 Cost-Benefit Analysis Under NEPA GM 61 6.15.6.1 Consideration of Specific Costs Under NEPA GM 63 6.15.6.1.1 Cost of Withdrawing Farmland from Production GM 64 (SEE 3.7.3.5.1) 6.15.6.1.2 Socioeconomic Costs as Affected by Increased Employment and Taxes from Proposed Facility GM 64 6.15.7 Consideration of Class 9 Accidents in an Environmental Impact Statement GM 64 6.15.8 Power of NRC Under NEPA GM 66 6.15.8.1 Powers in General (Under NEPA) GM 67 6.15.8.2 Transmission Line Routing GM 69 6.15.8.3 Pre-LWA Activities /0ffsite Activities GM 69 6.15.8.4 Relationship to EPA with Regard to Cooling Systems GM 70 6.15.8.5 NRC Power Under NEPA with Regard to FWPCA GM 70 6.15.9 Spent Fuel Pool Proceedings GM 71 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 77 6.16.1.2 Staff Witnesses GM 77 6.16.1.3 Post Hearing Resolution of Outstanding Matters by the Staff GM 78 6.16.2 Status of Staff Regulatory Guides GM 80 6.16.3 Status of Staff Position and Working Papers GM 82 ,
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| 6.16.4 Status of Standard Review Plan GM 83 6.16.5 Conduct of NRC Employees (Reserved) GM 83 6.17 Orders of Licensina 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 85 6.19.1 Pre-LWA Activity GM 87 6.19.2 Limited Work Authorization GM 88 6.19.2.1 LWA Status Pending Remand Proceedings GM 89 6.20 Regulations GM 89 l 6.20.1 Compliance with Regulations GM 90 6.20.2 Commission Policy Statements GM 90 6.20.3 Regulatory Guides GM 90 6.20.4 Challenges to Regulations GM 92 6.20.5 Agency's Interpretation of its Own Regulations GM 95 DECEMBER 1988 TABLE OF CONIENTS 12
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| | |
| n
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| ( ) 13 a
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| 6.21 Rulemakino GM 96 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 97 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 .
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| 6.23.3.1 Protecting Information Where Disclosure is Sought in !'
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| 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 106 6.24.1.2 Burden of Proof for Show Cause Order GM 106 6.24.1.3 Issues in Show Cause Proceedings GM 106 6.24.2 Standards for Issuing Show Cause Order GM 107 6.24.3 Review of Decision on Request for Show Cause Order GM 107
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| /''' 6.24.4 Notice / Hearing on Show Cause to Licensee / Permittee GM 109
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| ( ,)g 6.24.5 Burden of Proof in Show Cause Proceedings GM 109 6.24.6 Consolidation of Petitioners in Show Cause Proceedings GM 110 6.24.7 Necessity of Hearing in Show Cause Proceedings GM 110 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 112 6.28 Termination of Facility Licenses GM 112 6.29 Procedures in Other Types of Hearings GM 112 6.29.1 Military or Foreign Affairs Functions GM 112 6.29.2 Export Licensing GM 113 i (SEE ALSO 3.4.6) 6.29.2.1 Jurisdiction of Commission re Export Licensing GM 113 6.29.2.2 Export License Criteria GM 113
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| (
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| Ns _/
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| DECEMBER 1988 TABLE OF CONTENTS 13
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| l C
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| . Dx
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| ;. . i
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| . 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 Ne.cessity 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 (SEE 3.3.5.2) 2.4 Issues for Hearina Pre 3-(SEE 3.4 to 3.4.6)
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| / 2.5 Notice of Hearina Pre 3
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| -( 2.5.1 Contents of Notice of Hearing Pre 4 b 2.5.2 Adequacy of Notice of Hearing Pre 4 2.5.3 Publication of Notice of Hearing in Federal Reaister Pre 4
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| -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 2.6.3 Prehearing Conference Order Pre 7 2.6.3.1 Effect of Prehearing Conference Order Pre 7 2.6.3.2 Objections to Prehearing Conference Order Pre 7 2.6.3.3 Appeal from Prehearing Conference Order Pre 8 2.7 Conference Calls Pre 8 1 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 O 2.9.3.1 Pleading Requirements Pre 16 V 2.9.3.2 2.9.3.3 Defects in Pleadings Time Limits / Late Petitions Pre 19 Pre 20 l
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| SEPTEMBER 1988 PREHEARINGS - TABLE OF CONTENTS i
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| L I
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| l ii TABLE OF CONTEPTS EREHEARING 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 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 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 ir. 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 75 2.9.5.6 Contentions Challenging Regulations Pre 85 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 (Resnrved) 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 Presen'.ations 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 DECEMBER 1988 PREHEARINGS - TABLE OF CONTENTS ii
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| A/ iii 4 ' TABLE'0F' CONTENTS PREHEARING MATTERS 2.9.9.5' Attendance at/ Participation in'Prehearing. ..
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| Conferences / Hearings Pre 98 2.9.9.6 Pleadings and Documents of Interveners Pre 99 2.9.10 Cost of. Intervention . .
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| 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 Nonparty Participation - Limited Appearance and-Interested States Pre 102 2.10.1 . Limited Appearances in NRC Adjudicatory Proceedings Pre 102 L
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| 2.10.1.1 Requirements for Limited Appearance Pre 102 2.10.1.2 Scope / Limitations of Limited Appearances. Pre 103
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| ,0 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
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| -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 132 2.11.5.1 Compelling Discovery from ACRS and ACRS Cmsultants 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 l.
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| O DECEMBER 1988 PREHEARINGS - TABLE OF CONTENTS iii
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| yp I
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| ! & 2.9.5.1 -
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| upon, and identify and append specific portions!of the docu-ments'..-Commonwealth Edison Co. (Braidwood Nuclear Power Sta .
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| tion,-Units 1 and 2), LBP-85-20, 21 NRC 1732, 1741 (1985),
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| 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).
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| When a broad contention.(though apparently admissible) has been admitted at an early stage _in the proceeding,
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| ' interveners should be required to provide greater specificity and to particularize bases for the contention when the information required to do so has been developed.
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| Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-84-28, 20 NRC 129, 131 (1984).
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| 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. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 16 NRC 986, 993 (1982).
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| Originality of framing contentions is not a pleading require-p)
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| ; ment. Commonwealth Edison Company (Byron Nuclear Power V Station, Units I and 2), LBP-80-30, 12 NRC 683, 689 (1980).
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| 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.
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| Commonwealth Edison Company-(Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 689-690 (1980).
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| 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 comoany (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 650 (1979). y 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.
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| Consumers Power Company (Palisades Nuclear Plant), LBP-79-20, 10 NRC ICF;, 116-117 (1979); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 860 (1987), aff'd in oart on other arounds,
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| (~]
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| g ALAB-869, 26 NRC 13 (1987), reconsid. denied on other J
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| 1 arounds, ALAB-876, 26 NRC 277 (1987). However, a party is bound by the literal terms of its own contention.
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| SEPTEMBER 1988 PREHEARING MATTERS 69
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| )
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| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 709 (1985); Phila- J delphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 208 (1986); Philadelphia Electric Co.
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| (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 Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 545 (1986);
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| Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant),
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| ALAB-856, 24 NRC 802, 816 (1986); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC 277, 284 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-6, 27 NRC 245, 254 (1988),
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| aff'd on other arounds, ALAB-892, 27 NRC 485 (1988).
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| In order to determine the scope of an otherwise admissible contention, a Board will consider the contention together with its stated bases to identify the precise issue which the int;. senor seeks to raise. Public Service Co. pf New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 & n.ll (1988).
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| 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 generalization regarding the intervenor's views of what applicable policies ought to be; it seeks to raise an issue 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 Hampshire (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); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1),
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| LBP-83-76, 18 NRC 1266, 1268-1269 (1983).
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| 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.
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| 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),
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| DECEMBER 1988 PREHEARING MATTERS 70
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| | |
| 1 og
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| ,b ij y j'' 9-2.9.5.3 ALAB-806, 21 NRC 1183,'1193 n.39-(1985)'; Philadelphia Electric m' _Co.'(Limerick Generating Station, Units 1,and 2),:ALAB-819, 2" 22 NRC 681, 694'(1985). jLee Vermont 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).
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| .In pleading for the admission of a contention, an intervenor 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,l457 (1987).
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| ' 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), LBF-84-1, 19 NRC 29, 34 .
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| (1984), citina, Peach Bottom, suora, 6 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 remanded on other arounds, CLI-86-8, 23 NRC 241 (1986).
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| s 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.
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| 2.9.5.3 Requirement of Contentions for Purposes of Admitting Petitioner as a Party 10 CFR & 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. Alabama Power Co. (Joseph M.
| |
| Farley Nuclear Plant, Units 1 & 2), ALAB-183, 7 AEC 210, 216 (1974); Duouesne 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. Mississiooi Power &
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| Licht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 426 (1973); Public Service Co. of New Hamoshire (Scabrook 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 (1984)- 1
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| \
| |
| Texas Utilities Electric Co. (Comanche Peak Steam Electric i Station, Unit 1), ALAB-868, 25 NRC 912, 933 (1987). The l Appeal Board has prohibited Licensing Boards from dismissing DECEMBER 1988 PREHEARING MATTERS 71 l
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| _.____________________________U
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| | |
| i 9 2.9.5.3 contentions on the merits at the pleading stage even if I demonstrably insubstantial. Washinoton Public Power Supply i
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| _S_yst_e_m (WPPSS Nuclear Project No.1), LBP-83-66,18 NRC 780, )
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| 789 (1983), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC .!
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| 542, 550 (1980).
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| For a petitioner who supports a license application, all i that need be initially asserted to fulfill the contention J requirement of 10 CFR 9 2.714 is that the application is meritorious and should be granted. After contentions opposing the license application have been set forth, i however, the Licensing Board is free to require interveners i supporting the application to take a position on those l contentions. Nuclear Enaineerina Co., Inc. (Sheffield, Ill, i Low-level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 n.5 (1978).
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| 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),
| |
| LBP-81-35, 14 NRC 682, 687 (1981).
| |
| Despite the fact that a petitioner need not plead evidence in ;
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| setting forth the basis for its contentions, some sort of minimal basis indicating the potential validity of the 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. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386-387, aff'd, ALAB-470, 7 NRC 473 (1978).
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| 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 board's acceptance of a contention for the limited purpose of determining whether to allow intervention under 10 CFR s 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 G 2.749 for ,
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| want of a genuine issue of material fact; or (2) in the l 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);
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| DECEMBER 1988 PREHEARING MATTERS 72
| |
| | |
| .1
| |
| [)
| |
| (/ 9 2.9.5.4' Washinaton Public Power Supply System (WPPSS Nuclear Project No. 1), LBP-83-66, 18 NRC 780, 789 (1983), citina, Allens Creek, supra, 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).
| |
| The basis with reasonable specificity standard requires that an intervenor include in a safety contention a statement of the' reason for his~ contention. This statement must either allege with particularity that an applicant is not' complying with a specified regulation, or allege with particularity the existence and detail of a substantial safety issue on which the regulations are 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 im-posed by the regulations will result in a rejection of the contention, the latter as an impermissible collateral attack on the Commission's rules. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106,.16 NRC 1649, 1656 (1982), citina, 10 CFR & 2.758.
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| Prior to entertaining ar.y suggestion that a contention not be o admitted, the proponent of the contention must be given some i chance to be heard in response. The petitioners cannot be required to have anticipated in the contentions themselves the possible arguuents 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).
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| Although the Rules of Practice do not explicitly provide for the filing of either objections to contentions or motions to dismiss them, each presiding 'ooard must fashion a fair procedure for dealing with such objections to contentions as are filed. The cardinal rule of fairness is that each side must be heard. Allens Creek, suora, 11 NRC at 524.
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| 2.9.5.4 Material Used in Support of Contentions While it may be true that the important document in evalua-ting 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). !
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| The specificity and basis requirements for a proposed
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| / contention under 10 CFR s 2.714(b) can be satisfied where the I contention is based upon allegations in a sworn complaint filed in < judicial action and the applicable passages therein are specifically identified. This holds notwithstanding the DECEMBER 1988 PREHEARING MATTERS 73
| |
| | |
| fact that the allegations are contested. Consumers Power Co.
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| (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1292-94 (1984).
| |
| An intervenor can establish a sufficient basis for a con-tention by referring to a source and drawing an assertion from that reference. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732, 1740 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
| |
| ALAB-590, 11 NRC 542, 548-49 (1980). However, where a contention is based on a factual underpinning in a document which has been essentially repudiated by the source of that document, e Licensing Board will dismiss the contention if the intervenor cannot offer another independent source of information on which to base the contention. Georaia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127, 136 (1987).
| |
| 2.9.5.5 Timeliness of Submission of Contentions Not later than 15 days before a special prehearing conference 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.
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| Additional time for filing the supplement may be granted based upon a balancing of the factors listed in 10 CFR s 2.714(a)(1). 10 CFR s 2.714(b); Consumers Power Co.
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| (Midland Plant, Units 1 and 2), LBP-82-63,16 NRC 571, 576 (1982), citine, 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, Units I 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 Hampshire (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.
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| Cincinnati Gas and Electric Company (William H. Zimmer Nuclear j Station), LBP-79-22, 10 NRC 213, 214 (1979); Philadelphia )
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| Electric Co. (Limerick Generating Station, Units 1 and 2), 1 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 @ 2.714(a)(1).
| |
| Cleveland Electric Illuminating Co. (Perry Nuclear Power !
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| Plant, Units 1 and 2), LBP-82-90,16 NRC 1359,1360 (1982); )
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| l DECEMBER 1988 PREHEARING MATTERS 74 1
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| _ _ _ _ _ ______________a
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| ,'J
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| [
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| l-l
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| -p 9 2.9.5.5 Houston Liahtina & Power Co. (South Texas Project, Units 1 and 2), LBP-82-91, 16 NRC 1364, 1366-67 (1982); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP 42, 18 NRC 112, 117 (1983). ;
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| The factors which must be balanced in determining.whether. i to admit a late filed contention pursuant to 10 CFR S 2.714(a)(1) are: (1) Good cause, if any, for failure to -l file on time; (2) The availability of other means whereby the petitioner's interest will be protected; (3) The extent to l which the petitioner's participation may reasonably be ;
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| expected to assist in developing a sound record; (4) The extent to which the petitioner's interest will be represented- i by existing parties; (5) The extent to which the petitioner's l participation will broaden the issues or delay the proceeding..
| |
| Lona Island Lichtina 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, Washinaton Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167 (1983); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
| |
| LBP-83-80, 18 HRC 1404, 1405 (1983); Kansas Gas and Electric j] Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1,19 NRC 29, 31 (1984), citina, Duke Power Co. (Catawba Nuclear Q Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983);
| |
| [ongmers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1291 (1984), citina, Catawba, suora, 17 NRC 1041; Houston Liahtina and Power Co. (South Texas Project, 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, 628 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986); Carolina Power and Lj.g1LCo. and North Carolina Eastern Municipal Tower 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 Hampshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 74 n.4 (1987); Public Service Co. of New Hampshire (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 Edison Co. (Braidwood 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).
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| The required balancing of factors is not obviated by the circumstances that the proffered contentions are those of a DECEMBER 1988 PREHEARING MATTERS 75
| |
| | |
| f 2.9.5.5 participant that has withdrawn from the proceeding. South Texas, suora,16 NRC at 1367, citina, Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 795-98 (1977).
| |
| 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 Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981); _C_onsumers 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, CL1-86-8, 23 NRC 241 (1986), citina, Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, j 4 NRC 98, 107 (1976).
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| When there are no other available means to protect a peti-tioner's interests, that factor and the factor of the extent to which other parties would protect that interest are i entitled to less weight than the other three factors enumer- ;
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| ated in 10 CFR s 2.714(a). Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 118 (1983); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-9, 21 NRC 524, 528 (1985), citina, i South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear !
| |
| Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981); Common-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).
| |
| 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 ,
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| 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 Authority (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, DECEMBER 1988 PREHEARING MATTERS 76
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| | |
| .P%
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| (v ) 5 2.9.5.5 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 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 c+5erwise. Florida Power and Liaht Company (Turkey Point Nr ,ar Generating Station, Units 3 and 4), LBP-79-21, 10 NRC J,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, 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
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| (' case, there is a sound foundation for allowing one entity to replace another, it can be taken into account in making the
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| " good cause" determination under 10 CFR 9 2.714(a). Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2),
| |
| ALAB-799, 21 NRC 360, 384 (1985), citina, River Bend, suora, 6 NRC at 796.
| |
| 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-82-53, 16 NRC 196, 200-01 (1982) (Up-to-date journals demonstrate good cause) and LBP-82-15, 15 NRC 555, 557 (1982).
| |
| i An intervenor cannot 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 E<'ison 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); Philadelphia 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 (O / of Practice on an untimely basis involves a consideration of all five 10 CFR s 2.714(a) factors and not just the reast ', i substantial or not as the case may be, why the petitioner did DECEMBER 1988 PREHEARING MAliERS 77
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| | |
| 9 2.9.5.5 !
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| 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).
| |
| The proponent of a late contention should affirmatively address the five factors and demonstrate that, on balance, the contention should be admitted. Consumers Power Co.
| |
| (Midland 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).
| |
| 9 Section 189a of the Atomic Energy Act of 1954, as amended
| |
| (" Atomic Energy Act" or "Act") does mt require the Commission to give controlling weight to the good cause factor in 10 CFR 9 2.714(a)(1)(i) in determining whether to admit a late-filed 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 when the factual predicate for that contention is available from other sources in a ;
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| 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 li'ensing-related document does not establish good cause for filing a contention late if information was publicly available early enough to provide the basis for the timely filing of that conte dion.
| |
| Duke Power Co. (Catawba Nuclear Station, Units 1 and f, 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 automatic admission for certain late-filed contentions.
| |
| 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.
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| Cf. BPI 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-filed contentions even where the licensing-related document, upon which the contentions are predicated, was not available within the time prescribed for filing timely ,
| |
| contentions. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 116 (1983);
| |
| Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
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| ALAB-813, 22 NRC 59, 82 (1985), citina, Catawba, CLI-83-19, DECEMBER 1988 PREHEARING MATTERS 78
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| | |
| 4 b?
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| A,/
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| 9 2.9.5.5 sumi,17 NRC at.'1045. .The Commission has held that any refiled contention would have to meet the five-factor test of 10 CFR 9 2.714(a)(1), if not timely filed' even .if the specifics could not have been known earlier because the documents on which they were based had not yet been issued.
| |
| Washinaton Public Power Supply System (WPPSS Nuclear Project .
| |
| ~No. 1), LBP-83-66, 18 NRC 780, 796 (1983), citina, Duke' Power
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| [L. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17..
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| NRC 1041-(1983).
| |
| Even where an applicant does'not comply with a standing order-to serve all- relevant papers on' the Board and parties, the
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| , admissibility of an intervenor's late-filed contention L - 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=
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| (1984),.overrulina in part, LBP-84-16, 19 NRC 857, 868 (1984).
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| Under 10 CFR s 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 g 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 Hampshire (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 172 n.4 (1983), citina, Duke Power Co. (Catawls Nuclear Station, Units.I and 2), CL1-83-19, 17 NRC-1041, 1045 (1983); Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1),
| |
| LBP-84-1, 19 NRC 29, 31 (1984).
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| 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 portions 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.
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| (Comanche Peak Steam Electric Station, Unit 1), LBP-86-36A, 24 NRC 575, 579 (1986), aff'd, ALAB-868, 25 NRC 912, 923 (1987).
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| A submitted document, while perhaps incomplete, may be enough to require contentions related to it to be filed promptly.
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| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 69 (1983).
| |
| The fact that a party may have delayed the filing of a O contention in the hopes of settling the issue without resorting to litigation in an adjudicatory proceeding does not constitute good cause for failure to file on time.
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| DECEMBER 1988 PREHEARING MATTERS 79
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| | |
| s 2.9.5.5 l Commonwealth Edison Co. (Braidwood Nuclear Power Station, ,
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| Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986).
| |
| i 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 Hampshire (Seabrook Station, Units 1 and 2),
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| CL1-83-23, 18 NRC 311, 312 (1983).
| |
| When an intervenor does not show good cause for the non-timely submission of contentions, it must make a compelling showing on the other four criteria of 10 CFR @ 2.714(a).
| |
| Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 663 (1983),
| |
| citina, Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982);
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| 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);
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| 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 CFx 9 ?.714(a)
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| (availability of other means of protecting late p titioners' interest) and the fourth factor (the extent to whicn 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 cannot 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 Electric Illuminating 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),
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| LBP-85-9, 21 NRC 524, 527-528 (1985); Commonwealth Edison Co.
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| (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-ll, 21 NRC 609, 629 (1985), rev'd and renanded on other arounds, CLI-86-8, 23 NRC 241 (1986). See Houston _liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 384 n.108 (1985); Washinaton Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1173-77 (1983); Carolina Power ajid Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant),
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| LBP-85-49, 22 NRC 899, 913-14 (1985).
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| DECEMBER 1988 PREHEARING MATTERS 80
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| | |
| I
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| ,4
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| ,q
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| ( 6 2.9.5.5 When considering the second factor of 10 CFR 2.714(a)(1),
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| 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 interests. Houston Liahtina and Power Co. (South. Texas Project, Units 1 and 2), LBP-85-9, 21 NRC 524, 528 (1985),
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| citina, Houston Liahtina and Power Co.'(Allens Creek Nuclear Generating Station, Unit 1),'ALAB-671, 15 NRC 508, 513 n.13 (1982).
| |
| Informal negotiations among parties, even under a Board's. .
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| 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, suora, 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
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| ;. sought to be raised, the relief requested, and the stage of the proceeding. There may well be no alternative to provid-ing a petitioner with an opportunity to participate in an adjudicatory hearing. However, in some circumstances, such as where the proposed contention deals with routinely filed post licensing reports by an applicant, a 10 CFR 2.206 petition may be sufficient to protect the petitioner's interests. Phila-delphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 21-22 (1986).
| |
| A contention based on a Draft Environmental Statement (DES) which contains no new information relevant to the contention, lacks good cause for late filing. Cleveland Electr_ic 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 intervenor should have a fair opportunity to respond to 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.
| |
| _' t 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 DECEMBER 1988 PREHEARING MATTERS 81 i
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| - _ _ _ _ _ _ _ - _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ i
| |
| | |
| entirely new, applicant will be permitted to respond. Due process requires an opportunity to comment. If interveners find that they must make new factual or legal arguments,.
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| they should clearly identify the new material and give an 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 .
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| 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, 66 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 and 2), CLI-86-8, 23 NRC 241, 246 (1986), citina, Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 4 2), ALAB-704, 16 NRC 1725, 1730 (1982); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 75 (1987). An intervenor need not present expert witnesses or indicate what testimony it plans to present if it 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 Eashinaton Public Power Supply 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 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, supra, 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 the performance of counsel in a different proceeding. Common-wealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246-47 (1986). Contra Texas DECEMBER 1988 PREHEARING MATTERS 82
| |
| | |
| i
| |
| . ,m 5 2.9.5.5
| |
| !(vJ Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 926-27 (1987).
| |
| 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), j The extent to which an intervenor may reasonably be expected to assist in developing a sound record is the most significant of the factors to be balanced with respect to late-filed contentions, at least in situations where litigation of the contention will not delay the proceeding. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-9, 21 NRC 524, 528 (1985).
| |
| Given a proceeding initially noticed in 1978 for which a Special Prehearing Conference was held early in 1979, any currently filed contentions would be untimely. That does not mean, after balancing the factors in 10 CFR S 2.714(a) that the untimeliness should bar admission of the contention.
| |
| Houston Liahtina and Power Co. (South Texas ."roject, Units 1 (O) 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 571, 577 (1982).
| |
| 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 2.714(a)(1) and the criteria, as established by case law, for reopening the record, Lona 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, la NRC 1712, 1715 (1982), despite the fact that nontimely conte ...ons 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), citina, D__ i ablo Canyon, supra,16 NRC at 1714-15.
| |
| l l In evaluating the extent to which admission of a late-filed contention would delay the proceeding, a Board must determine whether, by filing late, the intervenor has occasioned a 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
| |
| [
| |
| y 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 DECEMBER 1988 PREHEARING MATTERS 83 l
| |
| l l
| |
| | |
| s 2.9.5.5 H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 663 (1983). 7 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, I will be delayed. Philadelphia Electric Co. (Limerick !
| |
| Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 23 (1986). l The admission of any new contention may broaden and delay the 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 extent 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.
| |
| Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-ll, 21 NRC 609, 630-631 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986), i citina, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 889 (1981).
| |
| 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 Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-75A, 18 NRC 1260, 1262-1263 (1983).
| |
| 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, suora, 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 i contention. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1290 (1984).
| |
| DECEMBER 1988 PREHEARING MATTERS 84
| |
| | |
| n y j s 2.9.5.6 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.
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-456, 7 NRC 63, 65 (1978).
| |
| i Contentions challenging the validity of NRC regulations are inadmissible under the provisions of 10 CFR s 2.758.
| |
| Commonwealth Edison Comoany (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 Municipal 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).
| |
| O Although Commission regulations may permit a board in some situations to approve minor adjustments to Commission-(
| |
| C} prescribed standards, a board will reject as inadmissible a contention which seeks major changes to those standards. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| ALAB-832, 23 NRC 135, 147-48 (1986) (interveners sought major expansion of the emergency planning zone), rev'd in oart, CLI-87-12, 26 NRC 383, 395 (1987) (the Appeal Board incorrectly admitted contentions which involved more than just minor adjustments to the emergency planning zone). See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 507 n.48 (1986).
| |
| Under 10 CFR s 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 s 2.758 sets out those special circumstances which an intervenor must show to be applicable before a contention i
| |
| 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 p).
| |
| l t proceeding where an adjudicatory board determines that, as k- a result of special circumstances, a prima facie showing has been made that application of the rule in a particular 1
| |
| l DECEMBER 1988 PREHEARING MATTERS 85
| |
| | |
| L 5 2.9.5.7 way would not serve the purposes for which the rule was adopted and, accordingly, that a waiver should be authorized.
| |
| Detroit Edison Comoany (Enrico Fermi Atomic Power Plant, 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). j Interveners are authorized to '!1e a petition for a waiver of a rule, pursuant e 10 CFR s 2.758. It is not, however, ,
| |
| enough merely to allege the existence of special circum- I 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 Municipal Power Aaency (Shearon Harris Nuclear. Power Plant, Units 1 and 2), LBP-82-119A, 16 NRC 2069, 2073 (1982).
| |
| 2.9.5.7 Contentions Involsing Generic Issues 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).
| |
| See 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 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 inadaquate. Gulf States Utilities Co. (River Bend Station, Un n s 1 & 2), ALAB-444, 6 NRC 760, 773 (1977); lllinois Power Co. (Clinton Power Station, Unit i No. 1), LBP-82-103, 16 NRC 1603, 1608 (1982), citina, River I Bend, supra, 6 NRC at 773; Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1657 (1982); Duauesne Liaht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 418, 420 (1984), citina, River j Bend, suora, 6 NRC at 773, and Virainia Electric and Power Co. '
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| DECEMBER 1988 PREHEARING MATTERS 86 l
| |
| i
| |
| | |
| 1 I
| |
| < 1 5 2.9.5.7 J
| |
| (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245, 248 (1978).
| |
| Parties interested in litigating unresolved safety issues 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 satisfactorily.
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-729, 17 NRC 814, 889-(1983), aff'd on other arounds, CLI-84-ll, 20 NRC 1 (1984), citina, Gulf 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, suora, 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 Perry --
| |
| /~N whether Perry should have an automated standby liquid control system (SLCS) given the plant's specific characteristics -- is (v) far more specific than the issues in Doualas Point (i.e.,
| |
| i nuclear waste disposal issues); (3) The proposed rules recommend a variety of approaches on the SLCS issue requiring analysis of the plant's situation, so any efforts by the Board 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 l
| |
| Nuclear Plant, Units 1 and 2), LBP-82-11, 15 NRC 348, 350 i (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 Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 417-18 (1984), citina, 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 DECEMBER 1988 PREllEARING MATTERS 87 l
| |
| l
| |
| | |
| Commission is about to issue a proposed rule on the matter which was the subject of the contention. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
| |
| LBP-81-42, 14 NRC 842, 846-847 (1981).
| |
| While a Licensing Board should.not accept contentions that are or are about to become the subject of general rulemaking, where a contention has long since been admitted and is still 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 51, 14 NRC 896, 898 (1981), citina, Potomac Electric Power Co.
| |
| (Douglas Point Nuclear Generating Station, Units 1 and 2),
| |
| ALAB-218, 8 AEC 79 (1974).
| |
| 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 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-15, 15 NRC 555, 558-59 (1982); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-87-24, 26 NRC 159, 165 (1987), aff'd on other arounds, ALAB 880, 26 NRC 449, 456-57 n.7 (1987).
| |
| Contentions which constitute a general attack upon the methous used by the NRC Staff to insure compliance with regulations, without raising any issues specifically related to matters under construction, are not appropriate for resolution in a particular licensing proceeding. Commonwealth Edison Company (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 bave been filed.
| |
| Commonwealth Edison Comoany (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683 (1980). Note, however, that the absence of licensing documeats does not justify admission of contentions which do not meet the basis and specificity requirements of 10 CFR @ 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).
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| DECEMBER 1988 PREHEARING MATTERS 88
| |
| | |
| d'
| |
| , ih
| |
| :i-6 2.10.2 q U
| |
| must state with reasonable specificity.those. subject' areas, i other than its own contentions, in which it intends to participate. Seabrook, suora, 17 NRC at 407.
| |
| The presiding officer may require an interested governmental entity to indicate with reasonable specificity, in advance-of the hearina, the. subject matters on which'it desires to l participate. However, once the time for identification of.new 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 must-meet the. test for nontimely contentions. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit.1), LBP '30, 17 NRC 1132, 1140 (1983). See, e.a., Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 .
| |
| NRC 601, 617 (1982).
| |
| An interested State, once admitted to a proceeding, must observe the procedural requirements applicable to other participants. Every party, however, mayl 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
| |
| ! 4 Co. (South Texas Project, Units 1 and 2), LBP-83-26, 17 NRC
| |
| ( 945, 947 (1983).
| |
| Although an interested State must observe applicable proce-dural requirements, including time limits, the facts and 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 q not, although they may, take a position with respect-to an issue in order to participate in the resolution of. that issue.
| |
| 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 i'self has recognized such t
| |
| factors, and it has permitted States to participate even where l
| |
| 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), citing, Public Service Co. of New Hamoshire (Seabrook !
| |
| Station, Units 1 and 2), CLI-77-25, 6 NRC 535 (1977). Sqe 10 CFR s 2.715(c).
| |
| A county does not lose its right to participate as an in-terested governmental agency pursuant to 10 CFR s 2.715(c) because it has elected to participate as a full intervenor O on specified contentions. Lona 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.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-82-19,15 NRC 601, 617 (1982).
| |
| Any governmental participant seeking to advance a late l contention or issue, whether or not it be a participant i already in the case or one seeking to enter, must satisfy the
| |
| )
| |
| criteria for late-filed contentions as well as the criteria for reopening the record. Shoreham, sunra, 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-ll6, 16 NRC 1937, 1945 (1982).
| |
| Under 10 CFR s 2.740(b)(1), there can be no 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, reconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973). See also BPI
| |
| : v. AEC, 502 F.2d 424, 428-29 (D.C. Cir. 1974). Once an intervenor has been admitted, formal discovery is limited to matters in controversy which have been admitted. 10 CFR s 2.740(b)(1). Discovery on the subject matter of a contention in a licensing proceeding can be obtained only after the con-tention has been admitted to the proceeding. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263 (1982). .S_e_e Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), LBP-88-25, 28 NRC 394, 396 (1988) (the scope of a contention is deter-mined by the literal terms of the contention, coupled with its stated bases).
| |
| 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 @ 2.740(b)(1) against discovery beginning prior to the prehearing conference provided for in 10 CFR s 2.751a. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 577-584 (1978) .
| |
| DECEMBER 1988 PREHEARING MATTERS 108
| |
| | |
| 7,
| |
| -m
| |
| ( ) 9 2.11.1 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.
| |
| early in the course of the proceeding. Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, 369 (1981).
| |
| Under 10 CFR s 2.740(b)(1), discovery is ordinarily to be '
| |
| completed before the prehearing conference held pursuant to 10 '
| |
| CFR s 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 finds it. Nuclear Fuel Services. Inc2 (West Valley Reprocess-ing Plant), CLI-75-4,1 NRC 273 (1975).
| |
| Under 10 CFR s 2.740(b)(1), discovery is available after a p]s i
| |
| k 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 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 i deny the interveners the opportunity to conduct any discovery i concerning the newly admitted information where it was not shown that the requested discovery would delay the hearing.
| |
| Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit j 1), ALAB-832, 23 NRC 135, 160-61 (1986), rev'd in oart 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
| |
| /] 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 2.711. Texas DECEMBER 1988 PREHEARING MATTERS 109
| |
| | |
| 9 2.11.2 Utilities Generatina Co. (Comanche Peak Steam Electric-Station, Units 1 and 2), LBP-82-18, 15 NRC 598, 599 (1982).
| |
| 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 Corp. (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 Coro (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 524 (1973). Jhtt see 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 Sta-tion, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986) where the Commis-sion 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).
| |
| 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. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-79,18 NRC 1400,1401 j (1983), citina, Statement of Policy, suora, 13 NRC at 456. ;
| |
| Although a board may extend a discovery deadline upon a i showing of good cause, a substantial delay between a discovery deadline and the start of a hearing is not sufficient, without more, to reopen discovery. Perrv, supra, 18 NRC at 1401.
| |
| An intervenor who has agreed to an expedited discovery schedule during a prehearing conference is considered to have waived its objections to the schedule once the hearing has started. Philadelphia Flectric Co. (Limerick Generating Station, Units 1 and 2), CLI-85-15, 22 NRC 184, 185 (1985);
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 251 (1986).
| |
| 2.11.2 Discovery Rules In general, the discovery rules as between all parties except the Staff follow the fonn of the Federal Rules of Civil Procedure. The legal authorities and court deci- i sions pertaining to Rule 26 of the Federal Rules of Civil DECEMBER 1988 PREHEARING MATTERS 110
| |
| | |
| :,~
| |
| I 5 2.11'.2=
| |
| Procedure provide appropriate guidelines for interpreting NRC discovery rules. Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 _'
| |
| NRC 489 (1977); Public Service Co. of New Hampshire '(Seabrook-Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494-95 (1983),
| |
| citina, Toledo Edison Co. (Davis-Besse Nuclear Power Statien),
| |
| ALAB-300, 2 NRC 752, 760 (1975).
| |
| If there is no NRC rule that parallels a Federal Rule of Civil Procedure, the Board 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 Ncisions in a specific case where there is no parallel NRC role and where that guidance results in a fair determination o'7 an issue. Seabrook, suora, 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 (O.) . that purpose is not furthered by discovery of non-witness experts. Seabrook, supra, 17 NRC at 497; Commonwealth Edison Co. (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 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 enable 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 Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981); Pacific Gas & Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978); Publir. 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, s discovery of a nonparty is sought (other than by deposi-tion), the party must request the issuance of a subpoena h(/ under Section 2.720. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 690 (1979).
| |
| DECEMBER 3988 PREHEARING MATTERS 111
| |
| | |
| a 1
| |
| 1 f
| |
| 5 2.11.2 Only those State agencies which are parties in NRC proceedings j are required to respond tu requests under 10 CFR S 2.741 for I 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 s 2.720.' Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-1, 21 NRC 11, 21-22 (1985), citina, Stanislaus, suora, 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 has 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 9 2.759 states a policy encouraging settlement of contested proceedings and requires all parties and boards to try to 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 Power & Liaht Company (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-Il6,16 NRC 1937, 1943 (1982).
| |
| Lack of knowledge is always an adequate response to dis-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-ll6, 16 NRC 1937, 1945, 1945 n.3 (1982).
| |
| At least one Licensing Board has held that interveners inay develop and support their contentions by getting a first round of discovery against other parties before the inter-venors are required to provide responses to discovery MARCH 1988 PREHEARING MATTERS 112
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| n --. - _.____ ___ - __ _-___ . - _ _ - - _ _ - __ - - _ _ _ - - - - _ . _ - - _ _ - _ _ _ _
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| i J (
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| ]i[ -.
| |
| ~
| |
| V ls,2.11.3 12.11.3 Discovery Against the Staff Discovery against the. Staff-is on a different foo'ing than discovery in general. Consumers Power Co_,_ (Midland' Plant,.
| |
| 1 Units 1.and.2), ALAB-634, 13 NRC'96, 97-98 (1981); Pennsyl-vania Power-& Licht 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. 3 but,-instead, is governed by special provisions of the regulations. See, e.a.. 10 CFR s@ 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);
| |
| .9 2.720(h)(2)(ii) (interrogatories); 5 2.744, 2.790 (pro-duction of records anG' 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);10CFRs2.720(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. Id.~at 223, 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 upon a showing that the answers to be produced are necessary to a proper decision in the proceeding. Consumers Pcwer Company (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC-117, 119 (1980).
| |
| 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 cecision in the matter. Palisades, supra.
| |
| The NRC Staff is not required to compile a list 0T criticisms j of a proposal nor to formulate a position on them in response to an interrogatory. Consolidated Edison Co. of N.Y. (Indian i Point, Unit 2), LBP-82-Il3, 16 NRC 1907, 1908 (1982).
| |
| FEMA (Federal Emergency Management Agency) is acting as a l n consultant to the NRC in emergency planning matters; there- '
| |
| l fore, its employees are entitled to limitations on discovery afforded NRC consultants by 10 CFR 9 2.720(h)(2)(i). Lona
| |
| , Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| LBP-83-61, 18 NRC 700, 701 (1983).
| |
| MARCH 1988 PREHEARING MATTERS 129
| |
| | |
| @ 2.11.4 Provisions of the Memorandum of Understanding between FEMA and NRC qualify FEMA as an NRC consultant for purposes of 10 CFR
| |
| @ 2.720(h)(2)(i). Lgna Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-61, 18 NRC 700, 704 (1983).
| |
| 2.11.4 Responses to Discovery Requests It is an adequate response to any discovery request to state that the information or document requested is available in i public compilations and to provide sufficient information to locate the material requested. Metropolitan Edison Comeany (Three Mile Island Nuclear Station, Unit No.1), CLI-79=8,10 NRC 141, 147-148 (1979).
| |
| A party's response to an interrogatory is adequate if it is true and complete, regardless of whether the discovering party is satisfied with the response. However, where a party's response is inconsistent with the party's previous stateme a and assertions made to the Staff, a Board will grant a mou on to compel discovery. Vermont Yankee Nuclear Power Coro2 (Vermont Yankee Nuclear Power Station), LBP-88-25, 28 NRC 394, 397-99 (1988).
| |
| 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.
| |
| Commonwealth Ediscn Co. (Byron Station, Units 1 and 2), LBf'-
| |
| 81-52, 14 NRC 901, 903 (1981), citing, Pennsylvania Power and Liaht Co. and Alleaheny Electric Cooperative. Inc. (Susque-hanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317 (1980); Kerr-McGee Chemical Coro. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 81-82 (1986). An 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 Chicago, suora, 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 (1982), citina, 4A Moore's Federal Practice 33.25(1) at 33-129-130 (2d ed. 1981).
| |
| 10 CFR @ 2.740(b)(1) provides in part that:
| |
| Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter l involved in the proceeding ... including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the DECEMBER 1988 PREHEARING MATTERS 130
| |
| | |
| g v;
| |
| ~
| |
| 1 9 2.11.4 identity and location of persons having. knowledge of any. .l discoverable matter.
| |
| Answers'to interrogatories or. requests for documents which do '
| |
| '. ' not. comply with this provision are inadequate. Illinois Power
| |
| _C_o2 (Clinton Power Station, Unit 1), LBP-81-61, 14 NRC 1735,.
| |
| 1737-1738 (1981).
| |
| 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.
| |
| regoect to each item or category, either that inspection will be permitted or that the request is objectionable for specific reasons. Lono Island Lichtina-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 dis-covery 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 f
| |
| Utilities Electric Co. (Comanche Peak Steam Electric Station, 9 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 9 2.740(f)(1), failure to answer or reyond shall not be -
| |
| excused on the ground that the discovery sought is objection-able unless the person or party failing to answer or respond r has applied for a protective order pursuant to 10 CFR S l 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 shall be treated as a failure to answer or respond. Shoreham, suora, 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 litigation 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).
| |
| DECEMBER 1988 PREHEARING MATTERS 131
| |
| | |
| 9 2.11.5 2.11.5 Compelling Discovery Discovery can be compelled where the person against whom discovery is sought resists (See 10 CFR 9 2.740(f)). Sub-poenas may also issue pursuant to 10 CFR 9 2.720.
| |
| In the first instance, no one appears to be immune from an order compelling discovery. The ACRS, for example, has been ordered to provide materials which it declined to provide voluntarily. Virainia Electric Power Co. (North Anna Power 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 CFR 99 2.720(f), 2.740(c)), a greater showing of relevance and materiality appears to be necessary, and a party seeking discovery must show that:
| |
| (1) information sought is otherwise unavailable; and (2) he has minimized the burden to be placed on the nonparty.
| |
| Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973); Consumers Power Co. (Midland Plant, Units 1
| |
| & 2), ALAB-llB, 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. , Gul f States Utilities Co2 (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 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 Shionina Company, 335 F.2d 255 (4th Cir.
| |
| 1964) that agency discovery rules cannot be founde" 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 (1979).
| |
| The information sought by an administrative subpoena need only be " reasonably relevant" to the inquiry at hand.
| |
| Stanislaus, supra, 9 NRC at 695.
| |
| l Subpoenas must be issued in good faith, and pursuant to legit-imate agency investigation. Metropolitan Edison C h (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 DECEMBER 1988 PRDIEARING MATTERS 132
| |
| | |
| \
| |
| /O 9 2.11.5
| |
| \. ).
| |
| V from pursuing its general health and safety and civil enforcement responsibilities through issuance of subpoena.
| |
| 4 Section 161(c) of Atomic Energy Act, 42 U.S.C. s 2201(c).
| |
| Metropolitan Edison Company (Three Mile Island, Unit 1), CL1-80-22, 11 NRC 724, 725 (1980).
| |
| 10 CFR & 2.720(a) contemplates ex carte 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.
| |
| The matter of relevance can be entirely deferred until such 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 Electric 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 i provides that a Licensing Board may condition the denial of a-motion to quash or modify a subpoena duces tecum "on just and lmV} 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.
| |
| Pacific Gas and Electric Company (Stanislaus Nuclear Project, 1 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, suora, 9 NRC at 702.
| |
| Under 10 CFR @ 2.740 and s 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 Liahtina & Power Company (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, supra, 9 NRC at 195.
| |
| ,. discovering party 1,s 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 DECEMBER 1988 PREHEARING MATTERS 133
| |
| | |
| l 1
| |
| l l
| |
| 6 2.11.5.1 1
| |
| be understood in what way the interrogatories are claimed i to be objectionable. General objections are insufficient.
| |
| The burden of persuasion is on the objecting party to show that the interrogatory should not be answered, that the information called for is privileged, not relevant, or in some way not the proper subject of an interrogatory. Duke Power Co. (Catawba Nuclear Station, Units I and 2), LBP-82-Il6, 16 NRC 1937, 1944 (1982).
| |
| A motion to compel is required under the rules to set forth detailed bases for Board actiors, including arguments in support of the motion. 10 CFR 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 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),
| |
| i 2.11.5.1 Compelling Discovery From ACRS and ACRS Consultants Although 10 CFR s 2.720 does not explicitly cover consultants i 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 Company (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 @ 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 s 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); Kerr-McGee Chemical Coro. (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 1
| |
| DECEMBER 1988 PREHEARING MATTERS 134
| |
| | |
| g
| |
| : :t U 9 2.11.5.2.
| |
| k f~ -discovery requests, particularly where the intervenor has
| |
| ' failed to file' a' response to the applicant's motion for summary disposition..~ Carolina Power ani tiaht Co. and North Carolina Eastern Municipal.fower 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
| |
| '(Manuf.cturing 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).
| |
| Interveners were dismissed from a proceeding when the Board determined that: the interveners had engaged in a willful, -
| |
| bad faith strategy to obstruct discovery; the interveners' actions and omissions prejudiced the applicant and the integrity of the adjudicatory process; and'the imposition of
| |
| ~ lesser sanctions earlier in the proceeding had failed-to correct the interveners' actions. Lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC 7 311, 375-77 (1988).
| |
| A licensee's motion for sanctions against an intervenor for failure to comply with discovery requests poses a t .ree.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 allegations of certain problems as excuses for intervenor's failure to provide discovery did not justify reconsideration of the Board's imposition of sanctions for such failure, where such allegations were expressly dealt with in the Board's order compelling discovery. Nor can an intervenor challenge the tanctions 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 i and 2), LBP-82-5,15 NRC 209, 213-214 (1982). 1.g, e however, ALAB-678, 15 NRC 1400 (1982), reversing the Byron Licensing Board's dismissal of interveitor 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 O is to be reserved for the most severe instances of a par-ticipant's failure to meet its obligations.
| |
| a sanction, Licensing Boards are to consider the relative In selecting DECEMBER 1988 PREHEARING MATTERS 135
| |
| | |
| 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 Licensina Pro-geedinas, CL1-81-8, 13 NRC 452, 454 (1981); Duke Power Co.
| |
| (Catawba Nuclear Station, Units ' and 2), LBP-82-ll6,16 NRC 1937, 1947 (1982); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586, 590 (1983), citina, Wisconsin Electric Power Co (Point Beach Nuclear Plant, Unit 1), ALAB-719,17 NRC 387, 392 (1983);
| |
| Kerr-McGee Chemical Corp. (Kress Creek Decontamination), LBP-85-48, 22 NRC 843, 848-49 (1985); Kerr-McGee Chemical Coro.
| |
| (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 80-81 (1986); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC 311, 365-68 (1988).
| |
| The refusal of any party to make its witnesses available to participate in the orchearing examinations is an abandonment of its right to p nsent the subject witness and testimony. An intervenor's intentional waiver of both the right to cross-examine and the right to present witnesses amounts to an effective abandonment of their contention. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1935, 1936 (1982).
| |
| Although failure to comply with a Board order to respond to 1 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 Co. (Point Beach Nucleer 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 Co2 (Three Mile Island Nuclear Staticn, Unit 1), ALAB-772, 19 NRC 1193, 1245 (1984),
| |
| rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985).
| |
| See Northern 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 DECEMBER 1988 PREHEARING MATTERS 136 l l l
| |
| | |
| b 6 2.11.6 Station, Units 1 and 2), ALAB-613, 12 NRC 317, 338 (1980);
| |
| Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978); 10 CFR 9 2.731; 10 CFR Part 2, Appendix.A, @ V(d)(4); 5 U.S.C.
| |
| s 556.
| |
| 2.11.6 Appeals of Discovery Rulings 1 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-ll6, 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); Consumers 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 ip) special appearance before the Licensing Board and then appeal V to the Appeal Board. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-311, 3 NRC 85 (1976).
| |
| To establish reversible error from the curtailment of discovery procedures, a party must demonstrate that such curtailment maic 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 stronc showing that the impact of the discovery order upon that party or upon the public interest is indeed " unusual ." Ida Questions about the scope of discovery concern matters which are particularly within a trial board's competence and l
| |
| appellate review of such rulings is usually best conducted at the end of case. Pennsylvania Power & Licht Company (Susque-hanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC l ('dA)
| |
| L 317, 321 (1980).
| |
| DECEMBER 1988 PREHEARING MATTERS 137
| |
| | |
| l A i TABLE OF CONTENTS HEARINGS L 3.0 HEARINGS H1
| |
| '3.1 Licensino Board H1 3.1.1 General Role of Licensing Board H1 3.1.2 Powers / Duties of Licensing Board H3 i
| |
| 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 h.titions and Motions H 14 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 b 74 3.1.2.7 Cnnduct of Hearing by Licensing Board H 26 3.1.3 Quorum Requirements for Licensing' Board Hearing H 30 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 Disqualificat?on 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 Mo " H 36 3.2 Export Licensina Hearinas H 36 3.2.1 Scope of Export Licensing Hearings H 36 3.3 Hearing Schedulina Matters H 37 3.3.1 Scheduling of Hearings H 37 3.3.1.1 Public Interest Requirements re Hearing Schedule H 39 3.3.1.2 Convenience of Litigants re H9aring 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 Rearing 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 43 ,
| |
| 3.3.5.2 Convenience of Litigants Affecting Hearing Location H 43 l O
| |
| DECEMBER 1988 !! EARINGS - TABLE OF CONTENTS i j l
| |
| | |
| 11 l
| |
| TABLE OF CONTENTS HEARINGS 3.3.6 Consolidation of Hearings and of Parties H 43 3.3.7 J_rLCamera Hearings H 44 3.4 Issues for Hearina H 44 3.4.1 Intervenor's Contentions - Admissibility at Hearir.g H 47 3.4.2 Issues Not Raised by Parties H 49 3.4.3 Issues hot 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 Si (SEE ALSO 5.8.5) 3.5.1 Use of Summivy 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 l 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 Attendancp at and Participation in Hearinas H 68 3.7 Burden and Means of Proof H 70 3.7.1 Duties of Applicant /Licensce 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 0
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| SEPTEMBER 1988 HEARINGS - TABLE OF CONTENTS ii
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| - ______Y
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| s d
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| Il p
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| s 3.1.2.1 A Licensing Board which has' been author' >ed to consider only.
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| the question of whether fundamental l fla , were revealed by-an-exercise of an applicant's emergency p' a does.not also have-the authority to retain jurisdiction ! determine whether'the flaws have _been corrected. Lono'"" Islt ;J Liahtino Co. (Shoreham Nuclear Power Station, Unit ' J8-7, 27.NRC 289, 291 (1988).
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| A Licensing Board which has been granted jurisdiction to
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| .. preside over an operating license proceeding does not.have l, jurisdiction to consider issues which may be raised by potential applications for operating license amendments.
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| . Commonwealth Edison Co. (Braidwood Nuclear Power Station, .
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| Units 1 and 2), LBP-87-19, 25 NRC 950, 951 (1987), recon-sideration denied,.LBP-87-22, 26 NRC 41 (1987), . both vacated as moot, ALAB-874, 26 NRC 156 (1987).
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| 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 f}
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| Q should be pursued under the provisions of 10 CFR Part 2, subpart B (dealing with enforcement) instead. Detroit Edison-Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 386 (1978).
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| In a license amendment proceeding, a Licensing Board has only limited jurisdiction. The Board may 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 Co. (Point i Beach Nuclear Plant, Units 1 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). A Licensing Board only has jurisdiction over those matters which are within the scope of the amendment application. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station),
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| LBP-88-19, 28 NRC 145, 152-53 (1988).
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| The Commission's delegation of authority to a . Icensing Board to conduct any necessary proceedings pursuant to 10 CFR Part 2, Subpart G includes the authority to permit an applicant for '
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| 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.
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| O(,/ - However, since an applicant is a party to a proceeding, it should have the same rights as other parties to the proceed-ing, which inclgde the right to submit contentions, 10 CFR
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| , DECEMBER 1958 HEARINGS 7 1
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| 9 3.1.2.1 ,
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| 9 2.714, and the right to file late contentions under certain i conditions, 10 CFR 9 2.714(a). Lerr-McGee Chemical Corp.
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| (West Chicago Rare Earths Facility), LBP-84-42, 20 NRC 1296, 1305-1307 (1984).
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| 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.
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| (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 227, 229-31 (1980). Where a Licensing Board has jurisdic-tion to consider an issue, a party to a proceeding before that Board must first seek relief from the Board; if the Licensing Board is clearly withcut jurisdiction, there is no need to 1 present the matter to it for decision. f_aciHc Gas and Electric Co. (Diablo Lanyon Nuclear Power Plant, Units 1 and 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).
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| 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 soonte. 10 CFR s 2.760a; Consumers Power 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, &
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| 3), ALAB-319, 3 NRC 188, 190 (1976); Lona Island Liahtina Co.
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| (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1933 (1982), c4 ting, 10 CFR 9 2.760a; Union Electric Co.
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| (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205,1216 (1983);
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| Carolinc Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant),
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| ALAB-352, 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-Il7A, 16 NRC 1964, 1969-70 (1982);
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| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-830, 23 NRC 59, 60 & n.1 (1986), vacatina, LBP-86-3, 23 NRC 69 (1986).
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| 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.
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| (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 sponte. 10 CFR ss 2.104(c), 2.760a. Houston DECEMBER 1988 HEARINGS 8
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| 9 3.1.2.1 Liahtina and Power Co. (South Texas Project, Units 1 and 2),
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| ALAB-799, 21 NRC 360, 382 (1985).
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| The Licensing Board may assert jurisdiction over Part 10 material licensing issues raised in conjunction with an ongoing Part 50 licensing proceeding where the Part 70 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), aff'd, ALAB-765, 19 NRC 645, 650-51 (1984),
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| citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit Nos. I and 2), CLI-76-1, 3 NRC 73, 74 (1976).
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| A Licensing Board must carry out the instructions of the Appeal Board as long as those instructions are not counter-manded by the Commission. 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-653, 14 NRC 1140, 1150 (1981). See Public Service Co. of New Hampshire (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).
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| When the Appeal Board remands an issue to the Licensins Board, the pendency of an appeal to the Commission from lat order does not stay the effect of the order. Consumers Power.
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| C.02 (Big Rock Point Plant), LBP-83-62,18 NRC 708, 709 (1983).
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| If a Licensing Board believes that circumstances warrant reopening the record for receipt of additional evidence, it has discretion to take that course of action. Where the Board was faced with an insufficient record for summary disposition, and knew of a document which had not been introduced into evidence which would support summary disposition, it was not improper to request submission of the document in support of a motion for summary disposition. Cleveland Electric Illuminat-ina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 752 (1977).
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| 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 Commission or an Appeal Board can exercise its right to review the record. See 10 CFR
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| @@ 2.717(a), 2.760(a), 2.718(j); Metropolitan Edison Co.
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| (Three Mile Ie. land Nuclear Station, Unit 1), ALAB-699,16 NRC 1324, 1326, 1327 (1982); Cincinnati Gas and Electric Co. (Wm.
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| H. Zimmer Nuclear Power Station, Unit 1), LBP-83-12, 17 NRC j
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| r O 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 Electric Co. (William H. Zimmer DECEMBER 1988 HEARINGS 9
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| ( _-
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| 9 3.1.2.1 Nuclear Power Station, Unit 1), LBP-83-58,18 NRC 640, 646 (1983), citina, Three Mile Island, suora, 16 NRC at 1324.
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| Until an appeal to an initial decision has been filed, jurisdiction to rule on a motion to reopen lies with the Licensing Board. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755, 757 (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. Limerick, suora, 17 NRC at 757.
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| An adjudicatory board does not have jurisdiction to reopen a i 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 before it. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978).
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| Where a Licensing Board has retained jurisdiction following issuance of initial decision to conduct further proceedings, '
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| i it has jurisdiction to consider the admieribility of new contentions which are not related to any niatter previously litigated. Zimmer, supra, 17 NRC at 467.
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| Pursuant to s 2.714(a), a Licensing Board is not authorized to I admit conditionally, for any reason, a contention that falls l short of meeting specificity requirements. Duke Power Co. l (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).
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| Jurisdiction to rule on the admission of contentions, which were filed prior to final agency action and which have never 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).
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| 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 canriot suspend such a previously issued permit. Public Service Co. of New Hnoshire (Seabrook Ste ion, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1086 (1982),
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| citina, Consumers Power Co. (Midland Plant, Units 1 and 2), .
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| ALAB-674, 15 NRC 1101, 1102-03 (1982). j 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 DECEMBER 1988 HEARINGS 10
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| l / s 3.1.2.1.1 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),
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| LBP-83-36, 18 NRC 45, 48-49 (1983), citina, New Enaland Power Co'. (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).
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| If an intervenor cannot present his case, the proper method to institute a proceeding by which the NRC would conduct its own investigation is to request action under 10 CFR s 2.206. It is not the Board's function to assist interveners in preparing their cases and searching for their expert witnesses. South Carolina Electric and Gas 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 Liaht Co. and Nor_th t Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Poo r Plant), ALAB-843, 24 NRC 200, 215 (1986).
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| /7 i )
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| ! Licensing Boards have the authority to call witnesses of -
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| d their own, but the exercise of this discretion must be reasonable and like other Licensing Board rulings, is subject :
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| 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 testimony, 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).
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| Unless a Licensing Board takes action on a motion seeking I 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. Nucle g 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).
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| 3.1.2.1.1 Authority in Construction Permit Proceedings Distin-guished from Authority in Operating License Proceedings A Licensing Board's powers are not coextensive with that of the Commission, but are based solely on delegations expressed or necessarily implied in regulation or in other Commission p direction. A Licensing Board is not delegated authority to
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| ( and cannot order a hearing in the public interest under 10 CFR l N
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| s 2.104(a). The notice constituting a construction permit Licensing Board does not provide a basis for it to order a j DECEMBER 1988 HEARINGS 11
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| | |
| 9 3.1.2.1.1 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 to determine whether a hearing on the operating license application is needed in the public interest. Similarly, the general authority of a Licensing Board to condition permits or licenses provides no bads for it to initiate other adjudicatory proceedings. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18 (1900), reconsidered, ALAB-581, 11 NRC 233 (1980), l modified, Cli-80-12, 11 NRC 514 (1980).
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| 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 reapply for a construction permit at a specified new site, j The Board may only accept or reject the site proposed in the application or accept it 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 Hamos)) ire (Seabrook Station, Units 1 and 2), CL1-77-8, 5 NRC 503-(1977).
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| 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 Power Station, Units 1 & 2), ALAB-491, 8 NRC 366, 370-71 (1978).
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| In Houston Liahtina & Power Co. (South Texas Project, Units 1 i
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| & 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 j had terminated, lacks authority to grant a petition for untimely intervention unless specifically delegated this 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 l creation, reactivate and " inherit" the expired authority of DECEMBER 1988 HEARINGS 12
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| .1 l
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| (
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| )
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| v' S 3.1.2.1.1 the original Board. Since a Licensing Board has no-indepen-dent authority to initiate adjudicatory proceedings (Id. at 592), and since the requisite authority was neitL r "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 entertain a petition does not in itself confer the requisite authority to grant the petition. See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-389, 5 NRC 727 (1977). As a corollary, a Licensing Board :
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| cannot order a hearing in the absence of a pending construc- l tion permit or operating license proceeding, or some other proceeding which might arise upon the issuance of one of the i five notices or orders listed above. South Texas, supra, 5 NRC at 592; Florida Power & Liaht 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 s@ 2.107(a),
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| 2.721(d). Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967, 974 (1981).
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| A Licensing Board for an operating license proceeding does not have general jurisdiction over the already authorized ongoing
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| .O)
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| %' construction of the plant for which an operating license application is pending, and it cannot suspend the previously issued construction permit. An intervenor wishing to halt i such construction must file a petition under 10 CFR s 2.206 I with the appropriate Commission official. Consumers Power Co. ,
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| (Midland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101, 1103 i (1982). See Philad_elphia Electric Co, (Limerick Generating :
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| Station, Units 1 and 2), ALAB-785, 20 NRC 848, 870-871 (1984). I A Licensing Board is not authorized to order an applicant for an operating license to pursue options and alternatives to its )
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| 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).
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| An operating license proceeding is not intended to provide a forum for the reconsideration of matters originally within the l- scope of the construction permit proceeding. Philadelphia l Electric Co. (Limerick Generating Station, Units 1 and 2),
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| l ALAB-804, 21 NRC 587, 591 (1985).
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| In an operating license proceeding, the Commission's regula-tions limit an adjudicatory board's finding to the issues put
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| ,. s into contest by the parties. See 10 CFR @ 2.760a. A board is
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| / \ not required to make, and, under the regulations cannot prop-i () erly make, the ultimate finding comparable to that required in a construction permit proceeding. Pacific Gas and Electric DECEMBER 1988 HEARINGS 13 I
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| | |
| f-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),
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| 3.1.2.2 Scope of Authority to Rule on Petitions and Motions Merely by having been constituted, a Licensing Board has authority to entertain petitions (10 CFR s 2.714(a)). To ,
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| 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.
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| A 10 CFR Part 70 materials license is an " order" which under 10 CFR s 2.717(b) may be " modified" by a Licensing Board delegated authority to consider a 10 CFR Part 50 operating license. Cincinnati Gas and Electric Company (William H.
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| Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228 (1979).
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| A Licensing Board has jurisdiction to review an order of the Director of Nuclear Reactor Regulation which relates to a matter which could be admitted as a late-filed contention in a pending proceeding. The order does not have to be related to a currently admitted contention in the proceeding. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power ,
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| ~
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| Station), LBP-88-19, 28 NRC 145, 150-52 (1988), citina, 10 CFR s 2.717(b).
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| Licensing Boards lack authority to consider a motion for an Order to Show Cause pursuant to 10 CFR ss 2.202 and 2.206.
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| Poerto Rico Electric Power Authority (North Coast Nuclear a Plant, Unit 1), LBP-80-15, 11 NRC 765, 767 (1980).
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| Licensing Boards also lack authority to consider claims for damages. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), LBP-80-15,11 NRC 765, 767 (1980).
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| Jurisdiction to rule on a motion to reopen filed after an appeal has been taken, rests with the Appeal Board rather than the Licensing Board. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB 699, 16 NRC 1324, 1327 (1982).
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| 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 may or may not be composed of the same members as the first Board, is established to conduct the hearing. Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1
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| & 2), LBP-78-23, 8 NRC 71, 73 (1978); Commonwealth Edison Co.
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| (Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, 366 DECEMBER 1988 IIEARINGS 14
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| l
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| .; m 9 3.1.2.3 (v) (1981). Thus, an "ini+rvention" hearing board. established solely for the purpose of passing on petitions to intervene does not have the additional authority to proceed beyond tha' 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
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| " intervention" board canr.ot, for example, rule on motions for summary disposition. Stanislaus, 5 NRC at 1177-1178.
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| A Licensing Board may entertain a request for declaratory relief. Kansas Gas & Electric Co. (Wolf Creek Nuclear ;
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| 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 Commission itself may grant declaratory relief under the APA, 5 U.S.C. g 554(e), and delegate that power to presiding i officers. 5 U.S.C. @ 556(c)(9). Kansas Gas & Electric Co.
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| (Wolf Creek Nuclear Generating Station), CLI-77-1, 5 NRC 1 (1977). In this vein, Licensing Boards have the authority to issue declaratory orders to terminate a controversy or remove uncertainty. Washinaton Public Power Supply System (WPPSS Nuclear Projects 3 & 5), LBP-7'i-15, 5 NRC 643 (1977).
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| /~~S A Licensing Board established for an operating license pro-(V 1 ceeding has authority to consider materials license questions where matters regarding a materials license bear on issues in the operating license application. Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228 (1979).
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| If a Licensing Board determines that a participation agreement ,
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| prohibiting the flow of electricity in interstate commerce is '
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| inconsistent with the antitrust laws, the Board may impose license conditions despite a Federal court injunction pro-hibiting participant from violating the agreement. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2),
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| LBP-79-27, 10 NRC 563, 577 (1979).
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| The power to grant an exemption from the regulations has not been delegated to Licensing Boards and such Boards, therefore, lack the authority to grant exemptions. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & '
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| 3), LBP-77-35, 5 NRC 1290, 1291 (1977).
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| 3.1.2.3 Autnority of Licensing Board to Raise Sua Soonte Issues A Licensing Board has the power to raise sua sponte any !
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| significant environmental or safety issue in operating license hearings, although this power should be used sparingly
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| , in OL cases. 10 CFR s 2.760a; Consolidated Edison Co. of
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| ( N.Y., Inc. (Indian Point Nuclear Plant, Units 1, 2 & 3),
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| ALAB-319, 3 NRC 188, 190 (1976); Houston Liahtina and Power ,
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| Co. (South Texas Project, Units 1 and 2), LBP-85-8, 21 NRC DECEMBER 1988 HEARINGS 15
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| 1 5 3.1.2.3 ,
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| 516, 519 (1985). The Board's independent responsibilities under NEPA may require it to raise environmental issues not l raised by a party. Tennessee Vallev Authority (Hartsville '
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| Nuclear Plant, Units lA, 2A,1B & 28), ALAB-380, 5 NRC 572 (1977).
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| The Board has the prerogative, under the regulations, to consider raising serious issues sua sconte and the responsi-bility of reviewing materials filed before it to determine /
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| 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 than because it has been rejected on its merits. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-79, 16 NRC 1116, 1119 (1982).
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| Pursuant to 10 CFR @ 2.760a and the Commission's Memorandum dated June 30, 1981, a Licensing Board may raise a safety issue sua sponte 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).
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| The regulations limiting the Board's authority to raise sua sconte issues restrict its right to consider safety, environ- l mental or defense matters not raised by parties but do not I restrict its responsibility to oversee the fairness and l efficiency of proceedings and to raise important procedural questions on its own motion. Wisconsin Electric Power Co.
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| (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-24A,15 NRC 661, 664 (1982).
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| Because Boards may raise important safety and environmental issues sua sponte, they should review even untimely conten-tions to determine that they do not raise important issues that should be considered sua sponte. Consumers Power Co.
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| (Big Rock Point Plant), LBP-82-19B, 15 NRC 627, 631-32 (1982).
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| A Licensing Board's inherent power to shape the course of a proceeding should not be confused with its limited authority under 10 CFR @ 2.760a to shape the issues of the proceeding.
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| The latter is not a substitute for or a means to accomplish the former. Sua sponte 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).
| |
| DECEMBER 1988 IIEARINGS 16 J
| |
| | |
| 9 3.1.2.3 The incompleteness of Staff review of an issue is not in it-self sufficient to satisfy the standard for sua sconte review.
| |
| Houston Liahtino end Power Co. (South Texas Project, Units 1 and 2), LBP-85-8, 21 NRC 516, 519 (1985), citina, Comanche Pf_al, suora, 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 sponte review authority. South Texas, suora, 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 withhold-ing of a portion of the record from the public is an appro-priate exercise of Board authority and is not subject to the sua sponte limitation on Board authority. Wisconsin 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 Lug sponte issue, notification of the Commission is not required.
| |
| The Board's authority to consider substantive issues is
| |
| - limited by the sua spente rule, but the same limitation does not apply to its consideration of procedural matters, such as confidentiality issues arising under 10 CFR s 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 sponte review of those matters may be necessary. Wisconsin Electric Power Co. (Point Beach Nu-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. Point Beach, suora.
| |
| Information that will help the Board decide whether to raise a sua sconte 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).
| |
| 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 sponte 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 sponte rule is intended to preclude major, substantive inquiries not related to subject matter already before the Board, not minor, procedural matters. Wisconsin Ele.ctric Power Co. (Point DECEMBER 1988 HEARINGS 17
| |
| | |
| s 3.1.2.4 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 s 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). See Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), ALAB-611,12 NRC 301, 309 (1980). An adjudicatory board's decision to exercise its sua sponte 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 2.76ua, raise and decide, sua sponte, 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 @ 2.760a. The Commission may, however, on a case-by-case basis relieve the Boards of any obligation to pursue uncontested issues. Louisiana Power and Liaht Co.
| |
| (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 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 Licensing Boards have broad discretion regarding the appro-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 Company (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426 (1977).
| |
| A Licensing Board has authority under 10 CFR & 2.711(a) to extend or lessen the times provided in the Rules for taking any action. Houston Liahtina & Power Co. (Allens Creek DECEMBER 1988 HEARINGS 18
| |
| | |
| 4 E
| |
| '\u/ 9 3.1.2.4 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 9 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 expeditir.g a proceeding, however, should ,
| |
| not depart substantially from those set forth in the Rules l of Practice, and steps to expedite a case are appropriate only upon a party's good cause showing that expedition is i essential. Point Beach, suora, 16 NRC at 1263, citina, 10 l CFR 9 2.711. 1 Under extraordinary circumstances, it is appropriate for the i 77 Licensing Board to address questions to an applicant even l
| |
| ('' j' before formal action has been completed concerning admission of an intervenor into a license amendment proceeding. These i 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 i 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, 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 cf expedition. Wisconsin Electric Power Co. (Point Beach C)
| |
| ( Nuclear Plant, Units 1 and 2), LBP-81-46,14 NRC 862, 863 (1981).
| |
| DECEMBER 1988 HEARINGS 19 f
| |
| ! l
| |
| | |
| l l .
| |
| (
| |
| l 9 3.1.2.5 When quick action is required on a license amendment, it is l appropriate to interpret petitioner's safety concerns broadly ]
| |
| and to admit a single broad contention that will permit wide- i ranging discovery within the limited time without the need to j decide repeated motions for late filing of new contentions. ]
| |
| But the contentions must still relate to the license amendment {
| |
| which is requested. Petitioner may not challenge the safety of activities already permitted under the license. Wiscons_in 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- l fying it is relieved. However, issues already raised under the liberal policy are not retroactively affected by its rescission. Wisconsin Electric Power Co. (Point 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 petitioner filed a motion requesting permission to observe the emergency planning exercise scheduled to be held two days later for the Indian Point Facility. The Licensing Board ruled that, although 10 CFR s 2.741 directs that a party first ;
| |
| seek discovery of this sort from another party and that only I after a 30-day opportunity to respond can the party apply to the Board for relief, in this case, strict adherence to the rule would not be required. Where, as here, the exigencies of the case do not permit a 30-day respoase period, procedural delicacy will not be allowed to frustrate the purpose of the l hearing -- especially where no party is seriously disadvant-aged by expediting the action. Indian Point, 15 NRC at 518.
| |
| Furthermore where the issue of adequacy of emergency planning was clearly an issue to be fully investigated and the 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); Power Authority of the State of N.Y. (Indian Point, Unit No. 3), LBP-82-12B, 15 NRC 523, 525 (1982).
| |
| 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 Jlluminatina Co. (Perry Nuclear Power Plant, Units 1 & 2),
| |
| ALAB-298, 2 NRC 730, 737 (1975); Commonwealth Edison Co.
| |
| (Byron Nuclear Power Station, Units 1 and 2), LBP-84-2, 19 NRC DECEMBER 1988 HEARINGS 20
| |
| | |
| V ,
| |
| a t
| |
| [
| |
| l J4
| |
| , S 3.1.2.5
| |
| ):
| |
| 36, 210 (1984),'(rev'd on other arounds, ALAB-793, 20 NRC 1591,1627 [1984]), citina, Percy, ipp_Ca, 2 NRC at 737.
| |
| The rule against delegation applies even to issues a Licens ing Board raises on its own motion in an operating license
| |
| . proceeding. Byron, suora, 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 delega-tion applies, in particular, to quality assurance issuas.
| |
| Byron, supra,.19 NRC at 212, citina, Vermont Yankee Nuclear
| |
| ( Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, h 6 AEC 358 (1973). However, where there is nothing remaining b
| |
| to be adjudicated on a quality assurance issue, the adequacy of a 100^ percent reinspection of a contractor's work may be F delegated to the Staff to consider post-hearing. Byron, supra, 19 NRC at 216-17.
| |
| E On the other hand, with respect to emergency planning, the Licensing Board will accept predictive findings and post-hearing verification by Staff of the formulation and implemen-L tation of aspects of emergency plans. Byron, suora, 19 NRC at 212, 251-52, citina, Louisiana Power and Licht Co. (Wate" ford 6l - Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, L ; ,6 \. 1103-04 (1983).
| |
| ie IA In a construction permit proceeding, the Licensing Board has a o duty to assure that the NRC Staff's review was adequate even as to matters which are uncontested. Gulf States Utilities Co..(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 Public 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 s 2.718 or any other regulation, to direct the Staff in the !
| |
| performance 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 E 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 cf a pending proceeding. If closely related, a Staff order may not be issued, or is subject to a stay until resolution of the contested issue. If far removed from the subject matter cf a pending proceeding, a Staff order should not be con-A. sidered by the Board. Finally, there are matters which are properly the subject of independent Staff action, but which 4
| |
| V) bear enough relationship to the subject matter of a pending 1
| |
| i L
| |
| [ DECEMBER 1988 HEARINGS 21
| |
| )
| |
| 1 c
| |
| j
| |
| | |
| e - , , =
| |
| g i
| |
| _h .i' S 3.1.2.5 proceeding that review by the Licensing Board is also appropriate. Nuclear Fuel Services Inc. and N.Y. State Enerov 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 Nuclear Station), LBP-79-24, 10 NRC 226, 229-230 (1979).
| |
| Issues 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 Power Co. (Midland Plant, Units 1 and 2), ALAB-684,16 NRC 162, 165 (1982).
| |
| 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 a Statements (DES and FES). The studies and analyses which result in the'se 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 Servicg Co. (Palo Verde Nuclear Generating Station, Units 2 and 3),
| |
| LBP-83-36, 18 NRC 45, 48-49 (1983), citina, New Enaland Pown Co. (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).
| |
| The decision whether to approve a plan fer construction 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 Liaht;na and Power Co. (South Texas Project, Units 1 and 2), LBP-81-54, 14 NRC 918, 919-20 (1981).
| |
| : Adjudicatory boards do not possess the authority to direct the i 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.
| |
| DECEMBER 1988 IlEARINGS 22
| |
| | |
| :) , .
| |
| ' !, ?
| |
| 4 I
| |
| g 3.1.2.5 Adjudicatory boards concerned about the conduct of the Staff's-
| |
| ' functions should bring the matter to the Commission's atten--
| |
| tion 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, 3 and 4), CLI-80-12,'ll NRC 514,.516-17 (1980). Ordinarily, Licensing Boards should not decide whether a given action significantly affects the environment without the record support provided by the Staff's environmental review.
| |
| Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 330 (1981).
| |
| 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, ing 1ponte 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, 4 207 (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 both give the Staff a dominant role in assessing the radiological health and safety aspects of facilities involved'in licensing proceed-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. South '
| |
| Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1146, 1156 (1981),
| |
| 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 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 & 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 arounds, LBP-84-15, 19 NRC 837, 838 (1984).
| |
| After an order authorizing the issuance of a construction permit has become final agency action, and prior to the DECEMBER 1988 HEARINGS 23
| |
| | |
| s s 3.1.2.6 !
| |
| commencement of any adjudicatory proceeding on any oper-ating licen::e application, the exclusive regulatory power with regard to the facility lies with the Staff.
| |
| Houston Liahtina & Dower 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 bnn ssued and the order authorizing it has become final eg scy action, no further jurisdiction over the license lius with any adjudicatory board. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977); Duauesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 (1977); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 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 each its own independent conclusions.
| |
| Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-Il4,16 NRC 1909,1916 (1982).
| |
| Should a Staff review demonstrate the need for corrective action, the decision on the adequacy of such a corrective action is one that the Licensing Board niay 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 l Station, Unit 1), LBP-83-57, 18 NRC 445, 520 n.21 (1983).
| |
| l 3.1.2.6 Licensing Board's Relationship with Other Agencies I
| |
| The requirements of State law are for State bodies to de-termine, and are beyoM the jurisdiction of NRC adjudicatory bodies. Northern States Power Company (Tyrone Energy Park, Unit 1), ALAB-464, 7 NRC 372, 375 (1978), citina, Cleveland
| |
| ' Electric Illuminating Co. (Perry Nuclear Plant, Units 1 & 2),
| |
| ALAB-443, 6 NRC 741, 748 (1977). In this case, the Wisconsin Public Service Commission decided that some of the applicants l 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 financial and technical qualifications in light of the changes ,
| |
| in legal relationships of the co-applicants that resulted from 4 the State determination. See also Long Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 899 (1985).
| |
| I DECEMBER 1988 HEARINGS 24
| |
| | |
| _ [3 i ) 9 3.1.2.6 V
| |
| 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. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144, 148 (1987).
| |
| The Commission lacks the authority to disqualify a State official or an entire State agency based on an assertion that they have prejudged fundamental issues in a proceeding involving the transfer of jurisdiction to a State to regulate nuclear waste products. A party must pursue such due process claims under State law. State of Illinois (Section 274 Agreement), CLI-88-6, 28 NRC 75, 88 (1988).
| |
| A Licensing Board does not have jurisdiction in a construc-tion permit proceeding under the Atomic Energy Act to re-view the 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 (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 267-68 (1978).
| |
| f3 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 Commission is totally devoid of any jurisdiction. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-82-Il7A, 16 NRC 1964, 1991 (1982). Thus, a Licensing Board refused to review whether FEMA complied with its own agency regulations in perfortring 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 Commission does not consider itself legally bound by substantive regulations of the Council on Environmental Quality. Vermont Yankee Nuclear Power Corp. (Vermont 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 Commission will take cognizance of activities before other legal tribunals when the facts so warrant, it should not delay its licensing proceedings or withhold a license merely because some other legal tribunal might con-ceivably take future action which may later impact upon the t operation of a nuclear facility. Palo Verde, supra, 16 NRC
| |
| ( .
| |
| at 1991, citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CL1-78-14, 7 NRC 952, 958 n.5 (1978);
| |
| Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units DECEMBER 1988 HEARINGS 25
| |
| | |
| 5 3.1.2.7 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 Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
| |
| ALAB-443, 6 NRC 741, 748 (1977); Lona Island liahtina Co.
| |
| (Shoreham Nuc' lear 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 Coro2 (Kress Creek Decontamination), LBP-85-48, 22 NRC 843, 847 (1985).
| |
| 3.1.2.7 Conduct of llearing by Licensing Board 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. % 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 Commission 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. Lona Island Liahtina 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 Enerav Commission, 489 F.2d 1018, 1021 (3rd Cir. 1974).
| |
| The presiding officer has the duty to 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 9 2.718. While the Licensing Board has broad discretion 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. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units lA, 2A,18 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 99 2.718(e), 2.731. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,
| |
| ; 1245-46 (1984), rev'd in part on other arounds, CLI-85-2, 21 l 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 DECEMBER 1988 IIEARINGS 26
| |
| | |
| n
| |
| :[ n ,\'
| |
| ' S 3.1.2.7 '
| |
| 'd schedule or to dispense with it entirely. Limerick,'suora,- .
| |
| 22 NRC at 727, citing,- 10 CFR S 2.754(a).
| |
| Pursuant to 10 CFR 6 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 Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-82-73, 16 NRC 974, 979 (1982).
| |
| A Board may refer'n 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.
| |
| 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.
| |
| Louiriana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 583-584 (1985).
| |
| , 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 452, 454 (1981); Philadelphia Electric Co. (Limerick Gen-erating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 730 (1985); kneral Public Utilities Nuclear Corp. (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
| |
| & 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 as expeditiously as possible, consistent with the development of an adequate decisional record. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| i ALAB-788, 20 NRC 1102, 1152 (1984), citina, 10 CFR Part 2, i Appendix A, @ V. A Board may limit cross-examination, redirect a party's presentation of its case, restrict the
| |
| : l. introduction of reports and other material into evidence, and require the submittal of all or part of the evidence in .
| |
| DECEMBER 1988 HEARINGS 27
| |
| | |
| 1 4
| |
| 9 3.1.2.7 written form as long as the parties are not thereby pre- 1 judiced. Shoreham, suora, 20 NRC at 1151-1154, 1178. l 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.
| |
| Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), i 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. ,
| |
| (Indian Point, Unit 3), CLI-81-1, 13 NRC 1, 5 n.4 (1981),
| |
| clarified, CLI-81-23, 14 NRC 610, 611 (1981). l In order that a proper record is compiled on all matters ;
| |
| in controversy, as well as sua sponte issues raised by it, l a hearing board has the right and responsibility to tak ,
| |
| an active role in the examination of witnesses. Soutt Carolina El_ectric and Gas Co. (Virgil C. Summer Nuclear i Station, Unit 1). ALAB-642, 13 NRC 881, 893 (1981); Cleveland 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 of its direct participation in the hearing, the Board should avoid excessive involvement which could prejudice any of the parties. Perry, suora, 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 Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 741 (1985),
| |
| citina, South Carolina Electric a.nd 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, l such as pre-filed testimony outlines; round-table expert DECEMBER 1988 HEARINGS 28
| |
| | |
| } s 3.L 2.7 v
| |
| witness testimony; filing of proposed findings of fact and i conclusions of law; and scheduling to allow prompt issuance i 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 Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-Il5, 16 NRC 1923, 1928 (1982), citina, Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
| |
| .A Consistency with the Commission's Statement 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 Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-83-21, 17 NRC 593, 604 (1983).
| |
| Pursuant to 10 CFR s 2.718, Boards may issue a wide variety of procedural orders that are neither expressly authorized nor prohibited by the rules. They may permit interveners to contend that allegedly proprietary submissions should be released to the public. They may 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 ar.d bearings 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.
| |
| (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-2,15 NRC '
| |
| 48, 53 (1982).
| |
| The Commission has inherent supervisory power over the conduct of adjudicatory proceedings, including the authority to
| |
| /_ provide guidance on the admissibility of contentions before k Licensing Boards. Consolidated Edison Co. of New York (Indian
| |
| " Point, Unit 2); Power Authority of the State of New York (Indian Point, Unit 3), CL1-82-15, 16 NRC 27, 34 (1982),
| |
| DECEMBER 1988 HEARINGS 29
| |
| | |
| 9 3.1.3 citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 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 9 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 @ 2.721(d) and that inflexible guidelines for invoking the quorum rule are l 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).
| |
| 3.1.4 Disqualification of a Licensing Board Member 3.1.4.1 Motion to Disqualify Adjudicatory Board Member The rules governir.g 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 Cotter (Shoreham Nuclear Power Station, Unit 1), LBP-84-29A, 20 NRC 385, 386 (1984), citina, Houston Liahtina and Power Co.
| |
| (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 Duauesne Liaht Co. (Beaver Valley Power Station, Units 1 & 2), ALAB-172, 7 AEC 42 (1974). Based on that discussion and on cases dealing with related matters:
| |
| (1) all disqualification motions must be timely filed.
| |
| Commonwealth Edison Co. (LaSalle County Nuclear Power Station, Units 1 & 2), CL1-73-8, 6 AEC 169 (1973);
| |
| [oasumers Power Co. (Midland Plant, Units 1 & 2), ALAB-101, 6 AEC 60 (1973). In particular, any question of bias 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); Mthern Indiana Public Service Co.
| |
| (Bailly Gerarating Station, Nuclear-1), ALAB-224, 8 AEC 244, 247 (1974); Eublic Service Co. of New Hampshire ;
| |
| (Seabrook Station, Units 1 and 2), ALAB-749, 18 NRC 1195, 1198 (1983); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-751, 18 NRC 1313, DECEMBER 1988 HEARINGS 30
| |
| | |
| s 3.1.4.1 1315 (1983), reconsideration denied, ALAB-757, 18 NRC 1356 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 NRC 21, 32 (1984). 3 The posture of a proceeding may be considered in evaluating the timeliness of the filing of a motion for disqualification. Lona Island Liahtina Co. (Shoreham !
| |
| Nuclear Power Station, Unit 1), CL1-84-20, 20 NRC 1061, 1081-1082 (1984); Seabrook (ALAB-757), supra, 18 NRC at 1361. ,
| |
| (2) a disqualification motion must be accompanied by an affidavit establishing the basis for the charge, even if founded on matters of public record. Detroit Edison Co.
| |
| (Greenwood Energy Center), ALAB-225, 8 AEC 379 (1974);
| |
| Shoreham, suora, 20 NRC at 23, n.1; Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI 15, 22 NRC 184, 185 n.3 (1985).
| |
| (3) a disqualification motion, as with all other motions, must be served on all parties or their attorneys. 10 CFR ss 2.701(b), 2.730(a).
| |
| Disqualification of a Licensing Board member, either on his own motion or on motion of a party, is addressed in 10 CFR (o) s 2.704. Strict compliance with Section 2.704(c) is required.
| |
| v Houston Liahtina and Power Co. (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 Ch (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, suora, 13 NRC at 86; Nuclear Enaineerina Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 301 n.3 (1978); .
| |
| Public Service Co. of New Hampshire (Seabrook Station, Units 1 I 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 establishing the foundation for its charge as well as to adhere scrupulously to the affidavit 7"% requirement of 10 CFR 2.704(c). Dairvland Power Cooperative (La Crosse Boiling Water Reactor), ALAB-497, 8 NRC 312, 313
| |
| !V) (1978). See also Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-672, 15 NRC 677, 680 (1982).
| |
| DECEMBER 1988 HEARINGS 31
| |
| | |
| 9 3.1.4.2' Nevertheless, as to the affidavit requirement, the Appeal Board has held that the movant's failure to file a supporting 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 thereby obviating the need to reduce the likelihood of an irresponsible attack i on the Board member in question through use of an affidavit.
| |
| Nuclear Enaineerina Co., Inc. (Sheffield, Illinois Low-level Radioactive Waste Disposal Site), ALAB-d ?, 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.
| |
| Puaet Sound Power and liaht Comp _a_nl (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30, 32-33 (1979);
| |
| Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-748, 18 NRC 1184, 1187 (1983). Hnwever, a party requesting disqualification may attempt to establish by l 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 pattern of bias by a Board member toward a class of partici-pants of which it is a member. Seabrook, suora, 18 NRC at 1187-1188. See also Public Service Co. of New Hamoshire (SeabrLok Station, Units 1 and 2), ALAB-749, 18 NRC 1195, 1199 n.12 (1983). !
| |
| A challenged member of an Appeal Board must first be given an opportunity to disqualify himself, before the Commission will act. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-80-9, 11 NRC 436 (1980).
| |
| 3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member 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 member or the entire Board will be disqualified if bias is shown, the mere fact that a Board issued a lar y number of unfavorable or even erroneous rulings with resp. to a particular party is not evidence of bias against that party.
| |
| Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974);
| |
| Metropolitan Edison Co. (Three Mile 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 Gas and Electric Co. ,
| |
| (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 923 (1981).
| |
| DECEMBER 1988 HEARINGS 32
| |
| | |
| 4 ii 1
| |
| L r
| |
| s 3.1.4.2 Licensing' Boards are capable of fairly-judging a matter on a ful1~ 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
| |
| . to ' decide questions.before it with- suitable promptness ~ '
| |
| ? 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 (Skagit Nuclear Power Project, Units.1.and;2), ALAB-556, 10 .
| |
| t 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 member who partici-
| |
| . pated as an adjudicator in a.. construction permit proceeding for a facility is not required to disqualify himself from ;
| |
| O participating as an adjudicator in the operating-license pro- ,
| |
| i ]- ceeding for the same facility. Pacific Gas and E'ectric Co. '
| |
| .A (Diablo Canyon Nuclear Power Plant, Uaits 1. and 2), CLI-80-II,
| |
| -11 NRC 511-(1980).
| |
| An administrative trier of fact is subject to disqualifi-cation if:
| |
| (1) he has a direct, personal, substantial pecuniary interest in a result; (2) he has a personal bias against a participant; i
| |
| (3) he has served in a prosecutive or investigative role with 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 appearance of personal bias or prejudgment of factual issues.
| |
| Nuclear Enaineerina Co., Inc. (Sheffield, Illinois Low-Levcl Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 301 (1978); Lona Island Liahtina Co. (Shoreham Nuclear Power Sta-tion, Unit 1), ALAB-777, 20 NRC 21, 34 (1984), citina, Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20 (1984), auctino Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 65 (1973).
| |
| DECEMBER 1988 IlEARINGS 33
| |
| | |
| The fact that a member of an adjudicatory tribunal may have a crystallized point of view on questions of law or policy is not a basis for his or her disqualification. Shoreham, suora, 20 NRC at 34, citina, Midland, suora, 6 AEC at 66.
| |
| In its decision in Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982), the Commission made clear that Licensing Board members are governed by the same disqualification standards that apply to Federal judges. Hope Creek, suora, 19 NRC'at 20. The current statutory foundation for the disqualification stand-ards is found in 28 U.S.C., Sections 144 and 455. Section 144 requires a Federal judge to step aside if a party to the proceeding files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against that party or in favor of an adverse party. Hope Creek, lucra, 19 NRC at 20. Section 455(a) imposes an objective standard which is whether a reasonable person knowing all the circumstances would be led to the conclusion that the judge's impartiality might reasonably be questioned. Hope Creek, suora, 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 practice as a lawyer in the " matter in controversy." In accord !
| |
| with 28 U.S.C. 9 455(e), disqualification in such circum-stances mn not be waived. Fooe Creek, suora, 19 NRC at 21.
| |
| In applying the disqualification standards under 28 U.S.C.
| |
| s 455(b)(2), the Appeal Board concluded that, in the instance of an adjudicator versed in a scientific discipline rather .
| |
| than in the law, disquaPf'. cation is required if he previously I 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.
| |
| s 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, suora, 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. (Three Mile Island Nuclear Station, Unit 1), CLI-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-tive standard for recusal which requires a . judge to disqualify DECEMBER 1988 HEARINGS 34
| |
| | |
| []
| |
| \
| |
| /
| |
| 9 3.1.4.2 himself in any proceeding in which his impartiality might j reasonably be questioned. Preliminary assessments, made on 1 the record, during the course of an adjudicatory proceeding, i based solely upon application of the decision-maker's judgment l to material properly before him in the proceeding, do not com- t pel disqualification al a matter of law. Houston Liahtina and l Power Co. (South Texar 'croject, Units 1 and 2), CLI-82-9, 15 l NRC 1363, 1364-1365 (1982), citina, United States v. Grinnell l Coro., 384 U.S. 563, 583 (1966); Commonwealth Edison Co. (La Salle County Nuclear Power Station, Units 1 and 2), CLI-73-8, 6 AEC 169, 170 (1973); In Re International Business Machines Corporation, 618 F.2d 923, 929 (2d Cir.1980); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-748, 18 NRC 1184, 1187 (1983). See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-749, 18 NRC 1195, 1197 (1983); Public Service Co. of New Hamoshire (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, super-fluous, or inappropriate does not, without more, demonstrate o an extrajudicial bias. Matters are extrajudicial when they do not relate to a Board member's official duties in a case.
| |
| V) t Rulings, conduct, or remarks of a Board member in response to matters which arise in administrative proceedings are not extrajudicial. Seabrook (ALAB-749), suora, 18 NRC at 1200.
| |
| See also Seabrook (ALAB-748),.suora, 18 NRC at 1188.
| |
| A judge will not be disqualified on the basis of: occasional I use of strong language toward a party or in expressing views on matters arising from the proceeding; or actions which may be controversial or may provoke strong reactions by parties in the proceeding. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL1-85-5, 21 NRC 566, 569 (1985);
| |
| Limerick, suora, 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 extrajudicial bias since the contents of the letter were based i 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, suora, !
| |
| 21 NRC at 569-570. Such a letter does not violate Canon 3A(6) '
| |
| of the Code of Judicial Conduct which prohibits a judge from commenting publicly about a pending or impending proceeding in l 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, supra, 21 NRC at 571. Such a l(,D letter also does not violate Canon 2B of the Code of Judicial j ' Conduct which prohibits a judge from lending the prestige of his office to advance the private interests of others and from DECEMBER 1988 HEARINGS 35
| |
| | |
| i voluntarily testifying as a character witness. Canon 2B seeks to prevent a judge's testimony from having an undue i influence in a trial. Three Mile Island, suora, 21 NRC at j 570.
| |
| Membership in a national professional organization does not perforce disqualify a person from adjudicating a 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 Decision 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 Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 102 (1977).
| |
| 3.1.5 Resignation of a Licensing Board Member The Administrative Procedure Act requirement that the official who presides at the reception of evidence must make the recom-mendation or initial decision (5 U.S.C. s 554(d)) includes an exception for the circumstance in which that official becomes
| |
| " unavailable to the agency." When a Licensing Board member resigns from the Commission, he becomes " unavailable" (10 CFR G 2.704(d)). Public Service Company of New Hampshire (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. Id. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977) was affirmed generally and on the point cited herein in New Enoland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).
| |
| " Unavailability" of a Licensing Board member is dealt with generally in 10 CFR @ 2.704(d).
| |
| 3.2 Export Licensina 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 plants. 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 DECEMBER 1988 HEARINGS 36 4
| |
| | |
| i 1
| |
| [.- s 3.3.l~
| |
| health a'nd safety matters. Westinghouse Electric Coro.
| |
| (Export to South Korea),'CLI-80-30, 12 NRC 253, 260-61 (1980);
| |
| Genera 1' Electric t.o. (Exports to Taiwan), CLI-81-2,.13 NRC 67, 71 (1981).
| |
| 3.3 Hearina Schedulina Matters 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 'or more than one half of one day unless there is no reasonLie alternative to such scheduling. Commonwealth Edison Co.
| |
| (Zion Station, Units 1 & 2), ALAB-222, 8 AEC 229, 238 (1974). j Otherwise, an ASLB has general authority to regulate the course of a licensing proceeding and may schedule hearings on specific issues pending related developments on other issues.
| |
| Public Service Co. of- Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 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
| |
| '(( validity; (2) the advantage to the public interest and to the litigants in having early, though possibly, inconclusive, resolu-tion of certain issues; (3) the extent to which early hearings on certain issues 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 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 Hampshire (Seabrook Station, Units 1 & 2), ALAB-295, 2 NRC 668 (1975);
| |
| Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-293, 2 NRC 660 (1975).
| |
| Where the 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 publication schedule and then proceed to hear other matters or suspend proceedings until the Staff files the necessary documents. The Board, sua DECEMBER 1988 HEARINGS 37 i
| |
| | |
| sponte 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, r 207 (1978).
| |
| While a hearing is required on a construction permit appli- !
| |
| cation, operating license hearings can only be triggered by 1 petitions to intervene, or a Commission finding that such a hearing would be in the public interest. Carolina Power &
| |
| Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 3
| |
| & 4), ALAB-577, 11 NRC 18, 26 (1980), modified, CLI-80-12, 11 i NRC 514 (1980). Licensing Boards have no independent i authority to initiate adjudicatory proceedings without prior action of some other component of the Commission. 10 CFR D 2.lG4(a) does not provide authority to a Licensing Board considering a construction permit application to order a hearing on the yet to be filed operating license application.
| |
| Shearon Harris, supra, 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. 'fhaaron Harris Nuclear Power l Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 27-28 (1980);
| |
| Carolina Power & Liaht Co. (Shearon Harris Nuclear Power !
| |
| 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 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 Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245, 1260 (1982), puotina, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978); Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 95 (1986).
| |
| DECEMBER 1988 HEARINGS 38
| |
| | |
| i
| |
| {U' f 3.3.2,j_
| |
| : 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 with everyone's opportunity to be heard. Egtomac 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 O Although the convenience of litigants is entitled to recogni-
| |
| ! I tion, it cannot be dispositive on questions of scheduling.
| |
| Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separation Facility),'ALAB-296, 2 NRC 671, 684-685 (1975);
| |
| Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539 (1975).
| |
| Nevertheless, ASLB action in keeping to its schedule despite 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).
| |
| I 3.3.1.3 Adjourned Hearings (RESERVED) 3.3.2 Postponement of Hearings i
| |
| 3.3.2.1 Factors Considered in Hearing Postponement Where there is no immediate need for the license sought, the l ASLB decision as to whether to go forward with hearings or 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; DECEMBER 1988 HEARINGS 39 1
| |
| l.
| |
| | |
| 9 3.3.2.2 (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.
| |
| Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539 (1975).
| |
| The fact that a 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).
| |
| 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 immediately effect M license suspension order: 1) the length of the requested d ay; 2) the reasons for requesting the stay;
| |
| : 3) whether the licensee has persistently asserted its rights to a prompt hearing and to other procedural means to resolve the matter; and 4) the resulting prejudice to the licensee's interests if the stay is granted. Finlav Testina Labora-tories. Inc., LBP-88-1A, 27 NRC 19, 23-26 (1988), citina, 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 came time, an ASLB does have authority to adjust discovery and hearing schedules in response to such deferral.
| |
| Wisconsin Electric Power Co. (Koshkonong Nuclear Power Plant, Units 1 & 2), CLI-75-2, 1 NRC 39 (1975). Note also that the 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. !
| |
| 3.3.2.3 Sudden Absence of ASLB Hember at Hearing When there is a sudden absence of a technical member, con-sideration of hearing postponement must be made, and if time permits, the parties' views must be solicited before a postponement decision is rendered. 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 I the quorum rule, it agreed in principle with the Appeal DECEMBER 1988 HEARINGS 40 1
| |
| | |
| r
| |
| [ I 6 3.3.3 Board's view that all three ASLB members must participate to l the maximum extent possible in evidentiary hearings. As such, l it appears that the above guidance from ALAB-222 remains in effect.
| |
| 3.3.2.4 Time Extensions for Case Preparation Before Hearing 3 In view of the disparity between the Staff and applicant on i the one hand and interveners on the other with regard to the time available for review and case preparation, the Appeal Panel has been solicitous of interveners' desires for additional time for case preparation. See, e.o., 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 provide grounds for seeking a delay in proceedings.
| |
| Offshore 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 compl ain. 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 fm the Appeal Board have made it clear that the fact that a party
| |
| (
| |
| V) may possess fewer resources than others to devote to a proceeding does not relieve that party of its hearing obligations. See 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-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 i due to assigr. ment of Staff to Three Mile Island related 1 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 Ccmpany (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, j 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 DECEMBER 1988 HEARINGS 41
| |
| | |
| l F
| |
| s 3.3.4 requests for changes in scheduling will not be countenanced absent extraordinary unexpected circumstances. consolidated Edison Co. of N.Y. (Indian Point, Units 1, 2 & 3), ALAB-377, 5 NRC 430 (1977).
| |
| 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 (1975); 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. @ 555(c) and 10 CFR
| |
| @ 2.718, the Appeal Board is reluctant to examine a Licensing Board s scheduling decision except where there is a claim that 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, 188 (1978); Wisconsin Electric Power Co.
| |
| (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245, 1260 (1982); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 379 (1985);
| |
| Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-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 test-imony 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 Gererating 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, e.a., Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-468, 7 NRC 464, 468 (1978).
| |
| 3.3.5 Location of Hearing (RESERVED)
| |
| DECEMBER 1988 HEARINGS 42
| |
| | |
| p li ,
| |
| .S 3.3.6L
| |
| , 3.3.5.1 Public . Interest Requirements' re Hearing Location (RESERVED) 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 vici.nity 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 Electric Co.
| |
| (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 ,
| |
| @ 2.716. Consolidation of parties is covered generally by 10 CFR 6 2.715a.
| |
| b" A Board, on its own initiative, may consolidate parties who.
| |
| O 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.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 501 (1986), citina, 10 CFR s 2.715a and Statement of Policy on Conduct of Licensina Proceedings, CL1-81-8, 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 Generel Electric Co. (Pebble Springs Nuclear Plant, i Units 1 & 2), CLI-76-26, 4 NRC 608 (1976).
| |
| Under 10 CFR @ 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 Power 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 O 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, DECEMBER 1988 IIEARINGS 43
| |
| | |
| 4 I
| |
| s 3.3.7 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 Section 2.716. Id. at 1328. Where proceedings on two separate applications are consolidated, the Commission may explicitly reserve the right to act upon the applications at different timer. 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 Braunkohle Transport. 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 Oconce 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
| |
| & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 &
| |
| 2), ALAB-580, 11 NRC 227 (1980).
| |
| Where a party to a hearing objects to the disclosure of information and makes out a prima facie case that the material is proprietary in nature, it is proper for an adjudicatory board to issue a protective order and conduct an in camera session. If, upon consideration, the Board determined that the material us 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). Sfe also Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 469 (1974).
| |
| Because the party that seeks disclosure of allegedly proprie-tary information has the right to conduct cross-examination j.n camera, no prejudice results from an adjudicatory board's use of this procedure. Three Mile Island, Lup_ta, 21 NRC at 1215.
| |
| Following issuance 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 intervencr has difficulties due to failure to participate in in camera sessions, these cannot affect the Board's ruling on l the merits. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-55,14 NRC 1017,1025 (1981).
| |
| l 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 DECEMBER 1988 HEARINGS 44
| |
| | |
| O b 9 3.4 great respect. Ncrthern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977).
| |
| 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 Nuclear Plar.t), ALAB-534, 9 NRC 287,
| |
| , 289-90 n.6 (1979); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976). See also Northern Indiana Public Service Company (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 Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1269, 1286 (1983).
| |
| 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.
| |
| 7 .
| |
| There are no specific regulations which govern the filing of
| |
| [
| |
| contentions by an applicant. However, since an applicant is a party s to a proceeding, it should have the same rights as other parties to the proceeding, which include the right to submit contentions, 10 CFR s 2.714, and the right to file late contentions under certain conditions, 10 CFR s 2.714(a). Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-84-42, 20 NRC 1296, 1305-1307 (1984).
| |
| The issue of management capability to operate a facility is better determined at the time of the operating license 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 pa,' ties and articulate the reasons for its con-clusions on disputed issues, i e., take a hard look at the salient problems. Union Electric Cox (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 366 (1983), citina, Lublic Service Co. of New Hampshire (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 Enaland 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 & 2.104(a) on a need for a public hearing on
| |
| 'v 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 DECEMBER 1988 HEARINGS 45
| |
| | |
| S 3.4 Power & Licht Co. (Shearon Harris Nuclear Plant, Units 1, 2, 3 &
| |
| 4),ALAB-577, 11 NRC 18 (1980), modified, CL1-80-12,11 NRC 514 (1980).
| |
| 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 s releases must be litigable in individual licensing proceedings. .
| |
| Public Service Company of Oklahoma (Black Fox Station, Units 1 and !
| |
| 2), CLI-80-31, 12 NRC 264, 276 (1980). See also Consolidated Edison Co. of N.Y. (Indian Point, Unit No. 2); fower 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 TMI accident resulted in generation of hydrogen gas in excess of 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 s 50.44 would be required if it is determined that there is a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guidelines values. i Metropolitan Edison Company (Three Mile Island, Unit No.1), CLI-80-16, 11 NRC 674, 675 (1980). See also Illinois Power ro (Clinton l Power Station, Unit 1), LBP-82-103, 16 NRC 1603, 1609 (1982), citina, Three Mile Island, supra, 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). _See e Viroinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480, 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 1 and 2), ALAB-691, 16 NRC 897, 912-13 (1982), review declined, CLI-83-2, 17 NRC C9 (1983).
| |
| 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 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 f operating license stage with reference to conventional res _iudicata and collateral estoppel principles. Southern California Edison Co. 1 (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 354 (1983), citina, Southern California Edison Co. (San DECEMBER 1988 HEARINGS 46
| |
| )
| |
| )
| |
| 1
| |
| | |
| _=_ __ ._ - --___--_- ___ _ -
| |
| : i. '
| |
| k
| |
| [ 9 3.4.1 Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673,15 NRC 688, 696-97 (1982).
| |
| 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-stantially modify existing 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 decisien 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).
| |
| 10 CFR s 2.714 sets forth the criteria by which ASLBs are to judge the admissibility of contentions. Pursuant to that-regulatio'n, a contention 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 Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210, 216 (1974); Duauesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALA8-109, 6 AEC 243, 244 (1973); 1111nois 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 S 2.714(b); Pacific Gas and _
| |
| flectric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 802 n.73 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). A Licensing Board is not author-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 @ 2.714. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 467 (1982), vacated ;n part on other arounds, CLI-83-19, 17 NRC 1041 (1983).
| |
| General fears or criticisms of past practices of the nu-clear industry or the applicant are not appropriate bases for contentions unless there is reason to suspect the DECEMBER 1988 HEARINGS 47
| |
| | |
| l l
| |
| 1 specific procedures or safety-related tests used in a proposed demonstration program which requires a license 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 admitted. PhiladeloMa Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-84-16, 19 NRC 857, 870 (1984),
| |
| aff'd, ALAB-765, 19 NRC 645, 654 n.13 (1984); compare Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980).
| |
| When the Board requires an applicant and the Staff to file briefs concerning the admissibility of contentions, intervenor must give reasons or authority for rejecting arguments presented in the required briefs. In ruling on aamissibi,,ty, the Licensing Board should not reach the merits and should not require the introduction of underlying evidence, provided that the basis for the contention is identified with reasonable specificity. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-31-24, 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 for 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 flectric 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), citina, 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-i 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 i Island Nuclear Station. Unit 1), LBP-81-60, 14 NRC 1724, 1728 l (1981).
| |
| DECEMBER 1988 HEARINGS 48 1
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| | |
| I Y] 5 3.5.2.3 of the applicants" is not sufficient to make the document admissible into evidence pursuant to @ 2.749(b). An affi-davit must be submitted by a person to show he is compe-tent to testify to all matters discussed in the document.
| |
| .. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 755 (1977).
| |
| Although 10 CFR s 2.749(b) does not expressly require that the affidavit be based on a witness' personal knowledg3 of the material facts, a Board will require a witness to testify from personal knowledge in order tn 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 hears,y, 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, 418-419 (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,
| |
| . [mT 13 NRC 75, 78 (1981); Virainia Electric and Power Company V (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451 (1980); Pennsylvania Power and Liaht CL (Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8,13 NRC 335, 337 (1981); 10 CFR s 2.749(b); Carolina Power and Licht Co.
| |
| and North Carolina Eastern Municinal 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);
| |
| General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), LBP-88-23, 28 NRC 178, 182 (1988).
| |
| 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 AaenCv (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 dis-position, 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 Sta-e)
| |
| (V tion, Units 1 and 2), LBP-83-32A, 17 NRC 1170, 1175 (1983). !
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| DECEMBER 1988 IIEARINGS 63
| |
| | |
| 5 3.5.3 3.5.3 Summary 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 & 2.749. Al abama Power Co. (Joseph M. Farley 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, Lederal 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); _ Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12, 23 NRC 414, 417 (1986); ,
| |
| Houston Liahtina and Power Co. (South Texas Project, Units 1 I 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, 24 NRC 437, 445 (1986). Thus, if a movant fails to make the requisite showing, its motion may be denied even in the absence of any response by the proponent of a contention. La Crosse, suDra, 16 NRC at 519. .S_eg 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, 435 (1984), reconsid, den. on other arounds, LBP-84-15, 19 NRC l 837, 838 (1984). j Nonetheless, where a proponent of a contention fails to respond to a motion for summary disposition, it does so at its own risk; for, if a contention is to remain litigable, there must at least be presented to the Board a sufficient factual basis "to require reasonable minds to inquire further." La Crosse, supra, 16 NRC at 519-20, citina, Pennsylvania Power and Liaht 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 Corp., 321 U.S. 620, 627 (1954); Louisiana Power and l
| |
| Liaht Co. (Waterford Steam Electric Station, Unit 3),
| |
| I LBP-81-48, 14 NRC 877, 883 (1981). The record and affi-l davits supporting and opposing the motion must be viewed in the light most favorable to the party opposing the motion. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877 (1974) and SEPTEMBER 1988 HEARINGS 64
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| | |
| l i
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| l 1
| |
| e i ) S 4.4.1 4.4.1 Motions to Reopen Hearing 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. Vermont Yankee Nuclear Power Coro.
| |
| (Vermont Yankee Nuclear Power Station), 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 Licht 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 Co. (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 77 Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-84-3, 19 i
| |
| b) NRC 282, 283 (1984); Louisiana Power and Liaht Co. (Waterford 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 959, 962 (1987); Lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), CLI-88-3, 28 NRC 1, 3 (1988).
| |
| 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 9 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), CLI-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 Liaht 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 Liahtina and {
| |
| Power Co. (South Texas Project, Units 1 and 2), LBP-85-42,
| |
| [N)
| |
| \
| |
| 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, DECEMBER 1988 POST HEARING MATTERS 9
| |
| | |
| S 4.4.1 133 n.1 (1986); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 76 and 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 contained in 10 CFR 2.714(b) for admissible contentions. 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 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). The supporting information must be more than mere allegations; it must be tantamount to evidence which would matarially affect the previous decision.
| |
| Id.; 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 s 2.743(c) which defines )
| |
| admissible evidence as " relevant, material, and reliable." l Id. at 1366-67; Louisiana Power and Liaht 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, i.e., 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,19 NRC at 1366-67.
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| DECEMBER 1988 POST HEARING MATTERS 10
| |
| | |
| l p
| |
| 9 4.4.2 2), LBP-87-3, 25 NRC 71, 76 and n.6 (1987); Lona Island- 1 Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CL1-87-5, 25 NRC 884, 885-86 (1987), reconsid, denied, CL1-88-3, 28 NRC 1 (1988); Florida Power and Liaht Co. (Turkey Point
| |
| . Nuclear Generating 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 Hampshire (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, suora, 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 Company (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 Liahtino and Power Co.
| |
| m (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, I \ 672 (1986).
| |
| O 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 Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 16 NRC 1183, 1186 (1982), citina, Vermont Yankee Power Corp. (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, supra, 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 A and 2), LBP-85-42, 22 NRC 795, 799 (1985), citina, Pacific Gas l
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| ( and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 994-95 (1981).
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| DECEMBER 1988 POST HEARING MATTERS 17
| |
| | |
| 9 4.4.2 Repetition of arguments previously presented does not present a basis for reconsideration. Nuclear Enaineerina Companyt Inc._ (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 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). See Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 n.2 (1986).
| |
| Generalized complaints that an alleged ex parte communication to a board compromised and tainted the board's decisionmaking process are insufficient to support a motion to reopen.
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units l
| |
| 1 and 2), ALAB-840, 24 NRC 54, 61 (1986), vacated, CLI-86-18, 24 NRC 501 (1986) (the Appeal Board lacked jurisdiction to l
| |
| ' rule on the motion to reopen). l A movant should provide any available material to support a motion to reopen the record rather than rely on " bare l
| |
| allegations or simple submission of new contentions." 4 Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1324 (1983), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363 (1981);
| |
| Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 577 (1985); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit '
| |
| 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 with no apparent connection to the facility in question do not provide a legitimate basis on which to reopen a record.
| |
| Waterford, suora, 18 NRC at 1330; Louisiana Power and Liaht Co. (Waterford Steam Electric St u ion, Unit 3),
| |
| ALAB-786, 20 NRC 1087, 1089-1090 (19? ,
| |
| The proponent of a motion to reopen a hearing bears the responsibility for establishing that the standards for reopening are 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 board will review a motion to reopen on the basis of the available information. The board has no duty to search
| |
| (
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| POST HEARING MATTERS 18 JUNE 1988 i
| |
| | |
| .5 4.6 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 Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 hRC 1649,.1653 (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, 18 & 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 Valley Authority (Hartsville Plant, Units IA, 2A, 18, 28),
| |
| 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).
| |
| Motions to reconsider an order should be associated with requests for reevaluation in light of elaboration on or refinement of argu-ments previously advanced; they are not the occasion for' advancing an eritirely 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 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),
| |
| ALAD-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). Sgg Lona Island Liahtina Co. (Shore-ham Nuclear Power Station, Unit 1), CLI-88-3, 28 NRC 1, 2 (1988).
| |
| 4.6 Sua Soonte Review by the Aoyeal Board Sua soonte 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 exceptions have been filed. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1262 (1982),
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| DECEMBER 1988 POST HEARING MATTERS 21
| |
| ______=___ - _ _ _D
| |
| | |
| l
| |
| )
| |
| g 4.6 citina, Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-689, 16 NRC 887, 890 (1982); Georaia 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 sponte to make its own independent findings. Wisconsin 3
| |
| 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 sconte review of safety and environmental issues. See, e.a., Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 803 (1981), .gitina, Washinaton Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571, 10 NRC 687 (1979). See also Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station),
| |
| ALAB-79, 5 AEC 342 (1972); Detroit Edison Co. (Enrico Fermi Atomic Power Plant), ALAB-77, 5 AEC 315 (1972); Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-689, 16 NRC 887, 890 (1982); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 908 (1982); Louisiana Power and light Co. (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 sua sponte review of a proceeding that was dismissed when the parties settled the issues. Thus, an Appeal Board will decline to conduct a 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 2.785; Public Service Company 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 Board's function in a sua sponte 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 DECEMBER 1988 POST HEARING MATTERS 22
| |
| | |
| l-
| |
| @ 4.6 construed as either agreement or disagreement with it.- Midland, suora,.16 NRC at 908-909.
| |
| '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 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 Liaht Co. (Beaver Val hy 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. Washinaton 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, 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 g (1982), citina, Waterford, suora, 1 NRC at 48 n.6; Washinaton Public Power Supply System, supra,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. Troian, supra, ALAB-796, 21 NRC 4, 5 (1985).
| |
| Appeal Board review will be routinely undertaken of any final disposition of a licensing proceeding founded upon substantive determinations of significant safety or environmental issues.
| |
| Northern States Power Comoany (Monticello Nuclear Generating Plant, Unit 1), ALAB-611, 12 NRC 301, 303-304 (1980).
| |
| The Appeal Board, on sua soonte review, has the authority to reject or modify the findings of the Licensing Board. Monticello, suora, 12 NRC at 304. As for the standards for an Appeal Board's reversal of a Licensing Board's findings of fact, see Section 5.7.3.
| |
| A case, when properly before the Appeal Board on sua sponte 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 de-fense and security matters exist. Monticello, supra, 12 NRC at 309.
| |
| DECEMBER 1988 POST HEARING MATTERS 23
| |
| | |
| l l
| |
| 9 4.6 In the course of its review of an initial decision in a constructit.in permit proceeding, an Appeal Board is free to raise sua soonte issUcs j which were neither presented to nor considered by the Licensing )
| |
| Board. Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 707 (1979).
| |
| 3 If the Appeal Board determines sua sponte more information is needed, l it may take evidence to develop the record. Virainia Electric & i Power Co x (North Anna Nuclear Power Station, Units 1 & 2), ALAB-578, l 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.
| |
| (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 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' 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 Co. (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, supra,16 NRC at 452 n.5.
| |
| An immediate effectiveness review is not a substitute for the usual iua 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 sponte 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. Manufacturing License, supra, 16 NRC at 891.
| |
| O JUNE 1988 POST HEARING MATTERS 24
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| | |
| q
| |
| .1 e i V
| |
| TABLE OF CONTENTS APPEALS 5.0 APPEALS App 1 5.1 Rioht to ADDeal App 1 5.2 Who Can Appeal App 2 5.3 How to ADDeal 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 Appeal Board Action App 11 i
| |
| O 5.6.1 5.6.2 Role of Appeal Board' App'll 1 Parties' Opportunity to be Heard on Appeal App 17 U 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 l
| |
| 5.6.7 Disqualification of Appeal Board Member App 22
| |
| ; 5.7 Stavs Pendina ADDeal App 22 l 5.7.1 Requirements for a Stay Pending Appeal App 25 i
| |
| 5.7.2 Stays Pending Remand After Judicial Review App 32 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 36 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)
| |
| DECEMBER 1988 APPEALS - TABLE OF CONTENTS i i
| |
| | |
| r ii TABLE OF CONTENTS APPEALS 5.8.6 Procedural Irregularities App 37 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 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 39 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 40 5.10 Briefs on Appeal App 40 5.10.1 Necessity of Brief App 40 5.10.2 Time for Submittal of Brief App 41 5.10.2.1 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 A_ppeals 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 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 62 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 63 DECEMBER 1988 APPEALS - TABLE OF CONTENTS ii
| |
| | |
| r, j^g Y^
| |
| TABLE OF CONTENTS APPEALS.
| |
| 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 66 5.15.2 Stays Fending 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 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 68 5.19 Procedure On Remand App 69 5.19.1 Jurisdiction of the Licensing Board on Remand App 69 5.19.2 Jurisdiction of the Appeal Board on Remand App 70 5.19.3 Stays Pending Remand _
| |
| App 70 5.19.4 Participation of Parties in Remand Proceedings App 71 I
| |
| o i DECEMBER 1988 APPEALS - TABLE OF CONTENTS iii
| |
| | |
| g 5.6.1
| |
| ("{
| |
| 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 point adjudicated below, so long as the Board is able to render a decision on other grounds that effectively dispose of the oppeal. Duke Power Co. (William B. McGuire Nuclear Station, !
| |
| Units 1 and 2), ALAB-669, 15 NRC 453, 466 n.25 (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 limita-tions placed upon Federal courts by the " case or controversy" provision in Article III of the Constitution. Texas Utilities Generatina 002 (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 n an advisory opinion on issues which have been indisputably (d i mooted by events occurring subsequent to a Licensing Board's decision.- However, this course will not be embarked upon in the absence of the most compelling cause. Comanche Peak, 17 NRC at 93; Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 54 (1978); lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 284 (1988).
| |
| 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 l Co. (River Bend Station, Units 1 & 2), ALAB-383, 5 NRC 609 l 1
| |
| (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 for such review. See 10 CFR s 2.206(c), Detroit Edison Co.
| |
| (Q)
| |
| U (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-466, 7 NRC 457 (1978).
| |
| i DECEMBER 1988 APPEALS 13
| |
| _ _ - _ _ _ _ _ _ - _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ a
| |
| | |
| s 5.6.1 An Appeal Board lacks the authority to appoint specific Licensing Board members to preside over a particular proceed-ing. Such authority resides in the Commission or the Chairman of the Licensing Board Panel pursuant to 10 CFR ss 2.704 and 2.721. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-901, 28 NRC 302, 307 (1988).
| |
| 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 authority to take evidence -- partic- !
| |
| ularly in regard to limited matters as to which the record is incomplete. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 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 Hamoshire (Seabrook Sta-tion, Units 1 and 2), ALAB-891, 27 NRC 341, 351 (1988).
| |
| m It is well-settled that the Appeal Board is empowered to decline the acceptance of a Licensing Board referral. Duke 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); Washinoton 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 4 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 before it. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978);
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units 1 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); Loulsiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-792, 20 DECEMBER 1988 APPEALS 14 j l
| |
| ________a
| |
| | |
| n-9 5.6.1 (v[ NRC 1585, 1588 (1984), clarified, ALAB-797, 21 NRC 6 (1985);
| |
| 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 and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-782, 20 NRC 838, 841 n.9 (1984), citina, Virainia Electric and Power Co. (North Anna Nuclear Power Station, 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, ALAB-797, 21 NRC 6 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-821, 22 NRC 750, 752 -
| |
| (1985); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-901, 28 NRC 302, 306-07 (1988). See Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, 21 NRC 1707, 1714 (1985). It is unimpor-tant 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
| |
| /7 issues remain before the Appeal Board. Waterfor_d, supra, 20
| |
| ;].
| |
| NRC at 1589 n.4, citina, North Anna, suora, 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). See Lona Island liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| ALAB-901, 28 NRC 302, 305 (1988).
| |
| Appeal Board review will be routinely undertaken of any 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 Str'. ion), ALAB-655, 14 NRC 799, 803 (1981);
| |
| s Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-826, 22 NRC 893, 894 (1985).
| |
| [d
| |
| \
| |
| In the course of its review of an initial decision in a construction permit proceeding, an Appeal Board is free to DECEMBER 1988 APPEALS 15
| |
| | |
| p p
| |
| l s 5.6.1 sua sponte '.'aise issues which were neither presented to nor considered by the Licensing Board. Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2),
| |
| ALAB-551, 9 NRC 704, 707 (1979).
| |
| If conditions on a license are invalid, the Appeal Board may either remand the matter or prescribe a remedy itself. ,
| |
| Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 31 (1980),
| |
| reconsidered, ALAB-581, 11 NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 2 Once an Appeal Board has wholly terminated its review of an i 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 importance. Lono Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 390 n.4 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 284-85 (1988).
| |
| 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, suora, 17 NRC at 758. See aenerally 10 CFR s 2.762-(a); 10 CFR s 2.785. Thus, although an NRC Appeal Board has broader powers than most appellate bodies, neither the Board's sua sconte 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.
| |
| DECEMBER 1988 APPEALS 16
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| | |
| I
| |
| ; . 5 5.6.3
| |
| ~'
| |
| 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 Coro.
| |
| .(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).
| |
| 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. (Hidland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 780 n.27 (1977).
| |
| f- 5.6.3 Standards for Reversing Licensing Board on Findings of Fact-I
| |
| -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 s@ 2.740(b), 2.785; Public Service Co. of New Hampshire (Seabrook 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 review of district court findings. But the Appeal Board is not free to disregard the fact that Licensing Boards are the 1 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 1 Boards are reluctant to make essentially basic environmental I findings which did not-receive Staff consideration in the FES or adequate attention at the Licensing Board hearing. Texas Utilities Generatina Co. (Comanche 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 O the Licensing Board's findings, those findings deserve the Appeal Board's respect. Toledo Edison Co. (Davis-Besse DECEMBER 1988 APPEALS 17 l
| |
| l
| |
| _ _ _ _ . ______1 _ _ _ _ _ _ __._.___.._____.________________._______1______. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _____
| |
| | |
| i L l 9 5.6.3 Oi !
| |
| . 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 l
| |
| 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), i citina, Toledo Edison Co. (Davis-Besse Nuclear Power Station, l '
| |
| Units 1, 2 and 3), ALAB-385, 5 NRC 621, 629 (1977).
| |
| 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. Niacara Mohawk Power Corp. (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 Municipal Power Aaency (Shearon Harris Nuclear Power Plant),
| |
| ALAB-837, 23 NRC 525, 531 (1986); Carolina Power and Liaht Co.
| |
| and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 537 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 811 (1986); General Public Utilities Nuclear Coro (Three Mile Island Nuclear Station, Unit 1), ALAB-881, 26 NRC 465, 473 (1987). The same standard applies even if the Appeal Board is conducting a review sua sponte. Sacramento Municipal Utility 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 l A, 2A, IB & 28), 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 t Co. (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 j decisions. Catawba, supra, 4 NRC at 402-405. 1 I
| |
| i DECEMBER 1988 APPEALS 18
| |
| | |
| q l
| |
| )
| |
| c[ y{ 9 5.6.3 1
| |
| k Notwithstanding its authority to do'so, the Appeal Board will normally be reluctant to search the record to deter-mine whether it-included sufficien_t 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 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 O 135, 159-160 (1986), rev'd in part on other arounds, CLI-87-12, 26 NRC 383 (1987). A Licensing Board's determination
| |
| ('j 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. Lona 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 Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, 193 (1973). Where a Licensing Board 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, suora.
| |
| 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 Sucoly System (WPPSS Nuclear Projects b
| |
| d No. 3 & 5), ALAB-485, 7 NRC 986, 980 (1978).
| |
| Adjudicatory decisions must be supported by evidence properly in the record. Pacific Gas & Electric Co. (Diablo Canyon DECEMBER 1988 APPEALS 19
| |
| | |
| a 9 5.6.4 Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 NRC 227, 230 i (1980). An Appeal Board will affirm a Licensing Board finding ')
| |
| which was based on testimony later withdrawn from the racord, if there is sufficient evidence elsewhere in the record to support the finding. Cleveland Electric Illuminating Co. -
| |
| (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC ,
| |
| 64, 84 (1986). i Where a Licensing Board imposes an incorrect remedy, an ,
| |
| Appeal Board will search for a proper one. Carolina Power j
| |
| & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 1 3 & 4), ALAB-581, 11 NRC 233, 234-235 (1980), modified, CLI- i 80-12, 11 NRC 514 (1980).
| |
| 5.6.4 Grounds for Immediate Suspension of Construction Permit by Appeal Board 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 Decisions of Appeal Boards which are immediately effective are presumptively valid. Unless and until such a decision is DECEMBER 1988 APPEALS 20 4
| |
| | |
| Y
| |
| [V stayed or overturned by the appropriate authority, it is
| |
| & 5.6.6.1 entitled to full recognition. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-423, 6 NRC 115, 117 (1977).
| |
| ' Decisions and orders of an Appeal Board are immediately j 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 Company (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-597, 11 NRC 870, 873-874 (1980).
| |
| 5.6.6 Effect of Appeal Board Affirmance as Precedent 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.
| |
| 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
| |
| /O the Licensing Board's decision cannot be read as necessarily (j 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.
| |
| Id.; 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 Nuclear Generating Station, Units 1, 2 and 3), ALAB-713, 17 NRC 83, 85 (1983), citina, 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); _Q_onsumers 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 f
| |
| 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 DECEMBER 1988 APPEALS 21
| |
| | |
| I i .
| |
| 9 5.6.7 Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-592, 11 NRC 744, 745 (1980).
| |
| 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 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 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 9 2.764(f)(2), upon receipt of a Licensing Board's decision authorizing the issuance of a full power operating ..ense, the Commission will determine, sua sponte, 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 correct 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.
| |
| 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 effectiveness review, does not preclude a party from petitioning under 10 CFR @ 2.786 for appellate review of any Appeal Board decisions affirming the Licensing Board's conclusions. Shearon Harris, suora, 25 NRC at 4 n.3, citina, 10 CFR s 2.764(9).
| |
| Before a full power license can be issued for a plant, the Commis-sion must complete its immediate effectiveness review of the pertinent Licensing Board decision pursuant to 10 CFR 9 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).
| |
| DECEMBER 1988 APPEALS 22
| |
| | |
| f} 9 5.7 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 parte may be granted. See, e.a., Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-192, 7 j 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 Hampshire (Seabrook Station, Units 1 & 2), ALAB-356, 4 NRC 525 (1976). The party seeking a stay bears the burden 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 NRC 772, 785 (1977).
| |
| General assertions, in conclusionary terms, of alleged harmful effects are insufficient to demonstrate entitlement to a stay.
| |
| United States Department of Enerav. Pro.iect Management 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).
| |
| p)
| |
| (
| |
| v 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 cotion 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 Hampshire (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 i 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 9 2.788 on stays pending review have made it clear that a i request for stay may be filed with either the Licensing Board or the Appeal Board. 10 CFR 9 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 i 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. .S_ee Public Service Co. !
| |
| of New Hampshire (Seabrook Station, Units 1 & 2), CL1-77-8, 5 NRC 503 I (1977).
| |
| In addition to stays pending appeals to the Appeal Board, the Appeal Board itself will entertain requests for stays pending judicial I
| |
| DECEMBER 1988 APPEALS 23 }
| |
| | |
| L
| |
| @ 5.7 review of its own decision. The Viroinia Petroleum Jobbers criteria (these criteria have been incorporated into the regulations -- see 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 @ 2.786(b).
| |
| Metropolitan Edison Company (Three Mile Island Nuclear Station, 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, 7 NRC 1, 30 n.44 (1978). Under 10 CFR @ 2.788(a), a party may move for a stay of an Appeal Board decision pending Commission review if 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.
| |
| at 5 NRC 1427-1428.
| |
| Despite its subordinate status, an Appeal Board is empowered by 10 CFR @ 2.764(f)(2) to grant a 10 CFR @ 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 @ 2.764 determination do not coincide with the criteria set out for the Appeal Board in the Virainia Petroleum Jobbers case. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-647, 14 NRC 27, 30 n.6 (1981).
| |
| See 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 auo 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, Uni +.s 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 6 2.764. When doing so, the Board will look at two factors in addition to those laid out in 10 CFR @ 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 @ 2.764(e)(2)(ii). United States Department of Enerav. Pro.iect Manaaement Corp., Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-721,17 NRC 539, 543 n.6 (1983).
| |
| DECEMBER 1988 APPEALS 24
| |
| | |
| k /
| |
| s 5.7.1 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 Generatina 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 decisien _will be granted only upon a showing similar to that required for a preliminary injunction in the Federal courts.
| |
| Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-81, 5 AEC 348 (1972). The test to be applied for such a showing is that laid down in Virainia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). Public Service Co. of N
| |
| J w Hampshire (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); North-ern 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),
| |
| (3 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 Liaht 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 Co. (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 ,CA (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 i NRC 1443, 1446 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1632 n.7 (1984); Philadelphia Electric Co. (Limerick 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). j O
| |
| ALAB-820, 22 NRC 743, 746 n.5 (1985); Texas Utilities Elec- l
| |
| ) tric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 121-122 (1986); Philadelphia Electric Co.
| |
| (Limerick Generating Station, Unit 1), ALAB-835, 23 NRC 267, DECEMBER 1988 APPEALS 25
| |
| | |
| 270 (1986); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-86-12, 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 Hamoshire (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 prevail upon the merits of its appeal; (2) has the movant shown that, without the requested relief, it will be irreparably injured; (3) would the issuance of a stay substantially harm other parties interested in the proceeding; (4) where does the public interest lie?
| |
| The Viroinia Petroleum Jobbers criteria for granting a stay have been incorporated into the regulations at 10 CFR s 2.788(e). Southern California Edison Co. (San Onofre 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 Virainia 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 f acility),
| |
| ALAB-296, 2 NRC 671 (1975), and stays pending judicial review, Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974). In 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 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 b 190), CL1-81-4, 13 NRC 298 (1981); Uranium Mill DECEMBER 1988 APPEALS 26
| |
| | |
| i L
| |
| . (J O) 9.5.7.1 l Licensina 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 i
| |
| the NRC Staff. In the case of a request for postponement of i an amendment, the Commission has stated that a bare claim of-an absolute right to a prior hearing on the issuance of a license amendment does not constitute a substantial' showing of irreparable injury as required by 10 CFR 9 2.788(e). Nuclear i Fuel Services. Inc. and New York State Enerav Research and i Development Authority (Western New York Nuclear Service (
| |
| Center), CLI-81-29, 14 NRC 940 (1981).
| |
| The Commission has recently issued revised regulations concerning stays of the effectiveness of license amendments.
| |
| 10 CFR 9 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 appeal or an indirect appeal to the l 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 p Staff's "no significant hazards consideration" determination.
| |
| Pacific Gas and Flectric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-86-12, 24 NRC 1, 4-5 (1986), rev'd and remanded on other arounds, San Luis Obispo Mothers for Peace v. NEC, 799 F.2d 1268 (9th Cir. 1986).
| |
| Note that 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 proceedings on remand are less stringent than those of the Virainia Petroleum Jobbers test. Public Service Co._of New Hampshire (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 ruled 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 9 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 Viroinia 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 DECEMBER 1988 APPEALS 27
| |
| | |
| .9 5.7.1
| |
| ! .(1978). In such circumstances, the negative impact of the
| |
| ( court's decision places a heavy burden of proof on those l opposing the stay. Id. at 7 NRC 160.
| |
| Where the four factors set forth in 10 CFR s 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 determine how strong his showing on the other factors must be in order to justify the relief he seeks. Publi.c 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 111uminatina 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 showing of the possibility of legal error by a Licensing Board 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 (1.973). The establishment of grounds for appeal is not itself sufficient to justify a stay. Rather, there must be a strong probability that no 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 Management Corp.,
| |
| Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-721,17 NRC 539, 543 (1983); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984); Philadelphia Electric Co. (Lime-ick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1446 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1633 n.12 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-808, 21 NRC 1595, 1599 (1985); Cleveland Electric Illuminating col. (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 Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 436 (1987).
| |
| See, e.a., Fublic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC 715, 716 (1977);
| |
| R_ochester Gas and Electric Corp. (Sterling Power Project, DECEMBER 1988 APPEALS 28
| |
| | |
| t 7m lV \
| |
| D 5.7.1 Nuclear Unit 1), ALAB-507, 8 NRC 551, 556 (1978); lona Island iahtina Co. (Jamesport Nuclear Power Station, Units 1 and
| |
| '),
| |
| . ALAB-431, 7 NRC 807, 808 (1978). See also Westinghouse Electric Corp. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980). It is the established rule that a party is not ordinarily granted a stay of an administration order without an appropriate showing of irreparable injury. 1, quoting Permian Basin Area Rate Cases, 390 U.S. 747, 773 (1968). A party must reasonably demonstrate, and not merely allege, irreparable harm. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191, 196 (1985), citing, Duke Power Co. (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, suora. See Public Service Co. of New Hampshire (Seabrook i n Station, Units 1 and 2), ALAB-865, 25 NRC 430, 437-38 (1987).
| |
| ! Similarly, mere litigation expense, even substantial and G') unrecoupable cost, does not constitute irreparable injury.
| |
| Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 779 (1977); Allied-General Nuclear Services (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).
| |
| Similarly, the expense of an administrative proceeding is usually not considered irreparable injury. Uranium Mill Licensino Requirements (10 CFR Parts 30, 40, 70, and 150),
| |
| CLI-81-9, 13 NRC 460, 465 (1981), citina, Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938) and Hornblower and Weeks-Hemphill Noves, Inc, v. Csaky, 427 F. Supp. 814 (S.D.N.Y. 1977).
| |
| The " level or degree of possibility of success" on the merits l
| |
| 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 Company of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-437, 6 NRC 630, 632 (1977), citina, 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 D)
| |
| (
| |
| '% obtain a stay. Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, 1186-1189 (1977);
| |
| DECEMBER 1988 APPEALS 29
| |
| _______________-__-____-_-__D
| |
| | |
| )
| |
| 1 e l I
| |
| '{
| |
| s 5.7.1 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n 8 (1985)
| |
| (a virtuaT 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 Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 439 (1987).
| |
| To make a strong showing of likelihood of success on the merits, the movant must do more than list the possible grounds 4 I
| |
| 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 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 (1984).
| |
| On a motion for a stay, the burden of persuasion on the four factors of Virainia Petroleum Jobbers (now set forth in 10 CFR s 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 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 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. Jamesport, suora.
| |
| The f act 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 DECEMBER 1988 APPEALS 30
| |
| | |
| O D'5.7.1
| |
| +
| |
| b 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); Ehiladelohia 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 insufficient to constitute irreparable injury. .Public Service Co.'of New Hampshire.(Seabrook Station, Units 1 and 2), ALAB-865,;25 NRC 430, 437'(1987).
| |
| 1 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 I and 2), CL1-85-14, 22 NRC 177, 180 (1985).
| |
| 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 that a stay application which does not even attempt to make a, r showing of irreparable injury is virtually assured of failure.
| |
| (w If the movant for a stay fails to meet its burden on the first two 10 CFR s 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 t 1), ALAB-810, 21 NRC 1616, 1620 (1985), citina, Catawba, suora, 20 NRC at 1635. See Cleveland Electric Illuminating Co. (Perry Nuclear Power. Plant, Units 1 and 2), ALAB-820, 22 NRC 743,'746 n.8 (1985).
| |
| 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). See,.e_ & , Lcuisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-85-3, 21 NRC 471, 477 (1985); Florida Power and Liaht Com (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 9 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 DECEMBER 1988 APPEALS 31
| |
| _ _ -______________-___a
| |
| | |
| l l
| |
| l Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 68-69 (1979).
| |
| 5.7.2 Stays Pending Remand After Judicial Review 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 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. Id. at 7 NRC 160.
| |
| 5.8 Specific Appealable Matters 5.8.1 Rulings on Intervention NRC regulations contain a special provision (10 CFR 9 2.714a) allowing an interlocutory appeal from a Licensing Board order on a petition for leave to intervene. Under 10 CFR
| |
| @ 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 c 'y into the case. Houston Lichtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-586, 11 NRC 472, 473 (1980); Puaet Sound Power and Licht Co. (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 '
| |
| Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 18 n.6 (1986). Only the petitioner denied leave to intervene can take an appeal of such an order. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17, 22 n.7 (1983), citina, 10 CFR s 2.714a(b). Petitioner may not appeal an 9rder 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); 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 [A (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 l DECEMBER 1988 APPEALS 32
| |
| | |
| ,i (f
| |
| 's 5.8.1 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 s 2.714a. River Bend,_ supra, 3 NRC-607.
| |
| V A-State participating as-an " interested State" under 10 CFR.9 2.715(c) may appeal an order barring such participa-tion, but it may not seek review of an order which permits
| |
| ' the State to participate but excludes' an issue whic1 it seeks to raise. River Bend, supra.
| |
| 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 appeal. J4 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 5 2.714(c); Public-Service Co. of New Hampshire (Seabrook Station, Units 1 and p 2), ALAB-896, 28 NRC 27, 30 (1988).
| |
| A Licensing Board's failure, after a reasonable length of time, to rule on a petition to intervene is tantamount to a (n)
| |
| :v 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 s 2.714a, an appeal concerning an in-tervention petition must await the ultimate grant or denial of that petition. Detroit Edison Company (Greenwood Energy 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 9 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 s 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 O not a final disposition of the petition seeking leave to I intervene. Detroit Edison Comoany (Greenwood Energy Center, Units 2 & 3), ALAB-472, 7 NRC 570, 571 (1978).
| |
| -DECEMBER 1988 APPEALS 33
| |
| | |
| i d
| |
| i 9 5.8.2 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-mission review of decisions on intervention, the Commission has entertained appeals in this regard and review by the Commission apparently may be sought. Florida Power & Liaht Co. (St. Lucie Plant, Unit 2), CLl-78-12, 7 NRC 939 (1978).
| |
| Under settled practice, Appeal Boards do not on their own initiative review Licensing Board orders granting or denying intervention. If those affected do not deem themselves sufficiently aggrieved to appeal, there is no reason for Appeal Boards to concern themselves. Washinaton Public Power Supply 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 Hampshire (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-ina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 95 (1986). See also Consumers 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 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 Hampshire (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);
| |
| DECEMBER 1988 APPEALS 34
| |
| | |
| G 5.8.3.1 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).
| |
| In determining the fairness of a Licensing Board's scheduling decisions, an Appeal Board will consider the totality of the relev' ant ci'cumstances r disclosed by the record. Seabrook, supra, 25 NRC at 421; Seabrook, ALAB-889, supra, 27 NRC at 269.
| |
| 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 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 hearing schedule. Seabrook, supra, 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. See, e.a., Consumers Power Co. (Midland ,
| |
| Plant, Units 1 & 2), ALAB-468, 7 NRC 464, 468 (1978).
| |
| Matters of scheduling rest peculiarly within the Licensing 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 & 2.730(f). Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-ll6, 6 AEC 258 (1973); Lona Island Liahtina Com (Shoreham Nuclear Power Station, Unit 1), ALAB-780, 20 NRC 378, 380-81 (1984).
| |
| DECEMBER 1988 APPEALS 35
| |
| | |
| 1 l
| |
| 5.8.3.2 9 ;1 5.8.3.2 Rulings Curtailing Discovery I
| |
| In appropriate instances, an order curtailing discovery l is appealable. To establish reversible error from cur-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 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 appeal able. Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), ALAB-370, 5 NRC 131 (1977).
| |
| 5.8.4.1 Order Consolidating Parties Just as an order denying consolidation is interlocutory, an 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),
| |
| ALAB-496, 8 NRC 308, 309-310 (1978); Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-339, 4 NRC 20, 23 (1976).
| |
| 5.8.5 Order Denying Summary Disposition As is the case under Rule 56 of the Federal Rules.of Civil l
| |
| Procedure, an order denying a motion for summary disposition i under 10 CFR 9 2.749 is not immediately appealable. Pennsyl-vania Power & Liaht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550 (1981); Louisiana Power &
| |
| Licht 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).
| |
| DECEMBER 1988 APPEALS 36
| |
| | |
| p_
| |
| 9 5.8.10 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.
| |
| (Pilgrim Nuclear-Power Station, Unit 1), ALAB-231,,8 AEC 633, 634-(1974).
| |
| L 5.8.7 Matters of Recurring Importance ,
| |
| There is'some indication that a matter of recurring procedural.
| |
| importance may be appealed in a particular case even though it imay.no longer be determinative in that 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 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
| |
| .f' Advisory decisions on trial rulings which resulted in no-discernible injury ordinarily will not be considered on appeal. Toledo Edison C_o_, (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.
| |
| Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-331, 3 NRC 771, 774 (1976).
| |
| 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
| |
| .g O 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 1
| |
| DECEMBER 1988 APPEALS 37
| |
| _ _ - _---_--__---_____a
| |
| | |
| 7 i
| |
| O l 9 S.8.11 "
| |
| 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 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, 17 NRC 681, 684 (1983). See Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), ALAB-632,13 NRC 91, 93 n.2 (1981).
| |
| 5.8.11 Other Licensing Actions When a Licensing Board, during the course of an operating license hearing, grants a Psrt 70 license to transport and store fuel assemblies, the decision is not interlocutory and is immediately appealable as of right. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-76-1, 3 NRC 73, 74 (1976).
| |
| 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 Co. (Limerick Generating Station, Units 1 and 2), ALAB-778, 20 NRC 42, 45 n.1 (1984), citina, Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-765 19 NRC 645, 648 n.1 (1934). See Public Service Co. of New n:wshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC IN , 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 intervenori 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 G 2.762 because it is premature.
| |
| An appeal at this point is foreclosed by 10 CFR 9 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).
| |
| DECEMBER 1988 APPEALS 38
| |
| | |
| iJ f
| |
| 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. Northern Indiana Public Service Co. (Bailly Gener-ating Station, Nuclear-1), ALAB-204, 7 AEC 835, 836 (1974).
| |
| Evidentiary exclusions must affect a substantial right, and the 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, see Section 3.11.4.
| |
| 5.8.14 Director's Decision on Show Cause Petition n j The Appeal Board normally lacks jurisdiction to entertain
| |
| (.v) motions seeking review only of actions of the Director of i Nuclear Reactor Regulation; the Commission itself is the forum for such review. See 10 CFR 9 2.206(c). Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-466, ;
| |
| 7 NRC 457 (1978). l 5.8.15 Findings of Fact i
| |
| There is no right to an administrative appeal on every factual finding. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, IB & 2B), ALAB-467, 7 NRC 459, 461 n.5 (1978).
| |
| 5.9 Perfectina Appeals Normally, Appeal Boards will not review or pass upon specific rulings l (e.o., rulings with respect to contentions) in the absence of a i properly perfected appeal by the injured party. Washinoton 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. l f') 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 DECEMBER 1988 APPEALS 39
| |
| | |
| i l
| |
| 9 5.9.1 it, and give some reason why he thinks it is erroneous. Detroit Edison C_o_,. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978).
| |
| 5.9.1 General Rec,uirements for Appeals from Initial Decision The general requirements for an appeal from an initial decision are set out in 10 CFR @ 2.762. Section 9 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 filed within 30 days (40 days in the case of
| |
| ~
| |
| the Staff). 10 CFR s 2.762(a).
| |
| 5.10 Briefs on Appeal 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. Mississioni 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 Station, 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 Plant, Unit 2), ALAB-435, 6 NRC 541 (1977); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 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 Nuclear Power Plant, Unit 2), ALAB-355, 3 NRC 830, 832 n.3 (1976); Consumers Power Co. (Midland Plant, Units 1 & 2),
| |
| ALAB-270, 1 NRC 473 (1975); Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 382-383 (1974);
| |
| Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-207, 7 AEC 957 (1974); Louisiana P_ower 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 tneir 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 Corp. v.
| |
| Natural Resources Defense Council. Inc., 435 U.S. 519, 553 DECEMBER 1988 APPEALS 40
| |
| | |
| -l) -
| |
| S 5.10.2.1 (1978).2 EUen parties who participate in NRC licensing pro-ceedings pro se have an obligation to familiarize themselves.
| |
| 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-10 CFR.6 2.762 provides that' briefs supporting an appeal must be filed within 30' days (40 days for the. Staff) after
| |
| . filing the notice of appeal.
| |
| The time li mits imposed in.10 CFR s 2.762(a) for. filing briefs refer t- t?e date.upon which the appeal was.actually filed and not to oes, the appeal was' originally due to be filed prior to a time extension. Kansas Gas & Electric Co. (Wolf Creek ,
| |
| F 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; u the mailing of a brief on'a Sunday or Monday which was due.for .
| |
| i A filing the prior Friday does-not constitute substantial jd' 1 noncompliance within the meaning of 10 CFR 6 2.762(e)'[now S 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 Company (North Anna Nuclear Power Station, Units 1 and 2),
| |
| ALAB-568, 10 NRC 554,.555 (1979).
| |
| In the event of some late arising unforeseen development, a party may tender a document belatedly. As a rule, such a 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 f not have been seasonably submitted, irrespective of the extent of the lateness. Wolf Creek, ALAB-424, suora.
| |
| Apparently, however, the written explanation for the tardir.es's may be waived by the Appeal Board if, at a later dater'the Board and parties are provided with an exphrratToii which the
| |
| . Board finds to be satisfactory. Id. at 126.
| |
| 5.10.2.1 Time Extensions for Brief )
| |
| i Motions to extend the time for briefing are not favored. In any event, such motions should be filed in such a manner as to reach the Appeal Board at least one day before the period j DECEMBER 1988 APPEALS 41
| |
| -____________-______--__-_______L
| |
| | |
| j 1
| |
| sought to be extended expires. Louisiana Power & Licht Co.
| |
| (Waterford Steam Electric Station, Unit 3), ALAB-ll7, 6 AEC 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 Power Station), ALAB-144, 6 AEC 628 (1973).
| |
| 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 S 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 Board. Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Units I, 2 and 3; Perry Nuclear Power Plant, Units 1 and 2), ALAB-430, 6 NRC 457 (1977).
| |
| 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 Co.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 20 n.18 (1986).
| |
| l Although the Commission's Rules of Practice do not speci-fically require that a brief include a statement of the facts l 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 DECEMBER 1988 APPEALS 42
| |
| | |
| , g3 9 5.10.3 case related to the issue or issues presented by the appeal.
| |
| Public Service Electric and Gas Company (Hope Creek Geaerating Station, Units 1 and 2), ALAB-394, 5 NRC 769, 771 n.2 (1977).
| |
| l 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 397 (1976); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 204 (1986). A brief which does not contain such information is tantamount to an abandonment of the issue. Id_t.; Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975); Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 381 n.88 (1985); Cleveland Electric 111uminatina Co.
| |
| (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 496 n.30 (1985); Duke Power Co. (Catawt'a 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 Aaency (Shearon Harris Nuclear Power Plant), ALAB-837,
| |
| ?3 NRC 525, 533-34 (1986); Carolina Power and Liaht Co. and forth Carolina Eastern Municipal Power Aaency (Shearon Harris (n) v Neclear Power Plant), ALAB-852, 24 NRC 532, 537 (1986);
| |
| Carolina Power and Licht Co. and North Carolina Eastern Maiicipal 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 precise portions of the record relied upon in support of the assertion of error. .
| |
| Wisconsin Electric Power Co. (Point Beach Nuclear Plant, d 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 j Public Service Electric ad Gas Co. (Salem Nuclear Generating I Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981), aff'd sub l nom., Townshio of Lower Alloways Creek v. Public Service i Electric and Gas Co., 687 F.2d 732 (3d Cir.1982); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 533 (1986); Carolina Power and Liaht 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).
| |
| DECEMBER 1988 APPEALS 43 1 I
| |
| | |
| l 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 Station, Unit 1), ALAB-650, 14 NRC 43 (1981); Duke Power Co.
| |
| (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 66 n.16 (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 Municipal Power AaenCv (Shearon Harris Nuclear Power Plant),
| |
| ALAB-837, 23 NRC 525, 542-543 n.58 (1986); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 204 (1986); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 809 (1986); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449, 464 (1987). Claims of error that are without substance or are inadequately briefed will not be considered on appeal. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 481 (1982), citina, S.ghtm, tuora,14 NRC at 49-50. See Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 273, 280 (1987); Georaia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 1 26 NRC 127, 132 (1987). Bald allegations made on appeal of j supposedly erroneous Licensing Board evidentiary rulings may i be properly dismissed for inadequate briefing. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2),
| |
| ALAB-799, 21 NRC 360, 378 (1985). See 10 CFR s 2.762(d).
| |
| i An appeal may be dismissed when inadequate briefs make its i arguments impossible to resolve. Pennsylvania Power and Licht j Co. and Alleaheny Electric Cooperative. Inc. (Susquehanna -
| |
| Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 956 (1982), 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). .S_e_e Carolina Power and Liaht Co.
| |
| and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power 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),
| |
| citina, Public Service Electric and Gas Co. (Salem Nuclear ,
| |
| Generating Station, Unit 1), ALAB-650, 14 NRC 43, 50 (1981), J aff'd sub nom. Township of Lower Alloways Creek v. Public Service Electric and Gas Co., 687 F.2d 732 (3d Cir.1982);
| |
| Duke Power Co. (Catawba Nuclear Station, Ur.its 1 and 2),
| |
| DECEMBER 1988 APPEALS 44
| |
| | |
| l
| |
| ( ) 9 5.10.3 ALAB-813, 22 NRC 59, 71 (1985); Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 533 (1986); Cleveland Electric Illuminating Co.
| |
| (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 69 (1986); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 547 n.74 (1986).
| |
| See 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 i Generating Station, Unit 1), ALAB-650, 14 NRC 43, 50 n.7 (1981). Nonetheless, NRC litigants appearing pro 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.
| |
| (O
| |
| 'j Susauehanna, supra,16 NRC at 956, citina, Pennsylvania Power and Liaht 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 Liaht Co.
| |
| and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 531 n.6 1 (1986).
| |
| 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 appeal, absent a serious, substantive issue. Pennsylvania Power and Liaht Co. (Susquehanna 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 lA, 2A, 18, and 28), ALAB-463, 7 NRC 341, 348 (1978);
| |
| Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 906-907 (1982). j O All factual assertions in the brief must be supported by references to specific portions of the record. Consoli-l-
| |
| ('~) dated Edison Co. of N.Y. (Indian Point Station, Unit 2),
| |
| ALAB-159, 6 AEC 1001 (1973); Carolina Power and Liaht Co.
| |
| DECEMBER 1988 APPEALS 45
| |
| | |
| 9 5.10.3 and North Carolina Eastern Municipal 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 into the brief by reference a document purporting to furnish the requisite citations. Kansas Gas & Electric Comoany (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 s 2.762. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 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 conclusions filed with the Licensing Board does not satisfy j the requirements for a brief on exceptions. Public Service '
| |
| Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769 (1977).
| |
| 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 dhcovered 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 Staticn, 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 abrasive manner upon Licensing Board members will be st-icken.
| |
| Louisiana Power & Liaht Co. (Waterford Steam Electric 5,ation, Unit 3), ALAB-121, 6 AEC 319 (1973).
| |
| 10 CFR & 2.762 has been amended to set a 70-page limit on appellate briefs. 10 CFR & 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 Electric Illuminating Co. (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).
| |
| DECEMBER 1988 APPEALS 46
| |
| | |
| L l '3 - 9 5.11 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 s 2.762(d). The appellant's brief must contain a statement of the case with applicable procedural history. Public Service Electric & Gas
| |
| [L. (Hope Creek Generating Station, Units 1 & 2),-ALAB-394, 5 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 and 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.
| |
| See 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 9 2.762(c). If service of appellant's brief
| |
| ('v]) is made by mail, add 5 days to these time periods.
| |
| @ 2.710.
| |
| 10 CFR 5.10.4 Amicus Curiae Briefs 10 CFR @ 2.715 has been amended to allow a nonparty to file a brief amicus curiae with regard to matters before the Appeal Board or the Commission. The nonparty must submit a motion seeking leave to file the brief, and acceptance of the brief is a matter of discretion with the Appeal Board or Commis-sion. 10 CFR g 2.715(d).
| |
| 1 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 I 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 er to present oral i arguments on any legal or factual issue raised by the parties i to the proceeding or the evidentiary record. Public Service )
| |
| Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB- j 862, 25 NRC 144, 150 (1987). )
| |
| 5.11 Oral Araument O i If not requested by a party, oral arguments are scheduled by an l Appeal Board when one or more members of the Board have questions i of the parties. See 10 CFR @ 2.763; Wisconsin Electric Power Co.
| |
| DECEMBER 1988 APPEALS 47
| |
| | |
| r 1
| |
| 9 5.11.1 (Point Beacn 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 ~' one of the responsibilities of all parties when they participate .. Commission adjudicatory proceedings. Point Beach, 15 NRC at 279.
| |
| 5.11.1 Failure to Appear for Oral Argument If for sufficient reason a party cannot attend an oral argument, it should request that the appeal be submitted on briefs. Any such request, however, must be adequately supported. A bare declaration of inadequate financial resources is clearly deficient. _ W isconsin Electric Power Co.
| |
| (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC 277, 279 (1982).
| |
| 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 Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 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 out:
| |
| (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 Mtion, 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 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 & 2.715(d), a person who is not a party to a proceeding may be permitted to present oral argument to the DECEMBER 1988 APPEALS 48
| |
| | |
| ym i g 5.12.1 i, Q )
| |
| Appeal Board or the Commission. A motion to participate in the oral argument must be filed and non-party participation is at the discretion of the Appeal Board or the Commission.
| |
| 5.12 Actions Similar to Appeals 5.12.1 Motions to Reconsider Licensing Boards have the inherent power to entertain and grant a motion to reconsider an initial decision. Con-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 Lichtina and Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-544, 9 NRC 630, 631 (1979).
| |
| O)
| |
| N" The Appeal Board has indicated that a motion to it to 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 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).
| |
| Motions 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
| |
| .O in an appeal which is still pending before the Appeal Board.
| |
| !j s
| |
| Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978).
| |
| DECEMBER 1988 APPEALS 49
| |
| | |
| s 5.12.2 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 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).
| |
| An Appeal Board may not reconsider a matter after it has lost 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 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 s 2.714a), there is no right to appeal any interlocutory ruling by a Licensing Board to an Appeal Board. 10 CFR s 2.730(f); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-21,17 NRC 593, 597 i (1983); Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC 277, 280 (1987). ,
| |
| 1 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 Station, Units 1 & 2), ALAB-339, 4 NRC 20 (1976). In the same vein see 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 s 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 DECEMBER 1988 APPEALS 50 !
| |
| | |
| . i
| |
| ! l i
| |
| j
| |
| []t s l
| |
| V 9 5.12.2 l in licensing proceedings. Pittsburah-Des Moines Steel Co.,
| |
| ALAB-441, 6 NRC 725 (1977). I It applies as well to an intervenor's " appeal" of a Licensing Board order rescinding any earlier orders or issuances grant-ing procedural assistance to interveners, following the suspension of the operation of 10 CFR s 2.750(c) upon which the assistance program was based. Houston Liahtino and Power i 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 f 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
| |
| [3 from the Licensing Board's final decision,10 CFR S 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 Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140 (1981); Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); Pennsylvania Power & Licht Company and 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 Coro..
| |
| 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); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-88-21, 28 NRC 170, 173-75 (1988). See Lona 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 DECEMBER 1988 APPEALS 51
| |
| | |
| Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483-86-(1975).
| |
| Although generally precluding interlocutory appeals,10 CFR S 2.730(f), does allow a Licensing Board to refer a ruling to an Appeal Board. The Appeal Board need not, however, accept the referral. In deciding whether to do 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 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 69 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. Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371, 375 (1983);
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1583 (1984). The language regarding directed certification in 9 V(f)(4) of Appendix A to the Rules of Practice, like the Commission's Policy Statement, does not relax the standards for directed certification. Id.
| |
| at 1583-84. The fact that an evidentiary ruling involves a matter that may be novel or important does not alter the strict standards for directed certification. Id. 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 Illuminating Co. (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 DECEMBER 1988 APPEALS 52
| |
| | |
| / 9 5.12.2.1
| |
| ^
| |
| held, is one which must be assumed by that board and the parties to the-proceeding. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-768, 19 NRC 988, 992 (1984),
| |
| citina, Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-ll6, 6 AEC 258, 259 (1973); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
| |
| ALAB-805, 21 NRC 596, 600 (1985).
| |
| A Licensing Board's decision to admit a contention which will require the Staff to perform further statutory required review does not restM in unusual delay or expense which justifies referral oA the Board's decision 4r interlocutory review.
| |
| Kerr-McGee Chemical Coro2 (West Chicago Rare Earths Facility),
| |
| LBP-85-3, 21 NRC 244, 257-258 n.19 (1985), citina, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464 (1982), rev'd in part 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 f'S of right until the Board below has rendered a reviewable decision. Public Service Co. of New Hampshire (Seabrook O' Station, Units 1 and 2), ALAB-731, 17 NRC 1073, 1074-75 (1983); Lono Island Lichtina 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 The Commission's rules do not allow the Appeal Board to entertain interlocutory appeals,10 CFR 6 2.730(f). In extraordinary circumstances, however, the Appeal Board can review interlocutory rulings by a petition for directed certification pursuant to 10 CFR & 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 l Hampshire (Seabrook Station, Units 1 and 2), ALAB-860, 25 NRC 63, 67-68 (1987); Lono 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-
| |
| [3 cation is usually based on its evaluation of the party's peti-tion. However, in unusual circumstances, the Board may also
| |
| 'Q schedule oral argument. Shoreham, supra, 25 NRC at 136-37 and n.28.
| |
| DECEMBER 1988 APPEALS 53
| |
| | |
| 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 ) and 2), ALAB-870, 26 NRC 71, 76 (1987). See Public Service Co. of New Ha g hire (Seabrook Station, Units 1 and 2), ALAB-884, 27 NRC 56, 57-58 (1988).
| |
| 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 it. 10 CFR 9 2.718(i). The regulations also allow a party to request that a Licensing Board refer a ruling on a motion to the Appeal Board under 10 CFR 9 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 Hampshire (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 9 2.730(f) would have been proper - .L L., 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 Hampshire (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 l
| |
| 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 l
| |
| l review. Cleveland Electric illuminating Co. (Perry Nuclear 1 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 I
| |
| the party adversely affected by it with immediate and serious DECEMBER 1988 APPEALS 54 l
| |
| | |
| y n
| |
| 9 5.12.2.1 irreparable impact which, as a practical matter, could not. be alleviated by a later appeal, or (2) affected the basic structure' of the proceeding lin a pervasive or unusual manner.
| |
| Houston Liahtina and Power Co. (Allens Creek Nuclear Generat-H 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,.Il NRC 533,'536 (1980); Public Service Co. of Indiana (Marbie Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977);
| |
| Perry, 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 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-706, 16 NRC 1754, 1756 (1982); Public Service Co. of New Hampshire (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 Co. (Perry Nuclear Power Plant, Units 1.
| |
| and 2), ALAB-805, 21 NRC 596, 599 n.12 (1985); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-l 838, 23 NRC 585, 592 (1986); Public Service Co. of New L Hampshire (Seabrook Station, Units 1 and 2), ALAB-839, 24 NRC 45, 49-50 (1986); Lona Island Liahtina Co. (Shoreham Nuclear g 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 l
| |
| 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 Hampshire (Seabrook Station, Units 1 and 2), ALAB-889, 27 NRC 265, 269 (1988);
| |
| Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-896, 28 NRC 27, 31 (1988). A ruling that does no more than admit a contention has a low potential for meeting that standard, Perry, supra, 16 NRC at 1756, citina, Duke Power Co. (Catawba Nuclear Station, Units I 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-86-8, 23 NRC 241 (1986). See also dissent of Commissioner Asselstine in Braidwood, supra, 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 Co.
| |
| ( (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96 (1981);
| |
| Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-88-21, 28 NRC 170, 173-75 (1988).
| |
| DECEMBER 1988 APPEALS 55 4
| |
| | |
| 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), citina, 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-quirements for directed certification as to specific issues I and under particular circumstances. In this vein:
| |
| (1) Girected 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 alse Pro.iect Manaaement Coro. (Clinch River Breeder Reactor Plant), ALAB-330, 3 NRC 613, 618-619, rev'd in part sub nom., USERDA (Clinch River Breeder Reactor Plant), CL1-76-13, 4 NRC 67 (1976).
| |
| (2) While it may not always be dispositive, one factor favoring directed certification is that the question or order for which certification is sought is one which '
| |
| "must be reviewed now or not at all." .K_a.nsas Gas &
| |
| Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 413 (1976), cited in Houston Liahtina and P m u. Com (South Texas Project, Units 1 and 2), ALAB-639, 13 NRL 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 Hampshire (Seabrook Station, Units 1
| |
| & 2), ALAB-271, 1 NRC 478, 484-485 (1975). Unless it is 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.
| |
| Perrv, suora, ALAB-675, 15 NRC at 1112-1113. See Lona 1;1and 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-i ference. The Appeal Board found that interlocutory l review was warranted because of doubts that the tran-i 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 DECEMBER 1988 APPEALS 56 I
| |
| | |
| h L !
| |
| ' : (p 6 5.12.2.1 i
| |
| l 'd 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 (1985).
| |
| (5) The Appeal Board does.not favor certification on the question as'to whether a contention.should have been admitted into the proceeding. Proiect 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., USERDA-(Clinch' River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976); Public Service Co.
| |
| of New Hampshire (Seabrook Station,. Units 1 and 2), ALAB-838, 23 NRC 585, 592 (1986); Lg_no 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 directed certification when the issues presented by the State are also raised by the contentions of interveners in the proceeding. Seabrook, s pn , 23 NRC at 592-593.
| |
| 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 Q('y been admitted by the Board in accordance with 10 CFR s 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 Co. (Perry Nuclear Power Plant, Units I 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 conflict with case law, policy, or Commission regula-tions. Thus, the Appeal Board denied directed certifica-tion of a Licensing Board ruling which admitted the intervenor's revised quality assurance contention. The 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 specificity. Commonwealth Ediscn 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 Licht-ina Co. (Jamesport Nuclear Power Station, Units 1 &
| |
| DECEMBER 1988 APPEALS 57
| |
| | |
| 5.12.2.1 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 (1975). In this vein, the Appeal Board has refused 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, 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 Plant, Units 1 and 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." Midland, suora. Discovery rulings rarely meet the test for discretionary inter-locutory review. Lona Island Liahtina Co. (Shoreham Nuclear Powor Station, Unit 1), ALAB-780, 20 NRC 378, 381 (1984). Sen Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-870, 26 NRC 71, 74 (1987).
| |
| (7) As to rulings on evidence, certification will not be ,
| |
| granted, absent exceptional circumstances, on questicns 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 rulings involving " garden-variety" evidentiary matters.
| |
| See e lona Island Liahtina Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-353, 4 NRC 381 (1976). In Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-393, 5 NRC 767, 768 (1977), the Appeal Board reiterated that certifica-tion will not be granted to allow consideration of interlocutory evidentiary rulings, stating that, "it is simply not our role to monitor these matters on a day-to- '
| |
| day basis; were we to do so, 'we would have little time for anything else.'" (citations omittad). An Appeal Board will be particularly reluctant to grant a request for directed certification where the question for which ,
| |
| certification has been sought involves the scheduling of 1 hearings or the timing and admissibility of evidence. i United States Department of Enerav. Project Manaaement Coro.. Tennessee Valley Authority (Clinch River Breeder DECEMBER 1988 APPEALS 58 l
| |
| | |
| 1
| |
| _i g )- 5 5.12.2.1 L ,'
| |
| Reactor Plant), ALAB-688,16 NRC 471, 475 (1932), citina, 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 effect on a Licensing Board's ultimate substantive decision. Therefore, determinations regarding what evidence should be admitted rarely, if ever, have a pervasive or unusual effect.on the structure of a proceeding so as to warrant interlocutory intercession by an Appeal Board. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1583 (1984).
| |
| (8) The Appeal Board has denied certification under 10 CFR
| |
| @ 2.718(i) and rejected the Staff's position that a Licensing Board's ruling denying summary disposition of a 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 " pervasive effect on the basic structure of the proceeding" alleged by the Staff in such
| |
| (~N) a case was no different than that involved any time a
| |
| ( litigant must go to hearing. Pennsv1vania Power and V Licht Co. and Alleaheny 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 rower 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 j 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 O satisfy the test for directed certification. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-
| |
| 'Q 737, 18 NRC 168, 176 n.12 (1983).
| |
| 1 DECEMBER 1988 APPEALS 59
| |
| | |
| s 5.12.2.1.1 Opposition to a directed certification petition should include some discussion of petitioner's claim of Licensing Board error. Viroinia 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 Neu Hampshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 14 n.4 (1983).
| |
| Failure of a party to address the standards for directed q certification in responding to a motion seeking such review "
| |
| may be construed as a waiver of any argument regarding the propriety of directed certification. Metropolitan Edison Co.
| |
| (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1582 n.7 (1984). Cf. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 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 Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-419, 6 NRC 3, 6 (1977).
| |
| 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 appropriate relief from the Licensing Board. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-889, 27 NRC 265, 271 (1988).
| |
| 5.12.2.1.2 Effect of Directed Certification on Uncertified Issues 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 with the issue certified. See Public Service Comr,any nf Indijn_a (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 fcr a stay under l
| |
| 10 CFR s 2.788(a), (h). This, rather than a petition for review under 10 CFR s 2.786(b), is the appropriate route.
| |
| Metropolitan Edison Co m (Three Mile Island Nuclear Station, Unit 2), CL1-78-3, 7 NRC 307, 308 (1978); Public Service Co.
| |
| of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, DECEMBER 1988 AFPEALS 60 l
| |
| ! - I
| |
| | |
| o - ,
| |
| r p 'o 5 5.13.1.1
| |
| )[
| |
| . 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.
| |
| The ' application for a stay and 'an appeal from the Appeal' Board's decision ' denying a. stay will- be denied when inter-venors do not'make a strong showing'that"they are likely' to prevail. on the merits.or that they will be irreparably harmed pending appeal of the licensing Board's decision.
| |
| ' Southern California Edison Co. (San Onofre Nuclear Generating.
| |
| Station, Units 2 and 3), CL1-82-11, 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 9'2.762.
| |
| 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 t 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.
| |
| (Prairie Island Nuclear Generating Plant, Units and 2), ALAB-252, 8 AEC 1175, 1177, affirmed, CLI-75-1, 1 NRC 1 (197b); 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 f 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 manner 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
| |
| ,G file its appeal therefrom without waiting for the Licensing Cj 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).
| |
| DECEMBER 1988 APPEALS 61
| |
| | |
| s 5.13.1.2 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 have no power to do so. Consolidated Edison Co. of N.Y.
| |
| (Indian Point Station, Unit 3), ALAB-281, 2 NRC 6 (1975).
| |
| Of course, mere 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
| |
| @ 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 Indiu a Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-207, 7 AEC 957 (1974).
| |
| When an intervenor is represented by counsel, an Appeal Board 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., Township of Lower A110 ways 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 of the record relied upon in support of the assertion of error. 10 CFR % 2.762(a) (now 10 CFR s 2.762(d)); Common-wealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 424 (1930).
| |
| 5.13.3 Effect of Failure to File Proposed findings The Appeal Board is r " quired to review an appeal where no proposed findings and c., 1s were filed by the appellant on the issue with respect to wnich the appeal is taken. Florida Power & Liaht Co. (St. Lucio Nuclear Power Plant, Unit 2),
| |
| ALAB-280, 2 NRC 3, 4 n.2 (1975); Northern States Power Co.
| |
| (Prairie It, land 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).
| |
| DECEMBER 1988 APPEALS 62 l
| |
| | |
| h K
| |
| L . . . .
| |
| r 5 5.14
| |
| *[G
| |
| ^
| |
| 5.13.4 ' Motions ~ to Strike Appeal-
| |
| , A party _may" file a: motion- to strike an-appeal or. brief which is not in substantial compliance with the provisions.-
| |
| of 10 CFR 6 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- 1 A, 2A, IB & 28), . ALAB-409, 5' NRC 1391, -
| |
| 1396-1397 (1977). Such a motion is also appropriate to exclude improper or scandalous appeals. Hartsville, suora, T 5 NRC at 1391. A motion to strike'an appeal is not appro-priate, however, where an assessment of its validity. requires .
| |
| L more than minimal scrutiny of the underlying. record. ' Id.
| |
| $ 5.14 Certification to the Commission Pursuant to 10 CFR 9' 2 785(d), an Appeal Board may certify to the Commission any major or novel question 'of policy, law or procedure which is properly before the Appeal Board. Such certification may be at the Appeal Board's discretion or at Commission direction. See Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC 277, 285 (1987).
| |
| The Appeal Board should exercise its authority to certify questions Im z
| |
| 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 Hampshire (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 th; 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 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 c ample, in matters such as discovery) be delegated to the Appeal Board, which functions as the Commission's delegate for these matters. 10 CFR @ 2.785.
| |
| Absent extraordinary circumstances warranting Commission involvement, request for interlocutory review of Licensing Board rulings and other
| |
| : f. relief should be directed to the Appeal Board rather than to the
| |
| ~( Commission. 10 CFR 69 2.730(f), 2.785. Pennsylvania Power and Licht Co. (Sasquehanna Steam Electric Station, Units 1 and 2), CLI-80-17, 11 NRC 678 (1980). In the context of initial review of Licensing DECEMBER 1988 APPEALS 63
| |
| | |
| Board actions, then, a certification to the Commission would go first to the Appeal Board under the specific delegation of 10 CFR l
| |
| @ 2.785(b)(1). Wisconsin Electric Power Comoany (Point Beach Nuclear J Plant, Unit 1), LBP-80-29, 12 NRC 581, 591 (1980). 1 l
| |
| Referral directly u the Commission by the Licensing Board will not I be granted absent a strong reason for bypassing the Appeal Board.
| |
| Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-81-36, 14 NRC 691 (1981).
| |
| 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 pervasive or unusual manner. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-29, 26 NRC 302, 312 (1987), '
| |
| I citina, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
| |
| 5.15 Review of AD. peal Board Decisions 10 CFR & 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 ss 2.718(i) or 2.730(f). Section 2.786 sets forth in 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 decision. Consolidated Edison Co. of N.Y. (Indian Point Station, No. 2), ALAB-414, 5 NRC 1425, 1427 (1977).
| |
| The Commission's normal practice for review of Appeal Board decisions under 10 CFR 9 2.786 applies even when an Appeal Board has conducted evidentiary hearings. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-21, 14 NRC 595, 596 (1981), gitino, Pa_cific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903 (1981); Vira;nia l
| |
| f]_ectri _ Power Co m (North Anna Power Station, Units 1 and 2), ALAB-578, 11 NRC 139 (1980); Rctthern States Power h (Prairic !siand l Neclear Generating Station, Units 1 and 2), ALAB-343, 4 NRC 169 ;
| |
| I (1976).
| |
| l The selection of parties to a Commission review proceeding is clearly a matter of Commissien discretion (10 CFR @ 2.786(b)(6)). A major factor in the Commission decision is whether a party has actively sought or opposed Commission reviow. This factor helps reveal which I parties are interested in Commission review and whether their participation would aid that review. Therefore, a party desiring to be heard in a Commission review proceeding should participate in the DECEMBER 1988 APPEALS 64
| |
| | |
| /"'N D 5.15
| |
| !U >
| |
| 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 Company of New Hampshire (Seabrook Station, Units 1
| |
| & 2), CLI-77-25, 6 NRC 535 (1977).
| |
| Under 10 CFR G 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 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 sponte 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 G 2.786(a) sets forth the type of issues for which,
| |
| [m) and situations in which, the Commission may direct certification of a
| |
| \_./ record sua sponte prior to final action by a Licensing or Appeal Board below, it does not limit the Commission's inherent supervisory authority. Id. Nevertheless, as a general rule, the Commission does not sit to review factual determinations made by its subordinate panels.
| |
| When an issue is of obvious significance and is not fact-dependent, and when its present resolution could materially shorten the pro-ceedings and guide the conduct of other pending proceedings, the Commission will generally dispose of the issue rather than remand it.
| |
| Seabrook, supra, 5 NRC at 517.
| |
| Within 30 days of an Appeal Board decision, the Commission may review it. 10 CFR Q 2.786(a); Washington _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 I Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), CLI-82-26, 16 NRC 880, 881 (1982), citing, Jones v. State Board of Educatiori, 397 U.S. 31 (1970) .
| |
| O 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 Engineering Co. Inc. (Sheffield, DECEMBER 1988 APPEALS 65 l
| |
| )
| |
| | |
| Illinois low-Level Radioactive Waste Disposal Site), CL1-80-1,11 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 tne merits. Nor does it pre-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 Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
| |
| ALAB-493, 8 NRC 253, 260 (1978). However, the Commission has also stated that a decision by it not 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. (Perry 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. Rec. 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 (see 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 reauests for a stay pending Judicial review and will apply the ,
| |
| same criteria. Natur a,1 Resources Defense Council, CLI-76-2, 3 "
| |
| NRC 76 (1976).
| |
| ;- Section 10(d) of the Administrative Procedure Act (5 U.S.C.
| |
| G 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 Powcr Company (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 783-84 (1977).
| |
| DECEMBER 1988 APPEALS 66 I
| |
| l m.____._ __
| |
| | |
| L L
| |
| 'A:
| |
| s 5.17 The Appeal Board suspended sua soonte its consideration ofEan issue in order to await the possibility of-Supreme Court-review of related. issues, following the rendering'of a decision by the First Circuit Court of Appeals, where certiorari had nct yet been sought.or ruled upon for such Supreme Court review. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-548, 9 NRC 640, 642-(1979).
| |
| 5.15.3 Stays' Pending Remand After Judicial Review 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 Viroinia 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.
| |
| Id. 7 NRC at 160.
| |
| [ 5.16 Review of Commission Decisions
| |
| 's
| |
| \ 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 N.Y. (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 &
| |
| ), 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 liaht Company (St. Lucie huclear Power Pla.1t, Unit 2), CLI-80-41, 12 NRC 550, 652 (1980). l 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 Comeission decision. U.S. Department of Enerav. Pro,ig_c_t
| |
| -( thnagement Corporation Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-8, 15 NRC 1095, 1096 (1982).
| |
| DECEMBER 1988 APPEALS 67
| |
| | |
| 9 5.18 5.18 Jurisdiction of NRC to Consider Matters While Judicial Rqyv.iew is Pendin.g The NRC has jurisdiction to deal with supervening developmots in a case which is pending before a court, at least where those devehp-ments do not bear directly on any question that will be considered by the court. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-349, 4 NRC 235 (1976).
| |
| 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 Board considers it inappropriate to do so, at least where the court has not specifically requested it, based on considerations of comity between the court and the agency. See Public Service Co. of New Hampshire (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 Appeal 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 issuance of the mandate, the court's decision becomes fully effective 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. EL at 781.
| |
| When the U.S. Court of Appeals has stayed its mandate pending final resolution of a petition 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. Cleveland 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 Arpeals for review of the decision of the agency also petitions the agency to recansider 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 Servise
| |
| _C.o. 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. Metrotto_Lilan Edison Com (Inree 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).
| |
| DECEMBER 1988 APPEALS 68
| |
| | |
| , 9 5.19.1-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 l
| |
| 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 limited to consideration' of- only those issues specified by the Appeal Board in the remand order was, for some time, un-resolved. See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),*ALAB-389, 5 NRC 727 (1977).
| |
| Of course, jurisdiction may be regained by a remand 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. Virainia 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 f> " manifestly correct" in rejecting a petition requesting ~
| |
| intervention in a remailded proceeding where the scope of the 5 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). See Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-857, 25 NRC 7,11,12 (1987) (the Licensing Board properly rejected 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, r of course, reserve certain powers to itself, such as, for ex-ampic, reinstatement of a construction permit suspended pend-ing the remand. Public Service Co. of New Hampshirg (Seabrook Station, Units 1 & 2), CL1-78-14, 7 NRC 952, 961 (1978).
| |
| . ~ , 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 pcwers. !
| |
| Carolina Power & lioht Co. (Shearon Harris Nuclear Power i DECEMBER 1988 APPEALS 69 1
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| --- _____.-____._.______________m. _ _ _ . _ _ _ _ _ _ _ _ _ _
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| l L
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| s 5.19.2 L Plant, Units 1, 2, 3 and 4), ALAB-577,11 NRC 18, 29 (1980),
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| modified, CLI-80-12,11 NRC 514 (1980).
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| 5.19.2 Jurisdiction of the Appeal Board on Remand i
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| Under settled principles of finality of adjudicatory ac-tion, once an Appeal Board has finally determined a dis-crete issue in a proceeding, its jurisdiction is ter-minated with respect to that issue, absent a remand order.
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| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-766, 19 NRC 981, 983 (1984), citina, Virainia flectric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 708-09 (1979); Public j Lervice Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978).
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| 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, suora, 19 NRC at 983, citina, North Anna, suora, 9 NRC at 708-09; Seabrook, supra, 8 NRC at 695-96. I Where the Appeal Board remands the record to the existing Licensing Board for the receipt of further evid:nce on the quality assurance issue, the Appeal Board may i etain jurisdic-tion over the proceeding. Therefore, once the Licensing Board has completed the hearing on remand and rendered its sup-plemental dec!sion, there will be no necessity for any party to file a new notice of appeal. Commonwealth Edison Co.
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| (Byron Nuclear Power Station, Units 1 and 2), ALAB-770,19 NRC 1163, 1168 (1984).
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| 5.19.3 Stays Pending Remand 10 CFR 2.788 does not expressly deal with the matter of a ,
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| stay pending remand of a proceeding to the Licensing Board. j 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), CL1-77-8, 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 basi.; of a f raditional balenting of equities and on consideration of possible prejudice to further actions resulting from the remand proceedings.
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| Where judicial review discloses inadequacies in an agency's environmental impact statcmant prepared in goad faith, a stay of the underlying activity pending resand does not follow automatically. Whether the project need be sttyed essentially -
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| must be decided on the basis of (1) traditional balancing of equities, and (2) consideration of any likely prejudice to DECEMBER 1988 APPEALS 70
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| < :;,-s'
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| :(%., c
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| & S.19,4 further decisions that'might be called for by the remand.
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| Consumers Power Comoany (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 on a party's motion for a-stay pending remand.
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| Lona Island Liahtina 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).
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| 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).
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| 'mf l
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| '%/
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| DECEMBER 1988 APPEALS 71
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| r .. . .
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| s a . O '.
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| L;rm j j.
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| TABLE OF CONTENTS a
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| GENERAL MATTERS 6.0 GENERAL' MATTERS- GM'1-i 6.1 Amendments to Existina Licenses and/or Construction .
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| Permits .
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| GM~l 6.1.1 Staff Review of Proposed Amendments (Reserved) GM 1~
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| 6.1.2 . Amendments to Research Reactor Licenses (Reserved) GM 1
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| '6.1.3 Matters ~to be Considered in License Amendment Proceedings (Reserved) .
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| GM 1
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| '6.1.3.1 Specific Matters Considered in License Amendment Proceedings GM 2 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 .
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| GM'4 6.1.4.3 Summary Disposition Procedures on License / Permit.
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| 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 7 6.2 Amendments to-License / Permit Applications 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 Attornev 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 Srecial Disqualification Hearings re Attorney Conduct GM 13 6.4.2.3 Conflict of Interest GM 19 6.5 Communications Between Staff /Amplicant/0ther Parties /
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| Ad.iudicatory Bodies GM 20 6.5.1 Ex Parte Communications Rule GM 20 6.5.2 Telephone Conference Calls GM 21 f
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| 6.5 3 Staff-Applicant Communications GM 22 6.5.3.1 Staff Review of Application GM 22
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| .'k 6.5.3.2 Staff-Applicant Correspondence GM 23 DECEMBER 1988 GENERAL MATTERS - TABLE Of CONTENTS i ,
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| [ !
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| h 11 TABLE OF CONTENTS GENERAL MATTERS 6.5.4 Notice of Relevant Significant Developments GM 23 6.5.4.1 Duty to Inform Adjudicatory Board of Significant 4 Developments GM 23 i
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| 6.6 Early Site Review Procedures GM 26 6.6.1 Scope of Early Site Review GM 27 6.7 Endanoered 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 30 6.9.1 Consideration of Generic Issues in Licensing Proceedings GM 30 6.9.2 Effect of Unresolved Generic Issues GM 32 6.9.2.1 Effect of Unresolved Generic Issues in Construction Permit Proceedings GM 32 6.9.2.2 Effect of Unresolved Generic issues in Operating License Proceedings GM 33 6.10 Inspection and Enforcement GM 33 6.10.1 Enforcement Actions GM 34 6.10.1.1 Civil Penalties GM 36 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 GM 38 (SEE 1.5.2) 6.13 Materials Licenses GM 38 6.14 Motions in NRC Proceedings GM 41 6.14.1 Form of Mction GM 41 6.14.2 Responses to Motions GM 42 6.14,2.1 Time fer Filing Responses to Motions GM 42 6.14.3 Licensing Board Actions on Motion:; GM 42 6.15 NEPA Considerations GM 43 6.15.1 Environmental Impact Statements (EIS) GM 45
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| )
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| 6.15 l.1 Need to Prepare an Els GM 46 6.15.1.2 Scope of EIS GM 49 6.15.2 Role of EIS GM 50 DECEMBER 1988 GENERAL MATTERS - TABLE Of CONTENTS ii
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| 1 iii.
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| TABLE OF CONTENTS .;
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| 1' GENERAL MATTERS 6.15.3'. Circumstances Requiring Redrafting- of Final Environmental Statement'(FES) .
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| GM 51 6.15.3.1 Effect of failure to Comment on Draft Environmental Statement (DES) .
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| 'GM 54 6.15.3.2. Stays Pending Remand for Inadequate EIS GM 54 6.15.4 Alternatives GM 55 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 59 6.15.5 Need for Facility- .
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| GM 60 6.15.6 . Cost-Benefit Analysis Under NEPA GM 61 6.15.6.1 Consideration of Specific Costs Under NEPA GM'63 6.15.6.1.1 Cost of Withdrawing Farmland from Production GM 64 (SEE 3.7.3.5.1) 6.15.6.1.2 Socioeconomic Costs as Affected by Increased Employment and Taxes from Proposed Facility GM 64 6.15.7 Consideration of Class 9 Accidents in an Environmental Impact Statement GM 64 6.15.8 Power of NRC Under NEPA GM 66 g 6.15.8.1 Powers in General (Under NEPA) GM 67 6.15.8.2 Transmission Line Routing GM 69 6.15.8.3 Pre-LWA Activities /Offsite Activities GM 69 6.15.8.4 Relationship to EPA with Regard to Cooling Systems GM 70 6.15.8.5 NRC Power Under NEPA with Regard to FWPCA GM 70 6.15.9 Spent Fuel Pool Proceedings GM 71 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 77 6.16.1.2 Staff Witnesses GM 77 6.16.1.3 Post Hearing Resolution of Outstanding Matters by the Staff GM 78 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 83 6.16,5 Conduct of NRC Employees (Reserved) GM 83 6.17 Orders of Licensina and_ Appeal Boards GM 83 6.17.1 Compliance with Board orders GM 83 6.18 Precedent and Adherence to Past Aaency Practicg GM 84 6.19 Erg-Egtm11 Activities GM 85 6.19.1 Pre-LWA Activity GM 87
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| [ 6.19.2 Limited Work Authorization GM 88 I
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| 6.19.2.1 LWA Status Pending Remand Proceedings GM 89 DECEMBER 1988 GENERAL MATTERS - TABLE OF CONTENTS iii
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| iv TABLE OF CONTENTS GENERAL MATTERS 6.20 Regulations GM 89 6.20.1 Compliance with Regulations GM 90 !
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| 6.20.2 Commission Policy Statements GM 90 !
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| 6.20.3 Regulatory Guides GM 90 !
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| 6.20.4 Challenges to Regulations GM 92 6.20.5 Agency's Interpretation of its Own Regulations GM 95 6.21 Rulemakina GM 96 6.21.1 Rulemaking Distinguished from General Policy Statements GM 96 6.21.2 Generic Issues and Rulemaking GM 96 l
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| 6.22 Research Reactors GM 97 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 ,
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| 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 6 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 106 6.24.1.2 Burden of Proof for Show Cause Order GM 106 6.24.1.3 Issues in Show Cause Proceedings GM 106 6.24.2 Standards for Issuing Show Cause Order GM 107 6.24.3 Review of Decision on Request for Show Cause Order GM 107 6.24.4 Notice / Hearing on Show Cause to Licensee / Permittee GM 109 6.24.5 Burden of Proof in Show Cause Proceedings GM 109 6.24.6 Consolidation of Petitioners in Show Cause Proceedings GM 110 6.24.7 Necessity of Hearing in Show Cause Proceedings GM 110 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 Licente GM 110 6.27 Technical Specifications GM 112 6.28 Termination of Facility licenses GM 112 6.29 Etoce,d_ures in Other Types of Hearinas GM 112 6.29.1 Military or Foreign Affairs Functions GM 112 6.29.2 Export Licensing GM 113 (SEE ALSO 3.4.6) 6.29.2.1 Juri3 diction of Commission re Export Licensing GM 113 6.29.2.2 Export License Criteria GM 113 DECEMBER 1988 GENERAL MATTERS - TABLE OF CONTENTS iv
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| y ;g e . i p 5 6.1.4.4 is entitled to-a decision in its favor as a matter of law.
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| Washinaton Public Power Supply System (WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC.1183,.1189 (1984), citina, 10 CFR 9 2.749(d).
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| f-F- 6.1.4.4- Matters Considered in Hearings on License Amendments 7
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| , In considering an' amendment to transfer part ownership of a facility, a Licensing Board held that questions concerning d 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 E 10 CFR Part 2, .Subpart B (dealing with enforcement) instead.
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| . Detroit Edison Company (Enrico Fermi- Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386 (1978). The same. Licensing -
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| Board also ruled that issues to be considered in such a transfer of ownership proceeding do not include questions of '
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| the financial qualifications of the original applicant or the technical qualification of any of the applicants. Enrico Fermi, supra, 7 NRC at 392.
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| With regard to environmental consideration:: in a proceeding on an application for license amendment, a Licensing Board should not:
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| ... embark broadly upon a fresh assessment of the environ-mental issues which have aircady been thoroughly con-sidered and which were decided in the initial decision.
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| 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 ....
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| Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 393 (1978), citina, Georaia Power ,
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| Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB- {
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| 291, 2 NRC 404, 415 (1975).
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| # 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 issuance of either an environmental impact statement or i environmental impact appraisal and negative declaration l pursuant to 10 CFR @ 51.5(b) and (c). Portland General Electric Company (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 744-45 (1978), Aff'd, f ALAB-534, 9 NRC 287 (1979).
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| For example, t'ne 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,1!ar_a, 9 NRC at 289, cited h_ florida Power and Liaht Co. (Turkey Point i
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| JUNE 1988 GENERAL MATTERS 5
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| - _ = _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ - - _ - _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ - _ _ _ _ _ _ _ -
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| I Nuclear Generating Plant, Units 3 and 4), LBP-81-14,13 NRC 677, 698 n.49 (1981).
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| 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 Liaht Co s (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 (1988).
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| A Licensing Bo acks jurisdiction to consider an i. iter-venor's contens which challenge the NRC Staff's "no significant haza. ;s consideration" determination under 10 CFR s 50.91. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 844 (1987),
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| citina, 10 CFR s 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 Licht Co. (St.
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| 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). Nor can a Licensing Board review the immediate effectiveness of a license amendment issued on the basis of a "no significant hazards consideration" after the Staff has completed all the steps required for the issuance of the amendment. However, the Board has authority to review such an amendment if the Staff fails to perform the environmental review required by 10 CFR s 51.25 prior to the issuance of the amendment. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-19, 28 NRC 145, 153-56 (1988).
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| 6.1.5 Primary Jurisdiction in Appeal Board to Consider License Amendment in Special llearing Although the usual procedure for amending an existing license involves a licensee's applying for the proposed amendment pursuant to 10 CFR s 50.90, this is not the sole and exclusive means for obtaining an amendment. For example, where the Commission orders a special hearing on particular issues before the Appeal Board, the licensee n'ay seek, and the Appeal Board has jurisdiction to issue, an amendment to the license 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 & 50.90. Consoli-dated Edison Co. of N.Y. (Ind'ean Point Station, Units 1, 2 &
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| 3), ALAB-357, 4 NRC 542 (1976), aff'd, CLI-77-2, 5 NRC 13 (1977). Moreover, the Appeal Board's authority to modify license conditions in such an inttance is not limited by the inadequacies of the materials submitted by the parties; the Board may take such action as the public interest warrants.
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| Id.
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| DECEMBER 1988 GENERAL MATTERS 6 l
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| g g m.
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| 6.1.6 '. Facility Changes Without License Amendments 10 CFR S 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 proposed change requires prior NRC. approval _under Section 50.59.apparently rests with the licensee in the .first instance.
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| 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 presiding Licensing Board denied an intervenor's re-quest for 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.
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| (Trojan Nuclear Plant), LBP-77-69, 6 NRC 1179,1184 (1977).
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| Subsequently, the Appeal Board indicated that the intervenor's complaint in this regard might more appropriately have been directed, in the first instance, to the Staff under 10 CFR
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| @ 2.206, rather than to the Licensing' Board. Portland General
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| ' ( Electric Co. (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977).
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| 6.2 Amendments to License / Permit Applications Three years after the Licensing Board sanctioned a limited work authorization (LWA) and before the applicant had proceeded with any construction activity, applicant indicated it wanted to amend its construction permit application to- focus only on site suitability issues. The Appeal Board "vacateidl without pre.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 &
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| Liaht Co. (Summit Power Station, Units 1 and 2), ALAB'516, 9 NRC 5 (1979).
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| 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 perscn 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)
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| DECEMBER 1988 GENERAL MATTERS 7
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| r-l l
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| L 6.3 l
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| of the Atomic Energy Act prior to the 1970 antitrust amendments are excluded from antitrust review. Florida Power & Liaht Co. (St. Lucie Plant, Unit 1; Turkey Point Plant, Units 3 & 4), ALAB-428, 6 NRC 221, 225 (1977); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-323, 3 NRC 331 (1976).
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| ; The standard to be employed 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 M. Farley Nuclear Plant, Units 1 and 2), LBP-77-24, 5 NRC 804 (1977). The Commission's statutory obligation, 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_,.
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| This threshold determination as to whether a situation inconsistent with the antitrust laws could arise from issuance of the proposed license does not involve balancing public interest factors such as 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).
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| 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-trust laws" is called for if the Attorney General so recommends 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 Licht Co. -
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| (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8, 10 (1977).
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| One of the policies reflected in Section 105c of the Atomic Energy Act is that a government-developed monopoly -- like nuclear power ele:-tricity 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 & Light Company (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978).
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| 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 Atonic Energy Act. Where such a hearing is held, the Attorney DECEMBER 1988 GENERAL MATTERS 8
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| - .___________O
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| \"j General or his designee may participate as a party in connection with the subject matter of his advice. Houston Lichtina & Power Co.
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| (South Texas Project, Units 1 & 2), CLI-78-5, 7 NRC 397, 398 (1978);
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| 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).
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| In dealing with antitrust issues, the NRC's role is something more than that of a neutral forum fc. economic disputes between private parties. If an antitrust hearing is convened, it should encompass all significant antitrust implications of the license, not merely 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.
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| Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 949 (1978).
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| 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 g 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).
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| Where a license is found to create or maintain a situation inconsis-tent 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), LBP-78-13, 7 NRC 583, 597 (1978).
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| Only the NRC is empowered to make the initial determination under Section 105(c) whether activities undar the license would create or maintain a situation inconsistent with the antitrust laws, and if so i what license conditions should be required as a remedy. Houston i Liahtina & Power Co. (South Texas Project, linits 1 and 2), LBP- j 79-27, 10 NRC 563, 574 (1979). ;
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| I 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 )
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| 105(c) which is inconsistency with the antitrust laws. South Texas, j suora, 10 NRC at 570. 1 NRC statutory responsibilities under Section 105(c) cannot be im-paired or limited by a State agency. South Texas, supra, 10 NRC at 577.
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| O i The legislative history and language of the Public Utilities Regulatory Policies Act of 1978 clearly establish that the act was DECEMBER 1988 GENERAL MATTERS 9
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| ---________-mm...m_______ m _ h_
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| 5 6.3.1 not intended to divest NRC of its antitrust jurisdiction. South Texas, suora, 10 NRC at 577.
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| Once the U.S. Attorney General has withdrawn from a proceeding and permission has been granted to the remaining interveners to withdraw, the Board no longer has jurisdiction to entertain an antitrust proceeding under the provisions of the Atomic Energy Act. Florida Power and Liaht Co. (St. Lucie Plant, Unit No. 2), LBP-82-21,15 NRC 639, 640-641 (1982).
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| 6.3.1 Consideration of Antitrust Matters After the Construction Permit 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.
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| 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 ,
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| Energy Act, paragraph (c)(2) of that section governs the question of antitrust review at the operating license stage. '
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| 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 Lichtina & Power Co. (South Texas Project, Units 1 & 2), CL1-77-13, 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 Licht Co. (St. Lucie Plant, ;
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| Unit No. 2), ALAB-661, 14 NRC 1117, 1122 (1981). Where, I 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 Liahtino &
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| 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. Id. Where the petitioner who raises the antitrust contentions is a co-licensee, 10 CFR 50.90 permits the petitioner to seek an amendment to the construc-tion permit which would impose antitrust considerations. Id.
| |
| DECEMBER 1988 GENERAL MATTERS 10
| |
| | |
| lC I 1 p
| |
| 9 6.3.1 1
| |
| -The NRC may facilitate operating license stage antitrust
| |
| ! review by waiving-the requirements of 10 CFR 9 50.30(d) and .
| |
| 9 50.34(b) (which require operating license applications to be.
| |
| accompanied by the filing of an. FSAR). This permits. operating license antitrust review at a much earlier stage prior to com--
| |
| pletion of the FSAR. South Texas, CLI-77-13, supra, 5 NRC at 1319.
| |
| - Congress did not' invest the NRC with ongoing antitrust responsibility during the period subsequent to issuance.of y an operating license and the NRC's authority in this area terminates at that point. CLI-77-13, suora,.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 & Liaht Company (St. Lucie Plant, Unit 2),.
| |
| CLI-78-12, 7 NRC 939, 946 (1978).
| |
| Antitrust review might be conducted out-of-time if significant doubts were cast on the adequacy of the initial. antitrust review. Florida Power & Licht Co. (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 amendment may give rise to an additional antitrust review 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 DECEMBER 1988 GENERAL MATTERS 11
| |
| | |
| 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 Compan.y (Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 11 NRC 817, 823 (1980).
| |
| The ultimate issue in the operating license stage antitrust review is the same as for the construction permit review:
| |
| would the contemplated license create a situation inconsistent with the antitrust laws or the policies underlying those laws.
| |
| South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 11 NRC 817, 324 (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 requirc:: an examination of (a) whether an antitrust review would be likely to conclude that the situatinn as changed has negative antitrust implications and (b) whether the Commission has available remedies. Summer, supra, at 924-825.
| |
| 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. Semmer, supra.
| |
| 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 1 The Commission's regulations make clear that an antitrust j intervention petition: (1) must first describe a situation j inconsistent with the antitrust laws; (2) would be deficient j if it consists of a description of a situation inconsistent j DECEMBER 1988 GENERAL MATTERS 12 )
| |
| _ ____ a
| |
| | |
| 1 i
| |
| S 6.3.2 v J with the antitrust laws, however well pleaded, accompanied by a a mere paraphrase of the statutory language alleging that the l 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 condi-tions 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 2), ALAB-665,15 NRC 22, 29 (1982), citina, Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 574-575 (1975).
| |
| 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
| |
| ("N Power & Liaht Company (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978).
| |
| Q)
| |
| The criteria of 10 CFR & 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 & Licht Co. (St. Lucie Plant, Unit 2),
| |
| CLI-78-12, 7 NRC 939, 946 (1978).
| |
| Late requests for antitrust review hearings may be entertained in the period between the filing of an application for a con-struction permit -- the time when the advice of the Attorney General is sought -- and its issuance. However, as the time for issuance of the construction permit draws closer, Licens-ing Boards should scrutinize more closely and carefully the petitioner's claims of good cause. Florida Power & Liaht 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 may 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 & 2.714(a)(1) must be balanced and applied before petitions may be granted; the test becomes increasingly vigorous as time passes. Of particular DECEMBER 1988 GENERAL MATTERS 13
| |
| | |
| i l
| |
| 9 6.3.3 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. Florida Power and Liaht Co. (St. Lucie Plant, Unit No. 2), LBP-81-28,14 NRC 333, 336, 338 (1981).
| |
| 6.3.3 Discovery in Antitrust Proceedings 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 &
| |
| 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 from dis-covery. 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, suora, 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 fur discovery. The cutoff date is only a date after which, in the dimension of time, relevancy 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 shnwing. 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, @ 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 situa-tion inconsistent with the antitrust laws, not the planning of the nuclear facility. St. Lucie, supra, 9 NRC at 168.
| |
| The standard for allowing discovery requests predating a set cutoff date is that there be a reasonable possibility of DECEMBER 1988 CLNERAL MATTERS 14
| |
| | |
| q
| |
| \ 9 6.4.1 relevancy; it is not necessary to show relevancy plus good cause. St. Lucie, supra, 9 NRC at 172.
| |
| I 6.4 Attorney Conduct 6.4.1 Practice Before Licensing / Appeal Boards 10 CFR @ 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 ef. 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 anthority adverse to that position, has a clear professional
| |
| [N obligation to inform the board of the existence of such ad-t b) verse authority. Washinaton Public Power Supply 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 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 1 and 2), ALAB-691, 16 NRC 897, 916, 918 (1982).
| |
| In judging the propriety of a lawyer's participation in the l
| |
| preparation of testimony of a witness, the key factor is not who originated the words that comprise the testimony, but whether the witness can truthfully attest that the statement is complete and accurate to the best of his or her knowledge.
| |
| Midland, suora, 16 NRC at 918.
| |
| 1 Counsel have an obligation to keep adjudicatory boards in-formed of the material facts which are relevant to issues I
| |
| pending before them. The Reaents of the University of California (UCLA Research Reactor), LBP-84-22, 19 NRC 1383,
| |
| , 1401 (1984), sjitina, Midland, supra,16 NRC at 910; Tennessee
| |
| ; t Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and l\ 3), ALAB-677, 15 NRC 1387 (1982); Consumers Power C0 2 (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155,172 n.64 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 15
| |
| | |
| 9 6.4.1.1 A party's obligation to disclose material information extends to, and is often the responsibility of, counsel, especially in litigation involving highly complex technology where many decisions regarding materiality of information can only be made jointly by a party and its counsel. RCla, 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 substantially different from those laid out by the ABA's Model Rules of Professional Conduct.
| |
| In discharging his obligations, counsel may verify the accuracy of factual information with his client or verify the accuracy of the factual information himself. UCLA, suora, 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 decorum as they should before a court of law. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 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 .
| |
| perceived as a threat to seek criminal sanctions against the 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 Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 668-670 !
| |
| (1986).
| |
| The Commission generally follows the American Bar Associa- ,
| |
| tion's Code of Professional Responsibility in judging lawyer conduct in NRC proceedings. Midland, supra, 16 NRC at 916, citino, 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, supra, 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 adjudict. tory process,10 CFR @ 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 DECEMBER 1988 GENERAL MATTERS 16 i
| |
| | |
| (a ') 9 6.4.2 disqualify an attorney or an entire law firm for unprofes- i sional conduct, whatever its form. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-332, 3 NRC 785 (1976).
| |
| 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
| |
| ) 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 the procedure to be followed by the
| |
| (~T s
| |
| '") presiding officer in issuing an order barring the attorney from participation.
| |
| A Licensing Board may, if necessary for the orderly conduct of l a proceeding, reprimand, censure or suspend from participation !
| |
| in the particular proceeding pending before it any party or !
| |
| 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 parte 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 (j
| |
| 9 response. Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-36, 16 NRC 1512, l
| |
| 1514 n.1 (1982). l 1
| |
| DECEMBER 1988 GENERAL MATTERS 17
| |
| | |
| I
| |
| 'G.6.4.2.1 A party's lack of resources does not excuse its baseless and undocumented charges against the integrity and professional responsibility of counsel for an opposing party. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2),
| |
| LBP-85-45, 22 NRC 819, 828 (1985).
| |
| The Comn.ission 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).
| |
| While the Commission has inherent supervisory power over all agency personnel and proceedings, it is not necessarily appropriate to bring any and all matters to the Commission in the first instance. Under 10 CFR 9 2.713, where a complaint relates directly to a specified attorney's actions in a 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 w;s 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 Co. (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. Id. 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. Id.
| |
| In general, the doctrine of collateral estoppel applies to disqualification proceedings. An earlier judicial decision would be entitled to collateral estoppel effect unless giving it effect would intrude upon the Commission's ability to ensure the orderly and proper prosecution of DECEMBER 1988 GENERAL MATTERS 18
| |
| | |
| }:,
| |
| r l
| |
| .9 6.4.2.3 its internal proceedings. Toledo 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 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, suora. 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. .id2 O
| |
| 'g' 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 previously represented another party in the proceeding, or had a financial interest in common with another party, or the l 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 l, 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.
| |
| (
| |
| DECEMBER 1988 GENERAL MATTERS 19
| |
| | |
| l 9 6.5 6.5 Communications Between Staff / Applicant /0ther Parties /Ad.iudicatory Bodies 6.5.1 Ex Parte Communications Rule 10 CFR s 2.780 sets forth the applicable rules with respect l to ex carte (off-the-record) communications involving NRC personnel who exercise quasi-judicial functions with res-pect to the issuance, denial, amendment, transfer, renewal, modification, suspension or revocation of a license or permit. In general, the regulation prohibits ex parte com-munications with Commissioners, members of their immediate 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 Board members and their immediate staffs.
| |
| The ex oarte rule proscribes litigants' discussing, off-the-record, matters in litigation with members of the adjudicatory 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 in the proceeding. Public Service Co. of Indiana (Marble Hill 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 participates as a party in a proceeding and may confer with the other parties. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 883 n.161 (1984).
| |
| The ex oarte 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).
| |
| Leg, e e.a., Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-5, 17 NRC 331, 332 (1983), citina, 10 CFR 9 2.780(a).
| |
| Nothing in the Commission's ex carte 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 (1983),
| |
| citina, 10 CFR s 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 parte.
| |
| DECEMBER 1988 GENERAL MATTERS 20
| |
| | |
| l 1
| |
| 7 l ) 9 6.5.2 N / )
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, l Unit 1), CLI-83-3, 17 NRC 72, 74 (1983), citina, 10 CFR 6 2.780(d).
| |
| Regarding t prohibition on ex parte contacts, the ex oarte rule is not properly invoked where in an enforcement matter the licensee is complying with Staff's order and has not sought a hearing, nor is a petition for an enforcement action sufficient to invoke the provisions of 10 CFR S 2.780.
| |
| [incinnati 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 parte 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 parte 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 parig communication; whether the contacts could have influenced the A)
| |
| (
| |
| U 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 Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 564-565 (D.C. Cir. 1982).
| |
| 6.5.2 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 techni-cally 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
| |
| [7 representation has been waived. Pacific Gas & Electric Co.
| |
| t
| |
| '') (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 DECEMBER 1988 GENERAL MATTERS 21
| |
| | |
| 6 6.5.3 l conduct of future proceedings have been made, Licensing Boards must draft and enter written orders confirming those rulings.
| |
| Id.; 10 CFR @ 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 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 Communications 6.5.3.1 Staff Review of Application A prospective applicant may confer informally with the Staff prior to filing its application. 10 CFR 59 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. See Domestic License Applications, Open Meetings and Statement of NRC Staff Policy. 43 Fed. Rea. 28058 (June 28,1978).
| |
| In the aosence 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 I the scheduling of such meetings at the same time. Con-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).
| |
| DECEMBER 1988 GENERAL MATTERS 22
| |
| | |
| h
| |
| (
| |
| [,,}
| |
| S 6.5.4.1
| |
| '~
| |
| 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 least with respect to those parties participating in the review and those issues which are the subject of the review.
| |
| Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-184, 7 AEC 229, 231 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 s 2.701(b) which separately requires that all documents offered for filing in adjudica-tions be served on all parties. Carolina Power & Licht Co.
| |
| (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP 119A, 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 (V) 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), CLI-77-2, 5 NRC 13 (1977);
| |
| Louisiana Power and liaht Co. (Waterford Steam Electric <
| |
| Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 n.18 (1983),
| |
| citina, Indian Point, suora, 5 NRC at 15. See aenerally Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 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. Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2), CLI-76-22, 4 NRC 480, 491 n.11 (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-
| |
| /~N 291, 2 NRC 404, 408 (1975); Duke Power Co. (William B. McGuire s "j Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 625-626 (1973); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1357 (1984); General DECEMBER 1988 GENERAL MATTERS 23
| |
| | |
| s 6.5.4.1 Public Utilities Nuclear Corp. (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),
| |
| LBP-86-15, 23 NRC 595, 623-625 (1986).
| |
| 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) 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 Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387, 1388, 1394 (1982), citina, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 406 n.26 (1976); Georaia 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 l 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);
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units 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. Reo. 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 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 Licht 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).
| |
| 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 cart on other arounds, CLI-85-2, 21 NRC 282 (1985), citina, Tennessee Valley Authority (Brcens Ferry Nuclear Plant, Units DECEMBER 1988 GENERAL MATIERS 24
| |
| | |
| [ 9 6.5.4.1 1, 2 ahd 3), ALAB-677, B NRC 1387, 1394 (1982); Union Electric Co. (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205, 1210 n.ll (1983).
| |
| Parties and counsel must adhere to the highest standards in disclosing all relevant factual information to the Licensing Board. Material facts must be affirmatively disclosed. If 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.
| |
| (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205,1210 n.ll (1983); Louisiana Power and licht 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 l (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 (3 notification obligation or duties under Section 186 of the ;
| |
| Atomic Energy Act, 42 U.S.C. 9 2236a, the information should V) be disclosed for the Board to decide its true worth.
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1358 (1984), citina, McGuire, suora, 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, CL1-83-2, 17 NRC 69 (1983); Houston Liahtino and Power Co. (South Texas Project, Units 1 and 2), LBP-85-6, 21 NRC 447, 461 (1985); General Public Utilities Nuclear Corp.
| |
| (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. See, e.a., 10 CFR 9 50.72. Three Mile Island, suora,19 NRC at 1359 n.8.
| |
| The routine submittal of informational copies of technical
| |
| /G materials to a Board is not sufficient to fulfill a party's
| |
| ( ) obligation to notify the Board of material changes in sig-nificant matters relevant to the proceeding. Lona Island DECEMBER 1988 GENERAL MATTERS 25 l
| |
| {
| |
| 1 I
| |
| | |
| l 1.
| |
| i s 6.6 Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-53, 20 NRC 1531, 1539 n.23 (1984).
| |
| 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 Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 710 (1979); Louisiana Power and Liaht Co. (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 part on o_ther 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).
| |
| 6.6 Early Site Review Procedures Part 2 of the Commission's regulations has been amended to provide for adjudicatory early site reviews. See 10 CFR s 2.101(a-1),
| |
| s@ 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. 4 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 1 .
| |
| and 2), LBP-79-23, 10 NRC 220, 223 (1979), )
| |
| I DECEMBER 1988 GENERAL MATTERS 26 I
| |
| _ - _ _ \
| |
| | |
| . /m s
| |
| /
| |
| s 6.7.1 The early partial decision on site suitability does not authorize the applicant to do anything; it does provide applicant with in-formation of value to applicant in its decision ' ot either abandon the site or proceed with plans for the design, construction, and operation of a specific nuclear power plant at that site. Impl e-mentation of any such plans is dependent upon further review by the Staff and approval by a Licensing Board. Fulton, supra.
| |
| 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 s 4332(2)(c).
| |
| Carrol County Site, ap_r_a,12 NRC at 26.
| |
| 6.7 Endanaered Species Act f^ 6.7.1 Required Findings re Endangered Species Act
| |
| \' Under Section 7 of the Endangered Species Act, Federal agencies, in consultation with the Department of Interior, are to take such action as necessary to insure that actions authorized by them do not " jeopardize the continued existence of such endangered species." Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, IB & 28), 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." Id. 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 l result from construction or operation of the plant and to ,
| |
| make findings with respect to them. Hartsville, supra, !
| |
| \ 7 NRC at 361. In this vein, releases from the plant which will not produce significant adverse effects on endangered DECEMBER 1988 GENERAL MATTERS 27
| |
| | |
| i l
| |
| 5 6.7.2 species clearly "will not jeopardize their continued exis-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, typn ,
| |
| 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. Id2 at 366-367, i 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 Nuclear Plant, Units 1A, 2A,1B & 2B), 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 impose 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 @ 50.33(f) which is amplified by Appendix C to 10 CFR Part 50. Id. '
| |
| The " reasonable assurance" requirement set forth in the regulation was adopted to assure that financial conditions did not compromise j the applicant's clear self-interest in safety. It contemplates i 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. See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-895, 28 NRC 7, 18 & n.39 (1988),
| |
| citina, Coalition for the Environment v. NRC, 795 F.2d 168 (D.C. Cir.
| |
| 1986).
| |
| 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. (Midland Plant, Units '
| |
| 1 and 2), LBP-82-63, 16 NRC 571, 594 (1982), citing, 47 Fed.
| |
| Reo2 13750 (March 31, 1982); Illinois Power Co. (Clinton Power 1
| |
| DECEMBER 1988 GENERAL MATTERS 28 f
| |
| i
| |
| | |
| LY 9 6.8 Station, Unit No. 1), LBP-82-103, 16 NRC 1603, 1618 (1982),
| |
| citina, 10 CFR 9 2.104(c)(4);.47 ffd. Rea.'13753 (March 31, 1982); Houston 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. Georoia Power Co. (Vogtle Nuclear Plant, Units 1 and 2), LBP-84-35, 20 NRC 887, 895 (1984),
| |
| citina, New Enaland Coalition on Nuclear Pollution v. NR_C, 727 F.2d
| |
| .1127 (D.C. Cir. 1984). On September 12, 1984, the Commission issued new amendments 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.
| |
| l Sf_q 49 Fed. Rea. 35747 (September 12,1984), as corrected, 49 Fed, fles. 36631 (Septen,ber 19,1984); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-784, 20 NRC 845, 847 (1984);
| |
| Q g
| |
| Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 84 & n.126 (1985).
| |
| In its statement of considerations accompanying the 1984 enactment of the revised financial qualification review requirements, the Commission discussed the special circumstances which might justify a waiver, pursuant to 10 CFR 9 2.758(b), of the exemption from financial qualifications review for an electric utility operating license applicant. 49 Fed. Reo. 35747, 35751 (September 12,1984).
| |
| Among the possible special circumstances for which a waiver may be appropriate are: (1) a showing that the local public utility commission will not allow the electric utility to recover the costs of operating the facility through its rates; and (2) a showing of a nexus between the safe operation of a facility and the electric utility's financial condition. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-895, 28 NRC 7, 17, 21-22 (1988).
| |
| In order to obtain a waiver, pursuant to 10 CFR 9 2.758(b), of the financial qualifications review exemption in a low-power operating license proceeding, a petitioner must establish that the electric utility has insufficient funds to cover the costs of safe low-power operation of its facility. Seabrook, suora, 28 NRC at 18-19.
| |
| Unusual and compelling circumstances are needed to warrant a waiver :
| |
| O V
| |
| of the financial qualifications rule. Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP-83-37, 18 NRC 52, 57 (1983).
| |
| DECEMBER 1988 GENERAL MATTERS 29
| |
| | |
| 6.9 Matters involving decommissioning funding are considered under the Commission's decommissioning rule, issued on June 27, 1988, and not as a part of the financial qualifications review under 10 CFR s 50.33(f). The decommissioning rule requires an applicant to provide reasonable assurance that, at the time of termination of operations, it will have available adequate funds for the decommis-sioning of its facility in a safe and timely menner. 53 Fed. Rea.
| |
| 24,018, 24,037 (June 27, 1988). The Commission applied the decommis-t sioning rule to the unusual circumstances in the Seabrook operating license proceeding, and directed the applicant to provide, before low-power operation could be authorized, reasonable assurance that adequate funding for decommissioning will be available in the event that low-power operation has occurred and a full-power license is not granted. Public Service Co. of New Hampshire (Seabrook Station, Oi.its 1 and 2), CLI-88-7, 28 NRC 271, 272-73 (1989).
| |
| 6.9 Generic Issues A generic issue may be defined as one which is applicable to the industry as a whole (n, GESMO) 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. See, n , Duke Power Co. (William B.
| |
| McGuire Nuclear Station, Units 1 & 2), ALAB-128, 6 AEC 399, 400, 401 (1973); Lona Island Liahtina Co. (Shoreham Nuclear 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 Corp.
| |
| (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 814-815, clarified, CLI-74-43, 8 AEC 826 (1974). An appellate court has indicated that generic proceedings "are a more efficient forum in which to develop issues without needless repetition and potential for delay." Natural Resources Defense Council v. NRC, 547 F.2d 633 (D.C. Cir. 1976), rev'd 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 effect, see Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 28), ALAB-380, 5 NRC 572 (1977).
| |
| Nevertheless, it appears that generic issues may properly be 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 DECEMBER 1988 GENERAL MATTERS 30
| |
| | |
| r"h j j 9 6.9.1 v
| |
| " 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 predicate for required safety findings. In other cases, however, it may become apparent that the rulemaking will be completed well before the facility can be licensed to operate. In that kind of case (N ) there would normally be no safety justification for litigating
| |
| ( the generic issues, and strong resource management reasons not
| |
| '/ to litigate. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-107A, 16 NRC 1791, 1809 (1982).
| |
| 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 whether the Staff's resolution of various generic safety l issues applicable to the reactor in question is "'at least plausible and...if proven to be of substance ... adequate to justify operation.'" Pennsylvania Power & Licht Company ;
| |
| (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, l 9 NRC 291, 311 (1979). See Houston Liahtina and Power Co. j (South Texas Project, Units I and 2), LBP-86-5, 23 NRC 89, 90 l (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 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 and Liaht Co. (Waterford Steam Electric Station, Unit 3), LBP-82-100, 16 NRC 1550, 1559
| |
| , f} (1982), citina, Virainia Electric and Power Co. (North Anna l V Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 31
| |
| | |
| g 6.9.2 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 Licensing Board is required to examine the Staff's presen-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 s 2.760a to raise and decide such issues sua soonte. Lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 465 (1983), citina, Louisiana Power and Liaht C L (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 s 50.109 for backfitting and the procedures of 10 CFR Part 2, Subpart B for imposing new requirements or conditions.
| |
| Georaia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 &
| |
| 2), ALAB-291, 2 NRC 404 (1975).
| |
| 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 GENERAL MATTERS 32 DECEMBER 1988
| |
| | |
| m ,+
| |
| L 5 6.10
| |
| ..then, alternate means will be available to- assure that.
| |
| l r
| |
| . 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 l 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 issue 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 I 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. Lg_ng n Island Liahtino Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| LBP-83-57, 18 NRC 445, 472 (1983), affirmed, 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 reasonable assurance that the facility can be operated without undue risk to the health and safety of the public. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| LBP-83-57, 18 NRC 445, 472 (1983), affirmed, ALAB-788, 20 NRC 1102, 1135 n.187 (1984).
| |
| 6.10 Inspection 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-C dustry, lawful inspections of licensee's activities are within the warrantless rearch exception for a " closely regulated industry" delineated by the Supreme Court in Marshall v. Barlow's. Inc., 436 U.S. 307 (1978); Union Electric Co. (Callaway Plant, Units 1 & 2),
| |
| DECEMBER 1988 GENERAL MATTERS 33
| |
| | |
| LBP-78-31, 8 NRC 366, 377 (1978). In addition, a licen:ee's submission to all applicable NRC regulations constitutes advance consent to lawful inspections, and therefore, no warrant is required for such inspections. Callaway, suora, 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 safety related matters merely because such investigation may touch 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 serious enough to warrant the drastic remedy of permit suspension pending submission to investigation, since the refusal interferes l with the Commission's duty to assure public health and safety. I Callaway, suora, 8 NRC at 378.
| |
| In:pections of licensed activities during company-scheduled working hours are reasonable per se. Commission inspections may not be limited to " office hours." In re Radiation Technoloav. Inc., ALAB-567, 10 NRC 533, 540 (19/9).
| |
| A search warrant is not needed for inspections of licensed acti-vities. Id. 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 Lichtina and Power Co. (South Texas Project, Units 1 and 2), CLI-87-8, 26 NRC 6, 9 (1987).
| |
| i The NRC Staff's Office of Inspection and Enforcement does inspect construction activities and reports. Where weaknesses or errors which substantially affect safety are detected, the Staff requires the applicant to take appropriate action. Deliberate or careless failure of applicants to adhere to the program is the basis for the i
| |
| imposition of penalties. Illinois Power Co. (Clinton Power Station, l Unit No. 1), LBP-82-103, 16 NRC 1603, 1614 (1982).
| |
| 6.10.1 Enforcement 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).
| |
| l l DECEMBER 1988 GENERAL MATTERS 34
| |
| | |
| 4
| |
| '/ 9 6.10.1-The Director of Inspection and Enforcement,' subject to re-quirements that he give. licensees 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 compromise 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 stage 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).
| |
| L A licensee is normally afforded'the opportunity to challenge i an enforcement action in a public hearing prior to the time an
| |
| , enforcement action takes effect. Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-73-38, 6 AEC.1082, 1083 (1973);
| |
| ( Metropolitan Edison Co. (Three Mile Island Nuclear Station, i Unit 1), CLI-85-9, 21.NRC 1118, 1123 (1985). However, the Commission is empowered to make a shutdown order immediately
| |
| : i. ' effective where such action is required by the public health, safety, or public interest. Three Mile Island, supra, 21 NRC at 1123-24 n.2. See 10 CFR 6 2.202(f), implementing 5 U.S.C. y' 9 558(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 l 1124. See, g.o Pan American Airways v. C.A.B., 684 l F.2d 31 (D.C. a 1982); Northwest Airlines v. C. A.B. ,
| |
| 539 F.2d 846 (D.C . Cir.1976); Air Line Pilots Ass'n..
| |
| International v. C.A.B., 458 F.2d 846 (D.C. Cir 1972),
| |
| I 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 l
| |
| proceeding, such action does not convert the enforcement proceeding inte a license amendment proceeding. Once the Commission establishes a formal adjudicatory hearing in an enforcement cas . it need not grant separate hearings on any license conditier.s that are imposed as a direct consequence of DECEMBER 1988 GENERAL MATTERS 35
| |
| | |
| l that enforcement hearing. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118,1148 (1985).
| |
| Under 10 CFR 9 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 9 2.206, members of the puulic 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 State of New York (Indian Point, Unit 3), CLI-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), CL1-83-21, 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 Co. -(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 Company, ALJ-78-3, 8 NRC 649, 653 (1978).
| |
| The Commission established detailed procedures and consi-derations to be undertaken in the assessment of civil penalties by: (1) notice of proposed rulemaking (36 Fed.
| |
| Rea. 19122, Aug. 26, 1971), and (2) amendment of the Rules of Practice to include the factors which will determine the assessment of civil penalties. (35 Fed. Rea. 16894, Dec. 17, 1970). These two formal actions fulfill the legal require-ments for standards utilized in civil penalty proceedings.
| |
| Radiation Technoloav. Inc., ALJ-78-4, 8 NRC 655, 663 (1978).
| |
| See also Pittsburah-Des Moines Steel Company, ALJ-78-3, 8 NRC 649, 653 (1978).
| |
| Under Section 234 of the Atomic Energy Act, 42 U.S.C.
| |
| s 2282(b), and 10 CFR s 2.205 of the Commission's regulations, a person subject to imposition of a civil penalty must first be given written notice of: (1) the specific statutory, DECEMBER 1988 GENERAL MATTERS 36
| |
| | |
| g_ ,
| |
| q
| |
| 'l
| |
| ,9 0
| |
| -6.6.11
| |
| \ regulatory or license violations; (2) the date, facts, and -
| |
| nature of the act or. omission with which the person is charged; and (3) the proposed penalty. The-person subject to the fine must then be given an opportunity to show in writing why the penalty should not be imposed. Metropolitan Edison-Co. (Three' Mile Island Nuclear Station, Unit No.1), CLI 31, 16 NRC 1236, 1238 (1982).
| |
| When a hearing is requested to challenge the imposition of civil penalties, the officer presiding'at the hearing, not the .
| |
| Director of Inspection and Enforcement, decides on the basis of the record whether the charges are sustained and whether civil penalties are warranted.- In re Radiation Technoloav, Inc., ALAB-567, 10 NRC 533, 536 (1979).
| |
| Civil penalties are not invalidated by the absence of a formally promulgated schedule of fees when the penalties irnosed are within statutory limits and in accord with general criteria published by the Commission. Radiation Technoloav, suora,10 NRC at 541.
| |
| A civil penalty may be imposed on a licensee even though there is no evidence of (1) malfeasance, misfeasance, or e nonfeasance by the licensee, or (2) a failure by the licensee to take prompt corrective action. In such circumstances, a 4
| |
| I
| |
| ' V civil penalty may be considered proper if it might have the effect of deterring future violations of regulatory require-ments or license conditions by the licensee, other licensees,-
| |
| or their employees. It does not_ matter that the-imposition of the civil penalty may be viewed as punitive. In re Atlantic Research Coro., CLI-80-7, 11 NRC 413 (1980), vacatina, ALAB-542, 9 NRC 611 (1979).
| |
| An adjudicatory hearing in a civil penalty proceeding is essentially a trial de novo. The penalty assessed by the I&E Director constitutes the upper bound of the penalty which may be imposed after the hearing but the Administrative Law Judge may substitute his own judgment for that of the Director, in re Atlantic Research Corporation, ALAB-594, 11 NRC 841, 849 (1980).
| |
| 6.10.1.2 Show Cause Proceedings (See 6.24) 6.11 Masters in NRC Proceedings For a discussion of the role of a " master" in NRC proceedings, see Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 '
| |
| P NRC 752, 759 (1975) and Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-290, 2 NRC 401 (1975). In ALAB-300, the Appeal Board ruled that parties to an NRC proceeding may voluntarily agree among themselves to have a master of their own choosing make certain DECEMBER 1988 GENERAL MATTERS 37
| |
| | |
| S 6.12 discovery rulings by which they will abide. In effect, the master's rulings were like stipulations among the parties. The question as to whether the Licensing and Appeal Boards retained jurisdiction to review the master's discovery rulings was not raised in this case. '
| |
| Consequently, the Appeal Board did not reach a decision as to that issue. Davis-Besse, suora, 2 NRC at 768.
| |
| More recently, 10 CFR Part 2 has been amended to provide for the use of special assistants to Licensing Boards. Specifically, special assistants may be appointed to take evidence and prepare a record.
| |
| With the consent of all parties, the special assistant may take evidence, and prepare a report that becomes a part of the record, subject to appeal to the Licensing Board. 10 CFR 9 2.722.
| |
| It is within the discretion of the Special Master to hold information confidential if to do so would increase the likelihood of a fair and impartial hearing. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-81-50, 14 NRC 888, 894 (1981).
| |
| A Special Master's conclusions are considered as informed advice to the Licensing Board; however, the Board must independently arrive at its own factual conclusions. Where judgment is material to a particular conclusion, the Board must rely on its own collegial consensus. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 289 (1982). Pursuant to 10 CFR s 2.722(a)(3), the regulations under which a Special Master may be appointed in NRC proceedings specify that Special Masters' reports are advisory only. The Board alone is authorized by statute, regulation and the notice of hearing to render the initial decision in proceedings. The decision must be rendered upon the Board's own understanding of the reliable, probative and substantial evidence of the record. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 288 (1982).
| |
| Where the Special Master's conclusions are materially affected by a witness' demeanor, the Licensing Board must give especially j careful consideration to whether or not other more objective witness credibility standards are consistent with the Special Master's conclusions. However, the Licensing Board may afford weight to the Special Master's reported direct observations of a witness' demeanor. Three Mile Island, supra, 16 NRC at 289. ]
| |
| 6.12 Material False Statements in Applications (See 1.5.2) 6.13 Materials Licenses The production, processing and sale of uranium and uranium ore are controlled by the Atomic Energy Act of 1954, as amended. Homestake Minina Co. v. Mid-Continent Exploration Co., 282 F.2d 787, 791 (10th Cir. 1960). Natural uranium and ores bearing it in sufficient concentration constitute " source material" and, when enriched for l
| |
| DECEMBER 1988 GENERAL MATTERS 38 l
| |
| | |
| (
| |
| h i
| |
| 9 6.13 1
| |
| fabrication into nuclear fuel, become "special nuclear material"
| |
| ! within the meaning of the Act. (42 U.S.C. @@ 2014(z) and (aa),
| |
| 2071,-2091.) Both are expressly subject to Commission regulation (42 U.S.C. 95 2073, 2093). 10 CFR Parts 40 and 70 specifically l
| |
| provide for.the domestic licensing of source and special nuclear material:respectively.
| |
| In this regard, the NRC has granted a general license to acquire title to' nuclear fuel without first obtaining a specific license.
| |
| Thus, persons may obtain title and own uranium fuel and are. free to contract to receive title to such fuel without an NRC license or specific NRC regulatory control. Rochester Gas & Electric Corpora-tion (Sterling Power . Project, Nuclear Unit No.1), ALAB-507, 8 NRC 551, 554-55 (1978). It is only when a person seeks to reduce its
| |
| ; contractual ownership to actual possession that regulatory require-ments on possession and use must be met and a specific materials license must be obtained. Sterlina, supra, 8 NRC at 555.
| |
| In the case of materials licenses, the Commission has the legal latitude under Section 189a of the Atomic Energy Act to use informal procedures (instead of the formal trial-type hearing specified in Section 554 of the A.P.A.) to fully. apprise it of the concerns of a party challenging the licensing action and to provide an adequate record for determining their validity. Kerr-McGee Corporation (West
| |
| , Chicago Rare Earths facility), CLI-82-2, 15 NRC 232, 253 (1982),
| |
| l
| |
| .aff'd sub nom. City of West Chicaao v. NRC, 701 F.2d 632 (7th Cir.
| |
| 1983); Rockwell' International (Energy Systems Group Special Nuclear l
| |
| Materials License No. SNM-21), CLI-83-15,17 NRC.1001,1002 (1983);
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and l 2), ALAB-765, 19 NRC 645, 651 (1984). However, the consistent agency l
| |
| practice is for Licensing Boards, already presiding at operating license hearings, to act on requests to raise Part 70 issues involving the same facility. Limerick, supra, 19 NRC at 651-52; l Philadelphia Electric Co. (Limerick Generating Station, Units 1 and l 2), ALAB-778, 20 NRC 42, 48 (1984).
| |
| While informal procedures may be followed, persons seeking to challenge the materials licensing action still may be required to establish standing under existing agency precedents regarding 10 CFR 5 2.714(d). Eneroy Systems, supra, 17 NRC at 1003. In the i absence of a valid petition to intervene under 10 CFR S 2.714, there is no authority to hold a hearing. Rockwell International Corp 2 l (Energy Systems Group Special. Nuclear Materials License No. SNM-21),
| |
| I LBP-83-65, 18 NRC 774, 777-78 (1983).
| |
| For an informal hearing on the Staff's denial of an application for a materials license amendment, the presiding officer re-quested the applicant to prepare a statement, using as guidance the formal procedural requirements for contentions specified in 10 CFR
| |
| & 2.714(a), of each particular claim of error and, with reasonable specificity, the basis for each claim. Radioloav Ultrasound Nuclear Consultants. P.A. (Strontium-90 Applicator), LBP-86-35, 24 NRC 557, 558 (1986). Subsequent to the informal hearing, the Commission DECEMBER 1988 GENERAL MATTERS 39
| |
| | |
| l l
| |
| l 9 6.13 directed the presiding officer to consider the applicant's tardy responses to questions posed by the presiding officer during the informal hearing in order to determine if the information submitted by the applicant satisfied the formal substantive criteria specified in 10 CFR 9 2.734 for reopening the record. Radioloav Ultrasound i Nuclear Consultants. P.A. (Strontium-90 Applicator), LBP-88-3, 27 NRC 220, 222-23 (1988).
| |
| Notwithstanding the absence of a hearing on an application for a materials license, the Commission's regulations require the Staff to make a number of findings concerning the applicant and its ability to protect the public health and safety before the issuance of the license. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-778, 20 NRC 42, 48 (1984). See 10 CFR 99 70.23, 70.31. Cf. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895-96 (1981)
| |
| (analagous to the regulatory scheme for the issuance of operating licenses under 10 CFR 9 50.57), aff'd sub nom. Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1982).
| |
| A materials licensee may not unilaterally terminate its license where continuing health and safety concerns remain. A license to receive, process, and transport radioactive waste to authorized land burial sites imposes a continuing obligation on the licensee to monitor and maintain the burial sites. The requireme,t of State ownership of land burial sites is intended to provide for the ultimate, long term maintenance of the sites, not to shift the licensee's continuing responsibility for the waste material to the States. U.S. Ecoloav.
| |
| Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site),
| |
| LBP-87-5, 25 NRC 98, 110-11 (1987), vacated, ALAB-866, 25 NRC 897 (1987).
| |
| A 10 CFR Part 70 materials license is an " order" which under 10 l CFR 9 2.717(b) may be " modified" by a Licensing Board delegated authority to consider a 10 CFR Part 50 operating license. ,
| |
| Cincinnati Gas and Electric Company (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228 (1979).
| |
| Final orders on motions pertaining to Part 70 materials licenses issued during an operating license hearing are appealable upon issuance. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-84-16, 19 NRC 857, 876 (1984), aff'd, ALAB-765, 19 NRC 645, 648 n.1 (1984).
| |
| A separate environmental impact statement is not required for a Special Nuclear Material (SNM) license to receive new fuel at a new facility. When an environmental impact statement has been done for an operating license application, including the delivery of fuel, there is no need for each component to be analyzed separately on the assumption that a plant may never be licensed to operate. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-38, 18 NRC 61, 65 (1983).
| |
| DECEMBER 1988 CENERAL MATTERS 40 1
| |
| | |
| 1 i
| |
| w,3 5(%J ) 6 6.14.1 There .~is no reason to believe that the granting of a Special Nuclear {
| |
| L Material (SNM) license'should be' deferred until after the applicant i shows its compliance with local laws. ~ Cleveland Electric Illuminat-j_n.g n D. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-38,18 NRC
| |
| '61, L5 /1983).
| |
| 1 An amendment'to a Part 70 application gives rise to the same rights !
| |
| and duties as the original application. - Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-778, 20 NRC 42, 48 (1984),
| |
| i 6.14 Motions in NRC Proceedings Provisions with regard to motions in general in NRC p.oceedings are set forth in 10 CFR s 2.730. Motion practice before.the Commission L involves only a motion and an answer; movants who do not seek leave - ,
| |
| to file'a reply are expressly denied the right to do so. 10 CFR 6 2.730(c). Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2),
| |
| ALAB-469, 7 NRC 470, 471 (1978); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1) LBP-81-18, 14 NRC 71 (1981).
| |
| A moving party has no right of reply to answers in NRC proceedings except'as permitted by the presiding officer. Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), LBP-82-72, 16 NRC 1 (D 968, 971 (1982), citine, 10 CFR s 2.730.
| |
| Although the Rules of Practice do not explicitly provide for the filing of either objections to contentions or motions to dismiss them, each presiding board must fashion a fair procedure for dealing with such objections to petitions as are filed. The cardinal rule of fairness is that each side must bc heard. Houston Liahtina &
| |
| Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979).
| |
| Prior to entertaining any suggestions that a contention not be admitted, the proponent of the contention must be given some chance to be heard in response. The interveners must.be heard in response because they cannot be required to have anticipated in the conten-tions themselves the possible arguments their opponents might raise as grounds for dismissing them. Contentions and challenges to contentions in NRC licensing proceedings are analogous to complaints and motions to dismiss in Federal court. Allens Creek, suora, 10 NRC at 525.
| |
| 6 14.1 Form of Motion The requirements with regard to the form and content of motions are set forth in 10 CFR s 2.730(b).
| |
| The Appeal Board expects the caption of every filing in which
| |
| 'O immediate affirmative relief is requested to reference that fact explicitly by adverting to the relief sought and including the word " motion." The movant will not be heard to DECEMBER 1988 GENERAL MATTERS 41
| |
| | |
| assert that it has been prejudiced by the Board's failure to take timely action on the motion in the absence of such a reference. Duke Power Comoany (Cherokee Nuclear Station, ,
| |
| Units 1, 2 and 3), ALAB-457, 7 NRC 70, 71 (1978).
| |
| 6.14.2 Responses to Motions 6.14.2.1 Time for Filing Responses to Motions Unless specific time limits for responses to motions are expressly set out in specific regulations or are established by the presiding adjudicatory board, the time within which responses to motions must be filed is set forth in 10 CFR s 2.730.
| |
| If a document requiring a response within a certain time after service is served incompletely (e a., only part of the document is mailed),10 CFR s 2.712 would indicate that the time for response does not begin to run since implicit in that rule is that documents mailed are complete, otherwise service is not effective. Consumers Power Comoany (Midland Plant, Units 1 & 2), ALAB-235, 8 AEC 645, 649 n.7 (1974) (dictum).
| |
| 6.14.3 Licensing Board Actions on Motions Although an intervenor may have failed, withcut good cause, to timely respond to an applicant's motion to terminate the proceeding, a Board may grant the intervenor an opportunity to respond to the applicant's supplement to the motion to terminate. Public Service Co. of Indiana and Wabash Valley Power Association (Marble tiill Nuclear Generating Station, Units 1 and 2), LBP-86-16, 23 NRC 789, 790 (1986).
| |
| If a Licensing Board decides to defer indefinitely a ruling on a motion of some importance, " considerations of simple fairness require that all parties be told of that fact."
| |
| Consumers Power Company (Midland Plant, Units 1 & 2), ALAB-417, 5 NRC 1442, 1444 (1977).
| |
| When an applicant for an operating license files a motion for authority to conduct low-power testing in a proceeding where the evidentiary record is closed but the Licensing Board has ,
| |
| not yet issued an initial decision finally disposing of all )'
| |
| contested issues, the Board is obligated to issue a decision on all outstanding issues (i.e., contentions previously litigated) relevant to low-power testing before authorizing such testing. See 10 CFR s 50 57(c). Such a motion, however, does not automatically present an opportunity to file new contentions specifically aimed at low-power testing or any other phase of the operating license application. Pacific Gas i and Electric Co. (Diablo Lanyon Nuclear Power Plant, Units 1 and 2), ALAS-728, 17 NRC 777, 801 n.72 (1983), review cenied, CLI-83-32, 18 NRC 1309 (1983); Public Service Co. of New DECEMBER 1988 GENERAL MATTERS 42 l
| |
| | |
| s 6.15 Hampshire (Seabrook Station, Units 1 and 2), LBP-86-34, 24 NRC 549, 553 (1986), aff'd, ALAB-854, 24 NRC 783 (1986).
| |
| 6.15 NEPA Considerations NEPA expanded the Commission's regulatory jurisdiction beyond that conferred by the Atomic Energy Act or the Energy Reorganization Act.
| |
| Detroit Edison Company (Greenwood Energy Center, Units 2 and 3),
| |
| ALAB-247, 8 AEC 936 (1974). NEPA requires the Commission to consider environmental factors in granting, denying or conditioning a construction permit. It does not give the Commission the power to order an applicant to construct a plant at an alternate site or to order a different utility to construct a facility. Nevertheless, the fact that the Commission is not empowered to implement alterna-tives does not absolve it from its duty to consider them. Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972);
| |
| Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977).
| |
| NEPA does not establish minimal environmental standards; the environmental review mandated entails a balancing of costs and benefits rather than a measuring against absolute environmental standards. Public Service Co. of New Hampshire (Seabrook Station, O Units 1 and 2), ALAB-422, 6 NRC 33, 43 (1977). Pursuant to NEPA, Q the NRC must make a finding as to the need for the facility or need-for-power in determining whether construction of the facility should be authorized. 'Need-for-power" is a shorthand expression for the
| |
| " benefit" side of the cost-benefit balance NEPA mandates. A nuclear plant's principal " benefit" is the electric power it generates.
| |
| Hence, absent some "need-for-power," justification for building a facility is problematical. Id. at 90.
| |
| NEPA requirements apply to license amendment proceedings as well as to construction permit and operating license proceedings. In license amendment proceedings, however, a Licensing Board should not embark broadly upon a fresh assessment of the environmental issues which have already been thoroughly considered 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-ll, 7 NRC 381, 393 (1978),
| |
| citing, Georaia Power Company (Alvin W. Vegtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 415 (1975).
| |
| NEPA does not mandate that environmental issues considered in the construction permit proceedings be considered again in the operating license hearing, absent new information. Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC O 1423, 1459 (1982). With regard to license amendments, it has been l ()
| |
| ! held that the grant of a license amendment to increase the storage capacity of a spent fuel pool is not a major Commission action significantly affecting the quality of the human environment, and DECEMBER 1988 GENERAL MATTERS 43 l
| |
| | |
| I 9 6.15 therefore, no EIS is required. Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), LBP-80-27,12 NRC 435, 456 (1980)', Portland General Electric Company (Trojan .
| |
| Nuclear Plant), ALAB-531, 9 NRC 263, 264-268 (1979). )
| |
| "[T]he Commission is under a dual obligation: to pursue the objec-tives of the Atomic Energy Act and those of the National Environ- ;
| |
| mental Policy Act. 'The two statutes and the regulations promul-gated under each must be viewed in pari materia.'" Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 & 2), ALAB-506, 8 NRC 533, 539 (1978). (emphasis in original) In fulfilling its obliga-tions under NEPA, the NRC may impose upon applicants and licensees conditions designed to minimize the adverse environmental effects of licensed activities. Such conditions may be imposed even on other Federal agencies, such as TVA, which seek NRC licenses, despite the language of Section 271 of the Atomic Energy Act (42 U.S.C. 2018) which states, in part, that nothir.g in the act "shall be construed to affect the authority of any Federal, State or local agency with respect to the generation, sale, or transmission of electric power through the use of nuclear facilities licensed by the Commission...."
| |
| Phions Bend, 8 NRC at 541-544. Unless it was explicitly made exclusive, the authority of other Federal, state or local agencies or government corporations to consider the environmental consequences of a proposed project does not preempt the NRC's authority to condition its permits and licenses pursuant to NEPA. For example, TVA's jurisdiction over environmental matters is not exclusive where TVA seeks a license from a Federal agency, such as NRC, which also has full NEPA responsibilities. Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), LBP-77-14, 5 NRC 494 (1977).
| |
| NEPA directs all Federal agencies to comply with its requirements "to the fullest extent possible." (42 U.S.C. 5 4332.) The leading authorities teach that an agency is excused from those NEPA duties only "when a clear and unavoidable conflict in statutory authority i exists." Tennessee Valley Authority (Phipps Bend Nuclear Plant, ;
| |
| Units 1 and 2), ALAB-506, 8 NRC 533, 545 (1978).
| |
| NEPA cannot logically impose requirements more stringent than those contained in the safety provisions of the Atomic Energy Act.
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 696 n.10 (1985), citina, Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2),
| |
| ALAB-518, 9 NRC 14, 39 (1979).
| |
| While the authority of other Federal or local agencies to consider the environmental effects of a project does not preempt the NRC's authority with regard to NEPA, the NRC, in conducting its NEPA analysis, may give considerable weight to action taken by another competent and responsible government authority in enforcing an environmental statute. Public Service Company of Oklahoma (Black Fox Station, Units 1 & 2), LBP-78-28, 8 NRC 281, 282 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 44 i
| |
| | |
| 1 m
| |
| [ S 6.15.1 In contrast to safety questions, the environmental review at the operating license stage need not duplicate the construction permit review, 10 CFR S 51.21. To raise an issue in an operating license hearing concerning environmental matters which were considered at the construction permit stage, there needs to be a showing either that the issue had not previously been adequately considered or that significant new information has developed after the construction ;
| |
| permit review. Houston Liahtina and Power Co. (South Texas Project, j Units 1 and 2), LBP-79-10, 9 NRC 439, 465 (1979).
| |
| Consideration by the NRC in its environmental review is not required for the parts of the water supply system which will be used only by a local government agency, however, cumulative impacts from the jointly utilized parts of the system will be considered. Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1473, 1475 (1982).
| |
| Insofar as environmental matters are concerned, under the National Environmental Policy Act (NEPA) there is no legal basis for refusing an operating license merely because some environmental uncertainties may exist. Where environmental effects are remote and speculative, agencies are not precluded from proceeding with a project even though all uncertainties are not removed. Arizona Public Service Co. (Palo
| |
| ,r'N Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117A,16 i
| |
| V) NRC 1964, 1992 (1982), citina, State of Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir. 1978), vacated in part, sub no s , Western Oil l
| |
| and Gas Association v. Alaska, 439 U.S. 922 (1982); NRDC v. Morton, 458 F.2d 827, 835, 837-838 (D.C. Cir.1972).
| |
| Environmental uncertainties raised by interveners in NRC proceed-ings do not result in a per se denial of the license, but rather ,
| |
| are subject to a rule of reason. Arizona Public Service Co.
| |
| (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-82-117A, 16 NRC 1964, 1992 (1982).
| |
| 6.15.1 Environmental Impact Statements (EIS)
| |
| The activities for which environmental statements need be prepared and the procedures for preparation are covered generally in 10 CFR Part 51. For a discussion of the scope of an NRC/NEPA review when the project addressed by that review is also covered by a broader overall programmatic EIS prepared by another Federal agency, see USERDA (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976).
| |
| Neither the Atomic Energy Act, NEPA, nor the Commission's regulations require that there be a hearing on an environ-mental impact r catement. Public hearings are held on an EIS only if the Commission finds such hearings are required in the public interest. 10 CFR H 2.104. Commonwealth Edison Co.
| |
| (O/ '
| |
| (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 625 (1981), citing, Vermont Yankee Nuclear Power Coro. v.
| |
| NRC, 435 U.S. 519 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 45
| |
| | |
| l Under the plain terms of NEPA, the environmental assessment of a particular proposed Federal action coming within the statutory reach may be confined to that action together with, inter alia, its unavoidable consequences. Northern States Power Comoany (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 48 (1978).
| |
| The environmental review mandated by NEPA is subject to a rule of reason and as such need not include all theoretically possible environmental effects arising out of an action, but may be limited to effects which are shown to have some likelihood of occurring. This conclusion draws direct support from the judicial interpretation of the statutory command imposing the obligation to make reasonable forecasts of the future. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 48, 49 (1978).
| |
| Underlying scientific data and inferences drawn from NEPA through the exercise of expert scientific evaluation may be adopted by the NRC from the NEPA review done by another Federal agency. The NRC must exercise independent judgment with respect to conclusions about environmental impacts based on interpretation of such basic facts. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1467-1468 (1982), citina, Federal Trade Commis-sion v. Texaco, 555 F.2d 862, 881 (D.C. Cir. 1977), cert, denied, 431.U.S. 974 (1977); Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRt. 848, 868 n.65 (1984).
| |
| NEPA requires that a Federal agency make a " good faith" effort to predict reasonably foreseeable environmental impacts and that the agency apply a " rule of reason" after taking a "hard look" at potential environmental impacts. But an agency need not have complete information on all issues before proceeding.
| |
| Eublic Service Company of Oklahoma (Black Fox Station, Units 1
| |
| & 2), LBP-78-26, 8 NRC 102, 141 (1978).
| |
| An adequate final environmental impact statement for a nuclear facility necessarily includes the lesser impacts attendant to low power testing of the facility and removes the need for a separate EIS focusing on questions such as the costs and benefits of low power testina. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 795 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). I 6.15.1.1 Need to Prepare an EIS Although the determination as to whether to prepare an environmental impact statement falls initially upon the DECEMBER 1988 GENERAL MATTERS 46
| |
| | |
| '"}.
| |
| ~"
| |
| , i 9 6.15.1.1 Staff, that determination may be made an issue in an adjudi-catory proceeding. Consumers Power Company (Palisades Nuclear Plant), LBP-79-20,10 NRC 108,120 (1979).
| |
| In the final analysis, the significance of the impact of the project -- in large part an evidentiary matter -- will determine whether a statement must'be issued. Palisades, id.
| |
| In the case of licensing nuclear power plants, adverse impacts include the impacts of the nuclear fuel cycle. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1076 (1982), citina, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 539 (1978).
| |
| The test of whether benefits of a proposed action outweigh its !
| |
| costs is distinct from the primary question of whether an environmental impact statement is needed because the action is a major Federal action significantly affecting the environ-ment. Virainia Electric Power Co. (Surry Nuclear Power Station, Units 1 & 2), CLI-80-4, 11 NRC 405 (1980).
| |
| The Commission has consistently taken the position that individual fuel exports are not " major Federal actions."
| |
| p Westinghouse Electric Coro. (Exports to Philippines), CLI-( 80-15, 11 NRC 672 (1980).
| |
| The fact that risks of other actions or no action are greater than those of the proposed action does not show that risks of the proposed action are not significant so as to require an EIS. Where conflict in the scientific community makes determination of significance of environ-mental impact problematical, the preferable course is to prepare an environmental impact statement. Virainia Electric Power Co. (Surry Nuclear Power Station, Units 1 & 2), CLI 4, 11 NRC 405 (1980).
| |
| For an analysis of when an environmental assessment rather than an EIS is appropriate, see Commonwealth Edison Company (Zion Station, Units 1 & 2), LBP-80-7, 11 NRC 245, 249-50 (1980).
| |
| The NRC Staff is not required to prepare a complete environ- '
| |
| mental impact statement if, after performing an initial environmental assessment, it determines that the proposed action will have no significant environmental impact.
| |
| Virainia Electric and Power C_o2 (North Anna Power Station, Units 1 and 2), ALAB-790, 20 KRC M 50, 1452 n.5 (1984).
| |
| A separate environmental impact statement is not required for CN a Special Nuclear Material (SNM) license. When an environ-mental impact statement has been done for an operating license (V) application, including the delivery of fuel, there is no need for each component to be analyzed separately on the assumption DECEMBER 1988 GENERAL MATTERS 47
| |
| | |
| S 6.15.1.1 that a plant may never be licensed to operate. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-38, 18 NRC 61, 65 (1983).
| |
| A supplemental Environmental Impact Statement (EIS) or an Environmental Impact Appraisal (EIA) does not have to be prepared prior to the granting of authorization for issuance of a low-power license. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445, 634 (1983).
| |
| When the environmental effects of full-term, full-power operation have already been evaluated in an EIS, a licensing action for limited operation under a 10 CFR 9 50.57(c) license that would result in lesser impacts need not be accompanied by an additional impact statement or an impact appraisal.
| |
| Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-5,13 NRC 226 (1981), and ALAB-728, 17 NRC 777, 795 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983).
| |
| It is well-established NEPA law that separate environmental statements are not required for intermediate, implementing steps such as the issuance of a low-power license where an EIS has been prepared for the entire proposed action and there have been no significant changed circumstances. Lona Island Liahtina Co. (Shoreham Nuclear Jower Station, Unit 1), CLI-84-9, 19 NRC 1323, 1326 (1984), on certification from, ALAB-769, 19 NRC 995 (1984). See Environmental Defense Fund. Inc.
| |
| : v. Andrus, 619 F.2d 1368, 1377 (1980).
| |
| The principle stated in the Shoreham and Diablo Canyon cases, suora, is applicable even where an applicant may begin low-power operation and it is uncertain whether the applicant will ever receive a full-power license. In Shoreham, the fact that recent court decisions in effect supported the refusal by the State and local governments to participate in the development of emergency plans was determined not to be a significant change of circumstances which would require the preparation of a supplemental environmental impact statement to assess the costs and benefits of low-power operation. Lona Island .
| |
| Liahtina Co. (Shoreham Nuclear Power Station), CLI-85-12, 21 !
| |
| NRC 158,, 1589 (1985). See Public Service Co. of New '
| |
| Hamoshire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251, 258-59 (1987).
| |
| Environmental review of the storage of spent fuel in reactor facility storage pools for at least 30 years beyond the expiration of reactor operating licenses is not required based upon the Commission's generic determination that such storage will not result in significant environmental impacts.
| |
| Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), i LBP-88-15, 27 NRC 576, 580 (1988), citina, 10 CFR s 51.23.
| |
| DECEMBER 1988 GENERAL MATTERS 48
| |
| | |
| g3 i h m
| |
| 9 6.15.1.2 An environmental impact statement need not be prepared with respect to the expansion of the capacity of a spent fuel pool if the environmental impact appraisal prepared for the project had an adequate basis for concluding that the expansion of a spent fuel pool.would not cause any significant environmental impact. Consumers Power Co. (Big Rock Point Plant), LBP-82-78, 16 NRC 1107 (1982).
| |
| When a licensee seeks to withdraw an application to expand its existing low-level waste burial site, the granting of the request to withdraw does not amount to a major Federal action requiring a NEPA review. This is true even though, absent an expansion, the site will not have the capacity to accept additional low-level waste. Nuclear Enaineerina Co.. Inc.
| |
| (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 161-163 (1980).
| |
| It must at least be determined that there is significant new information before the need for a supplemental environmental statement can arise. . Arizona Public Service Co. (Palo Verde (3 Nuclear Generating Station, Units 2 and 3), LBP-83-36,18 NRC V) 45, 49 (1983), citina, Warm Sprina Task Force v. Gribble, 621 F.2d 1017, 1023-36 (9th Cir. 1981).
| |
| A supplemental environmental statement need not necessarily be prepared and circulated even if there is new information.
| |
| Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-83-36, 18 NRC 45, 49-50 (1983),
| |
| citina, California v. Watt, 683 F.2d 1253,1268 (9th Cir.
| |
| 1982). _S_ee 40 CFR s 1502.9(c).
| |
| 6.15.1.2 Scope of EIS The scope of the environmental statement or appraisal must be at least as broad as the scope of the action being taken.
| |
| Duke Power Company (0conee/McGuire), LBP-80-28,12 NRC 459, 473 (1980).
| |
| An agency may authorize an individual, sufficiently distinct portion of an agency plan without awaiting the completion of a l
| |
| comprehensive environmental impact statement on the plan so long as the environmental treatment under NEPA of the individual portion is adequate and approval of the individual portion does not commit the agency to approval of other portions of the plan. l(err-McGee Corporation (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 265 (1982), aff'd
| |
| [] sub nom. City of West Chicaao v. NRC, 701 F.2d 632 (7th Cir.
| |
| \
| |
| ' V / 1983); Peshlakai v. Duncan, 476 F. Supp. 1247, 1260 (D.D.C.
| |
| 1979); and Conservation Law Foundation v. GSA, 427 F. Supp.
| |
| 1369, 1374 (D.R.I. 1977).
| |
| DECEMBER 1988 GENERAL MATTERS 49 1
| |
| | |
| 6.15.2 In Vermont Yankee Nuclear Power Coro, v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978), the U.S. Supreme Court embraced the doctrine that environmental impact statements need not discuss the environmental effects of alternatives which are " deemed only remote and speculative possibilities." The same has been held with respect to remote and speculative environmental impacts of the proposed project itself. Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43 (1981);
| |
| Houston Liahtina and Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-629, 13 NRC 75 (1981); Public Service Electric & Gas Company (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 38 (1979); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1),
| |
| ALAB-705, 16 NRC 1733, 1744 (1982), citina, Vermont Yankee Nuclear Pow Corp. v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978), auctina NRDC v. Morton, 458 F.2d 827, 837-838 (D.C. Cir.1972); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 696-97 & n.12 (1985). See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-877, 26 NRC 287, 293-94 (1987). Moot or farfetched alternatives need not be considered under NEPA. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP 117A, 16 NRC 1964, 1992 (1982), citina, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S.
| |
| 519 (1978); Natural Resources Defense Council v. Morton, 458 F.2d 827, 837-838 (D.C. Cir. 1972); Life of the Land v.
| |
| Brineaar, 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974).
| |
| The scope of a NEPA environmental review in connection with a facility license amendment is limited to a consideration of the extent to which the action under the amendment will lead to environmental impacts beyond those previously evaluated. Florida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-81-14,13 NRC 677, 684-685 (1981), citina, Consumers Power Co.
| |
| (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1981).
| |
| When major Federal actions are involved, if related activities taken abroad have a significant effect within the U.S., those effects are within NEPA's ambit. However, remote and speculative possibilities need not be considered under NEPA.
| |
| Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-562, 10 NRC 437, 446 (1979).
| |
| l 6.15.2 Role of EIS A NEPA analysis of the Government's proposed licensing of private activities is necessarily more narrow than a NEPA analysis of proposed activities which the Government will DECEMBER 1988 GENERAL MATTERS 50
| |
| | |
| l e
| |
| ; j 9 6.15.3 w/ -
| |
| conduct itself. The former analysis should cnnsider issues which could preclude issuance of the license or which could be affected by license conditions. Klence v. Sierra Club, 427 U.S. 390 (1976). It should focus on the proposal submitted by
| |
| 'the private party rather than on broader concepts. It must consider other alternatives, however, even if the agency itself is not empowered to order that those alternatives be undertaken. Were there no distinction in NEPA standards between those for approval of private actions and those for-Federal actions, NEPA would, in effect, become directly ap-plicable to private parties. Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977).
| |
| The impact statement does not simply " accompany" an agency recommendation for action in the sense of having some independent significance in isolation from the deliberative process. Rather, the impact statement is an integral part of the Commission's decision. It forms as much a vital part of the NRC's decisional record as anything else, such that for reactor licensing, for example, the agency's decision would be fundamentally flawed without it. Public Service Comoany of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31,12 NRC f'~]
| |
| \, i 264, 275 (1980).
| |
| V Where an applicant has submitted a specific proposal, the statutory language of NEPA's Section 102(2)(C) only requires that an environmental impact statement be prepared in conjunction with that specific proposal, providing the Staff with a " specific action of the known dimensions" to evaluate.
| |
| A single approval of a plan does not commit the agency to subsequent approvals; should contemplated actions later reach the stage of actual proposals, the environmental effects of the existing project can be considered when preparing the comprehensive statement on the cumulative impact of the l proposal s . Offshore Power Systems (Floating Nuclear Power i Plants), LBP-79-15, 9 NRC 653, 658-660 (1979).
| |
| 6.15.3 Circumstances Requiring Redrafting of Final Environmental Statement (FES)
| |
| In certain instances, an FES may be so defective as to require redrafting, recirculation for comment and reissuance j in final form. Possible defects which could render an FES
| |
| ^
| |
| inadequate are numerous and are set out in a long series of NEPA cases in the Federal Courts. Leg, e e.a. , Brooks v. Volpe, 350 F. Supp. 269 (W.D. Wash. 1972) (FES inadequate when it suffers from a serious lack of detail and relies on con-clusions and assumptions without reference to supporting
| |
| /O objective data); Essex City Preservation Assn'n. v. Campbell, d 536 F.2d 956, 961 (1st Cir. 1976) (new FES required when there is significant new information or a significant change in circumstances upon which original FES was based); NRDC v.
| |
| DECEMBER 1988 GENERAL MATTERS 51
| |
| | |
| l i
| |
| l l
| |
| i
| |
| & 6.15.3 Morton, 458 F.2d 827 (D.C. Cir. 1972) (existence of unexamined but viable alternative could render FES inadequate). A new '
| |
| FES may be necessary when the current situation departs ;
| |
| markedly from the positions espoused or information reflected i in the FES. Allied-General Nuclear Services (Barnwell Nuclear fuel Plant Separations Facility), ALAB-296, 2 NRC 671 (1975); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-3, 21 NRC 244, 256 (1985). ;
| |
| Even though an FES may be inadequate in certain respects, ultimate NEPA judgments with respect to any facility are to be made on the basis of the entire record before the adjudicatory tribunal. Philadelphia Electric Co. (Limerick Generating .
| |
| Station, Units 1 & 2), ALAB-262, 1 NRC 163 (1975). Previous l regulations explicitly recognized that evidence presented at a hearing may cause a Licensing Board to arrive at conclusions different from those in an FES, in which event the FES is simply deemed amended pro tanto. Barnwell, supra, 2 NRC at 671; Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), LBP-82-100, 16 NRC 1550, 1571 n.20 (1982).
| |
| Since findings and conclusions of the licensing tribunal are deemed to amend the FES where different therefrom, amendment and recirculation of the FES is not always necessary, particularly where the hearing will provide the public ventilation that recirculation of an amended FES would otherwise provide. Limerick, suora, 1 NRC at 163. Defects in an FES can be cured by the receipt of additional evidence subsequent to issuance of the FES. Arizona Public Service Co.
| |
| (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-83-36, 18 NRC 45, 47 (1983). _S_ee Ecoloav Action v. AEC, 492 F.2d 998, 1000-02 (2nd Cir. 1974); Florida Power and liaht Lo2 o (Turkey Point Nuclear Generating Station, Units 3 and 4),
| |
| ALAB-660, 14 NRC 987, 1013-14 (1981); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-262, 1 NRC 163, 195-97 (1975).
| |
| Such modification of the FES by Staff testimony or the Licensing Board's decision does not r.ormally require recircu-lation of the FES. Niaaara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 372 (1975), unless the modifications are truly substantial.
| |
| Barnwell, supra, 2 NRC at 671; Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), LBP-84-31, 20 NRC 446, 553 (1984); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-3, 21 NRC 244, 252, 256 (1985).
| |
| Two Courts of Appeals have approved the Commission's rule that the FES is deemed modified by subsequent adjudicatory tribunal decisions. Citizens for Safe Power v. NRC, 524 F.2d 1291, 1294 n.5 (D.C. Cir. 1975); Fcoloav Action v. AEC, 492 F.2d 998,1001-02 (2nd Cir.1974); Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 29 n.43 (1978). See also New Enaland Coalition on Nuclear DECEMBER 1988 GENERAL MATTERS 52
| |
| | |
| d 5 6.15.3 U}[W .
| |
| " ~
| |
| Pollution v. NRC, 582 F.2d 87, 94 (1st Cir.1978); Philadel-Dhia Electric Co. (Limerick Generating-Station, Units.I and
| |
| < 2), ALAB-819, 22 NRC 681, 705-07 (1985), citina, 10 CFR 9 51.102 (1985).
| |
| -If the. changes contained in an errata document for an FES do not reveal an obvious need for a modification of plant design or a change in the outcome of the cost-benefit analysis,.the document need not.be ' circulated.or. Issued as 'a. supplemental:
| |
| 1 FES. Nor is it necessary to_ issue a supplemental FES when.-
| |
| timely comments on the DES have not been adequately con-sidered. The Licensing Board may merely effect the required amendment of the FES through its initial decision. Lo_n_g Island liahtina Co. (Jamesport Nuclear Power Station, _ Units 1
| |
| & 2), LBP-77-21, 5 NRC 684 (1977); Arizona Public Service Co.
| |
| (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-83-36, 18 NRC 45, 47 (1983).
| |
| Similarly, there is no need for a supplemental. impact statement and its circulation for public comment where the changes in the proposed action which would be evaluated in such a supplement mitigate the environmental impacts, although circulation of a supplement may well be appropriate or necessary where the change has significant aggravating T'
| |
| environmental impacts. Public Service Company of New
| |
| ~(
| |
| Hampshire (Seabrook Station, Units 1 & 2), CL1-78-1, 7 NRC 1, 28-29 (1978).
| |
| NEPA does not require the staff of a Federal agency conducting a NEPA review to consider the record, as developed in colla-teral State proceedings, concerning the environmental _ effects of the proposed Federal action. Failure to review the State records prior to issuing an FES, therefore, is not grounds-for requiring preparation and circulation of a supplemental FES.
| |
| Lona Island' Liahtina Co. (Jamesport Nuclear Power Station, Units 1 & 2), LBP-77-21, 5 NRC 684 (1977). l 1
| |
| A proposed shift in ownership of a plant with no modification to the physical structure of the facility does not by itself cast doubt on the benefit to be derived from the plant such as to require redrafting and recirculating the EIS. Public I Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating j Station, Units 1 & 2), ALAB-459, 7 NRC 179, 184 (1978).
| |
| The Staff's environmental evaluation is not deficient merely because it contains only a limited discussion of facility decommissioning alternatives. There is little value in considering at the operating license stage what method of decommissioning will be most desirable many years in the O future in light of the knowledge which will have been accumulated by that time. Vermont Yankee Nuclear Power Corp.
| |
| (/
| |
| (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 178 n.32 (1974).
| |
| DECEMBER 1988 GENERAL MATTERS 53 4
| |
| _ _ . . . , _ . . _ . . . _ _ _ _ . _ _ _ . _ _ _ _ m._. _ _ _ . _ . _ _ _ _ _ . _ _ _ _ _ _ _ . , _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ . _ _ _
| |
| | |
| 9 6.15.3.1 For a more recent case discussing recirculation of an FES, see Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 786 (1979).
| |
| 6.15.3.1 Effect of Failure to Comment on Draft Environmental Statement (DES)
| |
| Where an intervenor received and took advantage of an opportunity to review and comment on a DES and where his comments did not involve the Staff's alternate site analysis and did not bring sufficient attention to that analysis to stimulate the Commission's consideration of it, the intervenor will not be permitted to raise and litigate, at a late stage in the hearings, the issue as to whether the Staff's alternate site analysis was adeauate, although he may attack the conclusions reached in the FES. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-366, 5 NRC 39, 66-67 (1977), aff'd as modified, CLI-77-8, 5 NRC 503 (1977).
| |
| Since the public is afforded early opportunity to participate in the NEPA review process, imposition of a greater burden for justification for changes initiated by untimely comments is appropriate. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 539 (1977).
| |
| Comments on a DES which fail to meet the standards of CEQ Guidelines (40 CFR -g 1500.9(e)) on responsibilities of commenting entities to assist the Staff need not be reviewed by the Staff. Thus, where comments which suggest that the Staff consider collateral State proceedings on the environmental effects of a proposed reactor do not specify the parts of the collateral proceedings which should be considered and the parts of the DES which should be revised, the Staff need not review the collateral proceed-ings. Lono Island Llahtina Co. (Jamesport Nuclear Power Station, Units 1 & 2), LBP-77-21, 5 NRC 684 (1977).
| |
| 6.15.3.2 Stays Pending Remand for Inadequate EIS Where judicial review disclosed inadequacies in an agency's environmental impact statement prepared in good faith, a stay i 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) a traditional balancing of 'L the equities, and (2) a consideration of any likely prejudice to further decisions that might be called for by the remand.
| |
| Consumers Power Company (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 784-785 (1977).
| |
| )
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| DECEMBER 1988 GENERAL MATTERS 54
| |
| | |
| fl a y g 6.15.4 6.15.4' Alternatives
| |
| .Perhaps the most important environmentally'related task the Staff has.under NEPA is to determine whether_an application should be turned down because there is some other site at which the plant ought to be located. No other' environmental question is both so significant in terms of the_ ultimate i outcome and so dependent upon facts particular to the application under scrutiny. Consequently, the Appeal Board n expects the Staff to take unusual care in performing its.
| |
| analysis and in disclosing the results of its work to the public. Florida Power & Liaht Company (St. Lucie Nuclear
| |
| ' Power Plant, Unit 2), ALAB-435, 6 NRC 541, 543, 544 (1977).
| |
| A hard look for a superior alternative is a condition ~ .
| |
| precedent to a licensing determination that an applicant's proposal is acceptable under NEPA. Public Service Company of.
| |
| New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC-
| |
| '477, 513 (1978). When NEPA requires an EIS, the Commission is obliged to take a harder look at alternatives than if the proposed action were inconsequential. Florida Power and Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
| |
| ALAB-660, 14 NRC 987, 1005-1006 (1981), citina, Portland p General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979). In fact the NEPA mandate that alternatives to the proposed licensing action be explored and evaluated does not come into play where the proposed action will_neither (1) entail more than negligible environmental impacts, nor (2) involve the commitment of available resowces respecting which there are unresolved conflicts. Portl A General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 265-266 (1979).
| |
| t-NEPA was not intended merely to give the appearance of weighing alternatives that are in fact foreclosed. Pending
| |
| , completion of sufficient' comparison between an applicant's proposed site and others, in situations where substantial work has already taken place, the Commission can preserve the opportunity for a real choice among alternatives only by suspending outstanding construction permits. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-14, 7 NRC 952, 958-959 (1978).
| |
| Despite the importance of alternate site considerations, where.all parties have proceeded since the inceptien of the proceeding on the basis that there was no need to examine I alternate sites beyond those referred to in the FES, a party cannot insist at the " eleventh hour" that still other sites be considered in the absence of a compelling showing that the
| |
| ('
| |
| t newly suggested sites possess attributes which establish them to have greater potential as alternatives than the sites already selected as alternatives. Public Service Company of DECEMBER 1988 GENERAL MATTERS 55
| |
| | |
| i 1
| |
| i I
| |
| @ 6.15.4 New Hampshire (Seabrook Station, Units 1 & 2), ALAB-495, 8 NRC 304, 306 (1978).
| |
| A party seeking consideration at an advanced stage of a proceeding of a site other than the alternate sites already .
| |
| explored in the proceeding must at least provide information l regarding the salient characteristics of the newly suggested !
| |
| sites and the reasons why these characteristics show that the new sites might prove better than those already under investigation. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-499, 8 NRC 319, 321 !
| |
| (1978).
| |
| The fact that a possible alternative is beyond the Commis-sion's power to implement does not absolve the Commission of any duty to consider it, but that duty is subject to a " rule of reason". Factors to be considered include distance from site to load center, institutional and legal obstacles and the like. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 486 (1978).
| |
| Under NEPA, there is no need for Boards to consider econo-mically better alternatives, which are not shown to also be environmentally preferable. No study of alternatives is needed under NEPA unless the action significantly affects the environment (s 102(2)(c)) or involves an unresolved conflict in the use of resources (@ 102(2)(e)). Where an action will have little environmental effect, an alternative could not be materially advantageous. Virainia Electric & Power Co.
| |
| (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456-458 (1980); Virainia Electric and Power Co.
| |
| (North Anna Power Station, Units 1 and 2), LBP-85-34, 22 NRC 481, 491 (1985).
| |
| Pursuant to NEPA 9 102(2)(E), the Staff must analyze possible alternatives, even if it believes that such alternatives need not be considered because the proposed action does not significantly affect the environment. A Board is to make the determination, on the basis of all the evidence presented during the hearing, whether other alternatives must be considered. "Some factual basis (usually in the form of the Staff's environmental analysis) is necessary to determine whether a proposal ' involves unresolved conflicts concerning I alternative uses of available resources' - the statutory standard of Section 102(2)(E)." Virainia Electric and Power C_o2 (North Anna Power Station, Units 1 and 2), LBP-85-34, 22 NRC 481, 491 (1985), auctina, Consumers Power Co. (Big Rock '
| |
| Point Nuclear Plant), ALAB-636,13 NRC 312, 332 (1981).
| |
| NEPA does not require the NRC to choose the environmentally preferred site. NEPA is primarily procedural, requiring the '
| |
| NRC to take a hard look at environmental consequences and alternatives. Rochester Gas & Electric Corp. (Sterling Power DECEMBER 1988 GENERAL MATTERS 56
| |
| ___ _ 1
| |
| | |
| ;3
| |
| ! ) @ 6.15.4.1 O
| |
| Project, Nuclear Unit No. 1), CLI-80-23, 11 NRC 731, 736 (1980).
| |
| The application of the Commission's "obviously superior" standard for alternative sites (see 6.15.4.1 infra) does not affect the Staff's obligation to take the hard look. The NRC's "obviously superior" standard is a reasonable exercise i of discretion to insist on a high degree of assurance that the extreme action of denying an application is appropriate in view of inherent uncertainties in benefit-cost analysis.
| |
| Sterlina, suora, 11 NRC at 735.
| |
| Whether or not the parties to a particular licensing proceed-ing may agree that none of the alternatives (in Seabrook, alternative sites) to the proposal under consideration is preferable, based on a NEPA cost-benefit balance, it remains the Commission's obligation to satisfy itself, thnt that is so. Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-557, 10 NRC 153, 155 (1979).
| |
| The scope of a NEPA environmental review in connection with a facility license amendment is limited to a consideration of the extent to which the action under the amendment will lead p to environmental impacts beyond those previously evaluated, Florida Power and Liaht Co. (Turkey Point Nuclear Generating, ij N- Units 3 and 4), LBP-81-14, 13 NRC 677, 684-85 (1981), citina, Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1981). The consideration of alternatives in such a case does not include alternatives to the continued opera-tion of the plant, even though the amendment might be neces-sary to continued reactor operation. Turkey Point, suora. ,
| |
| Issues concerning alternative energy sources in general may no longer be considered in operating license proceed-ings. Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 527 (1982). In general, the NRC's environmental evaluation in an operating license proceeding will not consider need for power, alterna-tive energy sources, or alternative sites. 10 CFR @@ 51.95, 51.106.
| |
| 6.15.4.1 Obviously Superior Standard for Site Selection The standard for approving a site is acceptability, not optimality. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). Due to the more extensive environmental studies made of the proposed site in comparison to alternate sites, more of the environmental costs of the selected site are usually discovered. Upon more
| |
| /
| |
| O extensive analysis of alternate sites, additional cost will probably be discovered. Moreover, a Licensing Board can do no more than accept or reject the application for the proposed DECEMBER 1988 GENERAL MATTERS 57 l
| |
| | |
| l I
| |
| s 6.15.4.1 i
| |
| site; it cannot ensure that the applicant will apply for a construction permit at the alternate site. For these reasons, a Licensing Board should not reject a proposed site unless an I alternate site is "obviously superior" to the proposed site.
| |
| Id. at 526. Standards of acceptability, instead of optimal- i ity, apply to approval of plant designs as well. Id. In view i of all of this, an applicant's selection of a site may be rejected on the grounds that a preferable alternative exists )
| |
| only if the alternative is "obviously superior". Florida Power & Licht Company (St. Lucie Nuclear Power Pluot, Unit 2),
| |
| ALAB-435, 6 NRC 541 (1977). For a further discussion of the "obviously superior" standard with regard to alternatives, see Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 67, 78 (1977).
| |
| The Commission's obviously superior standard for alternate sites has been upheld by the Court of Appeals for the First Circuit. The Court held that, given the necessary imprecision of the cost-benefit analysis and the fact that the proposed site will have been subjected to closer scrutiny than any alternative, NEPA does not require that the single best site for environmental purposes be chosen. New Enaland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 95 (1st Cir.1978).
| |
| A Licensing Board determination that none of the potential alternative sites surpasses a proposed site in terms of providing new generation for areas most in need of new capacity cannot of itself serve to justify a generic rejection of all those alternative sites on institutional, legal, or economic grounds. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 491 (1978).
| |
| To establish that no suggested alternative sites are "obviously superior" to the proposed site, there must be either (1) an adequate evidentiary showing that the alter- ;
| |
| native sites should be generically rejected or (2) sufficient evidence for informed comparisons between the proposed site and individual alternatives. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498 (1978).
| |
| It is not enough for rejection of all alternative sites to show that a proposed site is a rational selection from the standpoint solely of system reliability and stability. For the comparison to rest on this limited factor, it would also have to be shown that the alternative sites suffer so badly on this factor that no need existed to compare the sites from other standpoints. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 497 (1978).
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| DECEMBER 1988 GENERAL MATTERS 58 !
| |
| l
| |
| : m. ,
| |
| i A
| |
| l 5 6.15.4.2
| |
| . For application of the "obviously superior _" standard, .s_ee Rochester _ Gas-and Electric Corporation (Sterling Power
| |
| -Project, Nuclear. Unit No. 1), ALAB-502, 8 NRC 383,' 393-399 (1978), particularly' at' 8 NRC 397 where the Appeal Board-equates "obviously" .to " clearly and substantially."
| |
| 6.15.4.2 Standards for Conducting Cost-Benefit Analysis Related to Alternatives-If, under NEPA, the Commission finds that environmentally preferable alternatives exist, then it must undertake a cost-benefit balancing to determine whether such alternatives
| |
| -should be' implemented. F1orida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units No. 3 and 4), ALAB-660, 14 NRC 987, 1004_(1981), citina, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155 (1978).
| |
| Neither the NRC Staff nor a Licensing Board is limited to reviewing only those alternate sites unilaterally selected by the applicant.. To do so would permit decisions to be based upon " sham" alternatives elected to be identified by an applicant and would often result in consideration of something less than the full range of reasonable alternatives that NEPA contemplates. The ' adequacy of the alternate site analysis g performed by the Staff remains a proper subject of inquiry by the Licensing Board, notwithstanding the fact that none of the alternatives selected by the applicant proves to be "obviously superior" to the proposed site. Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 & 2), LBP-77-60, 6 NRC 647,-659 (1977). Nevertheless, the NEPA evaluation of alternatives is subject to a " rule of reason" and application of that rule "may well justify exclusion or but limited treatment" of.a suggested alternative. Public Service Co.
| |
| of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 100 (1977), citina, CLI-77-8, 5 NRC 503, 540 (1977).
| |
| In Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977), the Commission set forth standards for determining whether, in connection with conducting a second cost-benefit analysis to consider alternate sites, the Licensing Board should account for nontransferable investments made at the previously approved site. Where the earlier environmental analysis of the proposed site had been soundly made, the projected costs of construction at the alternate site should take into account nontransferable investments in the proposed site. Where the earlier analysis lacked integrity, prior expenditures in the proposed site should be disregarded. Seabrook, supra, 5 NRC at 533-536.
| |
| O Population is one -- but only one -- factor to be considered Q in evaluating alternative sites. All other things being DECEMBER 1988 GENERAL MATTERS 59
| |
| | |
| 6 6.15.5 equal, it is better to place a plant farther from population concentrations. The population factor alone, however, usually cannot justify dismissing alternativ_e sites which meet the Commission's regulations. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 510 (1978).
| |
| In alternative site considerations, the presence of an existing reactor at a particular site where the proposed reactor might be built is significant, but not dispositive.
| |
| Rochester Gas and Electric Corocration (Sterling Power Project, Nuclear Unit No. 1), ALAB-502, 8 NRC 383, 394-395 (1978).
| |
| In assessing the environmental harm associated with land clearance necessary to build a nuclear facility, one must look at what is being removed -- not jtst how many acres are involved. Sterlina, suora, 8 NRC at 395.
| |
| i In considering the economic costs of building a facility at an l alternative site, the costs of replacement power which might l be required by reason of the substitution at a late date of an alternate site for the proposed site may be considered.
| |
| Rochester Gas and Electric Corporation (Sterling Power Project, Nuclear Unit No. 1), ALAB-502, 8 NRC 383, 394 (1978).
| |
| However, where no alternative site is "obviously superior" from an environmental standpoint, there is no need to consider this " delay cost" factor. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 533-536 (1977); Sterlin_g, suora, 8 NRC at 398. Indeed, unless an alternative site is shown to be environmentally superior, comparisons of economic costs are irrelevant.
| |
| Sterlina, supra, 8 NRC at 395, n.25.
| |
| 6.15.5 Need for Facility Pursuant to NEPA, the NRC must make a finding as to the need for the facility or need for power in determining whether construction of the facility should be authorized. "Need-for-power" is a shorthand expression for the " benefit" side of the cost-benefit balance NEPA mandates. A nuclear plant's principal " benefit" is the electric power it generates.
| |
| Hence, absent some "need-for-power," justification for building a facility is problematical. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 90 (1977). For a further discussion of "need for facility," seg Section 3.7.3.2.
| |
| NEPA does not foreclose reliance, in resolution of "need-of-power" issues, on the judgment of local regulatory bodies that are charged with the responsibility to analyze future electrical demand growth, at least where the forecasts are not facially defective, are explained on a detailed record, and a DECEMBER 1988 GENERAL MATTERS 60
| |
| | |
| W 9 6.15.6 i
| |
| principal participant in the local proceeding has been made 4 available for examination in the NRC proceeding. Carolina Power & Licht Company (Shearon Harris Nuclear Power Plant,.
| |
| Units 1-4), ALAB-490, 8 NRC 234,.241 (1978).
| |
| The general rule applicable to cases involving differences or changes.in demand forecasts-is not whether the utility will
| |
| - need additional generating. capacity but when. Commonwealth Edison Comoany (Byron Nuclear Power Station, Units 1.and 2),
| |
| LBP-80-30, 12 NRC 683, 691 (1980).
| |
| The standard for judging the "need-for-power".is whether a forecast of demand is reasonable and additional' or replacement generating capacity is needed to meet that demand. Carolina Power & Liaht Company (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-490, 8 NRC 234, 237 (1978).
| |
| For purposes of NEPA, need-fce-power and alternative energy source issues are not to be considered.in operating license proceedings for nuclear power plants. Dairvland Power Cooperative (La Crosse Boiling Water-Reactor), LBP-82-58, 16 NRC 512, 527-528 (1982); Carolina Power and Liaht Co. andL North Carolina Eastern Municipal Power Aaency (Shearon Harris
| |
| (~ Nuclear Power Plant), ALAB-837, 23 NRC 525, 544-546 (1986).
| |
| t In general, the NRC's environmental evaluation in an operating license proceeding will not consider need for power, alterna-tive energy sources, or alternative sites. 10 CFR ss 51.95, 51.106.
| |
| 6.15.6 Cost-Benefit Analysis Under NEPA The NEPA cost-benefit analysis considers the costs and benefits to society as a whole. Rather than isolate the costs or benefits to a particular group, overall benefits are ,
| |
| weighed against overali costs. Detroit Edison Company (Enrico {
| |
| Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 391 )
| |
| (1978).
| |
| A cost-benefit analysis should include the consideration and balancing of qualitative as well as quantitative impacts.
| |
| Those factors which cannot reasonably be quantified should be considered in qualitative terms. Kerr-McGee Chemical Corp. d (West Chicago Rare Earths Facility), LBP-84-42, 20 NRC 1296, j
| |
| .- 1329-1330 (1984), citina, Statement of Considerations for 10 ]
| |
| CFR Part 51, 49 Fed. Rea. 9363 (March 12, 1984). i In weighing the costs and benefits of a facility, adjudicatory boards must consider the time and resources that have already been invested if the facility has been partially completed. 1 Q
| |
| Money and time already spent are irrelevant only where the
| |
| .(j NEPA comparison is between completing the proposed facility on the one hand and abandoning that facility on the other.
| |
| DECEMBER 1988 GENERAL MATTERS 61 i
| |
| | |
| s 6.15.6 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-392, 5 NRC 759 (1977). In comparing the costs of completion of a facility at the proposed site to the costs of building the facility at an alternate site, the Commission may consider the fact that costs have already been incurred at the proposed site. New Enaland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 95-96 (1st Cir. 1978).
| |
| Unless a proposed nuclear unit has environmental disadvantages when compared to alternatives, differences in financial cost are of little concern. Public Service Company of Oklahoma (Black Fox Station, Units 1 & 2), LBP-78-26, 8 NRC 102,161 (1978); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117A, 16 NRC 1964, 1993 (1982), citina, Consumers Power Co. (Midland Plant, Units I and 2), ALAB-458, 7 NRC 155, 162 (1978). Only after an environmentally superior alternative has been identified do economic considerations become relevant. Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 527 (1982).
| |
| A reasonably foreseeable, nonspeculative, substantial re-duction in Lenefits should trigger the need, under NEPA, to reevaluate the cost-benefit balance of a proposed action before further irreversible environmental costs are incurred.
| |
| Lona Island Llahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 630-31 (1983).
| |
| The NRC considers need-for-power and alternative energy sources (e.a., a coal plant) as part of its NEPA cost-benefit analysis at the construction permit stage for a nuclear power reactor. Carolina Power and licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-83-27A, 17 NRC 971, 972 (1983). See Niacara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), 1 NRC 347, 352-72 (1975); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 522 (1977). In the operating license environmental analysis, however, need-for-power and alterna-tive energy sources are not considered and contentions which directly implicate need-for-power projections and comparisons to coal are barred by the regulations; correlatively, such comparative cost savings may not be counted as a benefit in the Staff's NEPA cost-benefit analysis. Shearon Harris, suora, 17 NRC at 974.
| |
| Even if the cost-benefit balance for a plant is favorable, measures may be ordered to minimize particular impacts. Such measures may be ordered without awaiting the ultimate outcome of the cost-benefit balance. Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), LBP-83-ll, 17 NRC 413, 419 (1983).
| |
| i GENERAL MATTERS 62 l l DECEMBER 1988 l
| |
| l \
| |
| (_ . _ _......._______________d
| |
| | |
| c4 S 6.15.6.1-While' the balancing of costs and benefits of a project .is usually done in the context of an environmental impact q
| |
| statement prepared because the prr. ject 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.
| |
| AEC, 499 F.2d 1069, 1084-85 (D.C. Cir. 1974).
| |
| Sunk' costs are. as a matter of law not appropriately considered in an operating license cost-benefit balance. Consumers Power-Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 586-87 (1982), citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 534 (1977);. Consumers Power Co. (Midland Plant, Units 1 and 2),
| |
| LBP-82-95, 16 NRC 1401, 1404-1405 (1982).
| |
| An adequate final environmental impact statement for a
| |
| ( nuclear facility necessarily includes the lesser impacts attendant to low power testing of the facility and removes the need for a separate focusing on questions such as the costs and benefits of low power testing. Pacific Gas and Electric .
| |
| Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 795 (1983), review denied, CLI-83-32, 18 NRC j 1309 (1983).
| |
| 6.15.6.1 Consideration of Specific Costs Under NEPA l'
| |
| When water quality decisions have been made by the EPA pursuant to the Federal Water Pollution Control Act Amend-ments of 1972 and these decisions are raised in NRC licens-ing proceedings, the NRC is bound to take EPA's considered decisions at face value and simply to factor them into the NEPA cost-benefit analysis. Carolina Power & Liaht Co. (H.B.
| |
| Robinson, Unit No. 2), ALAB-569, 10 NRC 557, 561-62 (1979). '
| |
| The environmental and economic costs of decommissioning necessarily comprise a portion of the cost-benefit analysis which the Commission must make. Pennsylvania Power & Liaht Company (Susquehanna Steam Electric Station, Units 1 and 2),
| |
| LBP-79-6, 9 NRC 291, 313 (1979).
| |
| Alternative methods of decommissioning do not have to be discussed. All that need be shown is that the estimated costs' do not tip the balance against the plant and that there is reasonable assurance that an applicant can pay for them.
| |
| Susauehanna, supra, 9 NRC at 314.
| |
| DECEMBER 1988 GENERAL MATTERS 63
| |
| | |
| l s 6.15.6.1.1 6.15.6.1.1 Cost of Withdrawing Farmland from Production (SEE 3.7.3.5.1) 6.15.6.1.2 Socioeconomic Costs as Affected by Increased Employment and Taxes from Proposed Facility Increased employment and tax revenue cannot be included on the benefit side in striking the ultimate NEPA cost-benefit balance for a particular plant. But the presence of such factors can certainly be taken into account in weighing the potential extent of the socioeconomic impact which the plant might have upon local communities. Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 509 n.58 (1978).
| |
| 6.15.7 Consideration of Class 9 Accidents in an Environmental Impact Statement The ECCS Final Acceptance Criteria as set forth in 10 CFR s 50.46 and Appendix K to 10 CFR Part 50 assume that ECCS will operate during an accident. On the other hand, Class 9 accidents postulate the failure of the ECCS. Thus, on its face, consideration of Class 9 accidents would appear to be a challenge to the Commission's regulations. However, the Commission has squarely held that the regulations do not preclude the use of inconsistent assumptions about ECCS failure for other purposes. Thus, the prohibition of challenges to the regulations in adjudicatory proceedings does not preclude the consideration of Class 9 accidents and a failure of ECCS related thereto in environmental impact statements and proceedings thereon. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 221 (1978).
| |
| Because the law goes not require consistency in treatment of two parties in different circumstances, the Staff does not violate principles of fairness in considering Class 9 '
| |
| accidents in environmental impact statements for floating but not land based plants. The Staff need only provide a reasonable explanation why the differences justify a departure from past agency practice. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 222 (1978).
| |
| In proceedings instituted prior to June, 1980, serious (Class
| |
| : 9) accidents need be considered only upon a showing of "special circumstances." Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 529 (1982); 45 Fed. Rec. 40101 (June 13, 1980). The subsequent i Commission requirement that NEPA analysis include considera- i tion of Class 9 accidents (45 Fed. Rea. 40101) cannot be j equated with a health and safety requirement. Public Service DECEMBER 1988 GENERAL MATTERS 64
| |
| _ _ _-____m
| |
| | |
| ;' ,j
| |
| $ 6.15.7 Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP 106, 16 NRC 1649, 1664 (1982). The fact that a nuclear power plant is located near an earthquake fault and in an area of known seismic activity does not constitute a special circum-stance. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 826-828 (1984), affirmina in oart (full power license for Unit 1),
| |
| LBP-82-70, 16 NRC 756 (1982). See also Pacific Gas and Electric _f_q (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB 128, 17 NRC 777, 795-796 (1983).
| |
| Absent new and significant safety information, Licensing Boards may not act on proposals concerning Class 9 accidents in operating reactors. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 870 (1986), citina, 50 Fed. Rea. 32,144, 32,144-45 (August 8, 1985). Licensing Boards may not admit contentions which seek safety measures to mitigate or control the consequences of Class 9 accidents in operating reactors.
| |
| Vermont Yankee Nuclear Power Coro (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 846-47 (1987), aff'd in part and rev'd in part, ALAB-869, 26 NRC 13, 30-31 (1987),
| |
| reconsid. denied, ALAB-876, 26 NRC 277 (1987). However, TN pursuant to their NEPA respons~-ilities, Licensing Boards may
| |
| (/)
| |
| 'w consider the risks of such accidents. Vermont Yankee, suora, 25 NRC at 854-55, aff'd in part and rev'd in oart, ALAB-869, 26 NRC 13, 31 n.28 (1987), reconsid. denied, ALAB 876, 26 NRC 277, 285 (1987).
| |
| In Diablo Canyon and Vermont Yankee, suora, the licensees applied for license amendments which would permit the expansion of each facility's spent fuel pool storage capacity.
| |
| The interveners submitted contentions, based on hypothetical accident scenarios, and requested the preparation of environ-mental impact statements. The Appeal Board rejected the contentions after determining that the hypothetical accident scenarios were based on remote and speculative events, and thus were Class 9 or beyond design-basis accidents which could not provide a proper basis for admission of the contentions.
| |
| The Appeal Board has made it clear that: (1) NEPA does not require the preparation of an environmental impact statement on the basis of an assertion of a hypothetical accident that is a Class 9 or beyond design-basis accident, citina, 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), cert.
| |
| l denied, U.S. , 107 S. Ct. 330 (1986); and (2) the NEPA Policy Statement, 45 Fed. Rea. 40101 (June 13, 1980),
| |
| which describes the circumstances under which the Commission will consider, as a matter of discretion, the environmental
| |
| /"'N impacts of beyond design-basis accidents, does not apply to l license amendment proceedings. See Vermont Yankee, suora, 26 NRC at 283-85; Pacific Gas and Electric Co. (Diablo Chnyon Nuclear Power Plant, Units 1 and 2), ALAB-877, 26 NRC 287, DECEMBER 1988 GENERAL MATTERS 65 l
| |
| 1 L - - - - - _ . _ _ - . _ _ _ _ _ _
| |
| | |
| 293-94 (1987); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449, 458-460 (1987), affirmina, LBP-87-24, 26 NRC 159 (1987).
| |
| See also Florida Power and liaht Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27. NRC 452, 458-59 (1988), af f'd on other arounds, ALAB-893, 27 NRC 627 (1988).
| |
| 6.15.8 Power of NRC Under NEPA The Licensing Board is not obliged under NEPA to consider all issues which are currently the subject of litigation in other forums and which may some day have an impact on the amount of effluent available. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-45, 15 NRC 1527, 1528, 1530 (1982).
| |
| The Commission is not required by NEPA to hold formal hearings on site preparation activities because NEPA did not alter the scope of the Commission's jurisdiction under the Atomic Energy Act. United States Deoartment of Enerav. Project Manaaement Corporation. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 421 (1982), citina, Gaae v. United States Atomic Enerav Commission, 479 F.2d 1214, 1220 n.19 (D.C. Cir.1972); 39 Fed. Rea. 14506, 14507 (April 24,1979).
| |
| The National Environmental Policy Act (NEPA) requires that the Commission prepare an environmental impact statement only for major actions significantly affecting the environment. Clinch River, suora, 16 NRC at 424.
| |
| A Federal agency may consider separately under NEPA the different segments of a proposed Federal action under certain circumstances. Where approval of the segment under considera-tion will not result in any irreversible or irretrievable commitments to remaining segments of the proposed action, the agency may address the activities of that segment separately.
| |
| United States Deoartment of Enerav. Project Manaaement Corocration. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 424 (1982).
| |
| An agency will consider the following factors to determine if it should confine its environmental analysis under NEPA to the portion of the plan for which approval is being sought: (1) whether the proposed portion has substantial independent utility; (2) whether approval of the proposed portion either forecloses the agency from later withholding approval of subsequent portions of the overall plan or forecluses alternatives to subsequent portions of the plan; and (3) if the proposed portion is part of a larger plan, whether that plan has become sufficiently definite such that there is high probability that the entire plan will be carried out in the near future. Commonwealth Edison Co. (Braidwood Nuclear Power DECEMBER 1988 GENERAL MATTERS 66
| |
| | |
| } 9 6.15.8.1 Station, Units 1 and 2), LBP-85-43, 22 NRC 805, 810 (1985),
| |
| citina, Swain v. Brineaar, 542 F.2d 364, 369 (7th Cir. 1976)
| |
| (en banc). Applying these criteria, the Board determined that it was not required to assess the environmental impacts of possible future construction and operation of transmission lines pursuant to an overall grid system long-range plan when considering a presently proposed part of the transmission system (operation of the Braidwood nuclear facility). Braid-wood, suora, 22 NRC at 810-12.
| |
| The NRC Staff may, if it desires, perform a more complete review than the minimum legally required. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| LBP-82-72, 16 NRC 968, 972 (1982).
| |
| Compliance with the National Historic Preservation Act does not preclude the need to comply with NEPA with regard to impacts on historic and cultural aspects of the environment.
| |
| Therefore, noise impacts on proposed historic districts must be evaluated and, if necessary, mitigation measures under-taken. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-ll, 17 NRC 413, 435 (1983).
| |
| p 6.15.8.1 Powers in General I
| |
| <V Commensurate with the Commission's obligation to comply with NEPA in licensing nuclear facilities is an implicit power to impose permit and license conditions indicated
| |
| ! by the NEPA analysis.
| |
| l The Commission may prescribe such regulations, orders and l conditions as it deems necessary under any activity authorized pursuant to the Atomic Energy Act of 1954, as amended, and NEPA requires the Commission to exercise comparable regulatory authority in the environmental area. Wisconsin Electric Power l Co. (Point Beach, Unit 2), ALAB-82, 5 AEC 350, 352 (1972). j i
| |
| Where necessary to assure that NEPA is complied with and its J policies protected, Licensing Boards can and must ignore stipulations among the parties to that effect. Consolidated Edison Co. of N.Y.. Inc. (Indian Point Nuclear Generating .
| |
| Station, Unit 3), CLI-75-14, 2 NRC 835 (1975). Beyond this, .
| |
| Licensing Boards have independent responsibilities to enforce .
| |
| NEPA and may raise environmental issues sua sponte. Tennessee ]
| |
| Valley Authority (Hartsville Nuclear Power Plant, Units IA, 1 2A, IB & 28), ALAB-380, 5 NRC 572 (1977).
| |
| In Consolidated Edison Co. of N.Y., Inc. (Indian Point Station, Unit 2), ALAB-399, 5 NRC 1156 (1977), the Appeal Board dealt with the question as to the degree to which NEPA f allows the NRC to preempt State and local regulation with k respect to nuclear facilities. Therein, the Appeal Board held that the Federal doctrine of preemption invalidates local DECEMBER 1988 GENERAL MATTERS 67 I
| |
| | |
| zoning decisions that substantially obstruct or delay the effectuation of an NRC license condition imposed by the Commission pursuant to NEPA. Id. at 1169-1170. <
| |
| 1he Appeal Board stated:
| |
| ...NEPA gave this Commission both the power and the duty to interpret and administer with the Atomic Energy Act and its own regulations in accordance with the policies of NEPA. Among the policies of NEPA are to ' fulfill the responsibilities of each generation as trustee of the environment for succeeding generations,' to ' attain the widest range of beneficial uses of the environment without degradation...,' and to ' enhance the quality of renewable resources. . . . ' . . . State or local regulation is preempted where it ' produces a result inconsistent with the objective of the Federal statute,' where it 'frus-trates the full effectiveness of Federal law,' or where it ' stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' ...(footnotes omitted). 5 NRC 1169.
| |
| However, the Appeal Board also indicated that, where a question is presented as to whether State or local regula-tions relating to alteration of a nuclear power plant are preempted under NEPA, the NRC should refrain from ruling on that question until regulatory action has been taken by the State or local agency involved. Id. at 1170. To the same effect in this regard is Consolidated Edison Co. of N.Y. Inc. (Indian Point Station, Unit 2), ALAB-453, 7 NRC 31, 35 (1978), where the Appeal Board reiterated that Federal tri-bunals should refrain from ruling on questions of Federal pre-emption of State law where a State statute has not yet been definitively interpreted by the State courts or where an actual conflict between Federal and State authority has not ripened.
| |
| A State or political subdivision thereof may not substantially obstruct or delay conditions imposed upon a plant's operating license by the NRC pursuant to its NEPA responsibilities, as such actions would be preempted by Federal law. However, a State may refuse to authorize construction of a nuclear power plant on environmental or other grounds and may prevent or
| |
| ' halt operation of an already built plant for some valid reason under State law. Consolidated Edison Co. of New York. Inc.
| |
| l (Indian Point Station, Unit 2), ALAB-453, 7 NRC 31, 34-35 I
| |
| (1978).
| |
| When another agency has yet to resolve a major issue per-taining to a particular nuclear facility, NRC may allow construction to continue at that facility only if NRC's NEPA analysis encompasses all likely outcomes of the other agency's review. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), Cll-78-14, 7 NRC 952, 957 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 68
| |
| | |
| Q, 3 m Q s 6.15.8.3 A Licensing Board may rule on the adequacy' of the FES o'nce it.
| |
| L is -introduced into evidence' and may modify it if necessary.
| |
| A Licensing Board's, authority to issue directions to the NRC Staff regarding the performance of its' independent responsi-bilities to prepare a draft environmental. statement is:
| |
| limited. . Pennsylvania Power and liaht Co. (Susquehanna Steam
| |
| ' Electric Station, Unitsgl'and 2), LBP-80-18, 11'NRC 906, 909
| |
| -(1980).
| |
| L Neither NEPA nor the Atomic Energy Act applies to activities
| |
| : occurring in foreign countries and subject to their sovereign control. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-562, 10 NRC 437, 445-46.(1979).
| |
| 6.15.8.2 Transmission Line Routir.g Consistent with its interpretation of the Commi'ssion's NEPA authority (igg Wisconsin Electric Power Co. (Point Beach, Unit 2), ALAB-82, 5 AEC 350 (1972)), the Appeal Board has held that the NRC has the authority under NEPA to impose conditions (i.e., require particular routes) on transmissica
| |
| 'ines, at least to the extent that the lines are directly attributable to the proposed. nuclear facility. Detroit Edison
| |
| ('
| |
| 'f Co. (Greenwood Energy Center, Units 2 and 3), ALAB-247, 8 AEC 936, 939 (1974). In addition, the Commission has legal authority to review the offsite environmental impacts of transmission lines and to order changes in transmission routes-selected by an applicant. Public Service Co. of New Hamoshire (Seabrook Station, Uniti i & 2), ALAB-422, 6 NRC 33, 83 (1977).
| |
| 6.15.8.3 Pre-LWA Activities /Offsite Activities NEPA and the Commission's implementing regulations proscribe environmentally significant construction activities associated with a nuclear plant, including activities beyond the site boundary, without prior Commission approval. Kansas' Gas &
| |
| Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1),
| |
| CLI-77-1, 5 NRC 1 (1977). A 'ite," in the context of the Commission's NEPA responsibi.ities, includes land where the proposed plant is to be located am !1 necessary accouter-ments, including transmission lin n & J access ways. Id.
| |
| 10 CFR s 50.10(c), which broadly prunibits any substantial action which would affect the environment of the site prior to Commission approval, can clearly be interpreted to bar, for example, road and railway construction leading to the site, at least where ' substantial clearing and grading is involved. J.d In those situations where the Commission does approve offsite O activit hs (g a , through an LWA or a CP), conditions may be d imposed to minimize adverse impacts. Id.
| |
| DECEMBER 1988 GENERAL MATTERS 69 1
| |
| | |
| l l
| |
| 9 6.15.8.4 6.15.8.4 Relationship to EPA with Regard to Cooling Systems The NRC may accept and use without independent inquiry EPA's l determination of the magnitude of the marine environmental impacts from a cooling system in striking an overall cost-benefit balance for the facility. Public Service Company of l New HamPMire (Seabrook Station, Units 1 & 2), CL1-78-1, 7 NRC 1, 23, 24 (1978). For a discussion of the statutory framework l governing the relationship between NRC and EPA in this area, see Stabrook, supra, 7 NRC at 23-26. Briefly, that relation-ship in the present setting may be described thusly: EPA determines what cooling system a nuclear power facility may use and NRC factors the impacts resulti .g from use of that system into the NEPA cost-benefit analysis. IL 7 NRC at 26.
| |
| The NRC's acceptance and use, cithout independent inquiry, of EPA's determination as to the aquatic impacts of the Seabrook Station (Lege Epblic Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CL1-78-1, 7 NRC 1, 23, 24 (1978)) was upheld in New Enoland Coalition on Neclear Pollution v. NRC, 582 F.2d 8/, 98 (1st Cir. 1978).
| |
| The Commission may rely on final decisions of the Environ-mental Protection Agency prior to completion of judicial review of such decisions. Public . Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-17, 8 NRC 179, 180 (1978).
| |
| Although an adverse environmental impact on water quality resulting from a cooling system discharge is an important input in the NEPA cost-benefit balance, a Licensing Board cannot require alteration of a facility's cooling system if that system has been approved by EPA. Carolina Power & Licht Co. (H. B. Robinson, Unit 2), LBP-78-22, 7 NRC 1052, 1063-64 (1978).
| |
| NRC need not relitigate issue of environmental impacts caused ;
| |
| by a particula; cooling system when it is bound to accept that '
| |
| cooling system authorized by EPA. Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), LBP-82-72, 16 NRC 968, 970 (1982), citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 24 (1978).
| |
| 6.15.8.5 HRC Power Under NEPA With Regard to the FWPCA The spread of the Federal responsibility for water quality '
| |
| standards and pollution control among various licensing agencies, which resulted from the reading given NEPA by the Calvert Cliffi court, has been curtailed. That responsibility has shifted to EPA as its exclusive province. Section 511(c)(2) of the FWPCA does not change a licensing agency's obligation to weigh degradation of water quality in its NEPA DECEMBER 1988 GENERAL MATTERS 70
| |
| | |
| 1 L[ 6 6.15.9 cost-benefit. balance, .but the substantive regulation of' water o pollution is in EPA's hands. Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702, 712-13 (1978).
| |
| Sectio'n 511(c)(2)'of the' FWPCA requires that the Commission and.the Appeal Board accept EPA's determinations on effluent.
| |
| . limitations. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Unit 3), ALAB-532, 9 NRC 279, 282 (1979).
| |
| Section 511(c)(2) of the Clean Water Act'does not preclude NRC from considering noise impacts of the cooling water system on the surrounding environment. Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), LBP-83-11, 17 NRC 413, 419 (1983).
| |
| When water quality decisions have been made'by the EPA pursuant to the Federal Water Pollution Control Act Amend-ments of 1972 and these decisions are' raised in NRC licens-ing proceedings, the NRC is bound to take EPA's considered decisions at face value and simply to factor them into the NEPA cost-benefit analysis. Carolina Power & Liaht Co. (H.B.
| |
| Robinson, Unit No. 2), ALAB-569, 10 NRC 557, 561-62-(1979).
| |
| '( 6.15.9 Spent Fuel Pool Proceedings A Licensing Board is not required to consider in a spent fuel pool expansion case the environmental effects of all other spent fuel pool capacity ' expansions. Because pending or past licensing actions affecting the capacity of other spent fuel pools could neither enlarge the magnitude nor alter the nature of the environmental effects directly attributable to the expansion in question, there is no occasion to take into-account'any such pending or past actions in determining the expansion application at bar. Portland General Electric Co.
| |
| (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 267-68 (1979).
| |
| The attempt, in a licensing proceeding for an ind_ividual pool capacity expansion, to challenge the absence of an acceptable l generic long-term resolution of the waste management question l was precluded in Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978), remanded sub nom. Minnesota v. Nuclear Reaulatory Commission, 602 F.2d 412 (D.C. Cir. 1979), restating the Commission's policy that for the purposes of licensing actions, the availability of offsite spent fuel repositories in the relatively near term should be presumed. Tro.i a n ,
| |
| suora. See also Vermont Yankee Nuclear Power Corp 2 (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 853-54 (1987) (Licensing Board rejected a contention which sought to i
| |
| examine the possibilities or effects of long-term or openended storage), aff'd in part and rev'd in part, ALAB-869, 26 NRC 13 (1987), reconsid. denied, ALAB-876, 26 NRC 277 (1987).
| |
| DECEMBER 1988 GENERAL MATTERS 71
| |
| | |
| The Licensing Board need not consider alternatives to pool capacity e mansion in a proposed expansion proceeding, where the environmental effects of the proposed action are negli-gible. The NEPA mandate that alternatives to the proposed licensing action be explored and evaluated does not come into play where the proposed action will neither (1) entail more than negligible environmental impacts nor (2) involve the commitment of available resources respecting which there are unresolved conflicts. Tro.ian, supra, 9 NRC at 265-266; Public Service Electric and 6as Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43'(1981). See Florida P_ower and Licht Co_. (St. Lucie Nuclear Power Plant, Urit 1),
| |
| LBP-88-10A, 27 NRC 452, 459 (1988), aff'd on other arounds, ALAB-893, 27 NRC 627 (1988).
| |
| In a license amendment proceeding to expand a spent fuel pool, the environmental review for such amendment need not consider the effects of continued plant operation where the environmental status auo will remain unchanged. Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636,13 NRC 312, 326 (1981), citina, Committee for Auto Responsibility v.
| |
| Solomon, 603 F.2d 992 (D.C. Cir.1979), cert, denied, 445 U.S. 915 (1980).
| |
| 6.16 NRC Staff 6.16.1 Staff Role in Licensing Proceedings The NRC Staff generally has the final word in all safety matters, not placed into controversy by parties, at the operating license stage. Southern California Edison Co.
| |
| (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982), citina, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1156 n.31 (1981).
| |
| The NRC Staff has a continuing responsibility to assure that all regulatory requirements are met by an applicant and continue to be met throughout the operating life of a nuclear power plant. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 143, 143 n.23 (1982).
| |
| The NRC Staff has the primary responsibility for reviewing all safety and environmental issues prior to the award of any op-erating license. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-82-91, 16 NRC 1364, 1369 (1982).
| |
| An operating license may not be issued until the NRC makes the ,
| |
| findings specified in 10 CFR 50.57. It is the Staff's duty ;
| |
| to ensure the existence of an adequate basis for each of that section's determinations. Commonwealth Edison Co. (Byron !
| |
| Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, DECEMBER 1988 GENERAL MATTERS 72 1
| |
| | |
| 4
| |
| .916.'16.1 y%) '
| |
| 1420 n.36'(1982), citina, South Carolina Electr 9 and' Gas Co.
| |
| '(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,L13 NRC 881,:895-896-(1981).
| |
| ; The fact that an application for-an operating. license is'
| |
| . uncontested-does not mean that an operating license auto-matica11y issues. An operating license may not issue unless-and until'the NRC Staff makes the findings specified'in 10 CFR, s 50.57, including the ultimate finding that such issuance will not be--inimical to the health and: safety of the. public.
| |
| .Washinaton Public Power Suonly System (WPPSS Nuclear. Project 2), ALAB-722, 17 NRC 546, 553 n.8 (1983), citino, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,- 13 NRC-881, 895-96 (1981). The same ' procedure applies under 10 CFR ss 70.23, 70.31 in the case of an' application for a materials license.' Philadelphia Electric Co. (Limerick Generating Stat on, Units 1 and 2),.
| |
| ALAB-778 '20 NRC 42, 48 (1984).
| |
| In a contested operating license proceeding, a Licensing Board may authorize the Director of Nuclear Reactor:Regu-r 1ation to issue a license for fuel loading and precriti-cality testing in order to avoid delayingLthese activities A pending a decision on the issuance of a. full power license.
| |
| :If the Board determines that any of the admitted contentions is relevant to fuel loading and precriticality- testing,' the Board must resolve the contention and make the related findings pursuant to 10 CFR 9 50.57(a).for'the issuance of a license. The Director is still responsible for making the other's 50.57(a) findings. If there are no relevant conten-tions, the Board may authorize the Director to make all the s 50.57(a) findings. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-31,'24 NRC 451, 453-54 (1986), citina, 10 CFR s 50.57(c). See Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), LBP-86-34, 24 NRC 549, 553, 555-56 (1986), aff'd, ALAB-854, 24 NRC 783, 790 (1986) (a Licensing Board is required to make find--
| |
| ings concerning the adequacy of onsite emergency prepared-ness, pursuant to 10 CFR 5 50.47(d), only as to matters which are in controversy); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-892, 27 NRC 485, 490-93 (1988) (to authorize low-power operation pursuant to 10 CFR
| |
| & 50.57(c), a board need only resolve those matters in controversy involving low-power, as opposed to full power, operation); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-88-20, 28 NRC 161, 166-67 (1988).
| |
| The NRC Staff may not deny an application without giving the reasons for the denial, and indicating how the application failed to comply with statutory and regulatory requirements.
| |
| Kerr-McGee Chemic_al Corp. (West Chicago Rare Earths facility),
| |
| LBP-85-3, 21 NRC 244, 250 (1985), citina, S_EC v. Chenery DECEMBER 1988 CENERAL MATTERS 73
| |
| | |
| i Coro., 318 U.S. 80, 94 (1943), Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163, 1168-69 (1984), 5 U.S.C. & 555(e), 10 CFR @ 2.103(b).
| |
| In general, the Staff does not occupy a favored position at hearing. It is, in fact, just another party to the proceed-ing. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 532 (1973). The Staff's views are in no way binding upon the Board and they cannot be accepted without being subjected to the same scrutiny as those of other parties. Consolidated Edison Co.
| |
| of N.Y., Inc. (Indian Point Nuclear Generating Station, Units 2 & 3), ALAB-304, 3 NRC 1, 6 (1976); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268, 1 NRC 383, 399 (1975). In the same vein, the Staff must abide by the Commission's regulations just as an applicant or intervenor must do. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-194, 7 AEC 431, 435 (1974); Louisiana Power and Liaht Co. (Water-ford Steam Electric Station, Unit 3), ALAB-801, 21 NRC 479, 484 (1985). On the other hand, in certain situations, as where the Staff prepares a study at the express direction of the Commission, the Staff is an arm of the Commission and the primary instrumentality through which the NRC carries out its regulatory responsibilities and its submissions are entitled to greater consideration. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), CLI-76-17, 4 NRC 451 (1976).
| |
| In a construction permit proceeding, the NRC Staff has a duty to produce the necessary evidence of the adequacy of the review of unresolved generic safety issues. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 806 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983).
| |
| After an order authorizing the issuance of a construction permit has become final agency action, and prior to the com-mencement of any adjudicatory proceeding on any operating license application, the exclusive regulatory power with regard to the facility lies with the Staff. Houston Lightina
| |
| & Power Co. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582 (1977). Under such circumstances 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 issued and the order author-izing it has become final agency action, no further jurisdic-tion over the license lies with any adjudicatory board. Port-land General Electric Co. (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977); Duouesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 (1977);
| |
| Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
| |
| LBP-78-ll, 7 NRC 381, 386, aff'd, ALAB-470, 7 NRC 473 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 74
| |
| | |
| 1 9 6.16.1 c Prior to issuing an' operating license, the Director of Nuclear Reactor Regulation must find that Commission regula -
| |
| tions, including those implementing NEPA, have been satisfied and that'the activities. authorized by.the license can be
| |
| . conducted without endangering the health and safety of the public. Pennsylvania Power and Licht Co. and Alleaheny Electric Cooperative. Inc. (Susquehanna Steam Electric.-
| |
| Stat _ ion, Units.1 and 2), ALAB-693, 16 NRC 952, 956 n.7 (1982),
| |
| citina,.10 CFR g 50.40(d); 10 CFR s'50.57; Northern States Dwer Co. (Prairie Island Nuclear Generating P.lant, Units 1 and 2),:ALAB-455, 7 NRC 41, 44 (1978),' remanded on other arounds sub nom., Minnesota'v. Nuclear Reaulatory Commission, 602 F.2d 412 (D.C. Cir. 1979).
| |
| . Licensing 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, stuoies 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).
| |
| O 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. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3),
| |
| LBP-83-36, 18 NRC 45, 48-49 (1983), citina, New Enaland Power Co. (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); Philadelphia Electric Co.
| |
| (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 865 n.52 (1984); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 56 (1985), citina, Carolina Power and Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516-17 (1980).
| |
| Although the establishment of a local public document room is an independent Staff function, the presiding officer in an informal proceeding has directed the Staff to establish such a room in order to comply with the requirements of proposed regulations which had been made applicable to the proceeding. j
| |
| : f. However, the presiding officer acknowledged that he lacked the
| |
| / authority to specify the details of the room's operation.
| |
| ( Alfred J. Morabito (Senior Operator License for Beaver Valley Power Station, Unit 1), LBP-88-5, 27 NRC 241, 243-44 & n.1 (1988).
| |
| DECEMBER 1988 GENERAL MATTERS 75
| |
| | |
| L i
| |
| i 9 6.16.1 e
| |
| Although the Licensing Boards and the NRC Staff have inde-pendent responsibilities, they are " partners" in implemen-tation of the Commission's policy that decisionmaking should be "both sound and timely," and thus they must coordinate their operations in order to achieve this goal. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 203 (1978).
| |
| 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 thus is 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 & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983); Louisiana Power and Liaht Co.
| |
| (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC l 5, 55-56 (1985).
| |
| The general rule that the applicant carries the burden of proof in licensing proceedings does not apply with regard to ,
| |
| alternate site considerations. For alternate 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 Staff plays a key role in assessing an applicant's qualifications. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-577, 11 NRC 18, 34 (1980), modified, CLI-8012,11 NRC 514 (1980).
| |
| The Staff is assumed to be fair and capable of judging a matter on its merits. Nuclear Enaineerina Co.. Inc. (Shef-field, Illinois Low-Level Radioactive Waste Disposal Site),
| |
| CLI-80-1, 11 NRC 1, 4 (1980).
| |
| When conducting its review of the issues, the Staff should acknowledge differences of opinion among Staff members and give full consideration to views which differ from the official Staff position. Such discussion can often contribute to a more effective treatment and resolution of the issues.
| |
| Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 580-582 n.6 (1985).
| |
| An early appraisal of an applicant's capability does not foreclose the Staff from later altering its conclusions.
| |
| Such an early appraisal would aid the public and the Commis-sion in seeing whether a hearing is warranted. Carolina Power DECEMBER 1988 GENERAL MATTERS 76
| |
| | |
| p_ ,
| |
| ( ) S 6.16.1.2-
| |
| & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-577, 11 NRC 18, 33-34 (1980), reconsidered, ALAB-581, 11 NRC 233 (1980), modified, CLI-80-12,11 NRC 514 j (1980).
| |
| 6.16.1.1 Staff Demands on Applicant or Licensee j While the Commission, through the Regulatory Staff, has a continuing duty and responsibility under the Atomic Energy Act of 1954 to assure that applicants and licensees comply with the applicable requirements, Duke Power Co. (William B..
| |
| McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 627 (1973), the Staff may not require an applicant to do more than the regulations require without a hearing. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Power Station),
| |
| ALAB-191, 7 AEC 431, 445, 447 n.32 (1974).
| |
| Because the law does not require consistency in treatment of two parties in different circumstances, the Staff does not violate principles of fairness in considering Class 9 accidents in environmental impact statements for floating but not land based plants. The Staff reed only provide a
| |
| ,q reasonable explanation why the differences justify a departure
| |
| ( ) from past agency practice. Offshore Power Systems (Floating x_) Nuclear Power Plants), ALAB-489, 8 NRC 194, 222 (1978).
| |
| 6.16.1.2 Staff Witnesses Except in extraordinary circumstances, a Licensing Board may not compel the Staff to furnish a particular named individual to testify - i.e., the Staff may select its own witnesses. 10 CFR 9 2.720(h)(2)(i). However, once a certain individual has appeared as a Staff witness, he may be recalled and compelled to testify further. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB 226, 8 AEC 381, 391 (1974). A Board may require Staff witnesses to update their previous testimony on a relevant issue in light of new analyses and information which have been developed on the same subject. Louisiana Po_wer and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1094-1095 n.13 (1984).
| |
| The Commission's rules provide that the Executive Director for Operations generally determines which Staff witnesses shall present testimony. An adjudicatory board may nevertheless order other NRC personnel to appear upon a showing of exceptional circumstances, such as a case in which a particu-lar named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the' r"N Executive Director for Operations. Metropolitan Edison Co.
| |
| v) (Three Mile Island Nuclear Station, Unit 1), ALAB-715, 17 NRC 102, 104-05 (1983), citina, 10 CFR s 2.720(h)(2)(i); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 DECEMBER 1988 GENERAL MATTERS 77
| |
| | |
| 9 6.16.1.3 and 2), ALAB-802, 21 NRC 490, 500-501 (1985) (Mere disagree-ment among NRC Staff members is not an exceptional circum-stance); Carolina Power and liaht Co. and North Carolina Eastern Municinal Power AaenCv (Shearon Harris Nuclear Power Plant), ALAB-856, 24 hRC 802, 811 (1986). See cenerally, Pennsylvania Power and Light Co. and Alleaheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 323 (1980).
| |
| 6.16.1.3 Post Hearing Resolution of Outstanding Matters by the Staff As a general proposition, issues should be dealt with in the hearings and not left over for later, and possibly more informal, resolution. The post hearing approach should be employed sparingly and only in clear cases, for example, where minor procedural deficiencies are involved.
| |
| Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103 (1983), citina, Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), CL1-74-23, 7 AEC 947, 951 n.8, 952 (1974);
| |
| accord, Cleveland Electric 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-298, 2 NRC 730, 736-37 (1975); Washinaton Public Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-113, 6 AEC 251, 252 (1973); ;
| |
| Commonwealth Edison Co. (Byron Nuclear Power Station, Units !
| |
| I and 2), LBP-84-2, 19 NRC 36, 210 (1984), rev'd on other arounds, ALAB-793, 20 NRC 1591, 1627 (1984); Philadelphia !
| |
| Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-836, 23 NRC 479, 494 (1986).
| |
| On the other hand, with respect to emergency planning, the Licensing Board may accept predictive findings and post hearing verification of the formulation and implementation of emergency plans. Byron, suora, 19 NRC at 212, 251-52, citina, Waterford, supra, 17 NRC at 1103-04; Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-808, 21 NRC 1595, 1600, 1601 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-836, 23 NRC 479, 494-95 (1986).
| |
| Completion of the minor details of emergency plans are a proper subject for post hearing resolution by the NRC Staff.
| |
| Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 61-62 (1984), citina, Water-ford, suora, 17 NRC 1076.
| |
| A Licensing Board may refer minor matters which in no way pertain to the basic findings necessary for issuance of a license to the Staff for post hearing resolution. Such referral should be used sparingly, however. Consolidated Edison Co. of N.Y.. Inc. (Indian Point Station, Unit 2),
| |
| CLI-74-23, 7 AEC 947, 951-52 (1974); Public Service Company j DECEMBER 1988 GENERAL MATTERS 78 E_
| |
| | |
| i L
| |
| l' '
| |
| 1 1
| |
| l
| |
| [] 6 6.16.1.3 of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 318 (1978); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1159 (1984). Since delegation of open matters to the Staff is a practico frowned upon by the Commission and the Appeal Board, a Licensing Board properly decided to delay issuing a construction permit until it had reviewed a loan guarantee from REA rather than delegating that responsib.lity to the Staff for post hearing resolution.
| |
| Marble Hill, suora.
| |
| A Licensing Board has delegated to the Staff responsibility i for reviewing and approving changes to a licensee's plan for the design and operation of an on-site waste burial project.
| |
| The Board believed that such a delegation was appropriate where the Board had developed a full and complete hearing record, resolved every litigated issue, and reviewed the project plan which the licensee had developed, at the Board's request, to summarize and consolidate its testimony during the hearing concerning the project. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-87-11, 25 NRC 287, 298 (1987),
| |
| The mere pendency of confirmatory Staff analyses regarding (o)
| |
| V litigated issues does not automatically foreclose Board resolution of those issues. The question is whether the Board has adequate information, prior to the completion of the Staff analyses, on which to base its decision. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| ALAB-788, 20 NRC 1102, 1171 (1984).
| |
| In order to conduct an expeditious hearing, without having to wait for the completion of confirmatory tests by a licensee and analysis of the test results by the Staff, a Licensing Board may decide to conduct a hearing on all matters ripe for adjudication and to grant an intervenor an opportunity to request an additional hearing limited to matters, within the scope of the admitted contentions, which arise subsequent to the closing of the record. The intervenor must be given timely access to all pertinent information developed by the licensee and the Staff after the close of the hearing with respect to the confirmatory tests. General Public Utilities Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1),
| |
| LBP-86-14, 23 NRC 553, 560-61 (1986), citina, C_ commonwealth Edison Co. (Zion Station, Units 1 and 2), LBP-73-35, 6 AEC 861, 865 (1973), aff'd, ALAB-226, 8 AEC 381, 400 (1974).
| |
| Although the intervenor will not be required to meet the usual standards for reopening a record, the intervenor must indicate in the motion to reopen that the new test data and analyses
| |
| /~'N are so significant as to change the result of the prior hear-I ing. General Public Utilities Nuclear Corp. (Three Mile Island (d Nuclear Station, Unit 1), LBP-86-17, 23 NRC 792, 797 (1986).
| |
| DECEMBER 1988 GENERAL MATTERS 79
| |
| | |
| s 6.16.2 The Licensing Boani must determine that the analyses remaining to be performed will merely confirm earlier Staff findings regarding the adequacy of the plant. Texas Utilities Electric-Co. (Comanche Peak Steam Electric Station, Units 1 and 2),
| |
| LBP-85-32,-22 NRC 434, 436 & n.2, 440 (1985), citina, Consolidated Edison Co. of New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947, 951 (1974), which cites, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), CLI-73-4, 6 AEC 6 (1973) (the mechanism of post hearing findings is not to be used to provide a reasonable assurance that a facility can be operated without endangering the health and safety of the public); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-729, 17 NRC 814 (1983) (post hearing procedures may be used for confirmatory tests); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811, 21 NRC 1622 (1985)
| |
| (once a method of evaluation had been used to confirm that one of two virtually identical units had met the standard of a reasonable assurance of safety, it was acceptable to exclude from hearings the use of the same evaluation method to confirm the adequacy of the second unit).
| |
| Staff analyses which are more than merely confirmatory because a further evaluation is necessary to demonstrate compliance with regulatory requirements in light of negative findings of the Licensing Board regarding certain equipment and that relate to contested issues should be retained with the Board's jurisdiction until a satisfactory evaluation is produced. Cleveland Electric Illuminating Co.
| |
| (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 79-80 (1986).
| |
| At the same time, it is entirely appropriate for the Staff to resolve matters not at issue in an operating license or amendment proceeding. In such proceedings, once a Licensing Board has resolved any contested issues and any issues which it raises sua soonte, the decision as to all other matters which need be considered prior to issuance of an operating license is the responsibility of the Staff alone. Con-solidated Edison Co. of N.Y.. Inc. (Indian Point, Units 1, 2
| |
| & 3), ALAB-319, 3 NRC 188, 190 (1976); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-181, 7 AEC 207, 209 n.7 (1974); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC 783, 790-91 (1986).
| |
| The Licensing Board is neither required nor expected to pass upon all items which the Staff must consider before the oper-ating license is issued. Indian Point, supra, 3 NRC at 190.
| |
| 6.16.2 Status of Staff Regulatory Guides Regulatory guides promulgated by the Staff are not regula-tions, are subject to question in the course of adjudicatory ,
| |
| hearings, and, when challenged, are to be regarded merely as DECEMBER 1988 GENERAL MATTERS 80 j
| |
| | |
| O)V 9 6.16.2 the' views of one party which cannot serve as evidence of their own validity but must be supported by other sources. Porter County Chapter of' the- Izaak Walton Leaaue of' America v. AEC, 633 F.2d 1011_ (7th Cir.1976); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC
| |
| -425, 439, rev'd on other ands., CLI-74-40, 8 AEC 809 (1974);
| |
| Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-217, 8 AEC 61, 68 (1974); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3),
| |
| ALAB-216, 8 AEC 13, 28 n.76 (1974); Consolidated Edison Co. of-N.Y.. Inc. (Indian Point, Unit 2), ALAB-188, 7 AEC 323, 333 n.42, rev'd in part on other ands., CLI-74-23, 7 AEC 947 (1974); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 174 n.27 (1974);
| |
| Philadelphia Electric Co. (Limerick Generating Station,-Units 1 and 2), ALAB-819, 22 NRC 681, 737 (1985). See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251, 260-61 (1987); Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 463-64 (1988), aff'd on other arounds, ALAB-893, 27 NRC 627 (1988). Nevertheless, regulatory guides are.
| |
| entitled to considerable prima facie weight. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),-
| |
| A CL1-74-40, 8 AEC 809, 811 (1974), clarified as to other
| |
| 'I matters, CLI-74-43, 8 AEC 826 (1974).
| |
| Nonconformance with regulatory guides or Staff positions does not'mean that General Design Criteria (G.D.C.) are not met; applicants are free to select other methods to comply with the G.D.C. The G.D.C. are intended to provide engineering goals rather than precise tests by which reactor safety can be gauged. Petition for Emeroency and Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
| |
| While it is clear that regulatory guides are not regulations, are not entitled to be treated as such, need not be followed by applicants, and do not purport to represent the only satisfactory method of meeting a specific regulatory require-ment, they do provide guidance as to acceptable modes of conforming to specific regulatory requirements. Gulf States Utilitier CA (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760 0977); lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1161, 1169 (1984). Indeed, the Commission itself has indicated that conformance with regulatory guides is likely to result in compliance with specific regulatory requirements, though nonconformance with such guides does not mean noncompliance with the regulations. Petition for Emeraency & Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978).
| |
| l t O' The criteria described in NUREG-0654 regarding emergency
| |
| \ plans, referenced in NRC regulations, were intended to serve solely as regulatory guidance, not regulatory requirements.
| |
| DECEMBER 1988 GENERAL MATTERS 81
| |
| | |
| i.~
| |
| 1' Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1298-99 (1982), rev'd in part on other arounds, CLI-83-22, 18 NRC 299 (1983). See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-819, 22 NRC 681, 710 (1985); Carolina Power and Licht Co.
| |
| and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), LBP-8611, 23 NRC 294, 367-68 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 487 (1986);
| |
| Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 238 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 544-45 (1986); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 290-91 (1988).
| |
| In absence of other evidence, adherence to NUREG-0654 may be sufficient to demonstrate compliance with the regulatory requirements of 10 CFR 50.47(b). However, such adherence is not required, because regulatory guides are not intended to serve as substitutes for regulations. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1298-99 (1982), rev'd in part on other arounds, CLI-83-22, 18 NRC 299 (1983).
| |
| Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission. lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1299 (1982), rev'd in part on other arounds, CLI-83-22, 18 NRC 299 (1983); Lona Island Liahtina Co. (Shorehim Nuclear Power ;
| |
| Station, Unit 1), ALAB-788, 20 NRC 1102, 1161 (1984).
| |
| 6.16.3 Status of Staff Position and Working Papers Staff position papers have no legal significance for any regulatory purpose and are entitled to less weight than an adopted regulatory guide. Southern California Edison Co.
| |
| (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-268, 1 NRC 383 (1975); Northern Indiana Public Service Co.
| |
| (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244 (1974). Similarly, an NRC Staff working paper or draft report neither adopted nor sanctioned by the Commission itself has no '
| |
| legal significance for any NRC regulatory purpose. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397 (1976); Consolidated Edison Co. of N.Y., Inc. (Indian DECEMBER 1988 GENERAL MATTERS 82
| |
| | |
| Dh y -S 6.17.li g ,
| |
| Point, Unit 2), ALAB-209, 7 AEC 971,.973 (1974). But'seg
| |
| ' -Vermont Yankee Nuclear Power Coro.- (Vermont Yankee Nuclear-Power Station),.LBP-87-17, 25 NRC 838,1857-60 (1987) (the-
| |
| -Licensing Board admitted contentions that questioned the sufficiency of an applicant's responses to an NRC Staff
| |
| . guidance document which provided guidelines.for Staff review of spent fuel pool modification applications), aff'd in part and rev'd'in part, ALAB-869, 26 NRC-13 -34 (1987),. reconsid.
| |
| ' denied, ALAB-876, 26 NRC-277-(1987).
| |
| Nonconformance with regulatory guides or Staff positions does not mean that General Design Criteria are not met; applicants.
| |
| are free to select other methods to comply with the G.D.C.
| |
| The G.D.C. are intended to provide engineering goals rather than precise 4 tests by which reactor safety can be gauged.
| |
| Petition for Emeraency & Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
| |
| 6.16.4 . Status of- Standard Review Plan Where the applicant. used criteria '" required" by the Staff's Standard Review P1an (NUREG-75/087, 9 2.2.3)'in determining' the probability of occurrence of a postulated accident, it is
| |
| .not legitimate for the Staff to base.its position on a denigration of the process which the. Staff itself. had pro-mulgated. Public Service Electric and Gas Company; Atlantic City-Electric Company (Hope Creek Generating Station, Units 1-l and 2), ALAB-518, 9 NRC'14, 29 (1979).
| |
| -6.16.5 Conduct of NRC Employees l (RESERVED)
| |
| '6.17 Orders of Licensina and Appeal Boards 6.17.1 Compliance with Board Orders Compliance with orders of an.NRC adjudicatory board is mandatory unless such compliance is excused for good cause.
| |
| Thus, a party may not disregard a board's direction to file a memorandum without seeking leave of the board after setting forth good cause for requesting such relief. Public Service Company of New Hamoshire (Seabrook Station, Units 1 & 2),
| |
| ALAB-488, 8 NRC 187, 190-91 (1978). Similarly, a party seeking to be excused from participation in a prehearing conference ordered by the board should present its justifica-tion in a request presented before the date of the conference.
| |
| Seabrook, lu.p_ra, 8 NRC at 191.
| |
| p 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, l
| |
| a Licensing Board has the power and the duty to maintain DECEMBER 1988 GENERAL MATTERS 83
| |
| | |
| 9 6.18 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 9 2.707, the refusal of a party to comply with a Board order relating to its appearance at a proceeding constitutes a default for which a Licensing Board may make such orders in regard to the fail-ure 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 simply refuse to comply with a direct Board order, even if it believes the Board decision to have been based upon an erroneous interpretation of the law. A '
| |
| Licensing Board is to be accorded the same respect as a court of law. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1930 and n.5 (1982). See 10 CFR s 2.713(a).
| |
| When an issue is admitted into a proceeding in an order of the Board, it becomes part of the law of that case. Parties may use the prior history of a case to interpret ambiguities in a Board order, but no party may challenge the precedential authority of a Board's decision other than in a timely motion for reconsideration. Cleveland Electric illuminating Co.
| |
| (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-18,17 NRC 501, 504 (1983).
| |
| 6.18 Precedent and Adherence to Past Aaency Practice Application of the " law of the (.ase" doctrine is a matter of dis-cretion. When an administrative tribunal finds that its declared law is wrong and would work an injustice, it may apply a different rule of law in the interests of settling the case before it correct-ly. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978).
| |
| An Appeal Board does not give stare decisis effect to affirmation of Licensing Board conclusions on legal issues not brought to it by way of an appeal. Duke Power Comnany (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-482, 7 NRC 979, 981 n.4 (1978).
| |
| A determination of fact in an adjudicatory proceeding which is neces-sarily 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. Washinate, Public Power Supply System (WPPSS Nuclear Projects Nos. 3 & 5), ALAB-485, 7 NRC 986, 988 (1978).
| |
| 1 Because the law does not require consistency in treatment of two )
| |
| parties in different circumstances, the Staff does not violate l principles of fairness in considering Class 9 accidents in en- '
| |
| vironmental impact statements for floating but not land-based plants.
| |
| The Staff need only provide a reasonable explanation why the DECEMBER 1988 GENERAL MATTERS 84 1
| |
| E_ i
| |
| | |
| i m
| |
| / ') _ 9 6.19
| |
| %/ differences justify a departure from past agency practice. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 222 (1978).
| |
| 6.19 Pre-Permit Activities NEPA and the Commission's implementing regulations proscribe en-vironmentally significant construction activities associated with a nuclear plant, including activities beyond the site boundary, without prior Commission approval. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), CLI-77-1, 5 NRC 1 (1977).
| |
| A " site" in this context includes land where the proposed plant is to be located and its necessary accouterments, including transmission lines and access ways. Id. The Commission may authorize certain site-related work prior to issuance of a construction permit pursuant to 10 CFR s 50.10(c) and (e). 10 CFR s 50.10(c), which broadly prohibits any substantial action which would adversely affect the environment of the site prior to Commission approval, can clearly be interpreted to bar, for example, road and railway construction leading to the site, at least where substantial clearing and grading is involved. Wolf Creek, suora.
| |
| Commission regulations provide means for an applicant to obtain j' 3 relicensing authorization to engage in certain specified con-struction activities. These include obtaining an exemption
| |
| (
| |
| V) from licensing requirements under 10 CFR s 50.12, pleading special circumstances under 10 CFR s 2.758, and demonstrating that proposed activities will have only de minimus or " trivial" environmental effects. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293 (1976);
| |
| Washinaton Public Power Supply System (Nuclear Projects 3 & 5), LBP-77-15, 5 NRC 643 (1977). In those situations where the Commission does approve offsite (through an LWA or CP) or pre-permit (through an LWA) activities, conditions may be imposed to minimize adverse impacts. Kansas Gas & Electric Co., CLI-77-1, 5 NRC 1 (1977).
| |
| The limited work authorization procedure under 10 CFR 6 50.10(e)(1) and (2) ("LWA-1") and the 10 CFR s 50.12(b) exemption procedure are independent avenues for applicants to begin site preparation in advance of receiving a construction perrait. United States Dcoartment of Enerav. Project Manaaement Corporation. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 423 (1982).
| |
| A request for an exemption from any Commission regulation in 10 CFR Part 50, including the general prohibition on commencement of construction in 10 CFR s 50.10(c), may be granted under 10 CFR s 50.12(a). United States Department of Enerav. Project Manaaement Corporation. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 418 (1982).
| |
| ('- The Commission may apply 10 CFR & 50.12 to a first of a kind pro-ject. There is no indication in 10 CFR s 50.12 that exemptions for DECEMBER 1988 GENERAL MATTERS 85
| |
| | |
| G 6.19 ,
| |
| conduct of site preparation activities are to be confined to typical, commercial light water nuclear power reactors. Commission practice has been to consider each exemption request on a case-by-case basis under the applicable criteria in the regulations. There is no indication in the regulations or past practice that an exemption can be granted only if an LWA-1 can also be granted or only if justified to meet electrical energy needs. Clinch River, supra, CLI-82-23, 16 NRC at 419.
| |
| In determining whether to grant an exemption pursuant to 10 CFR ,
| |
| s 50.12 to allow pre-permit activities the Commission considers the i totality of the circumstances and evaluates the exigency of the i circumstances in that overall determination. Exigent circumstances have been found where: (1) further delay would deny the public currently needed benefits that would have been provided by timely completion of the facility but were delayed due to external factors, and would also result in additional otherwise avoidable costs; and (2) no alternative relief has been granted (in part) or is imminent.
| |
| The Commission will weigh the exigent circumstances offered to justify an exemption against the adverse environmental impacts associated with the proposed activities. Where the environmental impacts of the proposed activities are insignificant, but the potential adverse consequences of delay may be severe and an exemption will mitigate the effects of that delay, the case is strong for granting an exemption that will preserve the option of realizing those benefits in spite of uncertainties in the need for prompt action. United States Department of Enerav. Pro.iect Manaae-ment Corporation. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-83-1,17 NRC 1, 4-6 (1983), citina, Carolina Power and Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-74-22, 7 AEC 938 (1974); Kansas Gas and Electric Co.
| |
| (Wolf Creek Generating Station, Unit 1), CLI-76-20, NRC 476 (1976);
| |
| Washinaton Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), CL1-77-II, 5 NRC 719 (1977).
| |
| Use of the exemption authority under 10 CFR @ 50.12 has been made available by the Commission only in the presence of exceptional circumstances. A finding of exceptional circumstances is a dis-cretionary administrative finding which governs the availability of an exemption. A reasoned exercise of such discretion should take into account the equities of each situation. These equities include the stage of the facility's life, any financial or economic hard-ships, any internal inconsistencies in the regulation, the appli-cant's good faith effort to comply with the regulation from which the exemption is sought, the public interest in adherence to the Commission's regulations, and the safety significance of the issues involved. These equities do not, however, apply to the requisite findings on public health and safety and common defense and security.
| |
| Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| CLI-84-8,19 NRC 1154,1156 n.3 (1984); Lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-84-45, 20 NRC 1343, 1376-1377 (1984). The costs of unusually heavy and protracted litigation may be considered in evaluating financial or economic DECEMBER 1988 GENERAL MATTERS 86
| |
| | |
| A) q '
| |
| M ..
| |
| s 6.19.1
| |
| . hardships n an equity in assessing the propriety'of an exemption.
| |
| Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| LBP-84-45, 20 NRC 1343, 1378-1379 (1984).
| |
| The public interest criterion for_ granting an exemption from 10 CFR
| |
| $ 50.10 under 10 CFR.s 50.12(b)!is a' stringent one: exemptions of-this sort are to be granted . sparingly and only in extraordinary circumstances. Clinch River, suora, 16 NRC at 425, 426, citina, Washinaton Public Power Sucolv System (WPPSS Nuclear Power Projects Nos. 3 and 5), CLI-77-ll, 5 NRC 719 (1977)'.
| |
| 6.19.1 Pre-LWA Activity Unlike authorization of activities under an LWA, pre-LWA activities may be authorized. prior to issuance of a partial initial decision on environmental i; sues. Washinaton Public l -Power Supoly System (Nuclear Projects .1 8 fb LBP-77-15, 5 NRC 643 (1977). Permission to commence activities preparatory to construction in advance of an LWA-can be sought U C e
| |
| .different methods. One method is to seek a determinit M by the Licensing Board that the proposed activities are not barred by 10 CFR 50.10(c) because their impacts are d_e minimus (the so-called " trivial impact" standard) or minor and fully repressible.
| |
| b This is the preferred method when the issues involved are essentially factual. The second method is to proceed in accordance with 10 CFR s 2.758(b) under which a waiver or-exemption may be obtained from the Commission if the Board certifies the issue presented in accordance with 10 CFR s 2.758(d). This method should be used when an interpre-tation or application of a regulation to particular facts is called into question. The third method is to seek an exemption from the Commission under 10 CFR 9 50.12. The Commission has stated that this method is extraordinary and emphasized that-it should be used sparingly. Washinaton Public Power Supply System (WPPSS Nuclear Projects 3 & 5),
| |
| CLI-77-ll, 5 NRC 719, 723 (1977).
| |
| 10 CFR & 50.10(c) permits only that pre-LWA activity with so trivial an impact that it can be safely said that no conceiv-able harm would have been done to any of the interests sought to be protected by NEPA should the application for the ~
| |
| facility ultimately be denied. Kansas Gas & Elect.ric Co.
| |
| (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-331,1 NRC 6 (1976), aff'd in Dart, CLI-77-1, 5 NRC 1 (1977). For purposes of authorization cf pre-LWA activity under 10 CFR s 50.10(c), redressibility is a factor to be considered.
| |
| Where the potential damage from the pre-LWA activity is fully repressible and the applicant is willing to commit to restora-O tion of the site, a Licensing Board can permit the applicant to proceed accordingly. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), CLI-77-1, 5 NRC 1 (1977). 1 DECEMBER 1988 GENERAL MAT 7 S 87
| |
| : f. l
| |
| | |
| s 6.19.2 The governing standard with regard to pre-LWA activity is
| |
| " trivial impact," not zero impact. Puaet Sound Power & Liaht
| |
| [omoany (Skagit Nuclear Power Project, Units 1 & 2), ALAB-446, i 6 NRC 870 (1977), reversina in part, LBP-77-61, 6 NRC 674 (1977). The fact that certain activities would entail the removal of some trees which cerld not be replaced within a short span of time does not necessarily mean that such activ-ities cannot be conducted prior to issuance of an LWA. Id.
| |
| The proscriptions in the Wild and Scenic River Act against any form of assistance by a Federal agency in the construction of a water resource project which might-have a direct and adverse impact on a river designated under the Act precludes the granting by a Licensing Board of pre-LWA authority for constructing a proposed sewer line to service a proposed nuclear plant where the nuclear plant itself is considered to be a " water resource project." Puaet Sound Power & Liaht Company (Skagit Nuclear Power Project, Units 1 & 2), LBP-77-61, 6 NRC 674, 678 (1977), rev'd in part, ALAB-446, 6 NRC 870 (1977).
| |
| 6.19.2 Limited Work Authorization Under 10 CFR s 50.10(e), the Commission may authorize cer- l tain site-related pre-permit work which is more substan-tial than that permitted under 10 CFR s 50.10(c). Prior to granting such " limited work authorization" (LWA), the presiding officer in the proceeding must have made certain environmental findings and, in some instances, health and safety findings. See 10 CFR 50.10(e)(1) through (3).
| |
| Notice to all parties of the proposed action is necessary.
| |
| Carolina Power & Liaht Co. (Shearon-Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-184, 7 AEC 229 (1974).
| |
| A limited work authorization allows preliminary construction work to be undertaken at the applicant's risk, pending comple-tion of later hearings covering radiological health and safety issues. United States Department of Enerav. Pro.iect Manaae-ment Coro.. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-688, 16 NRC 471, 473 n.1 (1982), citina, 10 CFR s 50.10(e)(1); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 778 (1979).
| |
| The cost-benefit analysis which must be performed prior to issuance of an LWA requires a determination as to whether construction of certain site-related facilities should be permitted prior to issuance of a construction permit but subsequent to a determination resulting from a cost-benefit analysis that the plant should be built. The cost-benefit analysis relevant to issuance of an LWA has been handled generically under 10 CFR s 51.52(b). Thus, the cost-benefit balance required for an LWA need not be specifically performed DECEMBER 1988 GENERAL MATTERS 88
| |
| | |
| l 9 6.20 for each LWA. Rather, once a Licensing Board has' made all .the findings on~ environmental-and site suitability matters re-quired by Section 51.52(b) and (c), the cost-benefit balancing-L . implicit in.those regulations has automatically been' satis-fled. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA,:2A, 18 and 28), ALAB-380, 5 NRC 572, 579-80 (1977).
| |
| ' Applicants are not required to have'every permit in hand before a. Limited Work > Authorization can be granted. Public-Service Company of Oklahoma (Black Fox Station, Units 1-& 2),
| |
| .LBP-78-26,.8 NRC 102, 123, 129 (1978).
| |
| The Board may conduct a' separate hearing and issue a partial decision on issues pursuant to NEPA, general site suitability issues specified by 10 CFR s 50.10(e), and certain other ' '
| |
| possible issues for a limited work authorization. United States Department of Enerav. Pro.iect Manaaement Corp.,.
| |
| Tennessee Valley Authority (Clinch River Breeder Reactor Plant), LBP-83-8, 17.NRC 158,-161 (1983), vacated as moot, ALAB-755, 18 NRC 1337 (198T).
| |
| 'Although the LWA and construction permit aspects of the case are simply separate phases of the same proceeding, Licensing O Boards have the authority to regulate the course of the T^ proceeding and limit.an intervenor's participation to issues
| |
| :in which it is interested. United States Department of Enerav.' Pro.iect Manaaement Coro.. Tennessee Vallev Authority
| |
| -(Clinch River Breeder Reactor Plant), ALAB-761, 19 NRC 487, 492 (1984), citina, 10 CFR ss 2.718 and 2.714(e) and (f).
| |
| 6.19.2.1 LWA Status Pending Remand Proceedings It has been held that, where a partial initial decision on a construction permit is remanded by an Appeal Board to the Licensing Board for further consideration, an outstanding LWA may remain in effect pending resolution of the CP issues provided that little consequential environmental damage will occur in the interim. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-335,'3 NRC 830 (1976). On ,
| |
| appeal of this decision, however, the Court of Appeals stayed !
| |
| the effectiveness of the LWA pending alternate site considera-tion by the Licensing Board on the grounds that it is anomalous to allow construction to take place at one site while the Board is holding further hearings on other sites.
| |
| Hodder v. NRC, 589 F.2d 1115 (D.C. Cir. 1978).
| |
| 6.20 Regulations i
| |
| The proper test of the validity of a regulation is whether its normal
| |
| :(. ,) and fair interpretation will deny persons their statutory rights.
| |
| \') Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1047 (1983), citina, American Truckina Association v.
| |
| United States, 627 F.2d 1313, 1318-19 (D.C. Cir. 1980).
| |
| DECEMBER 1988 GENERAL MATTERS 89
| |
| \
| |
| | |
| 9 6.20.1 6.20.1 Compliance with Regulations All participants in NRC adjudicatory proceedings, whether lawyers or laymen, have an obligation to familiarize them-selves with the NRC Rules of Practice. The fact that a party may be a newcomer to NRC proceedings will not excuse.that party's noncompliance with the rules. Boston Edison Co.
| |
| (Pilgrim Nuclear Power Station), ALAB-816, 22 HRC 461, 467 n.24 (1985), citina, Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-615, 12 NRC 350, 352 (1980), which p"otes, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-609, 12 NRC 172, 173 n.1 (1980).
| |
| Applicants and licensees must, of course, comply with the l Commission's regulations, but the Staff may not compel an applicant or licensee to do more than the regulations require without a hearing. Vermont Yankee Nuclear Power Corp.
| |
| (Vermont Yankee Nuclear Power Station), ALAB-194, 7 AEC 431, 445, 447 n.32 (1974).
| |
| The power to grant exemptions from the regulations has not been delegated to Licensing Boards and such Boards, therefore, <
| |
| lack the authority to grant exemptions. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 &
| |
| 3), LBP-77-35, 5 NRC 1290, 1291 (1977).
| |
| 6.20.2 Commission Policy Statements A Commission policy statement is binding upon the Commission's adjudicatory boards. Mississiooi Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725, 1732 n.9 (1982), citina, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 51 (1978), remanded on other arounds sub nom., Minne-sota v. Nuclear Reaulatory Commission, 602 F.2d 412 (D.C. Cir.
| |
| 1979); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and E), ALAB 819, 22 NRC 681, 695 (1985), citina, Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 82-83 (1974).
| |
| 6.20.3 Regulatory Guides Staff regulatory guides are not regulations and do not have the force of regulations. When challenged by an applicant or licensee, they are to be regarded merely as the views of one party, although they are entitled to considerable prima facie weight. See Section 6.16.2 and cases cited therein.
| |
| Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-725, 17 NRC 562, 568 and n.10 (1983); Lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983), citina, Metropolitan Edison Co. (Three Mile DECEMBER 1988 GENERAL MATTERS 90
| |
| | |
| ,y 1
| |
| ! U};
| |
| 9 6.20.3
| |
| . I sl an'd Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 12'98--
| |
| 99 (1982), rev'd in part on other aroun_d_s, CLI-83-22, 18 NRC 299'(1983).
| |
| In the absence of other evidence, adherence to regulatory.
| |
| guidance may be sufficient to-demonstrate compliance with regulatory requirements. Metropolitan Edison Co. (Three Mile 1- Island Nuclear Station, Unit No. 1),'ALAB-698, 16 NRCJ1290, 1299 (1982) (rev'd in part on'other arounds, CLI-83-22, 18 NRC-299 (1983)), citino, Petition for Emeroency and Remedial Action, CLI-78-6, 7 NRC 400, 406-407 (1978); Lono Island.
| |
| Liahtina Co. (Shoreham Nuclear Power' Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983). Generally speaking, however,
| |
| ;- such guidance is treated simply as evidence of legitimate means for complying with regulatory.. requirements, and the Staff is required to demonstrate the validity of its guidance if it is called into _ question during the course of litigation.
| |
| Three Mile-Island, supra, 16-NRC at 1299, citina, Vermont-Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power
| |
| <: Station), CLI-74-40, 8 AEC 809, 811-(1974); Philadelphia L Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-819, 22 NRC 681, 737 (1985).
| |
| O Nonconformance with regulatory guides or Staff positions b does' not'mean that the General Design Criteria (G.D.C.)
| |
| are not met; applicants are free'to select other methods to comply with the G.D.C. The G.D.C. are intended to provide engineering goals rather than precise tests by which reactor safety can be gauged. Petition for Emeraency-and Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
| |
| Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission. Lona Island Liahtina Co.
| |
| (Shoreham Nuclear Power Station, Unit 1), LBP-83-22,17 NRC 608, 616 (1983), citino, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1299 (1982), rev'd in oart on other arounds, CLI-83-22, 18 NRC 299 (1983).
| |
| While it is clear that regulatory guides are not regulations, are not entitled to be treated as such, need not be followed by applicants, and do not purport to represent the only satisfactory method of meeting a specific regulatory require-ment, they do provide guidance as to accept ble modes of conforming to specific regulatory requirements. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760 (1977); Fire Protection for Operatina Nuclear Power Plants, CLI-81-11, 13 NRC 778 (1981). Indeed, the Commission j itself has indicated that conformance with regulatory guides !
| |
| is likely to result in compliance with specific regulatory j 1
| |
| DECMBER 1988 GENERAL MATTERS 91
| |
| | |
| f i
| |
| I s 6.20.4 requirements, though, as stated previously, nonconformance with such guides does not mean noncompliance with the regulations. Petition for Emeraency and Remedial Action, CLI-78-6, 7.NRC 400, 406-07 (1978).
| |
| Licensees can be required to show they have taken steps to provide equivalent or better measures than called for in regulatory guides if they do not, in fact, comply with the specific requirements set forth in the guides. Consolidated fdison Co. of N.Y. (Indian Point, Unit 2) and Power Authority of the State of N.Y. (Indian Point, Unit 3), LBP-82-105, 16 NRC 1629, 1631 (1982) 6.20.4 Challenges to Regulations In Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power :
| |
| Plant, Units 1 & 2), Comm'n's Mem. & Order, 2 CCH At. Eng. L. !
| |
| Rep. g 11,578.02 (1969), the Commission recognized the general '
| |
| principle that regulations are not subject to amendment in individual adjudicatory proceedings. Under that ruling, now supplanted by 10 CFR s 2.758, challenges to the regulations would be permitted in only three limited situations:
| |
| (1) where the regulation was claimed to be outside the Commission's authority; (2) where it was claimed that the regulation was not pro- !
| |
| mulgated in accordance with applicable procedural requirements; (3) in the case of radiological safety standards, where it was claimed that particular standards were not within the broad discretion given to the Commission by the Atomic Energy Act to establish.
| |
| The Commission directed Licensing Boards to certify the question of the validity of any challenge to it prior to rendering any initial decision. Thus, the Commission adheres y to the fundamental principle of administrative law that its I rules are not subject to collateral attack in adjudicatory !
| |
| proceedings. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A,16 NRC 2069, 2073 (1982). I No challenge of any kind is permitted, in an adjudicatory proceeding, as to a regulation that is the subject of ongoing rulemaking. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319 (1972); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
| |
| ALAB-57, 4 AEC 946 (1972). In such a situation, the appropri-ate forum for deciding a challenge is the rulemaking proceed-ing itself. Union Electric Co. (Callaway Plant, Units 1 & 2),
| |
| ALAB-352, 4 NRC 371 (1976).
| |
| DECEMBER 1988 GENERAL MATTERS 92
| |
| | |
| {h. The assertion of a claim in an adjudicatory proceeding that a 9 6.20.4-regulation is invalid is barred as a matter of law as an attack upon a regulation of the Commission. Pacific Gas &
| |
| Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
| |
| ALAB-410, 5 NRC 1398, 1402 (1977); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-456, 7 NRC 63,- 65 (1978); Public Service Co. of New Hampshire (Seabrook
| |
| -Station, Units 1 and 2), LBP-86-25, 24 NRC.141, 144 (1986);
| |
| American Nuclear Corporation (Revision of Orders to Modify Source Materials Licenses), CLI-86-23, 24 NRC 704, 709-710 (1986). See Public Service Co. of New Hamosnire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251, 256 (1987).
| |
| Consequently, under current regulations, there can be no challenge of any kind by discovery, proof, argument, or other
| |
| 'means except in accord with 10 CFR S 2.758. Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1-
| |
| & 2), ALAB-218, 8 AEC 79, 88-89 (1974); Philadelphia Electric Co. (Limerick' Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 204 (1975); Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), LBP-82-92,16 NRC 1376, 1385, aff'd, ALAB-704,16 NRC 1725 (1982);; Pacific Gas & -
| |
| Electric Co. (Diablo Canyon Nuclear Power Plant,. Units 1 and 2), ALAB-728,.17 NRC 777, 804 n.82 (1983), review denied, CLI-
| |
| .) 83-32, 18 NRC 1309 (1983); Louisiana Power & Liaht Co.
| |
| ! .(Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC
| |
| \ 1076, 1104 n.44 (1983); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-24,-24 NRC 132, 136, 138 (1986).
| |
| Under Section 2.758, the regulation must be challenged by way of a' petition requesting a waiver or exception to the regulation on the sole ground of "special circumstances" (1,A, because of special circumstances with respect to the subject matter of the particular proceeding, application of the regulation would not serve the purposes for which the regulation was adopted. 10 CFR S 2.758(b)); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-25, 24 NRC 141, 145 (1986); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-895, 28 NRC 7, 16 (1988). The petition must be accompanied by an affida-vit. Other parties to the proceeding may respond to the petition. If the petition and responses, considered together, do not make a prima facie showing that application of the regulation would not serve the purpose intended, the Licensing Board may not go any further. If a prima facie showing is made, then the issue is to be directly certified to the Commission (not to the Appeal Board - 10 CFR s 2.758(d)) for determination. See Pacific Gas and Electric CA (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC O 777, 804 n.82 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983); Georaia Power Co. (Vogtle Nuclear Plant, Units 1 and
| |
| (/ 2), LBP-84-35, 20 NRC 887, 890 (1984); Cleveland Electric 1
| |
| illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
| |
| DECEMBER 1988 GENERAL MATTERS 93
| |
| | |
| LBP-85-33, 22 NRC 442, 445 (1985); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251, 256 (1987). In the alternative, any party who asserts that a regulation is invalid may always petition for rule- j making under 10 CFR Part 1, Subpart H (ss 2.800-2.807).
| |
| The provisions of 10 CFR s 2.758 do not entitle a petitioner for a waiver or exception to a regulation to file replies to the responses of other parties to the petition. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-12, 25 NRC 324, 326 (1987).
| |
| An attack on a Commission regulation is prohibited unless the petitioner can make a prima facie showing of special circum-stances such that applying the regulation would not serve the purpose for which it was adopted. The prima facie showing must be made by affidavit. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-83-52A, 18 NRC 265, 270 (1983), citina, 10 CFR & 2.758. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-12, 25 NRC 324, 326 (1987).
| |
| To make a prima facie showing under 10 CFR s 2.758 for waiving a regulation, a stronger showing than lack of reasonable assurance has to be made. Evidence would have to be presented demonstrating that the facility under review is so different from other projects that the rule would not serve the purposes for which it was adopted. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-83-49, 18 NRC 239, 240 (1983).
| |
| Another Licensing Board has applied a " legally sufficient" standard for the prima facie showing. According to the Board, the question is whether the petition with its accompanying affidavits as weighed against the responses of the parties presents legally sufficient evidence to justify the waiver or exception from the regulation. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-87-12, 25 NRC 324, 328 (1987). See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-895, 28 NRC 7, 22 (1988).
| |
| A request for an exception, based upon claims of costly delays resulting from compliance with a regulation, rather than claims that application of the regulation would not serve the purposes for which the regulation was adopted, is properly filed pursuant to 10 CFR 9 50.12 rather than 10 CFR s 2.758.
| |
| Cleveland Electric lliuminatina A (Perry Nuclear Power Plant, Units 1 and 2), LBP-85-33, 22 NRC 442, 444-45 (1985).
| |
| A request for an exception is properly filed pursuant to 10 CFR s 50.12, and not 10 CFR @ 2.758, when the exception: (1) is not directly related to a contention being litigated in the DECEMBER 1988 CENERAL MATTERS 94
| |
| | |
| lr'%.
| |
| - 6 6.20.5 proceeding; and (2) does not involve safety, environmental, or common defense and security issues serious enough for the Board to raise on its own initiative. Perry, suora, 22 NRC at 445-46.
| |
| An Appeal Board has determined that it has the authority to consider a motion for interlocutory review of a Licensing Board's scheduling order involving a Section 2.758 petition.
| |
| The Board found that the only express limitation on its normal appellate jurisdiction is the requirement, pursuant to footnote 7 of Section 2.758, of directed certification to the Commission of a Licensing Board's determination that a prima facie showing has been established. The Board determined that, except in that specific situation, it could exercise its normal appellate authority, including its authority to consider heterlocutory Licensing Board rulings through directed certification. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-860, 25 NRC 63, 67 (1987).
| |
| The ECCS Final Acceptance Criteria as set forth in 10 CFR 9 50.45 and Appendix K to 10 CFR Part 50 assume that ECCS
| |
| ,o will operate during an accident. On the other hand, Class 9 accidents postulate the failure of ECCS. Thus, on its V)
| |
| (
| |
| face, consideration of Class 9 accidents would appear to be a challenge to the Commission's regulations. However, the Commission has squarely held that the regulations do not preclude the use of inconsistent assumptions about ECCS failure for other purposes. Thus, the prohibition of challenges to the regulations in adjudicatory proceedings i does not preclude the consideration of Class 9 accidents and a failure of ECCS related thereto in environmental impact statements and proceedings thereon. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 221 (1978).
| |
| 6.20.5 Agency's Interpretation of its Own Regulations The wording of a regulation generally takes precedence over any contradictory suggestion in its administrative history.
| |
| Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 469 (1982).
| |
| Where NRC interprets its own regulations and where those regu-l 1ations have long been construed in a given way, the doctrine of stare decisis will govern absent compelling reasons for a l different interpretation; the regulations may be modified, if I
| |
| appropriate, through rulemaking procedures. New Enaland Power Co. (NEP Units 1 and 2), Public Service Co. of New Hamoshire (p)
| |
| L (Seabrook Station, Units 1 & 2), ALAB-390, 5 NRC 733, 741-42 (1977). .
| |
| DECEMBER 1988 GENERAL MATTERS 95 L__ _ _ _ _ - _ _ _ _ - - _ _ _ . _. _ \
| |
| | |
| S 6.21 6.21 Rulemakino Rulemaking procedures are covered, in general, in 10 CFR SS 2.800-2.807, which govern the issuance, amendment and repeal of reguld-tions and public participate therein. It is well established that an agency's decision to use rulemaking or adjudication in dealing with a problem is a matter of discretion. Fire Protection for Operatina Nuclear Power Plants, CLI-81-ll, 13 NRC 778, 800 (1981),
| |
| citi_ng, NAACP v. FPC, 425 U.S. 662, 668 (1976).
| |
| The Commission has authority to determine whether a particular issue shall be decided through rulemaking, through adjudicatory considera-tion, or by both means. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-Il8, 16 NRC 2034, 2038 (1982), citino F.P.C. v.
| |
| Texaco. Inc., 377 U.S. 33, 42-44 (1964); United States v. Storer Broadcasting Co., 351 U.S. 192, 202 (1955). In the exercise of that authority, the Commission may preclude or limit the adjudicatory consideration of an issue during the pendancy of a rulemaking.
| |
| Midland, supra, 16 NRC at 2038.
| |
| When a matter is invo'ved in rulemaking, the Commission may elect to require an issue which is part of that rulemaking to be heard as part of that rulemaking. Where it does not impose such a require.
| |
| ment, an issue is not barred from being considered in adjudication being conducted at that time. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 584-585 (1982); LBP-82-Il8, 16 NRC 2034, 2037 (1982).
| |
| 6.21.1 Rulemaking Distinguished from General Policy Statements While notice and comment procedures are required for rule-making, such procedures are not required for issuance of j a policy statement by the Commission since policy state-ments are not rules. Vermont Yankee Nuclear Power Corp.
| |
| (Vermont Yankee Nuclear Power Station), CLI-76-14, 4 NRC 163 (1976).
| |
| 6.21.2 Generic Issues and Rulemaking The Commission has indicated that, as a rule, generic safety questions should be resolved in rulemaking rather than adjudicatory proceedings. See Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 814-15, clarified, CLI-74-43, 8 AEC 826 (1974). In this vein, it has been held that the Commission's use of rulemaking to set ECCS standards is not a violation of due process.
| |
| Union of Concerned Scientists v. AEC, 499 F.2d 1069,1081-82 (D.C. Cir. 1974).
| |
| It is within the agency's authority to settle factual issues of a generic nature by means of rulemaking. Minnesota v. NRC, l
| |
| 602 F.2d 412, 416-17 (D.C. Cir. 1979) and Ecoloav Action v.
| |
| DECEMBER 1988 GENERAL MATTERS 96 E_
| |
| | |
| 'h
| |
| [)
| |
| 'N l 6 6.23 ML, 492 F.2d 998,1002 (2d Cir.1974), cited in Fire Protec-tion for Operatina Nuclear Power Plants, CLI-81-ll, 13 NRC 778, 802 (1981). An agency's previous use of a case-by-case problem resolution method does not act as a bar to a later effort to resolve generic issues by rulemaking. Pacific Coast European Conference v. United States, 350 F.2d 197, 205-06 (9th Cir.), cert. denied, 382 U.S. 958 (1965), cited in Fire Protection, supra, and the fact that standards addressing generic concerns adopted pursuant to such a rulemaking proceeding affect only a few, or one, licensee (s) does not make the use of rulemaking improper. Hercules. Inc. v. EPA, 598 F.2d 91, 118 (D.C. Cir. 1978), cited in Fire Protection, luArA Waiver of a Commission rule is not appropriate for a generic issue. The proper approach when a problem affects nuclear reactors generally is to petition the Commission to promulgate an amendment to its rules under 10 CFR s 2.802. If the issue is sufficiently urgent, petitioner may request suspension of the licensing proceeding while the rulemaking is pending.
| |
| Cleveland Elect, Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-57, 14 NRC 1037, 1038-39 (1981).
| |
| p 6.22 Research Reactors i i V 10 CFR s 50.22 constitutes the Commission's determination that if more than 50% of the use of a reactor is for commercial purposes, that reactor must be. licensed under s 103 of the Atomic Energy Act rather than s 104. Section 104 licenses are granted for research and education, while Section 103 licenses are issued for industrial or commercial purposes. The Recents of the University of California (UCLA Research Rmctor), LBP-83-24, 17 NRC 666, 670 (1983).
| |
| 6.23 Disclosure of Information to the Public 10 CFR 6 2.790 deals generally with NRC practice and procedure in making NRC records available to the public. 10 CFR Part 9 specifi-cally establishes procedures for implementation of the Freedom of Information (10 CFR ss 9.3 to 9.16) and Privhey (10 CFR ss 9.50, 9.51) Acts.
| |
| Under 10 CFR s 2.790, hearing boards are delegated the authority and obligation to determine whether proposals of confidentiality filed pursuant to Section 2.790(b)(1) should be gronted pursuant to the standards set forth in subsections (b)(2) through (c) of that Section. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-62, 14 NRC 1747, 1755-56 (1981). Pursuant to 10 CFR s 2.718, Boards may issue a wide variety of procedural orders that are neither expressly authorized nor prohibited by the rules.
| |
| ( They may permit interveners to contend that allegedly proprietary
| |
| !! submissions should be released to the public. They may also i \ authorize discovery or an evidentiary hearing that is not relevant to the contentions but is relevant to an important pending procedural DECEMBER 1988 GENERAL MATTERS 97
| |
| | |
| t 5 6.23.1 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 motie. 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. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-2, 15 NRC 48 (1982).
| |
| Under Chrysler Coro, v. Brown, 441 U.S. 281, 60 L.Ed.2d 208, 99 S.
| |
| Ct. 1705 (1979), neither the Privacy Act nor the Freedom of Informa-tion Act gives a private individual the right to prevent disclosure of names of individuals where the Licensing Board elects to disclose.
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
| |
| LSP-81-50, 14 NRC 888, 891 (1981).
| |
| In Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units I and 2), LBP-82-33, 15 NRC 887, 891-892 (1982), the Board ruled that the names and addresses of temporary employees who have worked on a tube-sleeving project are relevant to intervenor's quest for infor-mation about quality assurance in a tube-sleeving demonstration project. Since applicants have not given any specific reason to fear that interveners will harass these individuals, their names should be disclosed so that interveners may seek their voluntary cooperation in providing information to them.
| |
| In the Seabrook offsite emergency planning proceeding, the Iicensing Board extended a protective order to withhold from public disclosure the identity of individuals and organizations who had agreed to suppiy services and facilities which would be needed to implement the applicant's offsite emergency plan.
| |
| The Board noted the emotionally charged atmosphere surrounding the Seabrook facility, and, in particular, the possibility that opponents of the licensing of Seabrook would invade the applicant's commercial interests and the suppliers' right to privacy through harassment and intimidation of witnesses in an attempt to improperly influence the licensing process. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-8, 27 NRC 293, 295 (1988).
| |
| 6.23.1 Freedom of Information Act Disclosure Under F0IA, a Commission decision to withhold a document from the public must be by majority vote. Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-35,12 NPC 409, 412 (1980).
| |
| While F01A does not establish new government privileges against discovery, the Commission has elected to incorporate the exemptions of the F0IA into its own discovery rules.
| |
| Consumers Power Company (Palisades Nuclear Power Facility),
| |
| ALJ-80-1, 12 NRC 117, 121 (1980).
| |
| DECEMBER 1983 GENERAL MATTERS 98
| |
| | |
| l I
| |
| gs
| |
| ) 9 6.23.3-v Section 2.790 of the Rules of Practice is the NRC's pro-mulgation in obedience to the Freedom of Information Act.
| |
| Palisades, supra, 12 NRC at 120.
| |
| Section 2.744 of the Rules of Practice provides that a presiding officer may order production of any record exempt under Section 2.790 if its " disclosure is necessary to a proper decision and the document is not reasonably obtainable from another source." This balancing test weighs the need for a proper decision against the interest in privacy. Metropoli-
| |
| _ tan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
| |
| LBP-81-50, 14 NRC 888, 892 (1981).
| |
| The presiding officer in an informal hearing lacks the authority to review the Staff's procedures or determinations involving F0IA requests for NRC documents. However, the presiding officer may compel the production of certain of the reouested documents if they are determined to be necessary for the development of an adequate record in the proceeding.
| |
| Alfred J. Morabito (Senior Operator License for Beaver Valley Power Station, Unit 1), LBP-87-28, 26 NRC 297, 299 (1987).
| |
| Although 10 CFR s 2.744 by its terms refers only to the
| |
| (~] production of NRC documents, it also sets the framework for i providing protection for NRC Staff testimony where disclosure
| |
| \''/ would have the potential to threaten the public health and safety. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-40, 18 NRC 93, 99 (1983).
| |
| The Commission, in adopting the standards of Exemption 5, and the "necessary to a proper decision" as its document privilege standard under 10 CFR s 2.744(d), has adopted traditional work product / executive privilege exemptions from disclosure.
| |
| Palisades, suora, 12 NRC at 123.
| |
| The Government is no less entitled to normal privilege than is any other party in civil litigation. Palisades, suora, 12 NRC at 127.
| |
| Any documents in final form memorializing the Director's decision not to issue a notice of violation imposing civil penalties does not fall within Exemption 5. Palisades, suora, 12 NRC at 129.
| |
| 6.23.2 Privacy Act Disclosure (RESERVED) 6.23.3 Disclosure of Proprietary Information j
| |
| ( ,)
| |
| < s 10 CFR & 2.790, which deals generally with public inspection of NRC official records, provides exemptions from public )
| |
| inspection in appropriate circumstances. Specifically, l I
| |
| DECEMBER 1988 GENERAL MATTERS 99 l
| |
| | |
| 9 6.23.3.1 Section 2.790(a) establishes that the NRC need not disclose information, including correspondence to and from the NRC regarding issuance, denial, and amendment of a license or permit, where such information involves trade secrets and commercial or financial information obtained from a person as privileged or confidential.
| |
| Under 10 CFR H 2.790(b), any person may seek to have a document withheld, in whole or in part, from public disclo-sure on'the grounds that it contains trade secrets or is otherwise proprietary. To do so, he must file an application for withholding accompanied by an affidavit identifying the parts to be withheld and containing a statement of the reasons for withholding. As a basis for withholding, the affidavit must specifically address the factors listed in Section 2.790(b)(4). If the NRC determines that the informa-tion is proprietary based on the application, it must then determine whether the right of the public to be fully appraised of the information ou; weighs the demonstrated concern for protection of the information.
| |
| For an affidavit to be exempt from the Board's general authority to rule on proposals concerning the withholding of information from the public, that affidavit must meet the regulatory requirement that it have " appropriate mark-ings". When the plain language of the regulation requires
| |
| " appropriate markings", an alleged tradition by which Staff has accepted the proprietary nature of affidavits when only a portion of the affidavits is proprietary is not relevant to the correct interpretation of the regulatitn.
| |
| In addition, legal argument may not appropriately be with-held from the public merely because it is inserted in an affidavit, a portion of which may contain some proprietary information. Affidavits supporting the proprietary nature of other documents can be withheld from the public only if they have " appropriate markings". An entire affidavit may not be withheld because a portion is proprietary. The Board may review an initial Staff determination concerning the proprietary nature of a document to determine whether the review has addressed the regulatory criteria for withholding.
| |
| A party may not withhold legal arguments from the public by inserting those arguments into an affidavit that contains some proprietary information. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-5A,15 NRC 216 (1982).
| |
| 6.23.3.1 Protecting Information Where Disclosure is Sought in an Adjudicatory Proceeding To justify the withholding of information in an adjudicatory proceeding where full disclosure of such information is sought, the person seeking to withhold the information must demonstrate that:
| |
| DECEMBER 1988 GENERAL MATTERS 100
| |
| | |
| l
| |
| ( ,/ 9 6.23.3.1 (1) 'the information is of a type customarily held in confidence by its originator; (2) the information has, in fact, been held in confidence; (3) the information is not found in public sources; (4) there is a rational basis for holding the information in confidence.
| |
| Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-327, 3 NRC 408 (1976).
| |
| The Government enjoys a privilege to withhold from dis-closure 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 Project, Units 1 and 2), ALAB-639, 13 NRC 469, 473 (1981).
| |
| This applies not only in criminal but also civil cases, it re United States, 565 F.2d 19, 21 (1977), cert denied stio nom., Hell v. Socialist Workers Party, 436 U.S. 962
| |
| 'l]j
| |
| /
| |
| D (1978), and in Commission proceedings as well, Northern States Power Co. (Monticello Plant, Unit 1), ALAB-16, 4 AEC 435, affirmed by the Commission, 4 AEC 440 (1970);
| |
| 10 CFR @ 2.744(d), 9 2.790(a)(7); and is embcdied in F0IA, 5 U.S.C. 9 552(b)(7)(D). The privilege is not absolute; where an informer's identity is (1) relevant and helpful to the defense of an accused, or (2) essential to a fair determination of a cause (Rovario, suora); it must yield.
| |
| However, the Appeal Board reversed a Licensing Board's order to the Staff to reveal the names of confidential informants (subject to a protective order) to interveners as an abuse of discretion, where the Appeal Board found that the burden to obtain the names of such informants is not met by intervenor's speculation that identification might be of some assistance to them. To require disclosure in such a case would contravene NRC policy in that it might jeopardize the likelihood of receiving similar future reports. South Texas, suora.
| |
| For a detailed listing of the factors to be considered by a Licensing Board in determining whether certain documents should be classed as proprietary and withheld from disclosure in an adjudicatory proceeding, see Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, Appendix at 518 (1973) and (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-42, 15 NRC 1307 (1982). If a Licensing Board f9 or an intervenor with a pertinent contention wishes to review V data claimed by an applicant to be proprietary, it has a right to do so, albeit under a protective order if necessary. 10 DECEMBER 1988 GENERAL MATTERS 101
| |
| | |
| 9 6.23.3.2 CFR @ 2.790(b)(6); Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-435, 6 NRC. 541, 544 n.12-(1977).
| |
| Where a party to a hearing objects to the disclosure of information on the basis that it is proprietary in nature and makes out a prima facie case to that effect, it is proper for an adjudicatory board to issue a protective order and conduct further proceedings in camera. 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 Nuclear Station, Units 1 and 2), ALAB-196, 7 AEC 457, 469 (1974).
| |
| Following issuance 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 in camera sessions, these cannot affect the Board's ruling on the merits. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-55,14 NRC 1017 (1981).
| |
| Where a demonstration has been made that the rights of association of a member of an intervenor group in the area have oeen threatened through threats of compulsory legal process 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 individual members of petitioner organization publicly disclosed, the Licensing Board will issue a pro-tective order to prevent the public disclosure of the names of members of the organizational petitioner. Washinaton Public Power Supply System (WPPSS Nuclear Project No.1).
| |
| LBP-83-16, 17 NRC 479, 485-486 (1983).
| |
| 6.23.3.2 Security Plan Information Under 10 CFR & 2.790(d)
| |
| Plant security plans are " deemed to be commercial or fi-nancial information" pursuant to 10 CFR @ 2.790(d). Long Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
| |
| LBP-82-80, 16 NRC 1121, 1124 (1982).
| |
| In making physical sccurity plan information available to interveners, Licensing Boards are to follow certain guide-lines. Security plans are sensitive and are subject to dis-covery in Commission adjudicatory proceedings only under certain conditions: (1) the party seeking discovery must demonstrate that the plan or a portion of it is relevant to its contentions; (2) the release of the plan must (in most circumstances) be subject to a protective order; and (3) no DECEMBER 1988 GENERAL MATTrqs 102
| |
| | |
| D l;'
| |
| [ -. s 6.24 witness may review the plan (or any portion of it) without it first being demonstrated that he possesses the technical competence to evaluate lit. ' Pacific Gas and Electric Co.
| |
| . (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-24,-
| |
| 11 NRC 775, 777 (1980).
| |
| Interveners in Commission proceedings may-raise contentions ..
| |
| relating to the adequacy of the applicant's proposed' physical security arrangements. Shoreham, suora, 16 NRC at 1124.
| |
| . Commission regulations,10 CFR 9 2.790, contemplate that sensitive information may be turned over to interveners in NRC proceedings under appropriate protective orders. Shoreham, suora, 16 NRC at 1124'.
| |
| Release of a security plan to qualified interveners'must be under a protective order and the individuals who review the security plan itself should execute an affidavit of non -
| |
| ~ disclosure. Diablo Canyon, supra,11 NRC at 778.
| |
| Protective orders'may not constitutionally preclude public dissemination of information which is obtained outside the hearing process. A person subject to a protective order, however, is prohibited from using protected information
| |
| -( O) 3 v
| |
| gained through the hearing process to corroborate the accuracy or inaccuracy of outside information. Diablo Canyon, .suora, 11 NRC at 778.
| |
| I 6.24 Show Cause Proceedings Under 10 CFR s 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 s 2.206, members of the public may. request the NRC Staff to issue such an order to show cause. Consolidated Edison Co. of New Yor_k (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), CL1-83-16, 17 NRC 1006, 1009 (1983). Any person at my time may request the Director of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, or Director, Office of Inspection and Enforcement, as appropriate, to issue a show cause order for suspension, revocation or modification of an operating license or a construction permit. 10 CFR s 2.206, 10 CFR 9 2.202 et sea.
| |
| The Director of Nuclear Reactor Regulation, upon receipt of a request to initiate an enforcement proceeding, is required to make an inquiry appropriate to the facts asserted. Provided he does not abuse his discretion, he is free to rely on a variety of sources of informa-tion, including Staff analyses of generic issues, documents issued by 1
| |
| other agencies and the comments of the licensee on the factual allegations. Northern Indiana Public Service Company (8ailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432, 433 (1978).
| |
| DECEMBER 1988 GENERAL MATTERS 103
| |
| | |
| 9 6.24 In reaching a determination on a show cause petition, the Director need not accord presumptive validity to every assertion of fact, irrespective of the degree of substantiation. Nor is the Director required to convene an adjudicatory proceeding to determine whether an adjudicatory proceeding is warranted. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432 (1978).
| |
| The APA, 5 U.S.C 551 et seo., particularly Section 554, and the Com-mission's regulations, particularly 10 CFR 2.719, deal specifically with on-the-record adjudication and thus the Staff's participation in a construction permit proceeding does not render it incapable of impartial regulatory action in a subsequent show cause or suspension proceeding where no adjudication has begun. Moreover, in terms of policy, any view which questions the Staff's capabilities in such a situation is contradicted by the structure of nuclear regulation established by the Atomic Energy Act and 20 years experience imple-menting that statute. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CL1-78-7, 7 NRC 429, 431, 432 (1978).
| |
| The agency alone has power to develop enforcement policy and allocato l resources in a way that it believes is best calculated to reach statutory ends. NRC can develop policy that has licensees consent to, rather than contest, enforcement proceedings. A Director may set forth and limit the questions to be considered in a show cause proceeding. Public Service Company of Indiana (Marble Hill Nuclear '
| |
| Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 441 (1980).
| |
| 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 Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
| |
| CLI-80-10, 11 NRC 438, 442-43 (1980).
| |
| In the context of proceedings before the Commission, an order to show cause is a remedial step in dealing with failure to meet required standards of conduct. The Licensing Board denied a petition for a show cause order which did not make allegations of any such failure.
| |
| Philadelphia Electric Company (Fulton Generating Station, Units 1 and 2), LBP-79-23, 10 NRC 220, 223 (1979).
| |
| The Commission's decision that cause existed to start a proceeding by issuing an immediately effective show cause order does not dis-qualify the Commission from later considering the merits of the matter. No prejudgment is involved, and no due process issue is created. Nuclear Enaineerina Co., Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 4-5 (1980).
| |
| New matters which cannot be raised before a Board because of a lack of jurisdiction may be raised in a petition under 10 CFR @ 2.206.
| |
| Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit No.
| |
| DECEMBER 1988 GENERAL MATTERS 104
| |
| | |
| q i
| |
| l l
| |
| 6 6.24.1L 2), ALAB'-579, 11 NRC 223, 226'(1980); Union Electric Co. (Callaway Plant,. Unit.1), ALAB-750, 18 NRC 1205, 1217 n.39 (1983); Pacific Gas and ' Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
| |
| ALAB-782, 20 NRC 838, 840 (1984). Where' petitioner's case has no discernible relationship to any other pending proceeding involving the same facility, the show cause proceeding set.out in 10 CFR' s 2.206 must be regarded'as the exclusive remedy. Northern Indiana Public Service Co. (Bailly. Generating Station, Nuclear.1), ALAB-619,
| |
| :12 NRC 558, 570 (1980).
| |
| In every case, a petitioner that for some reason cannot gain admit-tance to a construction permit or operating license hearing, but!
| |
| wishes to raise health, safety,. or' environmental concerns before the NRC, may file a request with. the Director of Nuclear Reactor. Regula-tion under 10 CFR s 2.206 asking the Director to institute a proceed-ing to address those concerns. The Staff must analyze the technical, legal, and factual basis for the relief requested and respond either by undertaking some regulatory activity, or if it believes no show cause proceeding or other action is necessary, by' advising the requestor in writing of reasons explaining that determination.
| |
| Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB--
| |
| 707,- 16 NRC 1760, 1767, 1768 (1982). _S_ee Washinaton Public Power Supply System (WPPSS Nuclear Project Nos. I and 2), CLI-82-29,16
| |
| [\ NRC 1221, 1228-1229 (1982). See also Porter County Chaoter of the Izaak Walton Leaque of America. Inc. v. Nuclear Reaulatory Commis-sion, 606 F.2d 1363,1369-1370 (D.C. Cir.1979); Washinaton Public Power Supolv System (WPPSS Nuclear Project No. 2), ALAB-722,17 NRC 546, 552-53 (1983).
| |
| Under 10 CFR s 2.206, one may petition the NRC for stricter en-forcement actions than the agency contemplates. Public Service Co.
| |
| of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
| |
| CLI-80-10, 11 NRC 438, 442-43 (1980).
| |
| The agency has broad discretion in establishing and applying rules for public participation in enforcement proceedings. Marble Hill, supra, 11 NRC at 440-41.
| |
| 6.24.1 Petition for Show Cause Order The mechanism for requesting a show cause order is a petition filed pursuant to 10 CFR s 2.206. See, e.o. , 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, 1009 (1983). Note that such a petition may not be used to seek relitigction of an issue that has already been decided or to avoid an existing forum in which the issue is being or is about to be litigated. i Consolidated Edison Co. of N.Y.. Inc. (Indian Point, Units 1, 2 & 3), CLI-75-8, 2 NRC 173, 177 (1975); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and ,
| |
| 2), CLI-81-6, 13 NRC 443, 446 (1981); General Public Utilities j l
| |
| DECEMBER 1988 GENERAL MATTERS 105 i
| |
| i
| |
| | |
| )
| |
| Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and
| |
| : 2) and (0yster Creek Nuclear Generating Station), CLI-85-4, 21 NRC 561, 563 (1985).
| |
| Nonparties to a proceeding are also prohibited from using 10 CFR @ 2.206 as a means to reopen issues which were previously adjudicated. General Public Utilities, suora, 21 NRC at 564.
| |
| See, e.a., Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC.429 (1979), ,
| |
| aff'd, Porter County Chapter of the Izaak Walton Leaaue. Inc.
| |
| : v. NRC, 606 F.2d 1363 (D.C. Cir. 1979).
| |
| 6.24.1.1 Grounds for Show Cause Order The institution of a show cause proceeding to modify, suspend, or revoke a license need not be predicated upon alleged license violations, but rather may be based upon any " facts deemed to be sufficient grounds for the proposed action."
| |
| 10 CFR @ 2.202. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 570-71 (1980).
| |
| 6.24.1.2 Burden of Proof for Show Cause Order The Atomic Energy Act intends the party seeking to build or operate a nuclear reactor to bear the burden of proof in any Commission proceeding bearing on its application to do so, including a show cause proceeding. Northern Indicna Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 571 (1980).
| |
| 6.24.1.3 Issues in Show Cause Proceedings One cannot seek to intervene in an enforcement proceeding to have NRC impose a stricter penalty than the NRC seeks.
| |
| Issues in show cause proceedings are only those set out in the show cause order. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
| |
| CLI-80-10, 11 NRC 438, 442 (1980). One who seeks the im-position of stricter requirements should file a petition pursuant to 10 CFR @ 2.206. Seauoyah Fuels Corp. (UF6 Production Facility), Cl.I-86-19, 24 NRC 508, 513-514 (1986),
| |
| citina, Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir.1982).
| |
| The Commission may limit the issues in enforcement pro-ceedings to whether the facts as stated in the order are true and whether the remedy selected is supported by those facts.
| |
| Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44, 45 (1982), citina, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-
| |
| ! 80-10, 11 NRC 438, 441-442 (1980); Seouoyah Fuels Corp. (UF i
| |
| Production Facility), CLI-86-19, 24 NRC 508, 512 n.2 (1986)6 .
| |
| l DECEMBER 1988 GENERAL MATTERS 106 l
| |
| | |
| J L L
| |
| ( )
| |
| (/' ' 5 6.24.3
| |
| ' One may only intervene in an enforcement action upon a showing of injury from the contemplated action set out in the show cause order. One who seeks a stricter penalty than the NRC proposes has no standing to intervene because it is not injured by the lesser penalty. Public Service'Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442 (1980).
| |
| 6.24.2 Standards for Issuing a Show Cause Order The standard to be applied in determining whether to issue a show cause order is whether substantial health or safety issues have been raised. A mere dispute over factual issues will not suffice. Northern Indiana Public Service Co. (Bailly Generating Statior., Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978).
| |
| The Director of Nuclear Reactor Regulation properly has discretion to differentiate between those petitions which indicate that substantial issues have been raised warranting institution of a proceeding and those which serve merely to '
| |
| demonstrate that in hindsight, even the most thorough and
| |
| /^3 reasonable of forecasts will prove to fall short of absolute
| |
| ('v; prescience. Northern Indiana Public Service Co. (Bailly Gen-erating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978).
| |
| 6.24.3 Review of Decision on Request for Show Cause Order 10 CFR & 2.206 has been amended to provide that the Commission may, on its own motion, review the decision of the Director not to issue a show cause order to determine if the Director has abused his discretion. .10 CFR 9 2.206(c)(1). No other petition or request for Commission review will be entertained.
| |
| 10 CFR 9 2.206(c)(2).
| |
| While there is no specific provision for Commission review of a decision to issue a show cause order, the amended regulation does acknowledge that the review power set forth in Section 2.206 does not limit the Commission's supervisory power over delegated Staff actions. 10 CFR s 2.206(c)(1).
| |
| Thus, it is clear that the Commission may conduct any review of a decision with regard to requests for show cause orders that it deems necessary.
| |
| Prior to the amendment of Section 2.206, that regulation was silent as to Commission review. At that time, the Commission indicated that its review of a decision of the Director would be directed toward whether the Director abused his authority
| |
| /% and in particular, would include a consideration of the foitowing:
| |
| DECEMBER 1988 GENERAL MATTERS 107
| |
| | |
| (1) does the statement of reasons for issuing the order
| |
| . permit a rational understanding of the basis for the decision; (2) did the Director correctly comprehend the applicable law, regulations and policy; (3) were all necessary factors included and irrelevant factors excluded; (4) were appropriate inquiries made as to the facts asserted; (5) is the decision basically untenable on the basis of the facts known to the Director.
| |
| Consolidated Edison Co. of N.Y.. Inc. (Indian Point, Units 1, 2 & 3), CLI-75-8, 2 NRC 173 (1975). See also Nuclear Enaineer-jna Co.. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 676 n.1 (1979).
| |
| Under the Indian Point standards, the Director's decision will not be disturbed unless it is clearly unwarranted or an abuse of discretion. Licenses Authorized to Possess ur Transport Strateaic Ouantities of Special Nuclear Material, CLI-77-3, 5 NRC 16 (1977). Although the Indian Point review is essentially a deferral to the Staff's judgment on facts relating to a potential enforcement action, it is not an abdication of the Commission's responsibilities since the Commission will decide any policy matters involved. Id. at 5 NRC 20, n.6.
| |
| 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 Co.
| |
| (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-466, 7 NRC 457 (1978).
| |
| Review of a show cause order is limited to whether the Director of Nuclear Reactor Regulation abused his discretion.
| |
| Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978)..
| |
| The validity of a show cause order is judged on the basis of information available to the Director at the time it was issued at the start of the proceeding. Nuclear Enaineerina Co.. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 5 (1980).
| |
| Issuance of a show cause order requiring interim action is not the determination of the merits of a controversy. Nuclear Enaineerina Co.. Inc. (Sheffield, Illinois Low-Level Radioac-tive Waste Disposal Site), CLI-80-1,11 NRC 1, 6 (1980).
| |
| CENERAL MATTERS 108 DECEMBER 1988
| |
| | |
| i-l
| |
| ) 9 6.24.5 LJ 6.24.4 Notice / Hearing on Show Cause to Licensee / Permittee While a show cause order with immediate suspension of a license or permit may be issued without prior written notice 1 where the public health, interest or safety is involved, the Commission cannot permanently revoke a license without prior notice and an opportunity for a hearing guaranteed by 10 CFR 2.202. Consumers Power Co. (Midland Plant, Units 1 & 2),
| |
| CLI-74-3, 7 AEC 7 (1974).
| |
| The Director may issue an immediately effective order without prior written notice under 10 CFR s 2.202(f) if (1) the public health, safety or interest so requires, or (2) the licensee's violations are willful. Nuclear Enaineerina Company. Inc.
| |
| (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 677 (1979). In civil proceedings, action taken by a licensee in the belief that it was legal does not preclude a finding of willfulness. Nuclear Enaineer-ina Company. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 678 (1979).
| |
| Latent conditions which may cause harm in the future are a sufficient basis for issuing an immediately effective show Q cause order where the consequences might not be subject to correction in the future. Nuclear Enaineerina Comoany. Inc.
| |
| (O f (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 677 (1979), citina, Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-3, 7 AEC 7, 10-12 (1974).
| |
| Purported violations of agency regulations support an immediately effective order even where no aserse public health consequences are threatened. Nuclear Enaineerina Company. Inc. (Sheffield, Illinois Low-level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 677-78 (1979).
| |
| 6.24.5 Burden of Proof in Show Cause Proceedings The burden of proof in a show cause proceeding with respect to a construction permit is on the permit holder. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-283, 2 NRC 11 (1975). As to safety matters this is so until the award of a full-term operating license. Dairvland Power Cooperative (La i Crosse Boiling Water Reactor), LBP-81-7, 13 NRC 257, 264-65 '
| |
| (1981). However, the burden of going forward with evidence
| |
| " sufficient to require reasonable minds to inquire further" is on the person who sought the show cause order. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101, 110-11 (1976).
| |
| () Civil penalties may be imposed for the violation of regu-lations or license conditions without a finding of fault on the part of the licensee, so long as it is believed such DECEMBER 1988 GENERAL MATTERS 109
| |
| | |
| s 6.24.6 action will positively affect the conduct of the licensee, or serve as an example to others. It matters not that the imposition of the civil penalty might be viewed as punitive.
| |
| A licensee is responsible for all violations committed by its employees, whether it knew or could have known of them. There is no need to show Mcienter. One is not exempted from regulation by operas.ing through an employee. In re Atlantic Research Corp., CLI-80-7, 11 NRC 413 (1980).
| |
| 6.24.6 Consolidation of Petitioners in Show Cause Proceedings The Director may, in his discretion, consolidate the essen-tially indistinguishable requests of petitioners if those petitioners are unable to demonstrate prejudice as a result of the consolidation. Northern Indiana Public Service Company ;
| |
| (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978).
| |
| 6.24.7 Necessity of Hearing in Show Cause Proceedings 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).
| |
| 6.24.8 Intervention in Show Cause Proceedings The requirements for standing in a show cause proceeding are no stricter than those in the usual licensing proceeding.
| |
| Dairvland Power Cooperative (La Crosse Boiling Water Reactor),
| |
| LBP-80-26, 12 NRC 367, 374 (1980).
| |
| 6.25 Summary Disposition Procedures (SEE 3.5) 6.26 Suspension. Revocation or Modification of License A license or construction permit may be modified, suspended or revoked for:
| |
| (1) any material false statement in an application or other statement of fact required of the applicant; (2) conditions revealed by the application, statement of fact, inspection or other means which would warrant the Commission to refuse to grant a license in the first instance; (3) failure to construct or operate a facility in accordance with the terms of the construction permit or operating license; or DECEMBER 1988 GENERAL MATTERS 110
| |
| | |
| s , l r
| |
| ss l4 c
| |
| [N i r [ S 6.26- ,
| |
| '(4) violation of, or failure to~ observe, any terms and provisions of;the Atomic Energy Act, the regulations, a permit, a '
| |
| license, or an order of the Commission. 10.CFR 9 50.100. 1 The procedures for modifying, suspending or revoking a license are .
| |
| set forth'in.Subpart B to 10 CFR.
| |
| Where information is presented which demonstrates.an undue risk to-public' health and safety, the NRC will take prompt' remedial action including shutdown'of operating facilities. Such actions.may be taken with immediate effect notwithstanding the Administrative Procedure Act requirements of notice and opportunity to achieve compliance. Petition for Emeraency and Rtmedial Action, CLI-78-6, 7 NRC 400, 404, 405 (1978).
| |
| - A violation.of a regulation does not of itself result in a re-quirement.that a license be suspended. Both the Atomic Energy'Act and NRC regulations support' the conclusion that the choice of remedy for regulatory violations is within the sound judgment of the.
| |
| Commission and not foreordained. See 42 U.S.C. 5 2236, 9 2280, s-2282; 10 CFR g 50.100. ILetition for Emeraency and Remedial Action, CLI-78-6, 7 NRC 400, 405 (1978).
| |
| ( A decision on whether to suspend a permit pending a decision on remand must be based on (1) a traditional balancing of the equi-ties, and (2) a consideration of any likely prejudice to further decisions that might be called for by the remand. Public Service-Comoany of New Hampshire-(Seabrook Station, Units 1 and 2), ALAB-623, 12 NRC 670, 677 (1980).
| |
| If a safety problem is revealed at any time during. low-power operation of a facility or as a result of the merits review of'a pa'rty's appeal of the decision to authorize low-power operation, the low-power license can be suspended. Philadelphia Electric Co.
| |
| E (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1447 (1984). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 1), CLI-81-30, 14 NRC 950 (1981).
| |
| There is no statutory requirement under Section 189a of the Atomic Energy Act of 1954 for the Commission to offer a hearing on an order lifting a license suspension. 42 U.S.C. s 2239(a). It is within the discretionary powers of the Commission to offer a formal hearing prior to lifting a license suspension. The Commission's dec_ision depends upon the specific circumstances of the case and a decision to grant a hearing in a particular instance (such as the restart of Three Mile Island, Unit 1) does not establish a general agency requirement for hearings on the lifting of license suspensions. The Commission has generally denied such requests for hearings. Southern California Edison Co. (San Onofre Nuclear Generating Station, Unit 1), CLI-85-10, 21 NRC 1569, 1575 n.7 (1985). See, e.a., Pacific Gn and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
| |
| DECEMBER 1988 GENERAL MATTERS 111
| |
| | |
| i i
| |
| CLI-84-5, 19 NRC 953 (1984), aff'd, San Luis Obispo Mothers for i Peace v. NRC, 751 F.2d 1287, 1314 (D.C. Cir. 1984), aff'd on reh'a en banq, 789 F.2d 26 (1986).
| |
| 6.27 Technical Specifications 10.CFR @ 50.36 specifies, inter alia, that each operating license will include technical specifications to be derived from the analysis and evaluation included in the safety analysis report, and amendments thereto, and may also include such additional technical specifica-tions as the Commission finds appropriate. The regulation sets forth with particularity the types of items to be included in technical specifications. Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 272 (1979).
| |
| There is neither a statutory nor a regulatory requirement that every operational detail set forth in an application's safety analysis report (or equivalent) be subject to a technical speci-fication to be included in the license as an absolute condition of operation which is legally binding upon the licensee unless and until changed with specific Commission approval. Technical specifications are reserved for those matters where the imposi-tion of rigid conditions or limitations upon reactor operation is deemed necessary to obviate the possibility of an abnormal situation or event giving rise to an immediate threat to the public health and safety. Trojan, supra, 9 NRC at 273; Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
| |
| ALAB-831, 23 NRC 62, 65-66 & n.8 (1986) (fire protection program need not be included in technical specification).
| |
| Technical specifications for a nuclear facility are part of the operating license for the facility and are legally binding.
| |
| Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1257 (1984), rev'd in part on other grounds, CLI-85-2, 21 NRC 282 (1985), citina, Irp,Lan, t suora, 9 NRC at 272-73.
| |
| 6.28 Termination of Facility Licenses Termination of facility licenses is covered generally in 10 CFR s 50.82.
| |
| 6.29 Procedures in Other Tvoes of Hearings 6.29.1 Military or Foreign Affairs Functions Under the Administrative Procedure Act, 5 U.S.C. s 554(a)
| |
| (4), and the Commission's Rules of Practice,10 CFR @ 2.700a, procedures other than those for formal evidentiary hearings may be fashioned when an adjudication involves the conduct of military or foreign affairs functions. Nuclear Fuel Services.
| |
| Inc. (Erwin, Tennessee), CLI-80-27, 11 NRC 799, 802 (1980).
| |
| DECEMBER 1988 GENERAL MATTERS 112
| |
| | |
| :l;
| |
| <f 5 6.29.2.2
| |
| ~'
| |
| 6.29.2~ Export Licensing Individual fuel exports' are not major Federal actions. ,
| |
| Westinghouse Electric Coro. (Experts to the Philippines), '
| |
| CLI-80-15, 11 NRC 672 (1980). (See also 3.4.6) 6.29.2.1 Jurisdiction of Commission re Export Licensing The Commission is neither required nor precluded by the Atomic Energy Act or NEPA from considering impacts of ex-ports on the global commons. Provided that NRC review does not include visiting sites within the recipient nation to gather information or otherwise intrude _upon the sover-eignty of a foreign nation, consideration of impacts upon
| |
| 'the global commons is legally permissible. Westinghouse Electric Corp. (Exports to the Philippines), CLI-80-14,-11 NRC 631, 637 644 (1980). The Commission's legislative man-date neither compels nor precludes examination of health, safety and environmental effects occurring abroad that could affect U.S. interests. The decision whether to ex-amine these effects is a question of policy to be decided as a matter of agency discretion. JA , 11 NRC at 654.
| |
| e As a matter of policy, the Commission has determined not to (m conduct such reviews in export licensing decisions primarily V) because no matter how thorough the NRC review, the Commission still would not be in a position to determine that the reactor could be operated safely. Id., 11 NRC at 648.
| |
| The Commission lacks legal authority under AEA, NEPA and NNPA to consider health, safety and environmental impacts upon citizens of recipient nations because of the traditional rule of domestic U.S. law that Federal statutes apply only to conduct within, or having effect within, the territory of the U.S. unless the contrary is clearly indicated in the statute.
| |
| Id., 11 NRC at 637. See also General Electric Co. (Exports to Taiwan), CLI-81-2, 13 NRC 67, 71 (1981).
| |
| The alleged undemocratic character of the Government of the Philippines does not relate to health, safety, environmental and non-proliferation responsibilities of the Commission and are beyond the scope of the Commission's jurisdiction.
| |
| Exports to the PhiliDDines, supra, 11 NRC at 656.
| |
| 6.29.2.2 Export License Criteria The AEA of 1954, as amended by the NNPA, provides that the l- Commission may not issue a license authorizing the export j of a reactor, unless it finds, based on a reasonable judgment
| |
| ((q l
| |
| I v j
| |
| of the assurances provided, that the criteria set forth in sf 127 and 128 of the AEA are met. The Commission must also determine that the export would not be inimical to the common l defense and security or health and safety of the public and DECEMBER 1988 GENERAL MATTERS 113
| |
| | |
| i l
| |
| 6.29.2.2 would be pursuant to an Agreement for Cooperation. Westina-house Electric Coro. (Exports to the Philippines), CLI-80-14, l 11 NRC 631, 652 (1980). j 1
| |
| The Commission may not issue a license for component exports i unless it determines that the three specific criteria in l
| |
| .f 109(b) of AEA are met and also determines that the export j won't be inimical to common defense. Westinghouse Electric ;
| |
| I Corp. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 654 (1980).
| |
| O O
| |
| DECEMBER 1988 GENERAL MATTERS 114
| |
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