ML20054J561
| ML20054J561 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 06/25/1982 |
| From: | Silberg J ALLEGHENY ELECTRIC COOPERATIVE, INC., PENNSYLVANIA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8206290251 | |
| Download: ML20054J561 (18) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
PENNSYLVANIA POWER AND LIGHT COMPANY ) Docket Nos. 50-387
) 50-388 and )
)
ALLEGHENY ELECTRIC COOPERATIVE, INC. )
)
(Susquehanna Steam Electric Station, ) ;
Units 1 and.2) )
l APPLICANTS' BRIEF IN OPPOSITION TO EXCEPTIONS OF CITIZENS AGAINST NUCLEAR DANGERS Jay E. Silberg, P.C.
Matias F. Travieso-Diaz Counsel for Applicants June 25, 1982 8206290251 820625 PDR ADOCK 05000387 6 PDR h68h
TABLE OF CONTENTS i
Page l
TABLE OF AUTHORITIES........................................ ii I. INTRODUCTION............................................ 1 II. CAND'S EXCEPTIONS MUST BE DENIED FOR FAILURE TO COMPLY WITH COMMISSION REGULATIONS................... 2 III. CAND'S EXCEPTIONS SHOULD BE DENIED FOR RAISING ISSUES NOT RAISED BEFORE THE LICENSING BOARD................................................... 8 IV. CAND'S EXCEPTIONS MISPERCEIVE THE LICENSING BOARD'S ROLE........................................... 10 V. CONCLUSION............................................. 11 M M
TABLE OF AUTHORITIES Cases: Paae(s)
Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470 (1978)..................... 8 Duke Power Co. (Catawba Nucleux Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976).................................................. 6 Northern Indiana Public Service Co.
(Bailly Generating Station, Nuclear-1)
- ALAB-207, 7 AEC 957 (1974).............................. 6 ALAB-224, 8 AEC 244 (1974).............................. 9 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),
ALAB-288, 2 NRC 390 (1975).............................. 9 Pennsylvania' Power and Light Co. (Susquehanna l Steam Electric Station, Units 1 and 2),
f ALAB-563, 10 NRC 449 (1979)........................... 7,8 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-461, 7 NRC 313 (1978).............................. 6 i
Public Service Co. of Oklahoma (Black Fox l Station, Units 1 and 2), ALAB-573, i 10 NRC 775 (1979)....................................... 6 Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1),
ALAB-650, 14 NRC 43 (1981)'............................ 7,8 Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491 (1973)........................................ 6 Regulations:
10 CFR S 2.754(a)............................................ 8 10 CFR S 2.760a............................................. 10 l
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Page(s) 10 CFR S 2.762.............................................. 3 10 CFR S 2.762(a).......................................... 2,3 Statutes:
National Environmental Policy Act........................ passim 4
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June 25, 1982 UNITED STA*A3S OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
PENNSYLVANIA POWER & LIGHT COMPANY )
) Docket Nos. 50-387 and ) 50-388
)
ALLEGHENY ELECTRIC COOPERATIVE, INC. )
(Susquehanna Steam Electric Station, )
Units 1 and 2) )
APPLICANTS' BRIEF IN OPPOSITION TO
, EXCEPTIONS OF CITIZENS AGAINST NUCLEAR DANGERS I. INTRODUCTION On April 12, 1982, the Atomic Safety and Licensing Board in this proceeding (" Licensing Board") issued an Initial Decision authorizing, subject to certain conditions, the issuance of operating licenses for the Susquehanna Steam
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Electric Station l Units 1 and 2.1/ On April 21, 1982, intervenor Citizens Against Nuclear Dangers ("CAND") filed a document entitled " Citizens Against Nuclear Dangers Exceptions to the ASLB Initial Decision and Response to Applicants Opposition to Emergency Evacuation Planning" ("CAND 1/ A Memorandum and Order making corrections to the Initial Decision was issued by the Licensing Board on April 30, 1982.
Exceptions"). / Applicants oppose CAND's exceptions and respectfully submit that they should be denied.3/
II. CAND'S EXCEPTIONS MUST BE DENIED FOR FAILURE TO COMPLY WITH COMMISSION REGULATIONS Commission regulations establish the standards which exceptions, and briefs in support of exceptions, must follow.
CAND's exceptions and brief are in such total nonconformance with these regulations that the exceptions must be denied.
The standards which exceptions and briefs must meet are set forth in 10 CFR S 2.762(a):
Each exception shall be separately numbered and shall (1) state concisely, without supporting argumentation, the single error of fact or law which is being asserted in that exception; and (2) identify with particularity the portion of the decision (or earlier order or ruling) to which the exception is addressed. A brief in support of the exceptions . . . shall be confined to a consideration of the exceptions previously filed by the party and, with respect to each exception, shall specify, inter alia, the precise portion of the record relied upon in support of the assertion of error.
2/ CAND subsequently changed the title of this submittal to
" Citizens Against Nuclear Dangers Exceptions to the ASLB Initial Decision." See " Citizens Against Nuclear Dangers Brief in Support of Exceptions to the ASLB Initial Decision", dated May 21, 1982 ("CAND Brief"), at 1.
3/ Exceptions to the Initial Decision were also submitted by the Commonwealth of Pennsylvania. Applicants' brief responding to the Commonwealth's exceptions will be filed separately. No exceptions were filed by the three other intervenors in this proceeding -- Environmental Coalition on Nuclear Power, Susquehanna Environmental Advocates, and Colleen Marsh (on behalf of herself and eleven other named individuals)-- or by Applicants or the NRC Staff.
The Initial Decision pointed out that any review would be pursuant to, inter alia, 10 CPR S 2.762. Initial Decision, para. 224.1/
The requirements set forth in Section 2.762(a) are not mere technicalities. Unless the specific errors alleged to exist in the proceeding are clearly identified, with appropri-ate citations to the portion of the record involved, neither other parties nor the Appeal Board have any way to know precisely the matter which is at issue. Vague generalities and unsupported allegations make impossible any attempt to respond meaningfully.
CAND's exceptions and brief are a clear case in point.
Aside from an unsupported charge that the Commission, Applicants and the Commonwealth of Pennsylvania have " played major roles in concealing facts about adverse environmental impacts", CAND Exceptions at 2, CAND's major complaint seems to be with the Licensing Board's responsibilities under the National Environmental Policy Act.
The main contention of CAND is that the ASLB did not comply with the National Environmental Protection Act (NEPA) in its decision making, and as a result the Initial Decision is flawed!
4/ CAND stated that it was filing its exceptions "[i]n accordance with the directives and provisions of paragraphs nos. 224 and 225" of the Initial Decision. CAND Exceptions, at 1.
The ASLB has published a less than meticulous document that does not address the requirements of NEPA.
The ASLB did not evaluate the envi-ronmental assessments that are relevant to the several contentions under review in this license application case.
The ASLB did not take into considera-tion available alternatives, which is the basic process of decision making mandated by NEPA.
The Initial Decision is laced with phrases that are the complete opposite of the true facts.
CAND Exceptions, at 1 (original emphasis). CAND's two and a half page Brief in support of its exceptions is equally unspecific. Not a single citation appears to the Initial Decision or any other Licensing Board order. No references to the transcript of the hearing are given. No pleadings are identified. The Brief is totally devoid of a factual descrip-tion of the matters on which appeal is sought. Nor does it contain any legal argument. Other parties and the Appeal Board are left to guess at the substance of CAND's allegations.
CAND's failure to cite to the record would not be quite so prejudicial to the Appeal Board and other parties if either its
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exceptions or Brief had b'e en even marginally specific.
However, their vagueness makes any response on the merits impossible. For example, what are "the requirements of NEPA,"
CAND Exceptions at 1, which the Iniuial Decision failed to address? What " environmental assessments that are relevant to the several contentions under review", id., were not evaluated?
What "available alternatives", id., were not considered? What
" environmental impacts on human and natural resources", CAND Brief at 2, were not properly considered? What " facts about the natural resources", id., were concealed by government agencies? Where in the Final Environmental Statement has the NRC Staff " manipulated the environmental data in a misleading fashion"? Id. at 3.
This total noncompliance with Commission requirements in itself merits the dismissal of CAND's exceptions, if only out of fairness to other parties. The Appeal Board has, on several occasions, dismissed exceptions which were similarly vague and unspecific:
[T]he intervenors assert that the decision below effected " major changes in the form of corrections of erroneous matter in the FES" that were "very significant,"
including corrections of " design represen-tations [that] were erroneous" and "other fundamental errors." Nevertheless, the intervenors do not elucidate these naked assertions, let alone provide adequate record references. We are thus left without sufficient information to dispose of their arguments intelligently. Disre-garding similarly vague contentions in an
- appellant's brief, the Court of Appeals for the Seventh Circuit cogently observed that i
"[i] t is impossible for a [ tribunal] to l consider general allegations such as I
these." United States Steel Corp. v.
Train, supra, 556 F.2d at 837. We have no choice but to follow that course here.
Because inadequate briefing has made their arguments " impossible of resolution," we dismiss intervenors' exceptions on this point.
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 786-7 (1979) (footnotes omitted).
As the applicant and staff point out, under the Commission's Rules, a party's failure to submit a brief containing sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the issues raised by its exceptions is tantamount to their abandonment. (The federal courts follow a similar practice.)
Duke Power Co._ (Catawba Nuclear Station, Units 1 and 2),
ALAB-355, 4 NRC 397, 413 (1976) (footnotes omitted).E/
5/ See also Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-207, 7 AEC 957 (1974);
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, 493 (1973). A brief such as CAND's is functionally equivalent to no brief at all since it deprives everyone of the opportunity to make an informed response. As the Appeal Board observed with regard to an intervenor who failed to brief the exceptions which it filed:
We have observed before that briefs are necessary to " flesh out" the bare bones of the exceptions, not only to give us sufficient information to evaluate the basis of objections to the decision below, but also to provide an opponent with a fair opportunity to come to grips with the appellant's arguments,and attempt to rebut them. The absence of a brief not only makes our task difficult but, by not disclosing the authorities and evidence on which the appellant's case rests, it virtually precludes an intelligent response by appellees. For these reasons we generally follow the course charted by the Federal courts and disregard unbriefed issues as waived. We do so here.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 315 (1978)
(footnotes omitted).
It is true that CAND is a pro sjt intervenor and that special consideration is often extended to litigants appearing without benefit of counsel. However, even if special consider-ation were extended to CAND, it has failed to meet minimum standards required for fairness to enable other parties to respond. In any case, CAND has been explicitly informed that it has a responsibility to become familiar with the NRC's rules.
Although appeal boards (and most licensing boards as well) extend special consideration to litigants appearing without benefit of counsel, it scarcely follows that such litigants are free of any obligation to familiarize themselves with those rules. To the contrary, all ind.ividuals 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 to refer to it as the occasion arises. It might be added that, should such reference leave the pro se litigant or lay representative uncertain regarding precisely what proce-dural steps can or should be taken by him in certain circumstances, he undoubtedly will be able to obtain the guidance of staff counsel. Whether or not in agreement with the position of an intervenor on the merits of the issues presented in the particular proceeding, the staff tradi-tionally has manifested a commendable
- willingness to provide that type of assistance.
Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-563, 10 NRC 449, 450 n.1
(1979).6/ It is obvious that CAND has not met its obligations with regard to its exceptions.
III. CAND'S EXCEPTIONS SHOULD BE DENIED FOR RAISING ISSUES NOT RAISED BEFORE THE LICENSING BOARD A long line of Appeal Board decisions has established the proposition that matters raised for the first time on appeal will not be entertained absent a " serious substantive issue".
See, e.g., Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, supra, at 49. To the extent that we understand the thrust of CAND's exceptions, which appears to challenge the Licensing Board's claimed failure to consider " environmental assessments" and "available alternatives", CAND did not raise these issues in its proposed findings or otherwise before the Licensing Board.
CAND filed two documents purporting to be proposed findings of fact.1/ Neither dealt with the subject matter 6/ See also Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 4 3, 50 n.7 (1981); Detroit Edison Co. '(Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978). The Appeal Board's advice to CAND was not heeded. .Although the subject of ALAB-563 was an interlocutory appeal by CAND, CAND continued to file interlocutory appeals which were subsequently denied by the Appeal Board. See Appeal Board Memorandum and Order dated July 8, 1981, and Orders dated October 27, 1981 and February 1, 1982.
7/ " Citizens Against Nuclear Dangers Proposed Findings of Fact and Conclusions of Law for the Emergency Evacuation Plans", dated March 26, 1982, and " Citizens Against Nuclear Dangers Proposed Findings of Fact and Conclusions of Law Based (Continued Next Page)
raised by the exceptions. The first, as its title indicates, dealt with emergency planning issues.8/ The second dealt with quality assurance issues at other nuclear plants, procedural issues concerning the Special Prehearing Conference held in January 1979 and the Special Prehearing Conference Order (LBP-79-6, 9 NRC 291 (1979)), U.S. Army Corps of Engineers' water control projects, and other miscellaneous items.
While it is admittedly difficult to understand CAND's pleadings, it would seem that CAND had not previously addressed the generic concerns raised in its exceptions to the Licensing Board. Certainly CAND has not pointed to any such reference in the record. For example, CAND's Brief, at 2, argues that the Licensing Boa'rd erroneously neglected to impose a licensing condition that the " Director of Nuclear Regulation" find that "all provisions of the National Environmental Policy Act have been fully implemented prior to issuance of the operating licenses." Such a proposed condition was never presented to (Continued) on Important New Information and Recommendations to the NRC Commissioners and, the Congress", dated April 2, 1982. Both filings were some four months late. See 10 CFR S 2.754(a); Tr.
2724-5 (October 22, 1981).
8/ Since CAND had walked out of the hearings on emergency planning issues, Tr. 2242-4 (October 20, 1981), its ability to participate further on those issues is at least questionable.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975);
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 251 (1974).
the Licensing Board or to the parties. Thus, it cannot conceivably be argued that the Licensing Board should have included it in the Initial Decision.
Failure to raise below the matters covered by its excep-tions is sufficient ground to mandate denial of CAND's excep-tions.
IV. CAND'S EXCEPTIONS MISPERCEIVE THE LICENSING BOARD'S ROLE CAND's exceptions and brief appear to assume that the Licensing Board had a broader role than is called for by the Commission regulations. Although interpreting CAND's pleadings is difficult, it appears that CAND believes that the Licensing Board had an obligation to independently determine National Environmental Policy Act issues wholly apart from the admitted contentions. This is clearly an erroneous reading of a licensing board's responsibility in a operating license case.
As set forth in 10 CFR S 2.760a, the responsibility of a licensing board in an operating license proceeding extends only to the resolution of matters put into controversy by the parties and matters raised by the licensing board under its sua sponte authority. To the extent that CAND's exceptions contemplate an expansion of that jurisdiction, they are unsupportable and must be dismissed.
V,. CONCLUSION For the reasons set forth above, Applicants respectfully submit that CAND's exceptions are unsupportable and should be dismissed.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: h _
E, Sil' berg, P.gJ a ian- F. Travieso-Diaz Counsel for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Dated: June 25, 1982
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
PENNSYLVANIA POWER AND LIGHT COMPANY ) Docket Nos. 50-387
) 50-388 and )
)
ALLEGHENY ELECTRIC COOPERATIVE, INC. )
)
(Susquehanna Steam Electric Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing
" Applicants' Brief in Opposition to Exceptions of Citizens Against Nuclear Dangers" were served by deposit in the U.S.
Mail, First Class, postage prepaid, this 25th day of June, 1982, to all those on the attached Service List.
- M ,
7 lay E. Silberg y
Dated: June 25, 1982. .;
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PENNSYLVANIA POWER & LIGHT COMPANY )
)
- AND ) Docket Nos. 50-387
) - 50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC. )
)
(Susquehanna Steam Electric Station, )
Units 1 and 2) )
SERVICE LIST Secretary of the Commission Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
, ' ' Thomas S. Moore, Esquire Administrative Judge Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Appeal Board U.S. Nuclear Regulatory Commission U.S..Nulcear Regulatory Commission Washington, D.C. 20555 l Washington, D.C. 20555 Dr. Judith H. Johnsrud
, Dr. John H. Buck Co-Director Administrative Judge Environmental Coalition on
! Atomic Safety and Licensing Nulcear Power l Appeal Board 433 Orlando Avenue
! U.S. Nuclear Regulatory Commission State College, Pennsylvania 16801 l Washington, D.C. 20555 l
- - Susquehanna Environmental Advocates James P. Gleason, Esquire c/o Gerald Schultz, Esquire Administrative Judge Post Office Box 1560 513 Gilmoure Drive Wilkes-Barre, Pennsylvania 18703 Silver Spring, Maryland 20901 ,
Mr. Thomas J. Halligan, Correspondent Mr. Clenn O. Bright The Citizens Against Nuclear Dangers Administrative Judge Post Office Box 5 i Ator.ic Satefy and Licensing Scranton, Pennsylvania 18501 Board Panel U.S. Nuclear Regulatory Commission Ms. Colleen Marsh Washington, D.C. 20555 Box 558 A, R.D. #4 Mt. Top, Pennsylvania 18707 Dr. Paul W. Purdom Administrative Judge Atomic Safety and Licensing Appeal 245 Gulp Hills Road Board Panel L Radnor, Pennsylvania 19087 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Robert W. Adler, Esquire Department of Environmental Resources Commonwealth of Pennsylvania 505 Executive House Post Office Box 2357 Harrisburg, Pennsylvania 17120 James M. Cutchin, IV, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dewitt C. Smith Director Pannsylvania Emergency Management Agency Transportation and Safety Building Harrisburg, Pennsylvania 17120 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection
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Department of Environmental
- R sources Commonwealth of Pennsylvania Post Office Box 2063 Harrisburg, Pennsylvania 17120 l
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