ML20135A078
| ML20135A078 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 09/06/1985 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#385-443 ALAB-817, OL, NUDOCS 8509090350 | |
| Download: ML20135A078 (17) | |
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+e BBCKETED USNit0 UNITED STATES OF AMERICA NUCLEAR REGULATORY @OgS2pNMO :31 ATOMIC SAFETY AND LICENSING,, APPEAL BOARD c~v . . -
' t Administrative Judges: : ,
Gary J. Edles, Chairman September 6, 1985 Thomas S. Moore (ALAE-817)
Dr. Reginald L. Gotchy
)
In the Matter of )
)
SERVED SEP S1985 COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456 OL
) 50-457 OL (Eraidwood Nuclear Power Station, )
Units 1 and 2) )
)
Joseph Gallo, Washington, D.C., and Peter Thornton, Cnicago, Illinois, for applicant Commonwealth Edison Company.
Robert Guild and Douglass W. Cassel, Jr., Chicago, Illincis, for intervenors Bridget Little Rorem and the Appleseed organization.
Janice E. Moore for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER Coinion fcr the Board by Mr. Edles and Dr. Gotchy: '
Before us is a motion of the applicant Commonwealth Edison Company for directed certification of a Licensing Board ruling.1 According to the applicant, that ruling allowed intervenors, Bridget Little Rorem and the Appleseed 8509090350 850906 PDR ADOCK 05000456
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See 10 C.F.R. SS 2. 718 (i) , 2. 785 (b) (i) ; Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and
- 2) , ALAB-271, 1 NRC 478, 482-83 (1975).
T)SO 2_
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organization (collectively Rorem), to amend -- after obtaining discovery from the NRC staff -- a contention that the Board previously found overly broad and nonspecific.
For reasons set out below, we deny the motion.
- 1. In March of this year, Rorem filed a contention in this operating license proceeding asserting that serious deficiencies exist in the quality assurance program at the Braidwood facility.2 The contention was predicated in large part on testimony in the Byron proceeding by James G.
Keppler, Regional Administrator of the Commission's Region III office in Glen Ellyn, Illinois. Mr. Keppler's testimony was to the effect that there are serious quality assurance problems at the Braidwood facility. In a ruling admitting other contentions, the Licensing Board rejected the Rorem quality assurance contention.4 Because that contention was submitted after the deadline for filing contentions, the Board evaluated it in light of the lateness criteria set out in 10 C.F.R. S 2.714. It reached no o
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The contention is set out in full in the Licensing Eoard's Special Prehearing Conference Order, LBP-85-11, 21 NRC 609, 627 (1985).
3 Docket Nos. STN 50-454, 50-455. See generally Commonwealth Edison Co. (Byron Nuclear Power F' Ttion, Units 1 and 2) , LbP-84-41, 20 NRC 1203, 1216, aff'd ALAB-793, 20 NRC 1591 (1984).
4 LBP-85-11, supra.
3 definitive conclusion as to whether the proper balance of those criteria justified admission of the late contention, however, because it determined that the contention was in any event not sufficiently specific to justify admission for litigation.5 Even though the Board rejected the contention, it
" permitted" Rorem to depose Mr. Keppler with a view toward resubmitting the contention if it could be made sufficiently specific.6 The Board also set a schedule for any resubmission and outlined the strict standards for specificity that it intended to apply if a new contention were to be tendered. Rorem subsequently filed an amended quality assurance contention. With certain exceptions not pertinent here, the Board found the amended contention possessed the requisite basis and specificity and concluded that the balance of section 2.714 factors favored acceptance of the contention. It thus admitted it for litigation.8 The applicant urges us to grant directed certification of the Board's ruling permitting Rorem to resubmit a quality assurance contention and, in addition, requests that we 5
See 10 C.F.R. S 2. 714 (b) .
6 LBP-85-11, 21 NRC at 634.
Id. at 636-37.
8 LBP-85-20, 21 NRC 1732 (1985).
4 strike the Keppler deposition and dismiss the amended q quality assurance contention. In short, the applicant claims that the Commission's regulations and policies do not i authorize a licensing board to permit discovery on a defective contention with a view toward resubmission of a perfected contention following discovery. The applicant, however, expressly disclaims any argument that the Licensing Board improperly balanced the lateness factors or misapplied the basis and specificity requirements insofar as the refiled contention is concerned.9 The NRC staff does not l seek interlocutory review of the Licensing Board's ruling but in its answer to the motion supports the applicant. The intervenors oppose the grant of directed certification.
- 2. In deciding whether to exercise our discretionary
. directed certification authority, we apply the two-part Marble Hill test and consider whether a licensing board ruling either (1) threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal, or (2) affects the basic structure of the proceeding in a l
9 See Commonwealth Edison's Motion for Directed Certification (July 8, 1985) [hereafter Motion for Directed Certification) at 1.
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pervasive or unusual manner.10 The applicant's assertion that the rulings at issue here have a pervasive effect on the proceeding rests essentially on the novelty of the procedures adopted by the Board and an alleged violation of the Commission's regulations.11 Pointing to our decision in the Catawba case,12 the applicant also claims that we have undertaken interlocutory review to resolve novel issues and correct violations of the Commission's regulations even where the Marble Hill test is not strictly satisfied.13 The staff's arguments in support of the applicant's position are l predicated largely on the view that it is preferable to I commit staff resources to assuring that quality assurance i deficiencies have been corrected, rather than litigating the cuality assurance problems.14 10 See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1582 (1984), applying the test enunciated in Public Service Co.
cf Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAB-405, 5 NRC 1190, 1192 (1977).
Motion for Directed Certification at 12-14.
I Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 465-67 (1982), aff'd in pertinent part, CLI-83-19, 17 NRC 1041 (1983).
' 13 Motion for Directed Certification at 12-15.
14 NRC Staf f Response to Applicant's !!otion for Directed Certification (July 23, 1985) [hereafter Staff
- Response) at 10-11.
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Even assuming a violation of the Commission's regulations as claimed by the applicant and our dissenting colleague, the not effect of the Board's rulings is simply to admit one additional contention to a proceeding that already involves litigation of various matters. Because the injection of one or more additional issues into an ongoing l
case seldom has a pervasive or unusual effect on the basic structure of a proceeding, we have traditionally declined to I
I
.eview on an interlocutory basis rulings that simply admit another contention.15 The basic structure of an ongoing adjudication is not changed simply because the admission of a contention results from a licensing board ruling that is important or novel,16 or may conflict with case law, policy, or Commission regulations.17 Similarly, the more fact that i
i 15 See, e.g., Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-706, 16 NRC 1754 (1982).
16 Three Mile Island, 20 NRC at 1583.
I Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1112-13 4
(1983). See also Pennsylvania Power & Light Co.
- (Susquehanna Steam Electric Station, Units 1 and 2),
! ALAD-641, 13 NRC 550, 552 (1981) (directed certification denied despite allegations that the Licensing Doard's ruling was "in the teeth of the Commission's regulations and the Administrative Procedure Act" and "may have erroneously c::panded the issues to be tried") . We do not disagree with the notion that a violation of the Commission's regulations could in some circumstances contribute to a pervasive or unusual effect on a proceeding. But that is not the case (Footnote Continued)
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a party (cVen the NRC staf f) must litigate en additional issue, or that a matter will be subject to adversarial exploration rather than staff review, does not alter the basic structure of the proceeding in a pervasive or unusual way so as to justify interlocutory review of a licensing l board decision.I i Nor does our decision to accept the referral of the Licensing Board's ruling in Catawba justify our intercession here. There we reviewed the Licensing Board's ruling because it raised an issue potentially affecting overy cperating license proceeding then pending.I9 That is plainly not the case here. Indeed, in Catawba, we specifically eschewed applying the resolution of the generic (Footnote Continued)
! here. The applicant objects to the admission of a quality
! assurance contention. In terms, however, the Board merely
- admitted a contention earlier rejected for lack of specificity -- a course of action plainly not foreclosed by the regulations. It may be, as Mr. Moore urges, that the Board violated the regulations by authorizing discovery against the MRC staff after dismissing the original contention. But we are unprepared to conclude that such action had a pervasive or unusual effect on the proceeding, especially where the staff itself did not find the matter sufficiently disruptive to seek relief from us in its own j right.
18 See Arizona Public Service Co. (Palo Verde Nuclear 1
Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, j 384 (1983); Virginia Electric and Power Co. (North Anna Power Station, Units 1 ana 2), ALnB-741, 18 NRC 371, 378 l (1983).
I9 See North Anna, 18 NRC at 376-78, explaining our 1 Catawba ruling and circumscribing its application.
8
- ssue before us to the individual contentions before the Licensing Board -- a situation analogous to that present here. Moreover, we were asked by the Catawba Licensing Board to resolve a novel and recurring legal issue.
Although the general standard for interlocutory review is the same whether or not undertaken on certification or by referral,20 we are obviously more likely to intercede where a licensing board believes that its ruling has the type of everall impact on the proceeding that warrants our immediate attention. We find no justification for our involvement in this case on an interlocutory basis.21 The motion for directed certification is denied.
20 See id. at 375 n.6.
21 In support of the applicant's motion, the staff indicates that the substance of the intervenors' amended quality assurance contention rests on documents available to the public prior to the deposition of Mr. Koppler. See Staff Recponse at 9-10. If the staff is correct, this circumstance further illustrates why this case is an unfit candidate for interlocutory review. IIere, even were we to strike the deposition and reject the contention as the applicant asks, the intervonors would be free to refile the same contention using the publicly availabic documents as the basis for their contention. Because the Licensing Board's balancing of the section 2.714 factors already weighed the first factor (i.e., good cauce for late filing) against the intervenors, the end result would be the same unless the Board were to reverse itself with respect to the other factors. LDP-85-20, 21 !!RC at 1744-49. Thus, in all probability the contention once again would be admitted.
9 It is so ORDERED.
FOR TiiE APPEAL BOARD C,b 3 N ,._d C. J(&n bnocmaker Secretary to the Appeal Board The dissenting opinion of Mr. Moore follows, pp. 10-17.
10 Opinion of Mr. Moore, dissenting:
The Licensing Board's April 7, 1985, ruling purported to reject the intervenors' quality assurance contention for lack of specificity but nevertheless permitted discovery by the intervonors on that same issue.1 Pursuant to the Licensing Board's order, the intervenors deposed Mr. Koppler and another NRC staff employee and filed an amended quality assurance contention based on the depositions. The Licensing Board then admitted the new quality assurance contention. Because the regulations proscribe any form 1
LBF-85-11, 21 NRC 609, 627-38 (1985). In rejecting the contention in the Special Prehearing Conference order, the Licensing Board found that "[t]he contention's language is so broad and the lack of specificity so damaging that it cannot be admitted under traditional contention admissibility criteria." Id. at 636.
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The Board stated, however, that
[s]etting forth with specificity the contention's basis is crucial to the submission of any contention, but particularly one involving potentially broad quality assurance and quality control issues. The Board will accommodate Intervenors' need to provide specificity to develop what we believe may become an important part of the record, by permitting Intervenors to depose Mr. Keppler before submitting an amended contention.
Id. at 634. Additionally, the Licensing Board directed that tne deposition "shall take place as soon as the parties can reasonably coordinate their schedules" and suggested that the intervonors may wish to depose other URC staff members as well. Id. at 635.
2 LDP-85-20, 21 NRC 1732 (1985).
l Pursuant to 10 C.F.R. 5 2. 751a (d) , both the applicant l (Footnote Continued)
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i of discovery on an issue thet has not been admitted to the j proceeding, the applicant seeks directed certification asserting that the Licensing Board's ruling " compels the conclusion that the Board knowingly violated [10 C.P.R.]
Section 2.740 by allowing discovery on a rejected
- contention."3 The majority assumes the validity of the applicant's assertion that the Licensing Board's ruling violates the i Commission's regulations but finds that the ruling does not affect the basic structure of the proceeding in a pervasive l
cr unusual manner -- the second Marble 51111 test. I dicagree. Without any mention of the significance of the regulations involved, or the breadth and complexity of the contention admitted as a result of this violation, the majority dismisses the Licensing Board's transgression ;
because the "not effect" of the ruling is simply to admit i
i (Pootnote Continued) *
- and the staff objected to the Licensing Board's discovery crder and requested that the Board reconsider its ruling
] because the Commission's regulations only permit discovery regarding a contention after it has been admitted. See l Applicant's Objections to Board Order (April 29, 1985) at
! 9-12; URC Staff's Objections to and Motion for
- Reconsideration of Licensing Board's Special Prehearing Conference Order Dated April 17, 1985 (LDP-85-11) (May 6, 1985) at 6-8. The Licensing Board waited to rule on these objections until after the intervonors deposed the staff employees and filed an amended quality assurance contention.
See LBP-85-20, 21 NRC at 1737-39.
3 Commonwealth Edison's Motion for Directed Certification (July 8, 1985) at 15-16.
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12 ene additional contention to a proceeding that already involves the litigation of several other issues.4 Because the Licensing Board's ruling directly contravenes the explicit discovery provisions of the Commission's Rules of Practice, that ruling, in the circumstances presented, clearly affects the basic structure of the proceeding in a pervasive or unusual way. The Commission's Rules of Practice establish the exclusive hearing procedures for all operating license proceedings.
Accordingly, those procedures establish the basic structure
- of this proceeding and all other operating license proceedings. Central to the scheme of the rules is the fundamental tenet that specific contentions must be admitted to the proceeding before discovery is permitted,5 and "the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the 4
See p. 6, supra.
I See Northern States Power Co. (Prairio Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192, aff'd CLI-73-12, 6 AEC 241 (1973) a f f 'd sub nom, BPI v. AEC,
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502 F.2d 424 (D.C. Cir. 1974). In brairio Irland, we long cgo rejected the argument that it is not possible for an intervenor to stato specific contentions until after they
! have had discovery. Rather, we found that argument " ignores l the fact that there is abundant information respecting the
- particular facility available to the public . . . " and that i " prospective intervenors have the benefit of the Proedom of Information Act (5 U.S.C. 552) . . . ." Id.
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l 13 cpplicant or staff," is strictly prohibited.6 Thus, the l i
rules provide that " discovery shall begin only after the !
prehearing conference provided for in S2.751a and shall !
i relate only to those matters in controversy which have boon I identified by the . . . presiding officer in the prehearing order . . . ."7 When the NRC staff is a party to the proceeding, the Executive Director of Operations must !
designate what staff employees may be deposed on any matter, l and "a particular named NRC cmployce" may be deposed only upon a finding of " exceptional circumstances" by the l Licensing Board.8 Morcover, the rules provide that "[nlo f deposition of a particular named MRC employco . . . chall be required before the matters in controversy in the proceeding have been identified by order of the . . . presiding officer . . . ."9 Yet here the Licensing Board ignored these express i
prohibitions in the Rules of Practice. Instead the Board I 1
allowed the intervonors to depose a particular named NRC c ployee concerning the applicant's quality assurance l l
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Duke Power Co. (Catawba Nucioar Station, Units 1 and l 2), ALAh-ce7, 16 NRC 460, 468 (1982), aff'd in pertinent part, CLI-83-19, 17 NBC 1041 (1983).
10 C.F.R. 52. 740 (b) (1) . l 0
10 C.F.R. 52. 720 (h) (2) (1) .
9 l 10 C.r.R. 52. 720 (h) (2) (iii) .
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- program before this issue was a matter in controversy and invited the intervenors to ignore their " ironclad obligation to examine the publicly available documentary material
- pertaining to the facility in question . . . to uncover any information that could serve as the foundation for a specific contention."10 This Licensing Board action, in turn, prejudiced the applicant by freely opening the door i
for the intervonors to file a new, detailed quality
- assurance contention that the applicant now has the burden ,
1 l l of proving is incorrect. Contrary to the majority's view, (
j such a wholesale disregard of the Commission's basic hearing l procedures to permit the deposition of a particular staff ;
j omployee about a cubject not in controversy, and then admitting o contention based on that discovery, can only fairly be described as affecting the basic structure of the 1
l proceeding in an unusual manner. This is especially true l When the ruling in question results in the introduction into l
the proceeding of a thirty-one page quality assurance 1
contention that alleges multiple violationc of twelve of the l
Commission's eighteen quality assurance regulations and
]
requires an examination of the adequacy of applicant's I
! cxtensive corrective action program. As the recent cases 1
hefore us involving the litigation of quality arcurance
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10 Catawba, ALAB-687, 16 NRC at 468 (1982).
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program before this issue was a matter in controversy and invited the intervenors to ignore their " ironclad obligation i to examine the publicly available documentary material pertaining to the facility in question . . . to uncover any information that could serve as the foundation for a specific contention."10 This Licensing Board action, in
- turn, prejudiced the applicant by freely opening the door
! for the intervenors to file a now, detailed quality i assurance contention that the applicant now has the burden of proving is incorrect. Contrary to the majority's view, i such a wholesale disregard of the Commission's basic hearing j proccdures to permit the deposition of a particular staff employee about a cubject not in controversy, and then 4
. admitting a contention based on that discovery, can only fairly be described as affecting the basic structure of the 6
proceeding in an unusual manner. This is especially true when the ruling in question results in the introduction into the proceeding of a thirty-one page quality assurance
- contention that alleges multiple violations of twelve of the i Ccmmission's eighteen quality assurance regulations and '
j requires an examination of the adequacy of applicant'a i cxtensive corrective action program. As the recent cases I
i before us involving the litigation of quality assurance 1
l 10 Catawba, ALAB-687, 16 NRC at 468 (1982).
i
15 questions graphically demonstrate, the nature of litigation involving quality assurance issues is such that the addition of this "one" contention will add weeks of hearings to this proceeding.11 I find, therefore, that the Licensing Board's ruling " fundamentally alters the very shape of the ongoing adjudication"12 and thus satisfies the second Marble l
11 l See generally Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591 (1984);
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAD-763, 19 NRC 571, review denied, CLI-84-14, 20 NEC 285 (1984).
The majority also suggests that interlocutory review should be denied because the intervenors would be free to j refile their quality assurance contention based on publicly available documents in the event we struck the deposition and rejected the contention as the applicant acks. They then opine that the Licensing Board once again would likely balance the factors set forth in 10 C.F.R. 52.714 in the same manner and admit the intervenors quality assurance contention. See p. 8 n.21, supra. Unlike the majority, I do not believe it is appropriate to speculate on how the i Licensing Board might balance the section 2.714 factors in considering a future hypothetical contention.
12 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1113 (1982).
4 In support of this position that the basic structure of
- a proceeding is not changed by a licensing board ruling that 4
violates the regulations but only results in the admission of a contention, the majority also relies upon Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 anc 2) , ALAD-641, 13 NRC 550 (1901). They seemingly equate the situation underlying the denial of directed j certification in Susquehanna with the circumstances j presented here. See p. 6 n.17, supra. The majority's reliance on ALAB-641, however, is misplaced. There we refused to direct certification of a ruling denying j (Footnote Continued) i i
d 16 Hill standard for interlocutory review. Accordingly, I (Footnote Continued) partial summary disposition of several portions of a properly admitted contention. The staff claimed that the Licensing Board's ruling met the second Marble Hill test for interlocutory review because the Board had made extra-record factual findings based on the intervenors' unsworn assertions in contravention of the Commission's regulations and the Administrative Procedure Act. We disagreed that the test for interlocutory review had been met and found that
"[i]n the context of the denial of a motion for partial summary disposition, the staff's arguments do little more than state the apparent." We stated that "[t]he fact that the ruling below may have erroneously expanded the issues to be tried or done so on the basis of unsworn allegations does little to distinguish this case from any other where it is alleged that summary disposition was erroneously withheld."
Thus, we concluded that "(i]n reality, adoption of the staff's rationale would alter the standard for discretionary interlocutory review; certainly where a denial of summary dirposition is involved it would be reduced to a simple determination whether the Licensing Board erred." ALAB-641, 13 NRC at 552. Such is not the situation here. A ruling --
even an erroneous one -- denying a motion for partial summary disposition is not in any sense parallel to a Licensing Board ruling claimed by the applicant to be a
" knowing" violation of the explicit prohibitions of the Rules of Practice that establish when, and against whom, discovery may be conducted in an operating license proceeding.
Further, the majority apparently gives significant weight to the fact that the Licensing Board's ruling does not affect the basic structure of the proceeding in an usual manner because "the staff itself did not find the matter sufficiently disruptive to seek relief from us in its own right." See p. 6 n.17, supra. Contrary to the majority's view, the impact of the Licensing Board's ruling on the structure of the proceeding is the same regardless of whether the applicant or the staff complainc. In any event, the majority points to a difference without a distinction.
The Comminison's regulations specifically permit a party to file an answer "in support of" a motion. See 10 C.F.R
- 52. 730 (c) . Here, the staff's answer supported the applicant's~ motion for directed certification in each particular and thus avoided the need for the staff to file a redundant motion seeking the same relief.
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would grant the applicant's motion for directed i
certification.
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