ML20128L265
| ML20128L265 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 07/08/1985 |
| From: | Gallo J, Thornton P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#385-754 OL, NUDOCS 8507110293 | |
| Download: ML20128L265 (23) | |
Text
SN UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD CKET 009,- ED In the Matter of )
COMMONWEALTH EDISON COMPANY Docket Nos. 50-456CL. T5 at 10 A11 :12
) 50-457 (Braidwood Nuclear Power ) 0FFICE OF ng - - .
Station, Units 1 and 2) ) 00CKE TihG'I syp'ff p.,
BRANCH COMMONWEALTH EDISON COMPANY'S MOTION FOR DIRECTED CERTIFICATION Applicant, Commonwealth Edison Company, moves the Atomic Safety and Licensing Appeal Board to grant directed certification, pursuant to 10 CFR 52.718 (i) and 10 CFR S2. 785 (b) (1) , with respect to the procedures adopted by the Atomic Safety and Licensing Board in this proceeding that led to the admission of the quality assurance contention of Intervenors Bridget Little Rorem, et al. Specifically, the Licensing Board allowed Intervenors to amend and resubmit what the Board found to be a defective contention after obtaining discovery from the NRC Staff. The question that Applicant seeks to have reviewed at this time is not whether Intervenors' amended quality assurance contention satisfies the basis and specificity requirements of 10 CFR S2.714(b),
nor whether Intervenors should prevail on a balancing of the factors governing admission of late-filed contentions under 10 CFR S2. 714 (a) . Rather Applicant seeks review of the l
8507110293 850708 PDR ADOCK 05000456 O PDR I
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o question whether the rules of practice sanction a licensing board's allowing an intervenor to obtain discovery on a contention which the board has found deficient and to resubmit an amended contention after obtaining the discovery, under guidelines and on a schedule set by the Board.
The pertinent rulings of the Licensing Board in this matter are found in the Special Prehearing Conference
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Order, dated April 7, 1985, and the Memorandum and Order Admitting Rorem et al. Amended Quality Assurance Contention, dated June 21, 1985. Applicant requests that the Appeal Board direct certification, strike from the record the deposition the Licensing Board allowed to be taken, vacate the order of June 21, 1985 and instruct the Licensing Board to dismiss Intervenors' amended quality assurance contention.
I. INTRODUCTION On April 17, 1985, the Licensing Board issued its Special Prehearing Conference Order ruling on the admissi-bility of several contentions. In analyzing Intervenors' quality assurance contention, which was late-filed, the Board found that the contention lacked the' specificity required for the admission even of a timely contention:
"The contention's language is so broad and the lack of specificity so damaging that it cannot be admitted under traditional contention-admissibility criteria." (Order at 41.) Although the Board stated that it was rejecting the i
contention on that ground, it did not simply dismiss the contention. Rather it chose to " 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 [the NRC Region III Administrator]
before submitting an amended contention." (Order at 38.) The Board provided guidance on what the amended contention should contain and set a schedule for its submission. (Order at 41-42.)
Applicant and the NRC Staff moved the Licensing Board to reconsider this decision.1/ Applicant pointed out that there was no substantive difference between the " rejection" of a contention with the right to replead after obtaining 2
discovery and the conditional admission of the contention. /
The Licensing Board had recognized that the latter course of action was prohibited "for_any reason" by the Appeal Board's decision in Duke Power Company (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 467 (1982). Applicant observed that because under 10 CFR S2.740 (b) (1) discovery is only available after a contention is admitted, the Licensing Board's grant of discovery rights was necessarily predicated
-1/ Applicant's Objections to Board Order, June 7, 1985; NRC Staff's Objection to and Motion for Reconsideration of Licensing Board's Special Prehearing Conference Order i
Dated April 17, 1985 (LBP-85-ll), June 7, 1985.
2/ Applicant's Objections at 10.
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on conditional admission of the contention.-
n I Applicant recognized that the Licensing Board's ,
action had been taken in response to a concern expressed by the Board regarding some statements made about the Braidwood ,
< quality assurance program by the Region III Administrator.
l The Board had observed that it had the power to gain further information from the Administrator to determine if the facts i undergirding his comments merited the Licensing Board's
! raising a quality assurance issue on a sua sponte basis.
{ (Order at 37.) Applicant did not dispute the Licensing Board's power to do this. Applicant argued, however, that the Board was without power to use Intervenors as its surrogate to conduct an inquiry preliminary to deciding whether it should exercise its sua sponte powers. All the more, the Board was without authority to use Intervenors as a surrogate i
to conduct such an inquiry and then permit them to amend their contention, rather than exercising its sua sponte powers at all.4 /
Although the Applicant did not quarrel with the
! Board's recognition of the important role of a quality I assurance program in the context of the Commission's regulatory
- oversigtt, Applican* pointed out that the Commissioners and j their technical and enforcement staffs were charged with this regolatory responsibility. The Licensing Board's
-3/ Applicant considered but rejected the notion that the Licenaing Board had knowingly violated the strictures
- of Section 2.740 by granting discovery on a contention that it had dismissed.
l 4/ Applicant's Objections at 11-12.
responsibility in operating license proceedings is limited to deciding issues in controversy among litigants, and as Catawba makes clear, licensing boards are to apply the Commission's rules governing the admission of contentions vigorously.5/
Intervenors subsequently deposed the Region III Administrator, and one of his Branch Chiefs, Mr. Robert Warnick, amended their quality assurance contention and resubmitted it. On' June 21, 1985, the Licensing Board issued its Memorandum and Order Admitting Rorem et al. Amended Quality Assurance Contention. In admitting Intervenors' amended contention and rejecting Applicant's and Staff's objections to its Special Prehearing Conference Order, the Licensing Board commented that its previous ruling "should not be misconstrued.
as an effort to effect a conditional admission." (Order at 4.) Rather, the Board said, it had " clearly rejected" the contention, while allowing Intervenors to submit an amended contention after deposing the Region III Administrator because his statements " formed a streng basis for our interest in and concern with the QA problems to which he had alluded."
(Order at 3n.)
The Licensing Board now justified its course of action on the basis of judicial discretion. It pointed out that under 10 CFR S2. 714 (a) (3) a licensing board may admit an amended contention at any time, provided that it is acceptable under a balancing of the factors governing late 5/ Applicant's Objections at 11.
filings as well as the basis and specificity requirements applicable to all contentions. (Ord,er at 5.) The Board commented further:
Even in the absence of this specific regulation, inherent in a trial board's duty to conduct a fair hearing and regulate the course of such a hearing, there must lie the power to exercise the discretion to permit amendments to defective initial pleadings when the ends of justice, or, as in this case, the integrity of the hearing process and reasonable assurance of the health'and safety of the public would be better served by doing so.
(Order at 5-6.) Applicant submits that the Board does not possess the wide-ranging discretion that it claims for itself, particularly since this claim is squarely at odds with Sections 2. 714 (a) (3) and 2.740 of the Commissfon's regulations.
II. STANDARDS FOR DIRECTED CERTIFICATION The grant of interlocutory review of a Licensing Board decision by directed certification is discretionary with the Appeal Board. 10 CFR S2.718 (i) provides that questions may be certified to the Commission in the dis-cretion of the presiding officer or upon the direction of the Commission. 10 CFR S2.785 (b) (1) provides that the Commission's authority to direct certification is delegated to the Appeal Board. In determining when_it is appropriate for the Appeal Board to exercise \iti discretion to direct certification, a number of decisions have accepted the
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formulation of Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977). The Appeal Board there noted that almost without exception in recent times it had directed certification only "where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner." 5 NRC at 1192.
The Appeal Board, however, has not adhered solely to the two Marble Hill tests in determining whether to exercise its discretion to direct certification. Rather, the Appeal Board has found it appropriate to undertake interlocutory review in circumstances which demonstrated not the potential of irreparable harm to the movant or pervasive effect on the proceeding, but the need to provide guidance to licensing boards on the discharge of their duties. In particular, the Appeal Board has undertaken interlocutory review when it was faced with a legal issue of general applicability, especially when this issue would, as a practical matter, otherwise evade appellate review. In addition, the Appeal Board has directed certification when it seemed
' probable that the Licensing Board had put itself on a " collision f course" with Commission regulations; the Commission itself !
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has endorsed this standard for directing certification.
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, Several decisions have recognized that exercise of certification authority may be appropriate "to settle a legal point of general applicability."6/ Most importantly, this criterion was recognized by the Appeal Board in Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC 460 (1982). There the Licensing Board referred to the Appeal Board several rulings it had made l
admitting certain contentions conditionally, notwithstanding the Licensing Board's determination that they did not satisfy the specificity requirements of 10 CFR 2. 714 (b) . The Appeal Board reasoned that whether it should undertake interlocutory revidw either by way of certification or referral turned on "whether a failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect the basic structure of the proceeding in some pervasive 1
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-6/ Toledo Edison Company (Davis-Besse Nuclear Power Station),
ALAB-300, 2 NRC 752, 769 (1975) (Appeal Board directs
- certification of Licensing Board's authority to appoint l a master to decide disputed discovery claims). See also Kansas Gas and Electric Company (Wolf Creek Nuclear l Generating Station, Unit No. 1), ALAB-321, 3 NRC 293
- (1976) (Appeal Board directs certification of question of Licensing Board's NEPA jurisdiction); Offshore Power Systems (Floating Nuclear Power Plants), ALAB-517, 9 NRC 8, 12 (1979) (What movant characterized as an important legal question of first impression was in actuality predominantly factual and the certification authority l was not intended for such a situation); Houston Lighting and Power Company (South Tcxas Project, Units 1 and 2),
ALAB-639, 13 NRC 469, 472-473 (1981)(Licensing Board order to Staff to disclose names of confidential informants was "of sufficient general importance in the scheme of Commission operations to merit review on certification under our decisions, particularly because it must be examined now or not at all.")
or unusual manner." 16 NRC at 464. Because these criteria did not appear to be met, the Appeal Board was " disinclined at this stage of the proceeding to examine each of the contentions in issue here and to make individual determinations on their admissibility." 16 NRC at 465.
The Appeal Board observed, however, that the rulings in question appeared to pose a generic question, namely, "the circumstances, if any, in which a licensing board may allow the conditional admission of a contention that it has found to fall short of the degree of specificity mandated by 10 CFR 2. 714 (b) . " Id. The Appeal Board noted that this issue appeared to have recurring importance, but, for practical reasons, would escape appellate scrutiny absent interlocutory review. In deciding to grant such review, the Appeal Board summed up: "The questions at hand are legal in character and, to repeat, have generic impli-cations. Further, insofar as we can determine, they have not previously been squarely addressed on an appellace level." Id.
Both the Commission and the Appeal Board have recognized another ground for directing certification. Inter-locutory review has been found appropriate when the licensing board is embarking on a " collision course" with governing legal principles. -7/ Similarly a number of Appeal Board decisions have 7/ This formulation was first articulated by Judge Friendly in Henry v. F.P.C., 513 F.2d 395, 405-07 (2d Cir. 1975).
The collision course doctrine has been cited with approval in United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976); Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-326, 3 NRC 406, 407 (1976);
Offshore Power Systems (Floating Nuclear Power Plants),
Continued on next page l ..
highlighted the likelihood that a licensing board had abused 8/
its discretion as a ground for interlocutory review.-
In Clinch River, the Appeal Board refused to direct certification of the question whether the Licensing Board had erroneously admitted two contentions which the Staff argued the Board lacked jurisdiction to entertain. In denying a Staff motion for reconsideration, the Appeal Board explained that it would not be inclined to direct certification 7/ Continued ALAB-517, 9 NRC 8, 12 (1979), Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1),
ALAB-588, 11 NRC 533, 537 (1980) ( Although the matter was not entirely free from doubt, the Licensing Board appeared to have stopped short of permitting litigation of a Class 9 accident and so was not steering a collision course with Commission policy).
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In refusing to accept interlocutory review of a licensing board ruling that the applicant be allowed to depose a Staff witness, the Appeal Board observed that the Licensing Board had set forth its reasons for the ruling at length and concluded that it would accept interlocutory review "only if there is an indication that the Board abused the discretion the Commission gave it in this area." Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 100 (1981). See also Houston Lighting and Power Company (South Texas Project, Units 1 and 2),
ALAB-639, 13 NRC 469, 477 (1981) (Appeal Board directs certification and reverses where Licensing Board abused its discretion in ordering Staff to give intervenors names of informants who had been promised anonymity).
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of the question whether a particular issue should be litigated in a proceeding "unless there appeared to be a high probability--
and not just some possibility--that serious error had been committed Delow." Project Management Corporation (Clinch i
River Breeder Reactor Plant), ALA2-330, 3 NRC 613, 615 (1976).
The Appeal Board reiterated: ...we adhere to the ' collision course' standard insofar as interlocutory rulings admitting or rejecting specific contentions are concerned." 3 NRC at 617-lGn
, (emphasis in original) .
On sua sponte review of the Appeal Board's decision, the Commission also recognized the relevance of the " collision course" standard. United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976). Commenting on its decision to review the Appeal Board's denial of certification, the Commission explained that it was appropriate for it to consider the correctness of the Licensing Board's decision to admit the contentions in question to determine whether the Licensing Board "was on a ' collision course'
.with reversal." 4 NRC at 75. The Commission disagreed with the Appeal Board on the certificability.of the issues raised.
The Commission concluded that the Licensing Board's admission of the contentions was in conflict with statutory requirements and involved important questions of public policy which might recur in the future. 4 NRC at 75-76. The Commission ordered the Licensing Board to exclude one of the contentions and to
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reevaluate the other in accordance with its guidance. 4 NRC at 92-93.
III. DISCUSSION l Well-established precedent holds that it is appropriate for the Appeal Board to direct certification of a decision which may have a pervasive or unusual effect on the structure of a proceeding. It is also appropriate to direct certification of a legal issue of general applicability, especially when the issue would otherwise, as a practical matter, evade appellate review. Such interlocutory review is all the more appropriate when the issue involves a course of conduct that makes it apparent that the licensing board l is steering a collision course with Commission regulations i
or abusing the discretion confided to it by the regulations.
All of these criteria are met in the present case.
The Appeal Board has made it plain that the mere erroneous admission of a contention does not satisfy the
" pervasive or unusual effect on the structure of the proceeding" standard. Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371 (1983).
i However, the elements needed to establish the existance of a " pervasive or unusual affect" are not as plainly discernible
from the case law.
The Appeal Board has held that when a licensing board embarks on a highly unusual, if not unprecedented, course of action which has the potential for affecting the structure of the proceeding, the standard is satisfied.
South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1151, 1162 (1981). In that case, the Licensing Board, without finding that the testimony of the applicants and the NRC Staff was
, inadequate, embarked on its own investigation of the technical matters at issue by retaining independent consultants to act as board witnesses. This procedure altered the traditional role'of the licensing board as an arbiter of issues placed into controversy and litigated by the parties. Instead, the Summer board assumed the responsibility for independently developing the facts underlying the issues in controversy.
It was this changed role that had a pervasive effect on the structure of the proceeding. Similarly, in Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317 (1980), the Appeal Board directed certification when the role of the licensing board was alleged 9
to represent a departure from the norm.- /
Likewise, the Appeal Board should direct certification
~~9/ In Susquehanna, intervenors alleged that the applicant and the Staff had abused discovery procedures to block its effective participation in the proceeding and that the licensing board had abetted the scheme. 12 NRC at 321.
. in this case where the Licensing Board departed from the normal course and fashioned its own procedures for determining the admission of contentions. The Board did not simply ascertain and apply the applicable law and decide the matter accordingly. Instead, it permitted discovery on a rejected contention, and established guidelines and a schedule for its resubmission. It is plain when viewed in this context that the Board's action has as pervasive an effect on the structure of this proceeding as was the case in Summer.
The issue raised by Applicant also merits directed certification as an important legal issue with generic implications. The Catawba decision itself provides a compelling precedent for the necessity of interlocutory review in this case. It is plain that the issue Applicant raises is a significant one which has generic implications to the same extent as the issue decided in Catawba. Moreover, just as in Catawba, questions about the manner in which a licensing board is empowered to admit contentions will, as a practical 1
matter, be moot once the contentions have been litigated.-0/
In addition, the highly unusual course adopted by the Licensing Board in this case justifies the Appeal Board in.providing 10/ Although the procedures by which a contention was admitted would not, strictly speaking, be moot on appeal, an applicant could preserve such an issue only by running the extraordinary risk of a license denial, with its attendant delay and financial consequences.
guidance on this matter, particularly since it is bound to collide with Commission regulations and policy. Indeed, if the Licensing Board possesses the discretion that it claims for itself, the Catawba decision would become a nullity.
Permitting discovery on a deficient contention to allow intervenors to develop the requisite specificity is the very purpose for conditionally admitting a contention, which a licensing board does not have discretion to do.
The following discussion, which further demonstrates the manner in which the Licensing Board has pervasively affected the structure of the procee' ding, has placed itself on a collision course with Commission regulations and policy and has abused its discretion, serves as a basis for the Appeal Board to undertake interlocutory review and also for the Appeal Board to grant the remedies requested by Applicant.
In its Memorandum and Order admitting the quality assurance contention, the Licensing Board stresses that it rejected Intervenors' quality assurance contention. The Board fails to explain, however, how its conduct was consistent with this claim. In particular, it fails to explain how allowing Intervenors to conduct discovery of the Staff on a rejected contention was consistent with Section 2.740 of the Commission's regulations, which permits discovery only on admitted contentions. In view of this, Applicant argued to the Licensing Board that it had merely adopted a form of the conditional admission of a contention proscribed by Catawba.
- The Board's explanation, however, compels the conclusion that the Board knowingly violated Section 2.740 by allowing discovery on a rejected contention. Nothing in the regulation or its administrative history suggests that a licensing board is authorized to make exceptions to its requirements 11 for any reason.- / Accordingly, Applicant requests that the Appeal Board strike from the record the deposition of Messrs.
Keppler and Warnick.
The Board appears to be aware of the extraordinary nature of its course of action and explains its reason for taking it. The Board acknowledges that it permitted discovery to satisfy a concern that it entertained itself on the basis 1
i of statements made by the Region III Administrator. (Order of June 21 at 3n.) The Board does not explain, however, how using Intervenors as its surrogate to satisfy this concern was consistent with the Commission's regulations and policy l on the admission of contentions. The Board also acknowledges f-that it did not require Intervenors to argue that their purportedly new contention satisfied the balancing of factors required for the admission of a late-filed contention.
l-(Order of June 21 at 4.) Intervenors were thus not put to the test on this requirement. Had the Board in fact rejected i
Intervenors' contention, it would have had no residual life.
Instead, Intervenors received pleading assistance from the l
Board, which in effect tolled the application of the factors ;
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11/ See 37 Fed. Reg. 15128 (July 28, 1972). ,
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governing late-filed contentions.
The Licensing Board's primary defense of its action rests on its interpretation of the discretion conferred on it by the Commission. The Board relies particularly on 10 CFR S2. 714 (a) (3) , which it believes the Applicant and the Staff overlooked. (Order of June 21 at 5.) That regulation, however, is not applicable here. The regulation provides that before the prehearing conference, that is, before the licensing board has ruled on the admissibility of proposed conterations, an intervenor can amend its petition to intervene i- without leave. It further provides that after the prehearing conference an intervenor can amend only by leave of the board, and that such an amended petition must meet the basis and specificity requirements and satisfy the late-filed factors. The regulation allows the board to admit an amended petition to intervene, including any amended contentions, under those circumstances. Inherent in this authority is the-limited discretion involved in balancing the five factors.
Nothing in the regulation or its administrative history, however, suggests that it confers on a licensing board the altogether different'and much broader discretion claimed by the Board here.12/ -
--12/ Indeed, the 1978 amendment of Section 2.714, which introduced the provision at issue, limited the discretion of licensing boards to admit amended contentions by providing for the first time specific guidelines.
First, it specified the five factors governing admission of late-filed contentions. Second, it specified that these factors must be applied to contentions amended
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after the special prehearing conference. Third, it made clear that such amended contentions must also meet the basis and specificity requirements. 43 Fed. Reg. 17799 (April 26, 1978).
The Licensing Board then seeks to justify its conduct by invoking the authority inherent in a trial board's duty to conduct a fair hearing and regulate its course. The Board believes that it thereby has inherent discretion to permit amendment of defective pleadings whenever the integrity of the hearing process or reasonable assurance of the public health and safety would be assured by doing so. (order of June 21 at 5-6.) The Licensing Board does not elucidate its passing reference to the integrity of the hearing process nor explain how its course of action purportedly served that goal. Applicant cannot fathom the Board's reference.
Rather, it seems plain that the Board's course of action subverted the integrity of the hearing process provided in the rules of practice by giving Intervenors assistance and a second chance to perfect their contention, to which the rules did not entitle them. That is what the Board did in this case, not only by allowing discovery on a " rejected" contention, but also by encouraging its resubmission under guidelines and on a schedule set by the Board.
Indeed, in its order admitting the amended contention, the Licensing Board has given the Intervenors a third bite at the apple. Intervenors' amended quality assurance contention contains a separate allegation, not at all foreshadowed in their original contention, regarding harassment and intimidation of site quality control inspectors. The Board rejected part of this new allegation; as to another part, however, the Board
" deferred ruling." The Board allowed Intervenors another
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three weeks to reformulate and replead the allegation with additional examples of harassment. (Order at 13.) Thus, although the Board cannot find this blement of Intervenors' quality assurance contention admissible under the regulations even after allowing discovery on it, it grants Intervenors yet another chance. The Board clearly believes that its discretion to admit contentions is indefinitely expandable, a concept squarely at odds with the Commission's Rules of Practice.
The Board's reference to protecting the health and safety of the pu.lic is intelligible in light of the Board's acknowledgement that its action was premised on satisfying its own concern about Mr. Keppler's statements. This reason, however, demonstrates that the Board's sweeping claim of discretion is based on a misperception of the Commission's regulations and policy governing the scope of a licensing board's authority in an operating license proceeding.
The Licensing Board is not clothed with the general supervisory powers of the Commissioners and their technical and enforcement staffs. Where a licensing board has not raised a serious issue itself under its sua sponte powers, the board is empowered to consider only matters properly contested by the parties. The decision as to all other matters which must be considered prior to issuing an operating license is exclusively the responsibility of the NRC Staff.13/-
13/. See 10 CFR S2.104 (c); Notice of Opportunity for Hearing (Braidwood Station Operating License), 43 Fed. Reg. 58659-60 (December 5, 1978); 10 CFR S2.760a; Portland General Electric Company (Trojan Nuclear Plant),.ALAB-796, 21 NRC 4, 5 (1985);
Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 58 (1984).
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Thus, contrary to the Licensing Board's reasoning, the Board does not have a free-ranging mandate to assure the public health and safety. The Board undoubtedly possesses discretion to raise serious safety issues sua sponte. The exercise of that discretion, however, has been subjected to certain conditions by the Commission. The Commission has required that.a licensing board which seeks to raise an issue in an operating license proceeding sua sponte shall issue a separate order making the requisite findings, state its reasons for raising the issue and notify the commissioners and the Office of the General Counsel, which shall make a report on the matter to the Commission. Memorandum, " Raising of Issues Sua Sponte in Adjudicatory Proceedings," June 30, 1981. The Licensing Board's independent concern about Mr.
Keppler's statements therefore does not serve as a justification for the course of action the Board has followed here. If the Board has a genuine concern that a serious safety issue exists, it must raise the issue in compliance with the Commission's mandate. For a licensing board to make an intervenor its surrogate to satisfy its own concerns is an evasion of this mandate and an assumption of a duty that belongs exclusively to the Commissioners and the Staff, not to a licensing board.
CONCLUSION
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For the reasons stated, the Appeal Board should direct certification. The Appeal Board should further find that the policies and regulations of the Commission do not sanction the practice of a licensing board permitting discovery on a contention which it finds defective and encouraging amendment of the contention after discovery, under guidelines and on a schedule set by the board. Accordingly, the deposition allowed by the Licensing Board's discovery or'ar should be stricken from the record, the Board's Order of June 21, 1985 should be vacated, and the Intervenors' quality assurance contention dismissed.
Respectfully submitted, W/ b
&d Two of the attorneys for COMMONWEALTH EDISON COMPANY ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.
Suite 840 Washington D.C. 20036 (202)833-9730
.ISHAM, LINC LN & BEALE Three First National Plaza Suite 5200 Chicago, IL 60602 (312)S58-7500
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00LKETED In the Matter of ) USNRC
) Docket Nos. 50-456 COMMONWEALTH EDISON COMPANY 50-457 T5 J110 21:12 (Braidwood Nuclear Power )
Station, Units 1 and 2) ) 0FFICE 0; SELnt :t,.
00CXETING & SERVlu BRANCH CERTIFICATE OF SERVICE I hereby certify that copies of COMMONWEALTH EDISON COMPANY'S MOTION FOR DIRECTED CERTIFICATION were served on the persons listed below by deposit in the United States mail, first-class postage prepaid, this 8th day of July , 1985, except that service was made upon the Appeal Board, Licensing Board, the NRC Staff and counsel for Intervenor Rorem, et al., by hand delivery.
Lawrence Brenner, Esq. Myron Karman, Esq.
Chairman Elaine I. Chan, Esq.
Administrative Law Judge Office of the Executive Legal Atomic Safety and Licensing Director Board United States Nuclear Regulatory United States Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Dr. Richard F. Cole Board Panel Administrative Law Judge United States Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, DC 20555 United States Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Dr. A. Dixon Callihan Commission Administrative Law Judge Washington, DC 20555 102 Oak Lane Oak Ridge, TN 37830
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Mr. William L. Clements Robert Guild Chief, Docketing and Services Douglass W. Cassel, Jr.
-United States Nuclear Regulatory Timothy W. Wright, III Commission BPI Office of the Secretary 109 North Dearborn Street Washington, DC 20555 Suite 1300 Chicago, IL 60602 C. Allen Bock, Esq.
P.O. Box 342 Ms. Lorraine Creek Urbana,'IL 61801 Route 1 Box 182 Manteno, IL 60950 Ms. Bridget Little Rorem 117 North Linden Street P.O. Box 208 Charles Jones, Director Essex, IL 60935 Illinois Emergency Services and Disaster Agency 110 East Adams Mr. Alan S. Rosenthal, Chairman Springfield, IL 62705 Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 PETER THORNTON One of the Attorneys for COMMONWEALTH EDISON COMPANY i .
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