"nrc practice & procedure digest," supp 1 to digest 2
TRANSCRIPT
NUREG-0386Supp.1 to Digest No. 2
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Unitec StatesNuclear Regulatory Cornmission StaffPractice and Procedure Digest
Supplement 1
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NUREG-tL .,
Supp.1 to Digest No. 2
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United StatesNuclear Regulatory Commission StaffPractice and Procedure DigestSupplement 1
Manuscript Completed: February 1980Date Published: February 1980
Office of the Executive Legal DirectorU.S. Nuclear Regulatory CommissionWashington, D.s - 20555
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UNITED STATES NUCLEAR REGULATORY COMMISSION STAFF
SUPPLEMENT 1
PRACTICEAND PROCEDURE DIGEST
(Includes Commission Appeal Board, and Licensing BoardDecisions issued from April 1,1978 through Septer-ber 30,1978)
i
PREFACE
This first supplement to the second edition of the NRC Staff Practice andProcedure Digest contains a digest of a number of Cornission Atomic Safetyand Licensing Appeal Board and Atomic Safety and Licensing Board decisionsissued during the period from April 1,1978 to September 30, 1978 interpretingthe NRC's Rules of Practice in 10 CFR Part 2. The supplement also includesadditional material from adjudicatory decisions rendered prior to April 1,1978 and, to a very limited degree, material from adjudicatory decisions andregulation changes af ter September 30, 1978. The supplement, which is intendedto be used as a " pocket-part" supplement to the Digest itself, includes anumber of new subsections and topics not covered in the Digest. The newsubsections are noted in the index for the supplement.
The Practice and Procedure Digest and this supplement thereto were prepared byattorneys in the NRC's Office of the Executive Legal Director as an internalresearch tool. Because of the Digest's usefulness to these attorneys, it wasdecided that it might also prove useful to members of the public. Accordingly,the decision was made to publish the Digest and subsequent editions thereofand supplements thereto.
Persons using this Digest and supplement are placed on notice that they maynot be used as authoritative citations in support of any position before theCommission or any of its adjudicatory tribunals. Further, neither the UnitedStates, the Nuclear Regulatory Commission nor any of their employees makes anyexpressed or implied warranty or assumes liabi;ity or responsibility for theaccuracy, comoleteness or usefulness of any material presented in the Digestand supplement.
As with the Digest itself, the supplement is roughly structured in accordancewith the chronological sequence of the nuclear facility licensing process asset forth in Appendix A to 10 CFR Part 2. Those decisions which did not fitinto that structure are dealt with in a section on " general matters." Whereappropriate, particular decisions are indexed under more than one heading.Some topical headings contain no citations or discussion. It is anticipatedthat future supplements to the Digest will utilize these headings.
Office of the Executive Legal DirectorU.S. Nuclear Regulatory Commission
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INDEX
SUPPLEMENT 1
Page
!. APPLICATION FOR LICENSE / PERMIT
5. Contents of Application
5.1 Incomplete Applica tions . . . . . . . . . . . . . . . . . . I
8. Staff Paview . . . . ...................... 1
II. PREHEARING PATTIRS
1. 3chedu11ng of Hearings
1.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . I1.7 Appeals of Scheduling Rulings . . . . . . . . . . . . . . . 2
3 Issues for Hearing
3.3 Issues Not Raised by Parties. . . . . . . . . . . . . . . . 2
5. Prehearing Conferences
5.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 25.4 Prehearing Conference Order
5.4 ( 3 ) Ap pe a l s f rom O rde r . . . . . . . . . . . . . . . . . 2
6. Conference Calls . . . . . . . . . . . . . 2. . ... . . . . .
8. Intervent ion
8.2 Need fo r Cou ns el . . . . . . . . . . . . . . . . . . . . . . 28.3 Petitions to Intervene
8.3(1) General . . . . . . . . . . . . . . . . . . . . . . 38.3(2) Pleading Requirements . . . . . . . . . . . . . . . 38.3(4) Time Limits and late Petitions
8.3(4)(c) Consideration of Untimely Petitions . . . 3
NEW 8.3(7) Intervention in Antitrust Proceedings . . . . . . . 5
8.4 Interest and Standing . . . 6... . ... . .. . . . . . .
8.4(1) Judicial Standing
8.4 (1)(a ) General . . . . . . . . . . . . . . . . . 68.4(1)(b) Standing of Organizations . . . . . . . . 78.4(1)(d) Standing fr. Specific
Factual Situations. . . . . . . . . . . . 7
8.4(2) Discretionary Intervention. . . . . . . . . . . . . 7
8.5 Contentions of Intervenors
8.5(3) Requirements for Contentions forPurposes of Admitting Petitioner . 8. . . . .
NEW 8.5(9) Appeals of Rulings on Contentions. . . . . . . 8
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Page
8.6 Appeals of Rulings on Intervention
8.6(1) General. . . . . . . . . . . . . . . . . . . . . . . 8
8.8 Rights of Intervenors at Hearings
8.8(2) Presentation of Evidence
8.8(2)(b) Consolidation ofPresentations . . . . . . . . . . . . . . 9
NEW 8.8(5) Attendance at and Participation inPrehearing Conferences and Hearings . . . . . . . . 9
NEW 8.8(6) Pleadings and Documents . . . . . . . . . . . . . . 10
8.9 Cost of Intervention
NEW 8.9(2) Intervenors' Witnesses
9. Nonparty Participation - Limited Appearance and
Interested States
9.2 Non-Party Interested States. . . . . . . . . . . . . . . . . 10
10 Discovery
10.1 T ime f o r D i s cov e ry. . . . . . . . . . . . . . . . . . . . . 10
10.2 Discovery Rules
10.2(1) General. . . . . . . . . . . . . . . . . . . . . . 1010.2(2) Construction . . . . . . . . . . . . . . . . . . . 1010.2(3) Scope of Discovery . . . . . . . . . . . . . . . . 11
!!!. HEARINGS
1. Licensing Roards
1.1 General Role. . . . . . . . . . . . . . . . . . . . . . . . 111.2 Powers and Duties
1.2(1) General . . . . . . . . . . . . . . . . . . . . . . 111.2(2) Conduc t of Hea ri ng. . . . . . . . . . . . . . . . . 13
1.4 Disqualification of a Licensing Board Member
1.4(1) Motion to Disqualify, Fequirements. . . . . . . . . 13
NEW 1.4(4) Grounds for Disqualification. . . . . . . . . . . . 14
1.5 Resignation of a Licensing Board Member . . . 14.......
4. Summary Disposition
4.3 Motions for Summary Disposition
4.3(1) Time for Filing Motions. . . . . . . . . . . . . . . 14
4.4 Summa ry Di spos i tion Rules. . . . . . . . . . . . . . . . . . 14
5. Attendance at and Participation in Hearings
6. Burden and Means of proof
6.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 156.2 Intervenor's Contentions. . . . . . . . . . . . . . . . . . 156.3 Specific Issues - Means of Proof. . . . . . . . . . . . . . 15
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6.3(2) N e ed fo r Fa c i l i ty . . . . . . . . . . . . . . . . . 156.3(4) Uranium Supply. . . . . . . . . . . . . . . . . . . 16
NEW 6.3(6) Alternate Sites Under NEPA. . . . . . . . . . . . . 1610 Evidence
10.2 Rules of Evidence'
NEW 10.2(5) Presumptions and Inferences. . . . . . . . . . . . 16
11. Witnesses
urW 11.05 General. . . . . . . . . . . . . . . . . . . . . . . . . . 16NEW 11.4 Board Witnesses. . . . . . . . . . . . . . . . . . . . . . 16
12 Cross-Examination
12.1 By ' n t e rv e no rs . . . . . . . . . . . . . . . . . . . . . . . 17
15. Licensing Board Findings
15.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 17
IV. POST HEARING MATTERS
3. Initial Decision
3.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4 Reopening Hearings
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 174.3 Grounds fo r Reopening . . . . . . . . . . . . . . . . . . . 174.5 Discovery to Obtain Infonnation to Support
R? opening . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. Motions to Reconsider. 18.....................
NEW 7 Motions for Post-Judgment Relief . . . . 18............
V. APPEALS
1. General
1.1 Right to Appeal . . . . . . . . . . . . . . . . . . . . . . 181.2 Who Can Appeal. . . . . . . . . . . . . . . . . . . . . . . 181.4 Time fo r Fili ng Appeal s . . . . . . . . . . . . . . . . . . 191.5 Matters Considered on Appeal
1.5(1) General . . . . . . . . . . . . . . . . . . . . . . 191.5(2) Issues Raised for the First Time
on Appeal . . . . . . . . . . . . . . . . . . . . . 19
1.6 Appeal Board Action
1.6(1) Role of the Appeal Board. . . . . . . . . . . . . . 191.6(3) Standards for Reversing Licensing
Boa rd on Findi ngs of Fact . . . . . . . . . . . . . 201.6(6) Effect of Appeal Board Affimance
as Precedent. 20..................
2. Stays Pending Appeal
2.2 Requirements fu ' '' 20. ................
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3. Specific Appealable Matters
3.1 Rulings on Intervention . . . . . . . . . . . 20.......
3.2 Schedu l i n g O rde rs . . . . . . . . . . . . . . . . . . . . . 21
3.4 Refusal to Compel Joinder of Parties
NEW 3.4(a) Order Consolidating Parties. . . . . . . . . . . . . 21
NEW 3.13 Evidentiary Rulings . . . . . . . . . . . . . . . . . . . . 21.
NEW 3.14 Director's Decision on Show Cause Petition. . 22.......
NEW 3.15 Findings of Fact. . . . . . . . . . . . . . . . . . . . . . 22
4 Perfecting Appeals
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5. Briefs on Appeal
5.3 Contents of Brief
5.3(1) General. . . . . . . . . . . . . . . . . . . . . . . 225.3(2) Opposing Briefs. . . . . . . . . . . . . . . . . . . 22
NEW 5.4 Amicus Curiae Briefs. . . . . . . . . . . . . . . . . . . . 23
6. Oral Arguments
NEW 6.3 Oral Argument by Nonpa rties . . . . . . . . . . . . . . . . 23
7 Actions Similar to Appeals
7.1 Motions to Reconsider. . . . . 23...............
9. Certification to the Commission
10 Review of Appeal Board Decisions
10.1 General
NEW 10.1(a) Ef fect of Commission's Refusal toEntertain Appeal . . . . . . . . 23........
11. Jurisdiction of NRC to Consider Matters WFile JudicialReview is Pending
12. Procedure on Remand
12.1 Jurisdiction of the Licensing Board on Remand. . . . . . . . . . 24
NEW 12.4 Participation of Parties in Remand Proceedings . . . . . . . . . 24
VI. GENERAL MATTERS
1. Amendments to Existing Licenses and/or Construction Permits
1.1 General
NEW 1.1(3) Matters to oe Considered in LicenseAmendment Proceedings
NEW 1.1(3)(a) General . . . . . . . . . . . . . . . . . 24NEW 1.1(3)(b) Specific Matters. . . . . . . . . . . . . 24
2. Antitrust C,9siderations
2.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 252.2 Consideration of Antitrust Matters After the
Construction Permit Stage . . . . . . . . . . . . . . . . . 25
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NEW 2.3 Intervention in Antitrust Proceedings . . . . . . . . . . . 26
4 Communications Between Staff / Applicant /OtherParties / Adjudicatory Bodies
4.1 Ex Pa rte Communications Rule. . . . . . . . . . . . . . . . 264.2 Telephone Conference Calls. . . . . . . . . . . . . . . . . 26
8. Generic Issues
8.2 Consideration of Generic Issues in LicensingProceedings . . . . . . . . . . . . . . . . . . . . . . . . 27
8.3 Unresolved Generic Issues, Effect of
8.3(1) On Construction Permit Proceedings . . . . . . . . . 278.3(2) On Operating License Proceedings . . . . . . . . . . 27
NEW 8A. Inspection and Enforcement
8A.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 27
11. Motions in NRC Proceedings
11.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 28
NEW 11.3 Responses to Motions
NEW 11.3(1) General . . . . . . . . . . . . . . . . . . . . . . 28NEW 11.3(2) Time for Filing Responses . . . . . . . . . . . . . 28
NEW 11.4 Licensing Board Actions on Motions. . . . . . . . . . . . . 28
12. NEPA Considerations
12.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . 2812.2 Environmental Statements
12. 2 ( 1 ) G ene ra l . . . . . . . . . . . . . . . . . . . . . . ?a12.2(3) Circumstances Requiring Ldraf ting of FES
12. 2 ( 3 ) ( a ) G e n e ra l . . . . . . . . . . . . . . . . . 29
12.2(4) Alternate Sites . . . . . . . . . . . . . . . . . . 2912.2(4)(a) Obviously Superior Standard
for Site Selection . . . . . . . . . . 30
12.2(4)(b) Standard for ConductingCost / Benefit Analysis Relatedto Alternate Sites . . . . . . . . . . 31
12.2(5) Need for Facility
12.2(5)(a) General . . . . . . . . . . . . . . . . . 3112.2(6) Cost / Benefit Analysis
12.2(6)(a) General . . . . . . . . . . . . . . . . 3112.2(6)(b) Consideration of Specific Costs . . . . 32
N EW 12.2(6)(b)(2) SocioeconomicCosts as Affectedby IncreasedEmployment andTaxes from Pro-posed Facility . . . . . 32
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NEW 12.2(7) Consideration of Class 9 Accidentsin an Environmental Impact Statement. . . . . . . . 32
12.3 Power of NRC Under NEPA
12.3(1) General . . . . . . . . . . . . . . . . . . . . . . 3312.3(4) Relationship to EPA with Regard to
Cooling Systems . . . . . . . . . . . . . . . . . . 33
13. NRC Staff
13.1 Role in Licensing Proceedings
13.1 ( 1 ) G e ne ra l . . . . . . . . . . . . . . . , . . . . . . 33
13.1(2) Staff Demands on Applir or Licensee. . . . . . . 34
13.2 Staf f Regulatory Guides, Status of. . . . . . . . . . . . . 3413.3 Staff Position and Working Papers, Status of. . . . . . . . 35
NEW 13A. Orders of Licensing and Appeal Boards
NEW 13A.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . 35NEW 13A.2 Compliance with Board Orders . . . . . . . . . . . . . . . 35
NEW 138. Precedent and Adherence to Past Aaency Practice
14 Pre-Pennit Activities
14.1 General
14.1(2) Limited Work Authorizations14.1(2 )(a ) General . . . . . . . . . . . . . . . . . 35
15. Requlations
15.1 Compliance. . . . . . . . . . . . . . . . . . . . . . . . . 3615.2 Regul a to ry Gu i des . . . . . . . . . . . . . . . . . . . . . 3615.3 Challenges to . . . . . . . . . . . . . . . . . . . . . . . 36
19. Show Cause Proceedings
19.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . 3619.2 Petition for Show Cause Order. . . . . . . 37........
NEW 19.2A Standards for Issuing a Show Cause Order . . . . . . . . . 3719.3 Review of Decision on Request for Show Cause Order . . . . 37
NEW 19.6 Consolidation of Petitioners in a Show CauseProceeding . . . . . . . . . . . . . . . . . . . . . . . . 37
20. Summa ry Disposi tion Procedures . . . . . . . . . . . . . . . . . 37
NEW 20A. Suspension. Revocation or Modification of License
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$ II.l.1
1. APPLICATION FOR LICENSE / PERMIT
5. Contents of Application
5.1 Incomplete Applications
The determination as to whether an application is sufficiently com-plete for docketing is for the Staff, rather than an adjudicatoryboard, to make. New England Power Co., et al. (NEP, Units 1 & 2),LBP-78-9, 7 NRC 271, 280 (1978).
8. Staff Review
Note that 10 CFR {2.102 explicitely prcvides that the Staff may requestany one party to a proceeding to confer informally with the Staff duringthe Staff's review of an application.
Adjudicatory boards lack the power to direct the Staff in the performanceof its independent responsibilities and, under the Commission's regulatoryscheme, boards cannot direct the Staff to suspend review of an applica-tion, preparation of an environmental impact statement or work, studies oranalyses being conducted or planned as part of the Staff's evaluation ofan applicaticn. New England Power Co. , et al. (NEP, Units 1 & 2), LBP.78-9, 7 NRC 271, 278-79 (1978).
Where the Licensing Board finds that the Staff cannot demonstrate a reason-able cause for its delay in submitting environmental statements, the Boardmay issue a ruling noting the unjustified failure to meet a publicationschedule and then proceed to hear other matters o.' suspend proceedingsuntil the Staff files the necessary documents. The Board, sua sponte oron motion of one of the parties, may refer the ruling to theTppeal Board.If the Appeal Board affirms, it would certify the matter to the Commission.Offshore Power Systems (Floating Nuclear Pnwer Plants), ALAB-489, 8 NRC194, 207 (1978).
One aspect of the NRC role in regulating nuclear power plants is to pro-vide criteria forming the engineering baseline against which licenseesystem designs, including component specifications, are judged for ade-quacy. It has not been the Staff's practice to certify that any particu-lar components are qualified for nuclear service, but, rather, it inde-pendently reviews designs and analyses, qualification docunentation andqualify assurance programs of licensees to determine adequacy. Thisreview approach is consistent with the NRC's responsibilities under theAtomic Energy Act of 1954, as amended, and the Energy Reorganization Act of1974 (42 U.S.C. 5801 et seq.). Petition for Emeroency and RemedialAction, CLI-78-6, 7 NRC 400, 426 (1978).
II. PREHEARING MATTERS
1. Scheduli g nf Hearings
1.1 General
Where the Licensing Board finds that the Staf f cannot demonstrate areasonable cause for its delay in submitting environmental statements,the Board may issue a ruling noting the unjustified failure to meet apublication schedule and then proceed to hear other matters or suspendproceedings until the Staff files the necessary documents. TheBoard, m sponte or on motion of one of the parties, may refer theruling to the Appeal Board. If the Appeal Board affirms, it wouldcertify the matter to the Commission. Of fshore Power Systens (Float-ing Nuclear Power Plants) ALAB-489, 8 NRC 194, 207 (1978).
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i II.8.2
1.7 Appeals of Scheduling Rulings
Although, absent special circumstances, the Appeal Board will gener-ally review Licensing Board scheduling determinations only whereconfronted with a claim of deprivation of due process, the AppealBoard may, on occasion, review a Licensing Board scheduling matterwhen that scheduling appears to be based on the Licensing Board'smisapprehension of an Appeal Board directive. See, eg. , ConsumersPower Co. (Midland Plant, Units 1 & 2), ALAB-46Ei 7 NRC 465, 468(1978).
3. Issues for Hearing
3.3 Issues Not Raised by Parties
In a construction permit proceeding, the Licensing Board has a dutyto assure that the NRC Staff's review was adequate even as to matters
which are uncontested. Gulf States Utilities Co. (River Bend Sta-tion, Units 1 & 2), ALAB-444, 6 NRC 760, 774 (1977).
5. Prehearing Conferences
5.1 General
There are several types of prehearing conferences, each of whichserves a different purpose. For a discussion of the types of pre-hearing conferences and of the purposes of such conferences, seeWisconsin Electric Power Compar.y (Point Beach Nuclear Plant, Units 1& 2), LRP-78-23, 8 NRC 71, 76 (1978).
A party seeking to be excused from participation in a prehearingconference should present its justification in a request filed beforethe date of the conference. Public Service Co. of New Hampshire,et al. (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 191(1978).
5.4 Prehearing Conference Order
5.4(3) Appeal from Order
The action of a Licensing Board in provisionally ordering ahearing and in preliminarily ruling on petitions for leaveto intervene is not appealable under 10 CFR 2.714a in asituation where the Board cannot rule on contentions andthe need for an evidentiary hearing until af ter the specialprehearing conference required under 10 CFR 92.751a andwhere the petitioner denied intervention may qualify onrefiling. Consumers Power Co. (Midland Plant, Units 1 &2), LBP-78-27, 8 NRC 275, 280 (1978).
6. Conference Calls
Where a party informs an adjudicatory board that it is not interested in amatter to be discussed in a conference call between the board and theother litigants, that party cannot later complain that it was not con-sulted or included in the conference call. Public Service Co. of Indiana(Marble Hill Nuclear Generating Station Units 1 A 2), ALAB-493, 8 NRC253, 269 at n. 63(1978).
8. Intervention
8.2 Need for Counsel
While there is no requirement that an intervenor be represented bycounsel in NRC proceedings, there are some indications that the
2
i II.8.3(4)(c)
regulations do not contemplate representation of a party by a non-lawyer and that any party who does not appear pro se must be repre-sented by a lawyer. See 10 CFR $2.713(a); MetropoTitan Edison Co.et al. (Three Mile Island Nuclear Station Unit 2), ALAB-474, 7 NRC746, 748 (1978); Duke Power Co. (Cherokee Nuclear Station, Units 1,2 & 3), ALAB-440, 6 NRC 642 at 643, n. 3 (1977); Virginia Electric& Power Company (North Anna Power Station, Units 1 & 2), LicensingBoard Order of October 8,1976 (unpublished). As the Three MileIsland and Cherokee cases cited amply demonstrate, however, anyrequirement that only lawyers appear in a representative capacity isusually waived, either explicitely or implicitely, as a matter ofCourse.
8.3 Petitions to Intervene
8.3(1) General
In NRC proceedings in which a hearing is not mandatory butdepends upon the filing of a successful intervention peti-tion, an " intervention" Licensing Board has authority onlyto pass upon the intervention petition. If the petitionis granted, thus giving rise to a full hearing, a secondLicensing Board, which may or may not be composed of thesame members as the first Board, is established to conductthe hearing. Wisconsin Elv.tric Power Company (Point BeachNuclear Plant, Units 1 & m,, LBP 78-23, 8 NRC 71, 73 (1978).
8.3(2) Pleading Requirements
Petitions to intervene must initially specify the " aspector aspects" of the subject matter of the proceeding as towhich the petitioner wishes to intervene. An " aspect" isbroader than a " contention" but narrower than a general re-ference to the NRC's operating statutes. Consumers PowerCo. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275,278 (1978).
Under 10 CFR $2.714, it is no longer necessary for peti-tioners for intervention to advance at least one viablecontention when initially filing a petition to intervene.The petition may later be supplemented to include conten-tions. There is no single date when the petition must besupplemented. Pursuant to CFR 92.714(b), the supplementmay be submitted 15 days prior to the special prehearingconference or, if none is held, the first prehearing confer-ence. Wisconsin Electric Power Company (Point Beach NuclearPlant, Units 1 & 2), LBP-78-23, 8 NRC 71, 74 (1978).
For a recent case acknowledging that a pro se petitionerfor intervention should not be held to the same standardsof clarity and precision to which a lawyer might reasonablybe expected to adhere in the petition to intervene, seeWisconsin Public Service Corporation, et al. (KewauneeNuclear Power Plant), LBP 78-24, 8 NRC 78, 82 (1978).
8.3(4) Time Limits and Late Petitions
8.3(4)(c) Consideration of Untimely Petitions
In evaluating intervention petitions to determinewhether the requisite specificity exists, whetherthere has been an adequate delineation of thebasis for the contentions, and whether the issuessought to be raised are cognizable in an individuallicensing proceeding, Licensing Boards will notappraise the merits of any of the assertions
3
r II.8.3(4)(c)
contained in the petition. Rut when consideringuntimely petitions, Licensing Boards are requiredto assess whether the petitioner has made asubstantial showing of good cause for failure tofile on time. In doing so, Boards must necessar-fly consider the perits of claims going to thatissue. Florida Power & Light Co. (St. LuciePlant, Unit 2), CLI-78-12, 7 NRC 939, 948-49(1978).
A satisfactory explanation for failure to file ontime does not automatically warrant the accept-ance of a late filed intervention petition. Theadditional four factors specified under 10 CFR52.714(a) must also be considered. However,where a late filing of an intervention petitionhas been satisfactorily explained, a much smallerdemonstration with regard to the other factors of10 CFR $2.714(a) is necessary than would other-wise be the case. Wisconsin Public ServiceCorporation et al. (Kewaunee Nuclear PowerPlant), LBP-78-24, 8 NRC 78, 83 (1978).
Confusing and misleading letters from the Staffto a prospective pro se petitioner for inter-vention, and failure of the Staff tc respond in atimely fashion to certain comnunications fromsuch a petitioner, constitute a strong showing ofgood cause for an untimely petition. WisconsinPublic Service Corporation, et al. (KewtuneeNuclear Power Plant), LBP-78-24, 8 NRC 78, 81-82(1978).
As to the factor with regard to " assistance indeveloping the record," a late petitioner placingheavy reliance on this factor and claiming thatit has substantial technical expertise in this
regard should present a bill of particulars insupport of such a claim. Detroit Edison Co.(Greenwood Energy Center, Units 2 & 3), ALAB-476,7 NRC 759, 764 (1978). At the same time, it isnot necessary that a petitioner have some spe-cialized education, relevant experience or abil-ity to offer qualified experts for a favorablefinding on this factor to be made. SouthCarolina Electric & Gas Co., et al. (Virgil C.Summer Nuclear Station, Unit 1) LBP-78-6, 7 NRC209, 212-13 (1978).
As to the " delay" factor, the mere fact that alate petitioner will not cause additional delayor a broadening of the issues does not mean thatan untimely petition should necessarily begranted. Gulf States Utilities Co. (River SendStation, Units 1 & 2), ALAB-444, 7 NRC 760, 798(1977). However, from the standpoint of pre-cluding intervention, the delay f actor isextremely important and the later the petition tointervene, the more likely it is that the peti-tioner's participation will result in delay.Detroit Edison Co. (Greenwood Energy Center,Units 2 & 3), ALAR-476, 7 NRC 759, 762 (1978).
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9 11.8.3(7)
8.3(7) Intervention in Antitrust Proceedings
In addition to meeting the requirements of 10 CFR 62.714, apetitioner seeking to intervene in an antitrust proceedingmust:
(1) describe the situation allegedly inconsistent with theantitrust laws which is the basis for intervention;
(2) describe how that situation conflicts with the policiesunderlying the Sherman, Clayton or Federal TradeCommission Acts;
(3) describe how that situation would be created or main-tained by activities under the proposed license; and
(4) identify the relief sought.
Detroit Edison Co. (Enrico Fenni Atomic Power Plant, Unit2), LBP-78-13, 7 NRC 583, 596-97 (1978) (and cases citedtherei r,) . Note that for antitrust intervention, the inter-est of a ratepayer or consumer of electricity may be withinthe zone of interests protected by Section 105 of theAtonic Energy Act. The petitioner, however, must stilldemanstrate that an injury to its interests would be theproximate result of anti-conpetitive activities by theapplicant or licensee and such injury must be more thanremote and tenuous. ,Id at 7 NRC 591-93.
When neither the Attorney General nor the NRC Staff hasdiscerned antitrust problems warranting review under Sec-tion 105c, potential antitrust problems nust be shown withreasonable clarity to justify granting a petition thatwould lead to protracted antitrust litigation involving apro se petitioner. Detroit Edison Co. (Enrico FermiAtomic Plant, Unit 2), L8P-78-13, N RC 583, 595 (1978).
Although Section 105 of the Atomic Energy Act encouragespetitioners to voice their antitrust claims early in thelicensing process, reasonable late requests for antitrustreview are not precluded so long as they are made concur-rent with licensing. Licensing Boards must have discretionto consider individual claims in a way which does justiceto all of the policies which underlie Section 105c and thestrength of particular claims justifying late intervention.Florida Power % Light Co. (St. Lucie Plant, Unit 2), CLI-78-12,7 NRC 939, 946 (1978).
Late requests for antitrust review hearings may be enter-tained in the period between the filing of an applicationfor a construction permit - the time when the advice of theAttorney General is sought - and its issuance. However, asthe time for issuance of the construction pennit drawscloser, Licensing Boards should scrutinize more closely andcarefully the petitioner's claims of good cause. FloridaPower & Light Co. (St. Lucie Plant, Unit 2), CLI-78-12, /NRC 939, 946 (1978). The criteria of 10 CFR 52.714 forlate petitioners are as appropriate for evaluation of lateantitrust petitions as in health, safety and environmentallicensing, but the 2.714 criteria should be more stringentlyapplied to late antitrust petitions, particularly in assess-ing the good cause factor. Id. Where an antitrust petition
is so late that relief will IIivert from the licensee neededand difficult-to-replace power, the Licensing Board mayshape any relief granted to meet this problem, ld.d
5
6 !!.8.4(1)(a)
8.4 Interest and Standing
Standing to intervene, unlike the factual merits of contentions, mayappropriately be the subject of an evidentiary inquiry before inter-vention is granted. Consumers Power Co. (Midland Plant, Units 1 &2), LBP-78-27, 8 NRC 275, 277 at n.1 (1978).
8.4(1) Judicial Standing
8.4(1)(a) General
The test is a cognizable interest that might beadversly affected by one or another outcome ofthe proceeding. No interest is to be presumed.There must be a concrete denonstration that harmcould flow from a result of the proceeding.Nuclear Engineering Co., Inc. (Shef field, Ill.Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).
A petitioner who supports an application must, ofcourse, show the potential for injury-in-fact toits interests before intervention can be granted.Such a petitioner must particularize a specificinjury that it or its members would or mightsustain should the application it supports bedenied or should the license it supports beburdened with conditions or restrictions.Nuclear Enqineering Co. , Inc. (Sheffield, Ill.Low-Level Radioactive Waste Disposal Site),ALAB-473, 7 NRC 737, 743 (1978).
For antitrust purposes, the interest of a rate-payer or consumer of electricity is not neces-sarily beyond the zone of interests protected bySection 105 of the Atomic Energy Act. However,the intervenor must still demonstrate that aninjury to its economic interests as a ratepayerwould be the proximate result of anti-competitiveactivities by the licensee. Detroit Edison Co.(Enrico Fenni Atomic Power Plant, Unit 2),L8P-78-13, 7 NRC 583, 592-93 (1978).
Antitrust considerations to one side, neither the
Atomic Energy Act nor the National EnvironmentalPolicy Act includes in its " zone of interests"the purely economic personal concerns of a member /ratepayer of a cooperative that purchases powerfrom a prospective facility co-owner. DetroitEdison Co. (Enrico Fenni Atomic Power Plant.Uni t 2), ALAB-470, 7 NRC 473, 474-75 (1978).
For an amendment authorizing transfer of 20% ofthe ownership of a facility, allegations that apetitioner would " receive" only 80% of the elec-tricity produced by the plant rather than the100% " assumed in tne 'NEPA balance'" were insuffi-cient to give standing as a matter of rightbecause it was an economic injury outside thezone of interests to be protected and the NEPAcost / benefit analysis considers the overallbenefits to society rather than benefits to anisolated portion. Detroit Edison Co. (EnricoFenni Atomic Power Plant, Unit 2), LBP-78-11, 7NRC 381, 390-90, aff'd, ALAB-470, 7 NRC 473(1978).
6
9 11.8.4(2)
8.4(1)(b) Standing of Organizations
For a recent case holding that a petitionercannot assert the rights of third parties as abasis for intervention, see Detroit Edison Co.(Enrico Fermi Atomic Power Plant, Unit 2),LBP-78-11, 7 NRC 381, 387, aff'd, ALAB-470, 7 NRC473 (1978) (mother attempted to assert the rightsof her son who attended medical school near aproposed facility).
8.4(1)(d) Standing in Specific Factual Situaties
A petitioner who supports an application must, ofcourse, show the potential for injury-in-fact toits interests before intervention can be granted.Such a petitioner must particularize a specificinjury that it or its members would or nightsustein should the application it supports bedenied or should the license it supports beburdened with conditions or restrictions.Nuclear Engineering Co., Inc. (Sheffield, Ill.Low-Level Radioactive Waste Disposal Site),ALAB-473, 7 NRC 737, 743 (1978).
A petitioner who resides far from a facilitycannot acquire standing to intervene by assertingthe interests of a third party who will be nearthe facility but who is not a minor or otherwiseunder a legal disability which would preclude hisown participation. Detroit Edison Co. (EnricoFemi Atomic Power Plant, Unit 2), ALAB-470, 7NRC 473, 474 at n.1 (1978).
In a license amendment proceeding to allow tw-electric cooperatives to become co-owners of anuclear plant, interests of a petitioner whichstemmed from membership in the cooperative (" lossof equity," " threat of bankruptcy," " higherrates," " cost of replacement power," or " loss ofproperty taxes") were insufficient to supportstanding as a matter of right. Detroit EdisonCompany (Enrico Fermi Atomic Power Plant, Unit 2),LBP-78-11, 7 NRC 381, 385, aff'd, ALAB-470, 7 NRC473 (1978).
3.4(2) Discretionary Intervention
A particularly strong showing as to why discretionaryintervention should be allowed is required in those pro-ceedings where, without a grant of discretionary inter-vention, no hearing would be held. Tennessee ValleyAuthority (Watts Bar Nucl?ar Plant, Units 1 & 2), ALAB-413,5 NRC 1418, 1422 (1977).
The principal factor in deteming whether to allow inter-vention as a matter of discretion to a person lackingstanding to intervene as of right is petitioner's demon-strated ability to contribute substantially to the develop.ment of a sound record. Detroit Edison Co. (Enrico femiAtomic Power Plant, Unit 2), ALAB-470, GRC 473, 475 atn.2 (1978). For discretionary intervention, the burden ofconvincing the Licensing Board that a petitioner could makea valuable contribution lies with the petitioner. NuclearEnnineering Co., Inc. (Sheffield, Ill. Low-Level RadioactiveWaste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978).
7
9 II. 6(1)
As to the second and third factors to ba considered withregard to discretionary intervention (the nature and extentof property, financial or other interests in the proceedingand the possible effect any order might have on the peti-tioner's interest), interests which do not establish ariaht to intervention because they are not within the " zoneof interests" to be protected by the Commission should notbe considered as positive factors for the purposes ofgranting discretionary intervention. Detroit Edison Co.(Enrico Femi Atomic Power Plant, Unit 2), L8P-78-11, 7 NRC381, 388, aff'd, ALAB-470, 7 NRC 473 (1978).
8.5 Contentions of Intervenors
8.5(3) Requirements for Contentions for Purposes of AdmittingPetitioner
For a petitioner who supports a license application, allthat need be initially asserted to fulfill the contentionrequirement of 10 CFR %2.714 is that the application ismeritorious and should be granted. After contentionsopposing the license application hi'e been set forth, how-ever, the Licensing Board is free to require intervenorssupporting the application to take a position on thosecontentions. Nuclear Engineering Co., Inc. (Sheffield,
-
Ill. Low-level Radioactive Waste Disposal Site), ALAB-473,7 NRC 737, 743 at n.5 (1978).
Despite the fact that a petitioner need not plead evidNcein setting forth the basis for its contentions, some sortof minimal basis indicating the potential validity of thecontention is required. Thus, for example, allegationsthat an amendment pemitting a cooperative to become aco-owner of a nuclear plant will increase the possibilitythat nuclear waste will be stored in the cooperative'sservice area, and that demand for the nuclear facility inthat service area will be stimulated are too remote andspeculative to be considered as possible effects of theamendment proceeding. Consequently such allegations willnot establish a petitioner's right to intervene. DetroitEdison Co. (Enrico Fermi Atomic Power Plant, Unit 2),L8P-78-1T, 7 NRC 381, 386-87, aff'd, ALAB-470, 7 NRC 473(1978).
8.5(9) Appeals of Rulings on Contentions
Appellate review of a Licensing Board ruling rejecting somebut not all of a party's contentions is available only atthe end of the case. Northern States Power Co. (TyroneEnergy Park, Unit 1), ALAB-492, 8 NRC 251, 252 (1978).
8.6 Appeals of Rulings on Intervention
8.6(1) General
For a reaffimation of the aetablished rule that an appealconcerning an intervention p' .;1 tion must await the ultimategrant or denial of that pet' cion, see Detroit Edison Company(Greenwood Ener iits 2 & 3), ALAB-472, 7 NRC570, 571 (1978)gy Center,fIn this ei" a Licensing Board order.
which determines that peti.ioner ha; met the " interest"requirement for intervent )n a~ that mitigating factorsovercome the untimeliness * '.r. petition but does not ruleon v hether petitioner has me. t" " contentions" requirementis not a final disposition J che petition to intervene.
8
9 11.8.8(5)
Id. Similarly, the action of a Licensing Board in pro-visionally ordering a hearing and preliminarily ruling onpetitions for leave to intervene is not appealable under10 CFR 62.714a in a situation where the board cannot ruleon contentions and the need for an evidentiary hearinguntil af ter the special prehearing conference requiredunder 10 CFR 52.751a and where the petitioners deniedintervention may qualify on refiling. Consumers PowerCompany (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275,280 (1978).
While the regulations do not explicitly provide for Commis-sion review of decisions on intervention, the Commissionhas entertained appeals in this regard and review by theCommission apparently may be sought. Flori e Power A LightCo. (St. Lucie Plant, Unit 2), CLI-78-C 7 NRC 939 (1978).
With regard to briefing on appeals,10 CFR 62.714a does notauthorize an appellant to file a brief in reply to parties'briefs in opposition to the appeal. Rather, leave to filea reply brief must be obtained. Nuclear Engineering Co.(Sheffield, Ill. Low-Level Radioactive Waste DisposalSite), ALAB-473, 7 NRC 737, at 745, n.9 (19711).
8.8 Rights of Intervenors at Hearings
8.8(2) Presentation af Evidence
8.8(2)(b) Consolidation of Presentations
A Licensing Board, in permitting intervention,may consolidate intervenors for the purpose ofrestricting duplicative or repetitive evidenceand argument. 10 CFR $2.714(e). In addition,parties with substantially similar interests andcontentions may be ordered to consolidate theirpresentation of evidence, cross-examination andparticipation in general pursuant to 10 CFR62.715a. An order consolidating the participa-tion of one party with the others may not beappealed prior to the conclusion of the pro-ceeding. Portland General Electric Co., et al.(Trojan Nuclear Plant), ALAB-496, 8 NRC 308, 309(1978).
8.8(5) Attendance at and Participation in Prehearing Conferencesand Hearings
An intervenor seeking to be excused from a prehearingconference should file a request to this effect before theconference date. Such a request should present the justi-fication for not attending. Public Service Co. of NewHampshire, et al. (Seabrook Station, Units 1 & 2), ALAB-488,8 NRC 187, 190-91 (1978). For a discussion of the inter-
1 hearings, _s_ee Section III. 5venor's duty to att e
Where an intervenur Indicates its intention not to partici-pate in the evidentiary hearing, the intervenor may be heldin default and its admitted contentions aismissed althoughthe Licensing Board will review those contentions to assurethat they do not raise serious matters that must be consid-ered. Boston Edison Co., et al. (Pilgrim Nuclear GeneratingStation, Unit 2), LSP-76-7, 3 NRC 156,157 (1976).
9
i II.10.2(2)
8.8(6) Pleadings and Documents
An intervenor may not disregard an adjudicatory board'sdirection to file a memorandum without first seeking leaveof the board. Public Service Co. of New Hampshire, et al.(Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187 (1978).
8.9 Cost of Intervention
8.9(2) Intervenors' Witnesses
The Appeal Board has indicated that where an intervenorwould call a witness but for the intervenor's financialinability to do so, the Licensing Board may call the wit-ness as a Board witness and authorize NRC payment of theusual witness fees and expenses. The decision to take suchaction is a matter of Licensing Board discretion whichshould be exercised with circumspection. If the Boardcalls such a witness as its own, it should limit cross-examination to the scope of the direct examination. Con-sumers Power Co. (Midland Plant, Units 1 & 2), ALAS-3E 5NRC 603, 607-08 (1977).
9. Nonparty Participation - Limited Appearance and Interested States
9.2 Non-Party Interested States
10 CFR $2.715(c) was recently amended to include counties and munici-palities and agencies thereof as governmental entities in addition toStates which may participate in NRC adjudicatory proceedings as" interested" government bodies.
Section 2.715(c) was also amended to more clearly delineate theparticipation rights of " interested" government bodies. As amended,this section provides the " interested" government bodies may intro-duce evidence, interrogate witnesses, advise the Commission withouttaking a position on any issa, file proposed findings, appeal theLicensing Board's decision, and :,cek raview by the Commission.
10. Di scovery
10.1 Tima for Discovery
Though the period for discovery may have long since terminated, aparty may obtain discovery in order to support a motion to reopen ahearing provided that the party demonstrates with particularity thatdiscovery would enable it to produce the needed materials. VernantYankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),ALAB-138, 6 AEC 520, 524 (1973).
10.2 Discovery Rules
10.2(l' eneral
In modern administrative and legal practice, including NRCpractice, pretrial discovery is liberally granted to enablethe parties to ascertain the facts in complex litigation,refine the issues, and prepare adequately for a more expe-ditious hearing or trial. Pacific Gas A Electric Company(Stanislaus Nuclear Project. Unit 1), LBP-78-20, 7 NRC1038, 1040 (1978),
10.2(2) Construction
Note that the citation for the Commonwealth Edison Companycase should be 7 AEC 240, rather than 6 AEC 240 as statedin the *m t of the main digest.
n,
$ 111.1.2(1)
10.2(3) Scope of Discovery
Note that the citation for the Commonwealth Edison Companycase should be 7 AEC 240, rather than 6 AEC 240 as statedin the text of the first paragraph of section II.10.2(3)of the main digest.
The scope of discovery under the Commission's Rules ofPractice is similar to discovery under the Federal Rules ofCivil Procedure. Pacific Gas and Electric Company (Stanis-laus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038,1040(1978).
Since written answers to interrogatories under oath asprovided by 10 CFR 62.740(b) are binding upon a party andmay be used in the same manner as depositions, the author-ity of the person signing the answers to, in fact, providesuch answers may be ascertained through discovery. State-ments of counsel in briefs or arguments are not sufficientto establish this authority. Pacific Gas & Electric Company(Stanislaus Nuclear Project. Unit 1), LBP-78-20, 7 hRC1038, 1045 (1978).
To detemine subject ntter relevance for discovery pur-poses, it is first necessary to examine the issue involtd.In an antitrust proceeding, a discovery request will not bedenied where the interrogatories are relevant only toproposed antitrust license conditions and not to whether a
situation inconsistent with the antitrust laws exists.Pacific Gas and Electric Company (Stanislaus Nuclear Proj-ect, Unit 1), LBP-78-20, 7 NRC 1038,1040 (1978).
At least one Licensing Board has held that, in the propercircumstances, a party's right to take the deposition ofanother party's expert witness may be made contingent uponthe payment of expert witness fees by the party seeking totake the deposition. Public Service Cc. of Oklahoma, et al.(Black Fox, Units 1 & 2), LBP-77-18, 5 NRC 571, 573 (1977).
III. HEARINGS
1. Licensing Roards
1.1 General Role
A Licensing Board is not nerely an evidence gathering body. Rather,it has the responsibility for appraising ab initio the record devel-oped before it and for fomulating the agency's initial decisionbased on that appraisal. Wisconsin Electric Power Co., et al. (PointBeach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 322 (1972).
1.2 Powers and Duties
1.2(1) General
In NRC proceedings in which a hearing is not mandatory butdepends upon the filing of a successful intervention peti-tion, an " intervention" Licensing Board has authority onlyto pass upon intervention petitions. If a petition isgranted, thus giving rise to a full hearing, a secondLicensing Board, which may or may not be composed of thesame members as the first board, is established to conductthe hearing. Wisconsin Electric Power Company (Point BeachNuclear Plant, Units 1 A 2), LBP-78-23, 8 NRC 71, 73 (1973).Thus, an "intervettion" hearing board established solelyfor the purpose of passing on petitions to Intervene does
11
i III.1.2(1)
not have tFe a:;ditional authority to proceed beyond thatassignnent end to entertain filings going to the merits ofmatters in centroversy between the petitioners and theapplicant. Pccific Gas 4 Electric Co. (Stanislaus NuclearProject, Uni t 1), ALAB-400, 5 NRC 1175,1177-78 (1977). An" intervention" L* card cannot, for example, rule on motionsfor summary disposition. Stanislaus, 5 NRC at 1177-78
In a construction pemit proceeding, the Licensing Boardhas a duty to assure that the NRC Staff's review was ade-quate even as to matters which are uncontested. Gulf7tates Utilities Co. (River Bend Station, Units 1 & 2),b 8-444, 6 NRC 760, 774 (1977). In this vein, a recentcase reiterating the rule that a Licensing Board may notdelegate its obligation to decide significant issues to theNRC Staff is Public Service Co. of Indiana, Inc. (MarbleHill Nuc. lear Generating Station, Units 1 A 2), ALAB-461, 7NRC 313, 318 (1978).
A Licensing Board does not have jurisdiction in a con-struction permit proceeding under the Atomic Energy Act toreview the decision of the Rural Electrification Adminis-tration to guarantee a construction loan to a part owner ofthe facility being reviewed. Public Service Co. of Indiana(Marble Hill Nuclear Generating Station, Units 1 & 2),ALAB-493, 8 NRC 253, 267-68 (1978).
In operating license proceedings, as distinguished fromthose involving construction pemits, the role of NRCadjudicatory boards is quite limited insofar as uncontestedmatters are concerned. Virginia Electric A Power Co.(North Anna Nuclear Power Station, Units 1 & 2), ALAB-491,8 NRC 366, 370-71 (1978).
Where certain issues sought to be raised by an intervenorare not fairly within the scope of the issues for theproceeding as set forth in the Commission's notice ofhearing, such additional issues are beyond the jurisdictionof the Licensing Board to decide. Union Electric Co.(Callaway Plant. Units 1 & 2), LBP-78-31, 8 NRC 366, 370-71(1978).
A Licensing Board does not have the power, under 10 CFR92.718 or any other regulation, to direct the Staf f in theperformance of its independent responsibilities. NewEngland Power Co. (NEP, Units 1 & 2), LBP-78-9, 7 MC 271,279-80 (1978).
Where the Licensing Board finds that the Staff cannotdemonstrate a reasonable cause for its delay in submittingenvironmental statements, the Board may issue a rulingnoting the unjustified failure to meet a publication sched-ule and then proceed to hear other matters or suspendproceedings until the Staff files the necessary documents.The Board, sua sponte or on motion of one of the parties,may refer tTie ruling to the Appeal Board. If the AppealBoard affims, it would certify the matter to the Commission.Offshore Power Systems (Floating Nuclear Power Plants),ALAB-489, 8 NRC 194, 207 (1978).
Af ter an order authorizing the issuance of a cor.structionpemit has become final agency action, and prior to thecommencement of any adjudicatory proceeding on any operatinglicense application, the exclusive renulatory power with
12
i III.1.t(1)
regard to the facility lies with the Staff. HoustonLighting & Power Co. (South Texas Project, Units 1 & 2),ALAB-381, 5 NRC 582 (1977). Under such circumstances, anadjudicatory board has no authority with regard to thefacility or the Staff's regulation of it. In the samevein, af ter a full-term, full power operating license hasissued and the order authorizing it has become final agencyaction, no further jurisdiction over the license lies withany adjudicatory board, Portland General Electric Co., et al.(Trojan Nuclear Plant) ALAB-451, 6 NRC 889, 891 at n. 3(1977); Duquesne Light Co , et al. (Beaver Valley PowerStation, Unit 1), ALAB-408, 5 NRC 1383,1386 (1977); TAeDetroit Edison Co. (Enrico Fermi Atomic Power Plant,Uni t 2), LBP-7811, 7 NRC 381, 386, aff'd, ALAB-470, 7 NRC473 (1978).
The power to grant an exemption from the regulations hasnot been delegated to Licensing Boards and such Boards,therefore, lack the authority to grant exemptions.Southern California Edison Co., et al. (San Onofre NuclearGenerating Station, Units 2 & 3), L8P-77-35, 5 .4RC 1290,1291 (1977).
1.2(2) Conduct of Hearing
The scope of cross-examination and the parties that mayengage in it in particular circumstances are matters ofLicensing Board discretion. Public Service Co. of Indiana,Mc. (Marble Hill Nuclear Generating Station, Units 1 & 2),ALAB-451, 7 NRC 313, 316 (1978),
1.4 Disqualification of a Licensing Board Member
1.4(1) Motion to Disqualify, Requirements
Disqualification of a Licensing Roard member, either on hisown notion or on motion of a party, is addressed in 10 CFR52.704 In those cases where a party's motion for disquali-fication of a Board member is denied and the Board memberdoes not recuse himself, Section 2.704(c) explicitlyrequires that the Licensing Board refer the matter to theAppeal Board or the Commission. Nuclear Engineering Co.(Sheffield, Ill. Low-Level Radioactive Waste DisposalSite), ALAB-494, 8 NRC 299, 301 at n. 3 (1978).
The Appeal Board has recently stressed that a party movingfor disqualification of a Licensing Board member has amanifest duty to be most particular in establishing thefoundation for its charge as well as to adhere scrupulouslyto the affidavit requirement of 10 CFR 92.704(c). Dai ry-land Power Cooperative (LaCross Boiling Water Reactor).ALAB-497, 8 NRC 312, 313 (1978). Nevertheless, as to theaffidavit requirement, the Appeal Board has held that thenovant's failure to file a supporting affidavit is notcrucial where the motion to disqualify is founded on a factto which the Licensing Board itself had called attentionand is particularly narrow thereby obviating the need toreduce the likelihood of an irresponsible attack on theBoard member in question through use of an affidavit.Nuclear Ennineerina Co. , Inc. (Shef field, Ill. Low-levelRadioactive Waste Disposal Site) ALAB-494, 8 NRC 299, 301at n. 3 (1978).
13
6 III.5.
1.4(4) Grounds for Disqualification
An administrative trier of fact is subject to disqualifica-tion if:
(1) he has a direct, personal, substantial pecuniaryinterest in a result;
(2) he has a personal bias against a participant;
(3) he has served in a prosecutive or investigative rolewith regard to the same fact n are in issue;
(4) he has prejudged factual - as distinguished from legalor policy-issues; or
(5) he has engaged in conduct which gives the appearanceof personal bias or prejudgment of factual issues.
Nuclear Engineering Co. , Inc. (Shef field,111. Low-LevelRadioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 301(1978).
Membership in a national professional organization does notperforce disqualify a person from adjudicating a matter towhich a local chapter of the organization is a party.Sheffield at 8 NRC 302.
1.5 Resignation of a Licensing Board Member
Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1& 2), ALAB-422, 6 NRC 33 (1977) was af fimed generally and on thepoint cited in the text in New England Coalition on Nuclear Pollutionv. E, 582 F.2d 87 (1st Cir.1978).
" Unavailability" of a Licensing Board member is dealt with generallyin 10 CFR 62.704(d).
4 Summary Disposition
4.3 Motions for Summary Disposition
4.3(1) Time for Filing Motions
A Licensing Board convened solely to rule on petitions tointervene lacks the jurisdiction to consider filings goingto the merits of the controversy. Consequently, such aBoard cannot entertain motions for summary disposition.Pacific Gas & Electric Co. (Stanislaus Nuclear Project,Unit 1), ALAB-400, 5 NRC 1175, 1177-78 (1977). The filingof such motions must, therefore, await the appointment of ahearing board.
4.4 Summary Disposition Rules
In an operating license proceeding, summary disposition on safetyissues will not be considered or granted until af ter the Staff'sSafety Evaluation Report and the ACRS letter have been issued.Duke Power Co. (William B. McGuire Nuclear Station, Units 1 A 2),LBP 77-20, 5 NRC 680, 681 (1977).
5. Attendance at and Participation in Hearings
A party seeking to be excused from participation in a prehearing confer-ence should present its justification in a request presented before the
14
i III.6.3(2)
date of the conference. Public Service Co. of New Hampshire, et al.(Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187,191 (1978).
Where an intervenor indicates its intention not to participate in the evi-dentiary hearing, the intervenor may be held in default and its admittedcontentions dismissed although the Licensing Board v"1 review those con-tentions to assure that they do not raise serious e .s that must beconsidered. Roston Edison Co., et al. (Pilgrim Nuclear Generating Station,Unit 2), LBP-76-7, 3 NRC 156,157 (1976).
Where an issue is remanded to the Licensing Board and a party did notprevicusly participata in consideration of that issue, submitting no con-tentions, evidence or proposed findings on it and taking no exceptionsto the Licensing Board's disposition of it, the Licensing Board is fullyjustified in excluding that party from participation in the remandedhearing on that issue. Status as a party c'oes not carry with it a licenseto 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).
6. Burden and Means of Proof
6.1 General
The general rule that the applicant carries the burden of proof doesnot apply with regard to alternate site considerations. For alter-nate sites, the burden of proof is on the Staff and the applicant'sevidence in this regard cannot substitute for an inadequate analysisby the Staff. Roston Edison Co., et al. (Pilgrim Nuclear GeneratingStation, Unit 2), ALAB-479, 7 NRC 774, 794 (1978).
6.2 Intervenor's Contentions
The " threshold test," restored by the Supreme Court in Vermont YankeeNuclea r Power Corp. v. N.R.O.C. , 435 U.S. 519 (1978), goes only tothe matter of the showing necessary to initiate an inquiry into aspecific alternative which an intervenor (or prospective intervenor)thinks should be explored, and not to the placement of the burden ofproof once such an inquiry actually has been undertaken in an adjudi-catory context. Public Service Co. of New Hampshire, et al. (Sea-brook Station, Units a 2), ALAB-471, 7 NRC 477, 489 at n. 8 (1978).
6.3 Specific Issues - Means of Proof
6.3(2) Need for Facility
The substitution theory, whereby the need for a nuclearpower facility is based on the need to substitute nuclear-generated power for that produced using fossil fuels, hasbeen upheld as providing an adequate basis on which toestablish need for the facility. New Enoland Coalition onNu; lear Pollution v. NE, 582 F.2d 87, 97-98 (1st Cir.1978).
Considerable weight should be accorded the electricaldemand forecast of a state utilities commission that isresponsible by law for providing current analyses of prob-able electrical demand growth and which has conductedpublic hearings on the subject. A party may have theopportunity to challenge the analysis of such commission.Nevertheless, where the evidence does not show that suchanalysis is seriously defective or rests on a fatallyflawed foundation, no abdication of NRC responsibilitiesunder NEPA results from according conclusive effect to sucha forecast. Carolina Power % Light Co. (Shearon HarrisNuclear Power Plant, Units 1-4), ALAB-490, 8 NRC 234,240-41 (1976).
15
$ III.11.4
6.3(4) Uranium Supply
In order to establish the availability of a uranium supply,a construction permit applicant need not demonstrate thatit has a long-term contract for fuel. Union Electric Com.p gan (Caliaway Plant, Units 1 & 21 ALAB-347, 4 NRC 216,222(1976).
6.3(6) Alternate Sites Under NEPA
To cstablish that no suggested alternative site is "obvi-ously superior" to the proposed site, there must be either(1) an adequate evidentiary showing that the alternativesites should be generically rejected or (2) sufficientevidence for informed comparisons between the proposed siteand individual alternatives. Public Service Company of NewHampshire, et al. (Seabrook Station, Units 1 & 2), ALAB-471,7 NRC 477, 498 (1978).
10. Evidence
10.2 Rules of Evidence
10.2(5) Presumptions and Inferences
When a party has relevant evidence within his control whichhe fails to produce, it may be inferred that such evidenceis unfavorable to him. Public Service Company of NewHampshire, et al. (Seabrook Station, Units 1 & 2), ALAB-471,7 NRC 47/, 498 (1978).
11. Witnesses
11.05 General
Because of the complex nature of the subject matter in NRC hearings,witness panels are often utilized. It is recognized in such a proce-dure that no one member of the panel will possess the variety ofskills and experience necessary to permit him to endorse and explainthe entire testimony. Consumers Power Co. (Midland Plant, Units 1 &2), ALAB-379, 5 NRC 565, 569 (1977).
The testimony and opinion of a witness who claims no personal knowl-edge of, or expertise in, a particular aspect of the subject matterof his testimony will not be accorded the weight given testimony onthat question from an expert witness reporting results of careful anddeliberate measurements. Public Service Electric & Gas Company, et al.(Hope Creek Generating Station, Units 1 & 2), LBP-75-15, 7 NRC 642,647 at n. 8 (1978).
11.4 Board Witnesses
The Appeal Board has indicated that where an intervenor would call awitness but for the intervenor's financial inability to do so, theLicensing Board may call the witness as a board witness and authorizeNRC payment of the usual witness fees and expenses. The decision totake such action is a matter of Licensing Board discretion whichshould be exercised with circumspection. If the Board calls such awitness as its own, it should limit cross-examination to the scope ofthe direct examination. Consumers Power Co. (Midland Plant, Units 1& 2), ALAB-382, 5 NRC 603, 607-08 (1977).
O
16
i IV.4.3
12. Cross-Examination
12.1 By Intervenors
The scope of cross-examination and the parties that may engage in itin particular circumstances are matters of Licensing Board discretion.Public Service Co. of Indiana, Inc. (Marble Hill Nuclear GeneratingStation, Units 1 & 2), ALAB-461, 7 NRC 313, 313 (1978).
15. Licensing Board Findings
15.1 General
In Public Service Company of New Hampshire, et al. (Seabrook Station,Units 1 & 2), ALAB-471, 7 NRC 477, 492 (1978), the Appeal Board reit-erated that the bases for decisions must be set forth in detail,noting that, in carrying out its NEPA responsibilities, an agency"must go beyond mere assertions and indicate its basis for them s)that the end product is" an informed and adequately explainedj udgment.
IV. POST HEARING MATTERS
3. Initial Decision
3.1 General
In certain circumstances, time may not permit a Licensing Board toprepare and issue its detailed opinion. In this situation, oneapproach is for the Licensing Board to reach its conclusion and makea ruling based on the evidentiary record and to issue a subsequentdetailed decision as time permits. The Appeal Board tacitly approvedthis approach in Public Service Electric & Gas Co., et al. (HopeCreek Generating Station, Units 1 & 2), ALAB-460, 7 NRC 204 (1978).This approach has been followed by the Commission in the GESMO pro-ceeding. See Mixed Oxide Fuel, CLI-78-10, 7 NRC 711 (1978).
4 Reopening Hearings
4.1 General
A Licensing Board lacks the power to reopen a proceeding once firalagency action has been taken, and it may not effectively " reopen * aproceeding by independently initiating a new adjudicatory proceecing.Houston Lighting & Power Co. (South Texas Project, Units 1 & 2),ALAB-381, 5 NRC 582 (1977).
4.3 Grounds for keopening
The proponant of a motion to reopen the record bears a heavy burden.Normally, the motion must be timely and addressed to a significantissue. If an initial decision has been rendered on the issue, itmust appear that reopening the record may naterially alter the result.Where a motion to reopen the record is untimely without good cause,the movant must denonstrate not only that the issue is significantbuT also that the public interest demands that the issue be furthere/nlored. Metropolitan Edison Company, et al. (Three Mile IslandNuclear Station, Unit 2), ALAB-486, 8 NRC 9, 21 (1978).
The criteria for reopening the record govern each issue for whic1reopening is sought; the fortuitous circumstance that a proceedi1ghas been or will be reopened on other issues is not significant.Metropolitan Edison Company, et al. (Three Mile Island Nuclear Sta-tion, Unit 2), ALAB-486, 8 NRC 9, 22 (1978).
17
i V.1.2
4.5 Discovery to Obtain information to Support Reopening
Though the period for discovery may have long since teminated, aparty may obtain discovery in order to support a motion to reopen ahearing provided that party demonstrates with particularity thatdiscovery would enable it to produce the needed materials. VermontYankee Nuclear Power Corp. (Vemont Yankee Nuclear Power Station),ALAB-138, 6 AEC 520, 524 (1973).
5 Motions to Reconsider
A party may not raise, in a petition for reconsideration, a matter whichwas not Contested before the Licensing Board or on appeal. TennesseeValley Authority (Hartsville Plant, Units I A, 2A,18, 2B), ALAB-467, 7 NRC459, 462 (1978). In the same vein, a matter which was raised at theinception of a proceeding but was never pursued before the Licensing Boardor the Appeal Board cannot be raised on a motion for reconsideration ofthe Appeal Board's decision. Kansas Cas & Electric Co., et al. (WolfCreek Generating Station, Unit 1), ALAS-477, 7 NRC 766, 768 (1978).
Where a party petitioning the Court of Appeals for review of a decision ofthe agency also petitions the agency to reconsider its decision and thefederal court stays its review pending the agency's disposition of themotion to reconsider, the Hobbs Act does not preclude the agency's recon-sideration of the case. Public Service Co. of Indiana (Marble Hill NuclearGenerating Station, Units 1 & 2), ALA3-493, 8 NRC 253, 259 (1978).
7 Motions for Post-Judgment relief
Post-judgment motions for relief are not favored by the regulations govern-ing Commission review of Appeal Board decisions (10 CFR 62.786(b)(7)) andwill not normally be granted absent a showing of " extraordinary circum-stanes." Public Service Company of New Hampshire, et al. (Seabrook Station,Uni ts 1 & 2), CLI-78-15, 8 NRC 1, 2 (1978).
V. APPEALS
1. General
1.1 Right to Appeal
There is no right to an administrative appeal on every factual finding.Tennessee Valley Authority (Hartsville Nuclear Plants, Units 1A, 2A,IB & 2B). ALAB-467, 7 NRC 459, 461 at n. 5 (1978).
In normal circumstances, an appeal will lie only from unfavorableaction taken by the Licensing Board, not from wording of a decisionwith which a party disagrees but which has no operative effect.Duke Power Company (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-482,7 NRC 979, 980 (1978). For a recent case in which the Appeal Boardheld that a party may not file exceptions to a decision if it is notaggrieved by the result, see Rochester Gas & Electric Coro., et al.(Sterling Power Project, Nuclear Unit No.1), ALAR-502, 8 NRC 383,393(1978).
1.2 yho Can Appeal
'For a recent case in which the Appeal Board held that a party may notfile erceptions to a decision if it is not aggrieved by the result,see Ro- Tter Gas & Electric Corp., et al. (Sterling Power Project,Nuclear D t No.1), ALAB-502, 8 NRC 383, 393 (1978).
O18
$ V.1.6(1)
1.4 Time for Filing Appeals
Pursuant to 10 CFR 92.714a, an appeal concerning an interventionpetition 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). A Licensing Board order whichdetemines that pe'itioner has met the " interest" requirement forintervention and that mitigating factors outweigh the untimeliness ofthe petition but does not rule on whether petitioner has met the" contentions" requirement is not a final disposition of the petitionseeking leave to intervene. Greenwood Energy Center supra at 7 NRC571.
The Appeal Board does not generally characterize its own decisions asfinal or not final for the purpose of review. Its opinion would onlybe advisory and the Appeal Board does not render advisory opinions inthe absence of the most compelling considerations. The Office of theGeneral Counsel may interpret 10 CFR 952.770 and 2.771 (final dect-sions) pursuant to its mandate under 10 CFR 91.32(f), and any partymay request an interpretation of these regulations on finality if itso desires. Tennessee Valley Authority (Hartsville Nuclear Plants,Units 1A, 2A,18 & 28), ALAB-467, 7 NRC 459, 463 (1978).
1.5 Matters Considered on Appeal
1.5(1) General
There is no right to an administrative appeal on everyfactual finding. Tennessee Valley Authority (HartsvilleNuclear Plants, Units 1A, 2A, 1B & 28), ALAB-467, 7 NRC459, 461 at n. 5 (1978).
In nomal circumstances, an appeal will lie only fromunfavorable action taken by the Licensing Board, not fromwording of a decision with which a party disagrees butwhich has no operative effect. Duke Power Company(Cherokee Nuclear Stations, Units 1, 2 & 3), ALAB-482,7 NRC 979, 980 (1978).
1.5(2) Issues Raised for the First Time on Appeal
A party may not raise issues on appeal which were notraised below. Metropolitan Edison Co. , et al. (Three MileIsland Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 28(1978).
Although the absence of an appeal does not deprive theAppeal Board of the right to review an issue contestedbefore a Licensing Board, the Appeal Board must be judi-cious in taking up new matters not previously put in con-troversy. Virginia Electric & Power Co. (North AnnaNuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245,247(1978).
1.6 Appeal Board Action
1.6(1) Role of the Appeal Board
The Appeal Board nomally lacks jurisdiction to entertainmotions seeking review only of actions of the Director ofNuclear Reactor Regulation; the Commission itself is theforum for such review. See 10 CFR 92.206(c). DetroitEdison Company (Enrico Femi Atomic Power Plant, Unit 2),ALAS-466, 7 NRC 457 (1978).
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5 V.l.1
Although the absence of an appeal does not deprive theAppeal Board of the right to review an issue contestedbefore a Licensing Board, the Appeal Board must be judi-clous in taking up new matters not previously put in con-troversy. Virqinia Electric & Power Co. (North AnnaNuclear Power Station, Units 1 A 2), ALAB-491, 8 NRC 245,247 (1978).
An Appeal Board has the authority to take evidence - par-ticularly in regard to limited matters as to which therecord is incomplete. Tennessee Valley Authority (Harts-ville Nuclear Plants, Units lA, 2A,18 & 2B), ALAB-467, 7NRC 459, 461 (1978).
1.6(3) Standards for Reversing Licensing Board on Findings of Fact
A deternination of fact in an adjudicatory proceeding whichis necessarily grounded wholly in a nonadversary presenta-tion is not entitled to be accorded generic effect, even ifthe determination relates to a seemingly generic matterrather than to some specific aspect of the facility inquestion. Washington Public Power Supply System (WPPSSNuclear Projects No. 3 & 5), ALAB-485, 7 NRC 986, 980(1978).
1.6(6) Ef fect of Appeal Board Af firmance as Precedent
The Appeal Board does not give stare decisis effect toaffirmation of Licensing Board concicsions on legal issuesnot brought to it by way of an appeal. Duke Power Company(Cherokee Nuclear Station, Units 1, 2 A 3), ALAB-482, 7 NRC979, 981 at n. 4 (1978).
2. Stays Pending Appeal
2.2 Requirements for a Stay
On a motion for a stay, the burden of persuasion on the four factorsof Virginia Petroleum Jobbers (now set forth in 10 CFR 52.788) is onthe movant. Public Service Co. of Indiana (Marble Hill NuclearGenerating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 270 (1978).
In Long Island Liqhting Co. (Jamesport Nuclear Power Station, ifnits 1& 2), ALAB-48L, 7 NRC 807, 808 (1978), the Appeal Board stressed theimportance of the irreparable injury requirement, stating that aparty is not ordinarily granted a stay absent an appropriate showingof irreparable injury. Where a decision as to which a stay is soughtdoes not allow the issuance of any licensing authorization and doesnot af fect the status quo ante, the movant will not be injured by thedecision and there is, quite simply, nothing for the Appeal Board tostay. Jamesport supra.
3. Specific Appealable Matters
3.1 Rulings on Intervention
Pursuant to 10 CFR 52.714a, an appeal concerning an interventionpetition 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 Boardin provisionally ordering a hearing and in preliminarily ruling onpetitions for leave to intervene is not appealable under 10 CFR52.714a in a situation where the Board cannot rule on contentions andthe need for an evidentiary hearing until af ter the special prehear-ing conference required under 10 CFR 52.751a and where the peti-tioners denied intervention may quality on refiling. Consumers
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$ V.3.11
Power Co. (Midland Plant, Units 1 & 2), LBP-7827, 8 NRC 275, 280(1978). Similarly, a Licensing Board order which detennines thatpetitioner has met the " interest" requirement for intervention andthat mitigating factors outweigh the untimeliness of the petition butdoes not rule on whether petitioner has met the " contentions" require-ment is not a final disposition of the petition seeking leave tointervene. Detroit Edison Company (Greenwood Energy Center, Units 2& 3), ALAB-472, 7 NRC 570, 571 (1978).
10 CFR 62.714a does not authorize an appellant to file a brief inreply to parties' briefs in oppisition to the appeal. Rather, leaveto file a reply brief must be obtained. Nuclear Engineering Co.(Sheffield, Ill. Low-Level Waste Disposal Site), ALAB-473, 7 NRC 737,at 745, n. 9 (1978).
Appellate review of a Licensing Board ruling rejecting some but notall of a party's contentions is available only at the end of thecase. Northern States Power Company (Tyrone Energy Park, Unit 1).ALAB-492, 8 NRC 251, 252 (1978).
While the regulations do not explicitly provide for Commission reviewof decisions on intervention, the Commission has entertained appealtin this regard and review by the Commission apparently may be sought.Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC939 (1978).
3.2 Scheduling Orders
Although, absent special circumstances, the Appeal Board will gener-ally review Licensing Board scheduling determinations only whereconfronted with a claim of deprivation of due process, the AppealBoard may, on occasion, review a Licensing Board scheduling natterwhen that scheduling appears to be based on the Licensing Board'smisapprehension of an Appeal Board directive. S_ee, ed. , ConsumersPower Co. (Midland Plant, Units 1 & 2), ALAB-468, 7 NRC 465, 468(1978).
3.4 Refusal to Compel Joinder of Parties
3.4(a) Order Consolidating Parties
Just as an order denying consolidation is interlocutory, anorder consolidating the participation of one party withothers may not be appealed prior to the conclusion of theproceeding. Portland General Electric Company, et al.(Trojan Nuclear Plant), ALAB-496, 8 NRC 308, 309-10 (1978);Public Service Co. of Indiana, Inc. (Marble Hill NuclearGenerating Station, Units 1 & 2), ALAB-339, 4 NRC 20, 23(1976).
3.13 Evidentiary Rulings
While all evidentiary rulings are ultimately subject to exceptionsand appeal at the end of the proceeding, not all such rulings areworthy of appeal. Some procedural and evidentiary errors almostinvariably occur in lengthy hearings where the presiding officer rustrule quickly. Only serious errors affecting substantial rights andwhich might have influenced improperly the outcome of the hearingmerit exception and briefing on appeal. Northern Indiana PublicService Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC835, 836 (1974).
For a discussion of the procedure necessary to preserve evidentiaryrulings for appeal, see lIII.10.5.
21
i V.5.3(2)
3.14 Director's Decision on Show Cause Petition
The Appeal Soard nonnally lacks jurisdiction to entertain motionsseeking review only of actions of the Director of Nuclear ReactorRegulation; the Commission itself is the forum for such review. See10 CFR $2.205(c). Detroit Edison Company (Enrico Fermi Atomic PowerPlant, linit 2), ALAB-466, 7 NRC 457 (1978).
3.15 Findings of Fact
There is no right to an administrative appeal on every factual finding.Tennessee Valley Authority (Hartsville Nuclear Plants, Units I A, 2A,IB & 28), ALAB-467, 7 NRC 459, 461 at n. 5 (1978).
4 Perfecting Appeals
4.1 General
While the Commission does not require the same precision in thefiling of laymen that is demanded of lawyers, any party wishing tochallenge some particular Licensing Board action must at least iden-tify the order in question, indicate that he is appealing from it,and give some reason why he thinks it's erroneous. Detroit EdisonCo. (Enrico Fermi Atomic Power Plant. Unit 2), ALAB-469, 7 NRC 470TTI (1978).
5. Briefs on Appeal,
5.3 Contents of Brief
5.3(1) General
Although no express limit on the length of appellate briefshas been established in the regulations, 10 CFR Part 2,Appendix A suggests that briefs should not exceed 70 pages(App. A, lIX(d)(2)). This 70-page limit is generallyviewed as guidance. Nevertheless, the Appeal Board hasconsistently warned that if ef forts are not nade to adhereto this guideline, it may be necessary to convert theguideline to an actual limitation. Public Service Co.of Oklahoma, et al. (Black Fox Station, Units 1 & 2),ALAB-498, 8 NRC 315, 316 (1978); Northern Indiana PublicService Co. (Bailly Generating Station, Nuclear-1),ALAB-204, 7 AEC 835, 836 (1974). In any event, where theAppeal Board has set a page limit, the limit may not beexceeded without leave and may not be circumvented by useof " appendices" to the brief. Toledo Fdison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-430, 6NRC457(1977). Briefs longer than 10 pages must contain atable of contents with page references and a table ofauthorities with page references to citations of authority.10 CFR 52.762(c). The appellant's brief must contain astatement of the case with applicable procedural history.Public Service Electric A Gas Co. (Hope Creek GeneratingStation, Units 1 A 2), ALAB-394, 5 NRC 769 (1977); PublicService Cn. of Oklahoma (Black Fox Station, Units 1 & 2),ALAB-388, 5 NRC 640 (1977).
5.3(2) Opposing Briefs
Reply briefs are due within 30 days of filing and serviceof the appellant's brief, or, in the case of the Staff,within 40 days. 10 CFR 62.762(b). If service of appel-lant's brief is made by nail, add 5 days to these timeperiod s. 10 CFR $2.710.
22
i V.11.
5.4 Amicus Curiae Briefs
10 CFR 62.715 has recently been amended to allow a nonparty to file abrief amicus curiae with regard to matters before the Appeal Board orthe Commission. The nonparty must submit a motion seeking leave tofile the brief and acceptance of the brief is a matter of discretionwith the Appeal Board or Commission. 10 CFR 62.715(d).
6. Oral Arqueent
6.3 Oral Argument by Nonparties
Under 10 CFR 62.715(d), a person who is not a a party to a proceedingmay be permitted to present oral argument to the Appeal Board or theCommission. A motion to participate in the oral argument must befiled and nonparty participation is at the discretion of the AppealBoard or the Commission.
7. Actions Similar to Appeals
7.1 Motions to Reconsider
The Commission's refusal to hear a discretionary appeal does not cutoff the Appeal Board's right to reconsider a question in an appealwhich is still pending before the Appeal Board. Public Service Co.of Indiana (Marble Hill Nuclear Generating Station, Units 1 & ?),ALAB-493, 8 NRC 253, 260 (1978).
Where a party petitioning the Court of Appeals for review of a deci-sion of the agency also petitions the agency to reconsider its deci-sion and the federal court stays its review pending the agency'sdisposition of the motion to reconsider, the Hobbs Act does notpreclude the agency's reconsideration of the case. Public ServiceCo. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),ALAB-493, 8 NRC 253, 259 (1978).
9. Certification to the Commission
Certification by the Appeal Board to the Commission is proper in a caseinvolving novel Staff action that presents a major policy quest'vant to a pending application, where Appeal Board members have < , ' rele-rgingviews, and the procedural rules preclude the parties themselves ' rompetitioning for Conmission review because the matter came before theAppeal Board itself on certification. Of fshore Power Systems (FloatingNuclear Power Plants), ALAB-500, 8 NRC '323, 325 (1978).
10. Review of Appeal Board Decisions
10.1 General
10.1(a) Effect of Commission's Pefusal to Entertain Appeal
The Commission's refusal to entertain a discretionaryappeal does not indicate its view on the merits. Nor doesit preclude the Appeal Board from reconsidering the matteras to which Commission review was sought where that matteris still pending before the Appeal Board. Public ServiceCo. of Inaiana (Marble Hill Nuclear Generating Station,Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978).
11. Jurisdiction of NRC to Consider Matters While Judicial Review is Pending
Where a party petitioning the Court of Appeals for review of the decisionof the agency also petitions the agency to reconsider its decision and thefederal court stays its review pending the agency's disposition of the
23
5 VI.1.1(3)(b)
rAlon to raconsider, the Hobbs Act does not preclude the agency's recon-sideration of the case. Public Service Co. of Indiana (Marble Hill NuclearGenerating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 259 (1978).
12 Procedure on Renand
12.1 Jurisdiction of the Licensing Board on Remand
Although an adjudicatory board to which matters have been remandedwould normally have the authority to enter any order appropriate tothe outcome of the remand, the Commission may, of course, reservecertain powers to itself, such as, for example, reinstatement of aconstruction permit suspended pending the remand. Public ServiceCo. of New Hampshire, et al. (Seabrook Station, Units 1 & 2),CLI-78-14, 7 NRC 952, 961 (1978).
12.4 Participation of Parties in Remand Proceedings
Where an issue is remanded to the Licensing Board and a party did notpreviously participate in consideration of that issue, submittina nocontentions, evidence or proposed findings on it and taking no excep-tions to the Licensing Board's disposition of it, the Licensing Boardis fully justified in excluding that party from participation in theremanded hearing on that issue. Status as a party does not carrywith it a license to step in and out of consideration of issues atwill. Public Service Co. of Indiana (Marble Hill Nuclear GeneratingStation, Units 1 & 2), ALAS-493, 8 NRC 253, 268-69 (1978).
VI. GENERAL MATTERS
1. Amendments to Existing Licenses and/or Construction Feq
1.1 General
1.1(3) Matters to be Considered in Licensa Amendment Proceedings
1.1(3)(a) General
1.1(3)(b) Specific Matters
While the balancing of costs and benefits of aproject is usually done in the context of anenviornmental impact statement prepared becausethe project will have significant environmentalimpacts, at least one court has implied that acost-benefit analysis may M necessary for cer-tain federal actions whitn, of themselves, do nothave a significant environmental impact. Specifi-cally, the court opined that an operating licenseamendment derating reactor power significantlycould upset the original cost-benefit balanceand, therefore, require that the cost-benefitbalance for the facility be reevaluated. Unionof Concerned Scientists v. E , 499 F2d 1069,1084-85 (C.C. Cir.1974).
Neither the Staff nor the Licensing Board needcencern itself with the matter of the ultimatedisposal of spent fuel; i.e., with the possi-bility that the pool will become an indefinite orpernanent repository for its contents, in theevaluation of a proposed expansion of the capa-city of a spent fuel pool. Northern Statesfower Company (Prairie Island Nuclear GeneratingPlant Units 1 & 2), ALAB-455, 7 NRC 41, 51(1978
24
i VI.2.2
2. Antitrust Considerations
2.1 General
One of the policies reflected in Section 105c of the Atomic EnergyAct is that a government developed monopoly - like nuclear power elec-tricity generation - should not be used to contravene the policies ofthe antitrust laws. Section 105c is a rechanism to allow smallerutilities, municipals and cooperatives access to the itcensing proc-ess to pursue their interests in the event that larger utility appli-cants might use a government license to create or maintain an anti-competitive market osition. Florida Power A light Company (St.Lucie Plant, Unit 2 , CLI-78-12, 7 NRC 939,1946 (1978).
When the Attorney General recommends an antitrust hearing on alicense for a commercial nuclear facility, the NRC is required toconduct one. This is the clear implication of Section 105(c)(5) ofthe Atomic Energy Act. Where such a hearing is held, the AttorneyGeneral or his designee may participate as a party in connection withthe subject matter of his advice. Houston liqhtinq A Power Co.(South Texas Project, Units 1 & 2), CLI-78-5, 7 NRC 397, 398 (1978).
In dealing with antitrust issues, the NRC's role is something morethan that of a neutral forum for economic disputes between privateparties. If an antitrust hearing is convened, it should encompassall significant antitrust implications of the license, not merely thecomplaints of private intervenors. If n one performs this function,the NRC Staff should assure that a complete picture is pr'sented toLicensing Boards. Florida Power A Light Corrpany (St. Lucie Plant,Unit 2), CLI-78-12, 7 NRC 939, 949 (1978).
Where a license is found to create or maintain a situation inconsis-tent with the antitrust laws, the Commission may impose correctiveconditions 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).
2.2 Consideration of Antitrust Matters Af ter the Construction PermitStage
Congress did not envision for the NRC a broad, ongoing antitrustenforcement role but, rather, established specific procedures (andincentives) intended to tie antitrust review to the twostep licensingprocess. Florida Power & Light Company (St. Lucie Plant, Unit 2),CLI-78-12, 7 NRC 939, 945 (1978).
Section 105 of the Atomic Energy Act and its implementing regulationscomtemplate that mandatory antitrust review be conducted early in theconstruction permit process. Florida Power & Light Company (St.Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 945 (1978).
Antitrust review might be conducted out of time if significant doubtswere cast on the adequacy of the initial antitrust review. FloridaPoser & Light Company (St. Lucie Power Plant, Unit 2), CLI-78-12, 7NRC 939, 945 (1978).
Despite the fact that further antitrust review following issuance ofa construction permit will usually await the operating license stageof review, a construction permit amendment may give rise to an addi-tional antitrust review prior to the OL stage. An application for aconstruction permit amendment that would add new co-owners to a plantis within the scope of the phrase in Section 105c(1) of the AtomicEnergy Act requiring antitrust review of "any license application.""
As such, it triggers an opportunity for intervention based on theantitrust aspects of adding new co-owners. To hold othemise would
25
i VI.4.2
subvert Congressional intent by insulating applicants aming in byway of amendment from antitrust investigation. Moreover, because ajoint venture might raise antitrust problems that would not exist ifthe joint applicants were considered individually, the LicensingBoard has jurisdiction to consider intervention petitions and anti-trust issues filed in connection with a new application for jointownership. Detroit Edison Company (Enrico Fermi Atomic Power Plant,Unit 2), LRP-76-13, 7 NRC 583, 588 (1978),
2.3 Intervention in Antitrust Proceedings
Although section 105 of the Atonic Energy Act en.ourages petitionersto voice their antitrust claims early in the li.ensing process,reasonable late requests for antitrust review ar? not precluded solong as they are made concurrent with licensing. Licensing Boardsmust have discretion to consider individual claims in a way whichdoes justice to all of the policies which underlie Section 105c andthe strength of particular claims justifying late intervention.Florida Power & Liqht Company (St. Lucie Plant, Unit 2), CLI-78-12, 7NRC 939, 946 (1978).
The criteria of 10 CFR 62.714 for late petitions are as appropriatefor evaluation of late antitrust petitions as in health, safety andenvironmental licensing, but the section 2.714 criteria should bemore stringently applied to late antitrust petitions, particularly inassessing the good cause factor. Florida Power & Light Co. (St.Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978).
Late requests for antitrust review hearings may be entertained in theperiod between the filing of an application for a construction per-mit - the time when the advice of the Attorney General is sought -and its issuance. However, as the time for issuance of the construc-tion pemit draws closer, Licensing Boards should scrutinize moreclosely and carefully the petitioner's claims of good cause. FloridaPower & Light 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 fromthe licensee needed and difficult-to-replace power, the Licensing
Board mey,ight Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 MCTH,chape any relief granted to meet this problem. Florida
Power T L948 (1978).
4 Communications Between Staff / Applicant /Other Parties /Adiudicatory Bodies
4.1 Ex Parte Communications Rule
The ex parte rule proscribes litigant 3' discussing, off the record,matters in litigation with members of the adjudicatory board. Itdoes not apply to discussions between and among the parties, betweenthe NRC Staff and the applicant or between the Staf f, applicant,other litigants and third parties (including state officials andfederal agencies) not involved in the proceeding. Public ServiceCo. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),ALAB-493, 8 NRC 253, 269 (1978).
4.2 Telephone Conference Calls
Where a party infoms an adjudicatory board that it is not interestedin a matter to be discussed in a conference call between the boardand the other litigants, that party cannot later complain that it wasnot consulted or included in the conference call. Pullic Service Co.of Indiana (Marble Hill Nuclear Generating Station, Tits 1 & 2),ALAB-493, 8 NRC 253, 269 at n. 63 (1978).
26
i VI 8A.1
8. Generic Issues
8.2 Consideration of Generic Issues in Licensing Proceedings
A determination of fact in an adjudicatory proceeding which is neces-sarily grounded wholly ir. a nonadversary presentation is not entitledto be acarded generic effect, even if the determination relates to aseemingly generic matter rather than to some specific aspect of thefacility in question. Washington Public Power Supply System (WPPSSNuclear Projects No. 3 & 5), ALAB-485, 7 NRC 986, 988 (1978).
8.3 Unresolved Generic Issues, Effect of
8.3(1) On Construction Permit Proceedings
While unresolved generic issues might not preclude issuanceof a construction pemit, those generic issues applicableto the facility in question must be considered and infoma-tion must be presented on whether (1) the problem hasalready been resolved for the reactor under study, (2)there is a reasonable basis for concluding that a satis-factory solution will be obtained before the reactor is putinto operation, or (3) the problem will have no safetyimplications until af ter several years of reactor operationand, if there is no resolution by then, alternate meanswill be available to assure that continued operation, ifpemitted, will not pose an undue risk. Gulf StatesUtilities Co. (River Bend Station, Units 1 & 2), ALAB-444,6 NRC 760, 775 (1977).
8.3(2) On Operating License Proceedings
An unresolved safety issue cannot be disregarded in indi-vidual licensing proceedings merely because the issue alsohas generic applicability; rather, for an applicant tosucceed, there must be some explanation why construction oroperation can proceed although an overall solution has notbeen found. Where issuance of an operating license isinvolved, the justification for allowing operation nay bemore difficult to come by than would be the case where aconstruction permit is involved. Virginia 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 issueddespite the existence of unresolved generic safety issuesshould appear in the Safety Evaluation Report. VirginiaElectric & Power Co. (North Anna Nuclear Power Station,Units 1 & 2), ALAB-491, 8 NRC 245, 249 (1978).
8A. Inspection and Enforcement
8A.1 General
The Comnission has both the duty and the authority to make suchinvestigations and inspections as it deens necessary to protect thepublic 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 indus-try, lawful inspections of licensee's activities are within thewarrantless search 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),
27
i V!.12.1
LBP-78-31, 8 NRC 355, 377 (1978). In addition, a licensee's sub-mission to all applicable NRC regulations constitutes advance consentto lawful inspections and, therefore, no warrant is required for suchinspections. Callaway, LBP-78-31 at 8 NRC 377
Proposed investigation of the discharge by a licensee's contractor ofa worter who reported alleged construction problems to the Commissionwas within the Connission's statutory and regulatory authority toassure public healtn and safety. Union Electric Co. (Callaway Plant,Units 1 & 2), LBP-78-31, 8 NRC 366, 376 (1973). The Commissionshould not defer such an inquiry into the discharge of a worker undera proper exercise of its authority to investigate safety relatedmatters merely because such investigation may touch on matters thatare the subject of a grievance proceeding between the licensee andthe worker. Callaway, LBP-78-31 at 8 NRC 378.
Refusal by a licensee and contractor to permit a lawful Staff inves-tigation deemed necessary to assure public health and safety isse-tous enough to warrant the drastic remedy of permit suspensionpeading submission to investigation, since the refusal interfereswith the Commission's duty to assure public health and safety.Callaway, LBP-78-31, 8 NRC 366, 378 (1978).
11. Motions in NRC Proceedings
11.1 General
Motion practice before the Commission involves only a motion and ananswer; parties who do not seek leave to file a reply are expresslydenied the right to do so. 10 CFR 62.730(c). Detroit Edison Co.(Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470,471 (1978).
11.3 Responses to Motions
11.3(1) General
11.3(2) Time for Filing Responses
Unless specific time limits for responses to motions areexpressly set out in specific regulations or are estab-lished by the presiding adjudicatory board, the time withinwhich responses to motions must be filed is set forth in10 CFR 62.730.
If a document requiring a response within a certain timeaf ter service is served incompletely (eg., only part of thedocument is mailed), 10 CFR 62.712 would indicate that thetime for response does not begin to run since implicit inthat rule is that documents mailed are complete, otherwiseservice is not effective. Consumers Power Company (MidlandPlant, Units 14 2), ALAB-235, 8 AEC 645, 649 at n. 7(1974) (dictum).
11.4 Licensing Board Actions on Motions
If a Licensing Board decides to defer indefinitely a ruling on amotion of some ireportance, " considerations of simple fairness requirethat all parties be told of that fact." Consumers Power Co. (MidlandPlant, Units 1 & 2), ALAB-417, 5 NRC 1442,1444 (1977).
12. NEPA Considerations
12.1 General
The fact that a possible alternative is beyond the Commission's powerto implement does not absolve it of any duty to consider it, but that
28
i VI.12.2(4)
duty is subject to a " rule of reason". Factors to be consideredinclude distance from site to load center, institutional and legalobstacles and the like. Public Service Company of New Hampshire,et al. (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 486TT976).
12.2 Environmental Statements
12.2(1) General
NEPA requires that a federal agency make a " good faith"effort to predict reasonably foreseeable environmentalimpacts and that the agency apply a " rule of reason" af tertaking a "hard look" at potential environmental impacts.But an agency need not have complete information on allissues before proceeding. Public Service Company of Okla-homa, et al. (Black Fox Station, Units 1 & 2), LBP-78-26, 8NRC 102,141 (1978).
While the authority of other federal or local agencies toconsider the environmental effects of a project does notpreempt the NRC's authority with regard to NEPA, the NRC,in conducting its NEPA analysis, gives considerable weightto action taken by another competent and responsible gov-ernmental authority in enforcing an environmental statute.Public Service Co. of Oklahoma et al. (Black Fox Station,Units 1 & 2), LBP-78-28, 8 NRC 281, 282 (1978).
12.2(3) Circumstances Requiring Redraf ting of FES
12.2(3)(a) General
10 CFR $51.52(b)(3), whereby an FES is deemedamended by the initici decision, was upheld inNew England Coalition on Nuclear Pollution v.E, 562 F.2d 87, 94 (1st Cir. 1978).
12.2(4) Alternate Sites
A hard look for a superior alternative is a conditionprecedent to a licensing determination that an applicant'sproposal is acceptable under NEPA. Public Service Companyof New Hampshire, et al. (Seabrook Station, Units 1 & 2),AL AB-471, 7 NRC 4 77, 513 (1978).
NEPA was not intended merely to give the appearance ofweighing alternatives that are in fact foreclosed. Pendingcompletion of suf ficient comparison between an applicant'sproposed site and others, in situations where substantialwork has already taken place, the Commission can preservethe opportunity for a real choice among alternatives onlyby suspending outstanding construction permits. PublicService Cocoany of New Hampshire, et al. (Seabrook Station,Units 1 & 2), CLI-78-14, 7 NRC 952, 958-59 (1978).
Despite the importance of alternate site considerations,v.here all parties have proceeded since the inception of theproceeding on the basis that there was no need to examinealternate sites beyond those referred to in the FES, aparty cannot insist at the " eleventh hour" that still othersites be considered in the absence of a corrpelling showingthat the newly suggested sites possess attributes whichestablish them to have greater potential as alternativesthan the sites already selected as alternatives. PublicService Company of New Hampshire, et al. (Seabrook Station,Units 1 & 2), ALAB-495, 8 NRC 304, 306 (1978).
29
6 VI.12.2(4)(a)
A party seeking consideration at an advanced stage of aproceeding of a site other than the alternate sites alreadyexplored in the proceeding must at least provide informa-tion regarding the salient characteristics of the newlysuggested sites and the reasons why these characteristicsshow that the new sites might prove better than thosealready under investigation. Public Service Company ofNew Hampshire, et al. (Seabrook Station, Units 1 4 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 it of any dutyto consider it, but that duty is subject to a " rule ofreason". Factors to be considered include, distance fromsite to load center, institutional and legal obstacles andthe like. Public Service Comoany of New Hampshire, et al.(Seabrook Station, Units 1 A 2), ALAB-471, 7 NRC 477, 486(1978).
12.2(4)(a) Obviously Superior Standard for Site Selection
The Commission's obviously superior standard foralternate sites has been upheld by the Court ofAppeals for the First Circuit. The Court heldthat, given the necessary imprecision of thecost-benefit analysis and the fact that theproposed site will have been subjected to closerscrutiny than any alternative, NEPA does notrequire that the single best site for environ-mental purposes be chosen. New England Coalitionon Nuclear Pollution v. NRC, 582 F.2d 87, 95 (1stCir. 1978).
-
A Licensing Board determination that none of thepotential alternative sites surpasses a proposedsite in terms of providing new generation forareas most in need of new capacity cannot ofitself serve to justify a generic rejection ofall those alternative sites on institutional,legal, or economic grounds. Public ServiceCompany of New Hampshire, et al. (Seabrook Sta-tion, Units 1 & 2), ALAB-471, 7 NRC 477, 491(1978).
To establish that no suggested alternative sitesare "obviously superior" to the proposed site,there must be either (1) an adequate evidentiaryshowing that the alternative sites should begenerically rejected or (2) sufficient evidencefor informed comparisons between the proposedsite and individual alternatives. Public Serv-ice Corporation of New Hampshire, et al. (Sea-brook Station, Units 1 & 2), ALAB-471, 7 NRC 477,498 (1978).
It is not enough for rejection of all alternativesites to show that a proposed site is a rationalselection from the standpoint solely of systemreliability and stability. For the comparison torest on this limited factor, it would also have
to be shown that the alternative sites sufferso badly on this factor that no need existed tocompare the sites from other standpoints. PublicService Company of New Hampshire, et al. (Sea-brook Station, Units 1 & 2), ALAB-471, 7 NRC 477,497 (1978).
30
iVI.12.2(6)(a)
12.2(4)(b) Standard for Conducting Cost / Benefit AnalysisRelated to Alternate Sites
Population is one - but only one - factor to beconsidered in evaluating alternative sites. Allother things being equal, it is better to place aplant farther from population concentrations.The population factor alone, however, usuallycannot justify dismissing alternative sites whichmeet the Commission's regulations. Public Serv-ice Company of New Hampshire, et al. (SeabrookStation, Units 1 & 2), ALAB-471, 7 NRC 477, 510(1978).
12.2(5) Need for Facility
12.2(5)(a) General
NEPA does not foreclose reliance, in resolutionof "need for power" issues, on the judgment oflocal regulatory bodies that are charged with theresponsibility to analyze future electricaldemand growth, at least where the forecasts arenot facially defective, are explained on adetailed record, and a principal participant inthe local proceeding has been made available forexamination in the NRC proceeding. CarolinaPower & Light Company (Shearon Harris NuclearPower Plant, Units 1-4), ALAB-490, 8 NRC 234, 241(1978).
The standard for judging the "need for power" iswhether a forecast of demand is reasonable andadditional or replacement generating capacity isneeded to meet that demand. Carolina Power &Light Co. (Shearon Harris Nuclear Power Plant,Units 1-4), ALAB-490, 8 NRC 234, 237 (1978).
12.2(6) Cost / Benefit Analysis
12.2(6)(a) General
Unless a proposed nuclear unit has environmentaldisadvantages when compared to alternatives,differences 1. financial cost are of littleconcern. Public Service Company of Oklahoma,et al. (Black Fox Station, Units 1 & 2),LBP-78-26, 8 NRC 102, 161 (1978).
In comparing the costs of completion of a facil-ity at the proposed site to the costs of buildingthe facility at an alternate site, the Commissionmay consider the fact that costs have alreadybeen incurred at the proposed site. New EnolandCoalition on Nuclear Pollution v. E, 582 F.2d87, 95-96 (1st Cir.1978).
While the balancing of costs and benefits of aproject is usually done in the context of anenvironmental impact statement prepared becausethe project will have significant environmentalimpacts, at least one court has implied that acost-benefit analysis may be necessary for cer-tain federal actions which, of themselves, do not
31
$ VI.12.2(7)
have a significant environmental impact. Speci-fically, the court opined that an operatinglicense amendment derating reactor power signifi-cantly could upset the original cost-benefitbalance and, therefore, require that the cost-benefit balance for the faci'ity be reevaluated.Union of Cnneerned Scientists v. AEC, 499 F.2dICC^ , 1084-85, (0.C. Ci r. 19 74). ~
12.2(6)(b) Consideration of Specific Costs
12.2(6)(b)(2) Socioeconomic Costs as Affected byIncreased Employnent and Taxesfron Proposed facility
Increased employment and taxrevenue cannot be included on thebenefit side in striking theultimate NEPA cost benefit balancefor a particular plant. But thepresence of such factors can cer-tainly be taken into account inweighing the potential extent ofthe socioeconomic impact which theplant might have upon local com-nunities. Public Service Companyof New Hampshire, et al. (SeabrookStation, Units 1 & 2), ALAB-471,7 NRC 477, 509 at n. 58 (1978).
12.2(7) Consideration of Class 9 Accidents in an EnvironnentalImpact Statement
The ECCS Final Acceptance Criteria as set forth in 10 CFR950.46 and Appendix K to 10 CFR Part 50 assume that ECCSwill operate during an accident. On the other hand,Class 9 accidents postulate the failure of ECCS. Thus, onits face, consideration of Class 9 accidents would appearto be a challange to the Commission's regulatiors. How-ever, the Conmission has squarely held that the regulationsdo not preclude the use of inconsistent assumptions aboutECCS failure for other purposes. Thus, the prohibith., Jchallenges to the regulations in adjudicatory proceedingsdoes not preclude the consideration of Class 9 accidentsand a failure of ECCS related thereto in environmentalimpact statements and proceedings thereon. OffshorePower Systems (Floating Nuclear Power Plants), ALA3-489, 8NRC 194, 221 (1978).
With regard to the evaluation of Class 9 accidents inenvironmental impact statements, in the proposed annex toformer Appendix D to 10 CFR Part 50, the Commission, con-sistent with NEPA, establishes probability rather thanconsequences as the criterion governing when the mostsevere accident is to be considered. Offshore Power Systems
213-14 (g Nuclear Power Plants), ALAB-439, 8 NRC 194,(Floatin1978).
- The proposed annex to Appendix D to 10 CFR Part 50 wasdeveloped and adopted without focus on floating nuclearpower plants and therefore does not preclude considerationof Class 9 accidents at those plants in the environnentalimpact statement. Offshore Power Systems (Floating NuclearPower Piants), ALAS-489, 8 NRC 194, 219 (1978).
32
iVI.13.1(1)
Because the law does not require consistency in treatmentof two parties in different circumstances, the Staff doesnot violate principles of fairness in considering Class 9accidents in environmental impact statements for floatingbut not land based plants. The Staff reed only provide areasonable explanation why the differences justify a depar-ture from past agency practice. Offshore Power Systems(Floating Nuclear Power Plants), ALAB-48h 8 NRC 194, 222(1978).
12.3 Power of NRC Under NEPA
12.3(1) General
When another agency has yet to resolve a major issue per-taining to a particular nuclear f acility, NRC may allowconstruction to continue at that facility only if NRC'sNEPA analysis encompasses all likely outcomes of the otheragency's review. Public Service Company of New Hampshire,et al. (Seabrook Station, Units 1 & 2), CLI-78-14, 7 NRC952, 957 (1978).
12.3(4) Relationship to EPA with Regard to Cooling Systems
The NRC's acceptance and use, without independent inquiry,of EPA's detennination as to the aquatic irrpacts of theSeabrook Station (see Public Service Company of NewHampshire, et al. T5eabrook Station, units 1 s 2), CL1-78-1,7 NRC 1, 23, 24 (1978)) was upheld in New England Coalitionon Nuclear Pollution v. NRC, 582 F.2d 87, 98 (1st Cir.1978).
-
The Commission may rely on final decisions of the Environ-mental Protection Agency prior to completion of judicialreview of such decisions. Public Service Co. of New Hamp-shire, et al. (Seabrook Station, Units 1 & 2), CLI-78-17, 8NRC 179, 180 (1978).
Although an adverse environmental impact on water qualityresulting from a cooling system discharge is an importantinput in the NEPA cost-benefit balance, a Licensing Boardcannot require alteration of a facility's cooling system ifthat system has been approved by EPA. Carolina Power &Light Co. (H. B. Robinson, Unit 2), LBP-78-22, 7 NRC 1052,1063-64 (1978).
13. NRC Staff
13.1 Role in Licensing Proceedings
13.1(1) General
Af ter an order authorizing the issuance of a constructionpermit has become final agency action, and prior to thecommencement of any adjudicatory proceeding on any operatinglicense application, the exclusive regulatory power withregard to the facility lies with the Staff. Houston liqht-ing & Power Co. (South Texas Project, Units 1 & 2), ALAB-381,5 NRC 582 (1977). Under such circumstances an adjudicatoryboard has no authority with regard to the facility or theStaff's regulation of it. In tte same vein, after a full-term,full power operating license has issued and the orderauthorizing it has become fin 31 agency action, no furtherjurisdiction over the license lies with any adjudicatoryboa rd. Portland General Electric Co. . et al. (Trojan
33
6 VI.13.2
Nuclear Plant) ALAB-451, 6 NRC 889, 891 at n. 3 (1977);Duquesne Liqht Co., et al. (Beaver Valley Power Station,Unit 1), ALAB-408, 5 hRC 1383,1386 (1977); The DetroitEdison Co. (Enrico femi Atomic Power Plant, Unit 2),LBP-78-il, 7 NRC 381, 386, aff'd, ALAB-470, 7 NRC 473(1978).
Licensing Boards lack the power to direct the Staf f in theperformance of its independent responsibilities and, underthe Commission's regulatory scheme, Boards cannot directthe Staff to suspend review of an application, preparationof an environmental impact statenent or work, studies oranalyses being conducted or planned as part of the Staff'sevaluation of an application. New England Power Co. , et al.(NEP, Units 1 & 2), LDP-78-9, 7 NRC 271, 278-79 (1978).
Although the Licensing Boards and the NRC staff have indepen-dent responsibilities, they are " partners" in implementa-tion of the Commission's policy that decisforriaking shouldbe "both sound and timely," and thus they must coordinatetheir operations in order to achieve this goal. OffshorePower Systems (Floating Nuclear Power Plants), ALAB-489, 8NRC 194, 203 (1978).
The general rule that the applicant carries the burden ofproof in licensing proceedings does not apply with regardto alternate site considerations. For alternate sites, theburden of proof is on the Staf f and the applicant's evi-dence in this regard cannot substitute for an inadequateanalysis by the Staff. Roston Edison Co., et al. (PilgrimNuclear Generating Station, Unit 2), ALAB-479, 7 NRC 774,794 (1978).
13.l(2) Staff Demands on Applicant or Licensee
Because the law does not require consistency in treatmentof two parties in different circumstances, the Staff doesnot violate principles of fairness in considering Class 9accidents in environmental impact statements for floatingbut not land based plants. The Staff need only provide areasonable explanation why the differences justify a depar-ture from past agency practice. Of f shore Power Systems(Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 222(1978).
13.2 Staf f Regulatory Guides, Status of
Nonconformance with regulatory guides or Staff positions does notmean that General Design Criteria (G.D.C.) are not met; applicantsare free to select other methods to comply with the G.D.C. TheG.D.C. are intended to provide engineering goals rather than precisetests by which reactor safety can be guaged. Petition for Emergencyand Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
While it is clear that regulatory guides are not regulations, are notentitled to be treated as such, need not be followed by applicants,and do not purport to represent the only satisfactory method ofmeeting a specific regulatory requirement, they do provide guidance.
as to acceptable modes of conforming to specific regulatory require-ments. Gulf States Utilities Co. (River Bend Station, Units 1 & 2),ALAB-444, 6 NRC 760 (1977). Indeed, the Counission itself has indi-cated that confomance with regulatory guides is likely to result incompliance with ye,cific regulatory requirements, though nonconform-alce with such quides does not mean noncompliance with the regulations.Petition for Emerqency & Remedial Action, CLI-78-6, 7 NRC 400, 406-07(1978).
34
5 VI.14.l(2)(a)
13.3 Staf f Pot : tion and Working Papers, Status of
Nonconforrance with regulatory guides or Staff positions does notmean that General Design Criteria are not met; applicants are freeto select other methods to comply with the G.D.C. The G.O.C. areintended to provide engineering goals rather than precise tests bywhich reactor safety can be guaged. Petition For Emergency andRemedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
13A. Orders of Licensing and Appeal Boards
13A.1 General
13A.2 Compliance with Board Orders
Compliance with orders of an NRC adjudicatory board is mandatoryunless such compliance is excused for good cause. Thus, a party maynot disregard a board's direction to file a memorandum without seekingleave of the board after setting forth good cause for requesting suchrelief. Public Service Company of New Hampshire, et al. (SeabrookStation, Units 1 & 2), ALAB-488, 8 NRC 187, 190-91 (1978). Similarly,a party seeking to be excused from participation in a prehearingconference ordered by the board should prese:lt its justification in arequest presented before the date of the conference. Seabrook, 8 NRC187 at 191.
138. Precedent and Adherence to Past Aqency Practice
Application of the " law of the case" doctrine is a matter of discretion.When an administrative tribunal finds that its declared law is wrong andwould work an injustice, it may apply a different rule of law in theinterests of settling the case before it correctly. Public Service Co.of Indiana (Marble Hill Nuclear Generating Station, Units 14 2), ALAB-493,8 NRC 253, 260 (1978).
An Appeal Board does not give stare decisis effect to affirmiation ofLicensing Board conclusions on legal issues not brought to it by way of anappeal. Duke Power Company (Cherokee Nuclear Station, Units 1, 2 & 3),ALAS-482, 7 NRC 979, 981 at n. 4 (1978).
A determination of fact in an adjudicatory proceeding which is necessarilygrounded wholly in a nonadversary presentation is not entitled to beaccorded generic ef fect, even if the determination relates to a seeminglygeneric matter rather than to some specific aspect of the f acility inquestion. Washinqton Public Power Supply System (WPPSS Nuclear ProjectsNos. 3 & 5), ALAB-485, 7 NRC 986, 988 (1978).
Because the law does not require consistency in treatment of two partiesin different circumstances, the Staff does not violate principles offairness in considering Class 9 accidents in environmental impact state-ments for floating but not land-based plants. The Staff need only providea reasonable explanation why the dif ferences justify a departure from pastagency practice. Offshore Power Systems (Floating Nuclear Power Plants),ALAB-489, 8 NRC 194, 222 (1978).
14 Pre-Permit Activities
14.1 General
14.1(2) Limited Work Authorizations
14.1(2)(a) General
Applicants are not 7equired to have every permitin hand before a Limited Work Authorization can
35
i VI.19.1
be granted. Public Service Company of Oklahoma,et al. (Black Fox Station, Units 1 & 2),LBP-78-26, 8 NRC 102, 123, 129 (1978).
15. Regulations
15.1 Compliance
The power to grant exemptions from the regulations has not beendelegated to Licensing Boards and such Boards, therefore, lack theauthority to grant exemptions. Southern California Edison Co.,et al. (San Onofre Nuclear Generating Station, Units 2 & 3),LRP-77-35, 5 NRC 1290, 1291 (1977).
15.2 Regulatory Guides
Nonconformance with regulatory guides or Staf f positions does notmean that the General Design Criteria (G.D.C.) are not met; appli-cants are free to select other methods to comply with the G.D.C. TheG.D.C. are intended to provide engineering goals rather than precisetests by which reactor safety can be guaged. Petition For Emergencyand Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
While it is clear that regulatory guf des are not regulations, are notentitled to be treated as such, need not be followed by applicants,and do not purport to represent the only satisfactory method ofmeeting a specific regulatory requirement, they do provide guidanceas to acceptable modes of conforming to specific regulatory require-ments. Gulf States Utilities Co. (River Bend Station, Units 1 & 2),ALAB-444, 6 NRC 760 (1977). Indeed, the Commission itself has indi-cated that conformance with regulatory guides is likely to result incompliance with specific regulatory requirements, though, as statedpreviously, nonconformance with such guides does not mean noncompli-ante with the regulations. Petition for Emergency and Remedial Action,CLI-78-6, 7 NRC 400, 406-07 (1978).
15.3 Challenges to
The ECC3 Final Acceptance Criteria as set forth in 10 CFR $50.46 andAppendix K to 10 CFR Part 50 assume that ECCS will operate during anaccident. On the other hand, Class 9 accidents postulate the failureof ECCS. Thus, on its face, consideration of Class 9 accidents wouldappear to be a challenge to the Commission's regulations. However,the Commission has squarely held that the regulations do not precludethe use of inconsistent assumptions about ECCS failure for otherpurposes. Thus, the prohibition of challenges to the regulations inadjudicatory proceedings does not preclude the consideration ofClass 9 accidents and a failure of ECCS related thereto in environ-mental imoact statements and proceedings thereon. Offshore Power
(Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 221
19 Show Cause Proceedings
19.1 Gen.ral
Tb. Director of Nuclear Reactor Regulation, upon receipt of a requestt . initiate an enforcement proceeding, is required to make an inquiryappropriate to the facts asserted. Provided he does not abuse hisdiscretion, he is free to rely on a variety of sources of information,including Staff analyses of generic issues, documents issued by otheragencies and the comments of the licensee on the factual allegations.Nor thern Indiana public Service Company (Bailly Generating Station,Nuclear-1), CLI-78-7, 7 NRC 429, 432, 433 (1978).
36
9 VI.20A.
In reaching a determination on a show-cause petition, the Directornee' accord presumptive validity to every assertion of fact,irre.m tive of the degree of substantiation. Nor is the Directorerequired to convene an adjudicatory proceeding to detemine whetheran adjudicatory proceeding is warranted. Northern Indiana PublicService Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC429, 432 (1978).
The A.P. A. , 5 U.S.C. 551 et seq. , particularly Section 554, and theCommission's regulations, particularly 10 CFR 62.719, deal specifi-cally with on-the-record adjudication and thus the Staff's participa-tion in a construction r ermit proceeding does not render it incaoableof impartial regulatory action in a subsequent show cause or suspen-sion proceeding where ao adjudication has been begun. Moreover, intems of policy, any view which questions the Staff's capabilities insuch a situation h contradicted by the structure of nuclear regula-tion established by the Atomic Energy Act and 20 years experienceimplementing that statute. Northern Indiana Public Service CompanyRailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 431, 4321978).
19.2 Petition for Show Cause Order
19.2A Standards for Issuing a Show Cause Order
The standard to be applied in detemining whether to issue a show-cause order is whether substantial health or safety issues have beenraised. A cere dispute over factual issues will not suffice.Northern Indiana Public Service Company (Bailly Generating Station,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 substantialissues have been raised warranting institution of a proceeding andthose which serve merely to demonstrate that in hindsight, even themost thorough and reasonable of forecasts will prove to fall short ofabsolute prescience. Northern Indiana Public Service Co. (BaillyGenerating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978).
19.3 Review of Decision on Request for Show Cause Order
The Appeal Board nomally lacks jurisdiction to entertain motionsseeking review only of actions of the Director of Nuclear ReactorRegulation; the Commission itself is the forum for such review. 'ee10 CFR 92.206(c). Detroit Edison Company (Enrico Femi Atomic PowerPlant, Unit 2), ALAB-466, 7 NRC 457 (1978).
Review of a show cause order is limited to whether the Director ofNuclear Reactor Regulation abused his discretion. Northern IndianaPublic Service Company (Bailly Generating Stacion, Nuclear-1),*
CLI-78-7, 7 NRC 429, 433 (1978).
19.6 Consolidation of Petitioners in a Show Cause Proceeding
The Director may, in his discretion, consolidate the essentiallyindistinguishable requests of petitioners if those petitioners areunable 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, 33 (1978).
20. Summary Disposition Procedures
20A Suspension, Revocation or Modification of LicFnse
A license or construction pemit may be modified,suspended or revoked for:
37
$ VI.20A,
(1) any material false statement in an application or other statenent offact required of the applicant;
(2) conditions revealed by the application, statement of fact, inspectionor other means which would warrant the Commission to refuse to granta license in the first instance;
(3) failure to construct or operate a facility in accordance with theterms of the construction permit or operating license; or
(4) violation of, or failure to observe, any terms and provisions of theAtomic Energy Ac t, the regulations, a permit, a license, or an orderof the Commission. 10 CFR 550.100.
The procedures for modifying, suspending or revoking a license are setforth in Subpart B to 10 CFR.
Where infonnation is presented which demonstrates an undue risk to publichealth and safety, the NRC will take prompt remedial action includingshutdown of operating facilities. Such actions ay be taken with imme-diate effect notwithstanding the Administrative /rocedure Act requirementiof notice and opportunity to achieve compliance. Petition For Emergergyvand Remedial Action CLI-78-6, 7 NRC 400, 404, 405 (1978).
A violation of a regulation does not of itself result in a requirementthat a license be suspended. Both the Atomic Energy Act and NRC regu-lations supoort the conclusion that the choice of remedy for regulatoryviolations is within the sound judgment of the Commission and not fore-o rda ined. See 42 U.S.C. 2236, 2280, 2282; 10 CFR $50.100 PetitionFor Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 405 (1978).
O
.. .
9
38
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United States t'uclear Regulatory Commission3 HE CIPit N T'S ACCE SSION NOStaff Dractice & Procedure Digest
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19P.n9 PE HF OHMING OHGANI/ATION N AME AND M AILING ADDHESS (tm./ude /<p Codel DATE 'EPOHT ISSUL0
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12. SPONSOHING OHG ANIZ ATION N AME AND M AI LING ADDRE SS (/nclude lip Codel
U. S. Nuclear Regulatory Commission '
ii.CONrHACTWashington, D. C. 20555
13. TYPE OF REPOHT Supplement l to Digest No. 2 of PE RIOD COV E HE D (/nclusive dares)
NRC decisions and rulings interpreting NPC'sRules of Practice,10 CFR Part 2. April 1,1978 thru Sept.
15. SUPPLEMENTARY NOTES Future editions of the Digest and ~30, 1978
14 (tene uw/
supplements thereto will be issued aperiodically.16 ABSTR ACT (200 words o,- less/ This first stpplement to the second edition of the NRC StaffDractice and Drocedure nigest contains a digest of a number of Commission, Atomic Safetyand Licensing Appeal Board and Atomic Safety and Licensing Board decisions issued duringthe period from April 1,1978 to September 30, 1978 interpreting the NRC's Rules oft ractice in 10 CFR Dart 2. The supplement also includes additional material from adjud' -
catory decisions rendered prior to April 1,1978 and, to a very limited degree, materia'from adjudicatory decisions and regulation changes after September 30, 1978. The supple-ment, which is intended to be used as a " pocket-part" supplement to the Digest itsel f,includes a number of new subsections and topics not covered in the Digest. The newsubsections are noted in the index for the supplement.
The Practice and Procedure Digest and this the re towere prepared by attorneys in the NRC's Office of the Executive Legal Director as aninternal research tool . Because of the Digest's usefulness to these attorneys, it wasdecided that it might also prove useful to members of the public. Accordingly, thedecision was made to publish the Digest and subsequent editions thereof and supplementsthereto , aperiodically.
17. KE Y WORDS AND DOCL' MENT AN ALYSIS 17a DE SC R IP T O HS
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18 AV AILABILITY STATEMENT 19 SE CUHl'TY CLASS (This reporrt 21 NO OF P AGE Slin cl as si fie d 4s
20 SECUH1 TY CLASS (Th s pafpl 22 PRICLUncl assi fie d s
N RC F ORM 335 (7 ? ?)
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