ML19210E869

Memorandum in Support of Motion to File Second Amended Petition to Intervene.Petitioner Standing Was Confirmed by ASLB Following 790919 Prehearing Conference

ML19210E869
Person / Time
Site:	05000599, 05000600
Issue date:	11/26/1979
From:	Kodner J CITIZENS AGAINST NUCLEAR POWER, KODNER, J.L.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19210E868	List: ML19210E867 ML19210E869 ML19210E870
References
NUDOCS 7912130120
Download: ML19210E869 (5)

Text

i UNITED STATES OF AMERICA ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF THE APPLICATION OF )

COMMONWEALTH EDISON COMPANY, INTERSTATE )

POWER COMPANY AND IONA-ILLINOIS GAS AND ) Docket Nos. S50 -599 ELECTRIC COMPANY FOR CONSTRUCTION PERMIT ) S50-600 AND EARLY SITE REVIEW, HEARING, AND )

PARTIAL INITIAL DECISION ON SITE SUITA- )

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MEMORANDUM IN SUPPORT OF 5

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MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION C , A\

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Background

On September 4, 1979, Citizens Againct Nuclear Power, Inc., James Runyon and Edward Gogol (hereinafter " Petitioners")

filed an " Amended Petition for Leave to Intervene and Request for Hearing" in the above captioned proceedings, including therein fifteen contentions. The first of these, actually a five part con-tention (lA-lE), related to the applicants' peak load forecast, and proposed finding #8 as to the need for the facility and the demand for power. Contentions 2-15 deal with the following: 2)

Economic alternatives, especially coal and shortages of uranium;

3) Financial qualifications of applicants; 4) Invalidity of cost-benefit analysis based upon forth year life of facility; 5)

Financial hardships on ratepayers; 6) Capital involved in construc-ting facility and effect on employment; 7-9) Spent fuel and waste storage and transportation; 10) Decommissioning; 11) Invalidity of cost-benefit analysis based upon unknown decommissioning costs; 12). Problems of safely mining uranium; 13) . Health conse,quences of nuclear accidents; .14);_. Validity of Price-Anderson Act; -15) Lack .

of suitable evacuation- pran. ..

On September 19, 1979; the Atomic Safety and Licensing _

Board held a pre-hearing conference to: "l) permit identification -

of the key issues in the proceeding; 2) take any steps necessary ---

for further identification of the issues; 3) consider a.11 inter-vention petitions to allow the presiding officer to make such pre-liminary or final determinations as to the parties to t'he proceed-ing as may be appropriate; and 4) establish a schedule for further 1543 319 7912130 I

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actions in the proceeding." Order of Atomic Safety and Licensing Board, dated 7/30/79. At that time, Applicants were permitted to withdraw findings #8 and 131. By virtue of the withdrawals, this Board ruled that contentions 1 and 10 had been thereby rendered irrelevant and improper for consideration at the site suitability stage. Contentions 2-9 and 11-15 were ruled inadmissible as being more appropriately considered at the construction permit stage.

Contention 8 was ruled inadmissible and outside the jurisdiction of this Board. This board declined to issue a final ruling as to contention 15, pending the completion of the Three Mile Island study presently being conducted.

At the hearing, this Board heard argument and testimony as to whether Petitioners have standing to intervene in these proceedings. Petitioner Gogol and this counsel for CAUP, Runyon and Gogol expressed the legal basis for petitioners' standing, the basis for possible discretionery intervention, and the keen interest petitioners have in these proceedings. This Board ruled that CANP possesses the requisite standing and took under advise-ment the question of standing of Petitioners Gogol and Runyon.

This counsel for petitioners also expressed his inexperience in the legal representation of intervenors in proceedings before this Board and the Nuclear Regulatory Commission, noting surprise over the permitted withdrawal of applicants' proposed findings 8 and 131 and further noting that a great deal of peitioners' direction, energy and time had been directed toward those precise issues.

This counsel for petitioners therewith requested leave to file a second amended petition, setting forth contentions more appro-priate for early site review. The following are reasons respect-fully submitted to justify such leave.

Leave to Amend Should be Freely Given The Atomic Safety and Licensing Appeals Board has previ-ously allowed intervenors with standing to amend the intervention petition to assert an issue so that said intervenor could present affirmative evidence oi. said issue. "To avoid possible misunder-standing, it should be stressed that we do not hold here that an intevenor may adduce affirmative evidence . . . with regard to an jssue placed"in contest by- an'ot,her party. -on such an ; issue 7 in --

' order to'do' more than engage -in cross exsmination of the witnesses -

called by other parties,' the intervenor must seek and.obtain leave of the Licensing Board t o;,ame_n.d_ hi_s_intgrv_ent_ ion _ petition. .to. assert the~ issue on'his own behalf. _ Leave to amend should.be freely

.given if the Board is satisfied that (-1) the intervenor has

__, shown good cause for his failure to have , raised the issue at an earlier point; and (2) allowance of the ~ amendment may assist the _ -

boardin the proper resolution of the issue without occasioning unwarranted delay." Northern States Power Company (Prarie Island -

nuclear Generating Plant, Units 1 and 2) ALAB-244, 8 AEC 857, 869 at n. 17 (1974).

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Petitioners' " failure to have raised the issue at an earlier point" has been discussed earlier (inexperience of counsel and petitioners; concentration of direction and resources towards proposed findings later withdrawn, thereby mooting those conten-tions). Under the circumstances herein, it is submitted that these matters constitute good cause, under part one of the Northern States Power Company test. The inexperience of petitioners and counsel are factors which should be considered in determining the instant issue. See Kansas Gas & Electric Company and Kansas City Power and Light Company (Wolf Creek Generating Station, Unit 1)

ALAB-279, 1 NRC 559, 576-577 ("We can appreciate the difficulties a party may have where it must express in a petition to intervene technical matters beyond the ordinary grist for the legal mill.

And we empathize with petitioners who must of necessity proceed pro se, or with counsel new to the field (if not also to the bar).

In those circumstances, the Commission has for good and suffici-ent reason allowed us and the licensing boards leeway in judging the sufficiency of intervention petitions.") The same good and sufficient reason should apply here in allowing petitioners leave to file a second amended petition.

Part two of the Northern States Power Company test

(" Allowance of the amendment may assist the board in the proper resolution of the issue without occasioning unwarranted delay.")

is also satisfied here. Petitioners' interests in these proceed-ings are highly contradistinctive to those of Applicants. Peti-tioners will expend their resources on issues where applicants' findings and conclusions are considered to be questionable (i.e.

withdrawn proposed finding 8) or contrary to their interests. As such, Petitioners may assist the Board in properly resolving said issues by the presentation of fresh viewpoints and the scrutini-zation of Applicants' representations and conclusions. Certainly no unwarranted delay would be occasioned by allowing the amendment.

This motion is being made at the earliest possible time herein, within CC days after the initial prehearing $rhi.. Discovery has not yet even commenced. Fur ther, the NRC Staff does not fore-see completion of the Draft Environmental Impact Statement or the Site Suitability Environmental Report until June of 1980, at the earliest. By allowing _the amendment, no delay or prejudice to any party would be occasioned, as the parties are still basically

-in the same positions'they were'in.bn'Septeinber"19,11979,the -. " "

date-of the prehearing conference. . J ~

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. Additional Time Jfor Ffling' Con'tentioiih iFPerdissibl' " e ~.~ ~ C ~~

10 CFR S2'.7I4 (b) ' provides in part: "A petiEioner who fails to file such d'supplemsnt~which satisfies the requir6ments '

ofuthis - paragraph with respect ~ to at -least'one contention will" -

-not be permitted to participate.as a party. -Additional time for filing the supplement may be granted based upon a balancing of the factors in paragraph (a) (1) of this section."

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4 The paragraph (a) (1) factors are: " (i) Good cause, if any, for failure to file on time. iii) The availability of other means whereby the petitioners' interest will be protected. (iii)

The extent to which the petitioners' participation may reasonably be expected to assist in developing a sound record. (iv) The extent to which the petitioners' interest will be represented by existing parties. (v) The extent to which the petitioners' par-ticipation will broaden the issues or delay the proceeding."

Parts (i) and (v) have been dealt with supra, in con-nection with the Northern States Power Company test. Part (iii) has been partially discussed, insofar as regards the possibility that petitioners may assist the Board in properly resolving the issues before it. Further, as set forth in the Amended Petition, Petitioners may reasonably be expected to assist in developing a sound record via their knowledge of the subject of nuclear power and the resources available to them to study it, and relevant issues herein further. Part (ii) is satisfied because there exists no other means to protect petitioners' interests. The instant proceedings constitute the only avenue wherein petitioners may have some voice and/or effect upon the siting of the proposed facility. Part (iv) is satisfied as no other private Illinois groups or individuals have intervened. The Jo Davies group has admitted its intervention is for the purpose of learning more about nuclear power and the proposed site. These interests clearly are not' those of Runyon, Gogol or CANP, whose chief interests are protection of person, property and members, and education of peti-tioners and the general public. The Iowa intervenors represent concerns peculiar to Iowa. The State of Illinois cannot represent the private interests of these petitioners nor conduct the educa-tional activities carried out by the same.

Finally, the decision of the Appeal Board in Detroit Edison Company (Greenwood Energy Center, Units 2 and 3) ALAB 476, NRC , CCH Nuclear Regulation Reporter S30,298.01 (1978) should be noted. In that case, the Appeal Board allowed an intervention petition filed 2 1/2 years late over the objection that the petition should have been denied as too late. In considering the 10 CFR 2.714(a) balancing test, the Appeal Board noted "the significance attached- to ' the delay-- factor 'in striking a balance on ~all fo urn"' ' '

The Appeal Board further,noted_that the. proceeding had..been.in - - -

limbo- from its fincepti~on"and"fuIed"in' "fa~vdr 'of ~ the 'iriterVerio~r. ~

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" [The ] proceeding sti1E being at~ an incipient stage by reason of

- the applicant's own choice, we are hesitant to take CEE's lateness as enough cause to bar its.participationy. Indeedf .-it ;would -be - - .

patently inequitable to do so unless it were clearly to appear that the three other gactors. weigh heavily in favor.of -rej ecting the . petition .

As.there.could be only a de minimus delay by _ _. 7 allowing petitioners he,reif t.of_amind'..their._ contentions _and as .the_ . . . _

' proceedings are stilI'Et^ their ~incep' tion ~,~ ~the ' 10' CFR 2. 714 (a) ~ test

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should balance in favof~of the' petitioners ' ~

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. 5 Purpose of Prehearing Conference By the order dated 7/30/79, this Board ordered the 9/19/79 prehearing conference for several stated purposes, includ-ing: (to) " permit identification of key issues in the proceeding,"

and "to consider all intervention petitions . . . .. Among the purposes of the prehearing conference, is consideration of simpli-fication, clarification and specification on the issues and the necessity or desirability of amending the pleadings. 10 CFR 52.752. At the 9/19/79 prehearing conference, petitioners and coun-sel indeed discovered the key issues and received clarification as to the demand for power and decommissioning issued (e.e. that they were withdrawn and would not be key issues). In light of the rulings on petitioners' contentions, it would appear that amending the pleadings would be both necessary and desireable. To allow such would be within the spirit and purpose of the prehearing conference Conclusion Under the circumstances of this case, as 1) leave to amend should be freely given, 2) additional time for filing contentions is permissible and 3) it would be within the spirit and purpose of the prehearing. conference, petitioners respectfully submit that peti-tioners' motion for leave to file secondamended petition should be granted.

sh Jan L. Kodner, Attorney for etitioners Citizens Against Nuclear Power, Inc., James Runyon and Edward Gogol 230 W. Monroe #2026 Chicago, IL 60606 -- -

(312/782-9466)

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