ML19220B761
| ML19220B761 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/22/1977 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7904270304 | |
| Download: ML19220B761 (18) | |
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UNITED STATES OF AMERICA c-t i 152 NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL BOARD 2-!
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l-Alan S.
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Dr. W. Reed Johnson Jerome E.
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In the Matter of
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METROPOLITAN EDISON COMPANY,
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JERSEY CENTRAL POWER & LIGHT COMPANY, )
Docket No. 50-320 and
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PENNSYLVANIA ELECTRIC COMPANY
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(Three Mile Island Nuclear Station,
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Unit 2)
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Mr. George F. Trowbridge, Washington, D.
C.,
for the applicants, Metrcpolitan Edison Ccmpany, et al.
t Mr. Chauncey Keoford, York, Pennsylvania, for the Environmental Coalition on Nuclear Power.
Mr. Gregory Fess, for the Nuclear Regulatory Commission staff.
DECISION March 22, 1977 (ALAB-384)
This is a ccabined licensing proceeding to consider whether an operating license should issue for Unit 2 of the Three Mile Island facility and, additionally, whether the construction permit previously issued for that unit 79042703cy
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. should be continued, mcdified, terminated er conditioned to protect environmental valuec.1/
The deadline established for the filing of petitions under 10 CFR 2.714 (a) for leave to intervene in the proceeding was June 27, 1974.
39 Fed.
Reg. 18497.
A joint intervention petition was tinely filed by two organizations and thereafter granted by the Licensing Board, which also admitted the Commonwealth of Pennsylvania to the proceeding under the " interested State" provisions of 10 CFR 2.715(c).
What is now before us is a petition for leave to inter-vene filed in August 1976 (more than two years late) by another organization -- the Environmental Coalition on 2
Nuclear Power (Coalition).
By memorandum and order of February 14, 1977, the Licensing Bcard granted the petition on the strength of a determination that " good cause" had been established for the belated assertion of one of the contentions contained therein.
LBP-77-10, 5 NRC __.
That contention, identified as No.
5, reads as follows:
1/ The environmental review in connection with the con-Struction permit was instituted pursuant to Section C
~~
of Appendix D to 10 CFR Part 50 (1974).
That Section applied to Unit 2 of this facility because the construc-tion permit had been issued prior to January 1, 1970.
Appendix D has now been replaccd by 10 CFR Part 51, promulgated in 1974.
The provisions of Appendix D remain, however, applicable to this proceeding.
See 10 CFR 51.56.82-077
3_
The Petitioners contend that the rate structure of the Applicant is a promotional rate structure designed to increase the consumption of electricity by offering declining rates for increased con-sumption.
Such a rate structure minimizes the possibility and practicality of worthwhile energy conservation efforts, petitioners contend that a flat rate structure -- cne price for all levels of consumption and for all customers -- or a declining block rate structure would make conservation a viable and practical alternative to Three Mile Island, Unit II.
The remaining six contentions set forth in the petition (identified as Nos. 2-4 and 6-8) dealt with various other matters and were rejected by the Board.
Invoking its right of appeal conferred by 10 CFE 2.714a, the applicants ask that we overturn the Licensing Board's determination and direct the dismissal of the f
Coalition's petition on the ground that there was not " good cause" for the late assertion of Contention No. 5.
The NRC staff supports the appeal.
For its part, the Coalition has attempted to take its own appeal under Section 2.714a from the rej ection by the' Licensing Board of its other con-tentions.
We have often pointed out that 10 CFR 2.730(f) contains a general prohibition against interlocutory appeals from licensing board rulings made during the course of a pro-ceeding.
The single exception to this prohibi-tion is found in 10 CFR 2.714a.
Insofar as a that petitioner for intervention is concernec, Section allows an acpeal frcm an orcer concern-inc his retition if -- but only if -- the orcer denied the petition outricht.
82 078
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Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-28 6, 2 NRC 213, 214 (1975) (footnote omitted; emphasis supplied) ;
see also Boston Edison Co.
(Pilgrim Nuclear Generating Station, Unit 2), ALAB-269, 1 NRC 411, 413 (1975) and cases there cited.
It is thus clear that, as matters now stand, the Coalition's appeal is foreclosed.
Nonetheless, chould we conclude that the Licensing Board erroneously found good cause for the tardy assertion of Contention No.
5, we will be obliged then to decide whether the Board's result -- the grant of the peti-tion -- was proper because one of the other contentions provided a sufficient basis for allowing late intervention.-2/
This being so, it is appropriate to treat the papers sub-t mitted to us by the Coalition as a response to the appli-cants' appeal-3/ and as, in effect, putting forth an alter-native ground for affirmance of the Board's action in admitting the Coalition to the proceeding.
A.
10 CFR 2.714 (a) e$presslyprovidesthatnon-timely intervention petitions "will not be entertained" absent a determination by the Licensing Board "that the petitioner has made a substantial showing of good cause for failure 1'/ 10 CFR 2.714a(c) provides that an order grantin an e
intervention petition is appealable "on the cuestion whether the petition * *
- should have been wholly denied."
_3/ The Coalition has submitted no direct response to that appeal.
82 079
m.
. to file on tine".
As construed by the Commission in its 4
West Valley decision two years ago,- / the " good cause" determination is to be made on the basis of consideration of both the substantiality of the justification of fered for the late filing and the four factors specifically enumerated in Section 2.714(a). 5/
See also Project Management Corp. (Clinch River Breeder Reactor Plant),
ALAB-354, NRCI-76/10 383, 388-89 (October 29, 1976).
In this connection, the Ccamission stressed that " [1] ate peti-tioners properly have a substantial burden in justifying their tardiness.
And the burden of justifying intervention on the basis of the other factors in the rule is consider-t ably greater where the latecomer has no good excuse."
West Valley, 1 NRC at 275.
The order of the Licensing Board under appeal makes no reference to the four factors of Section 2.714 (a), much
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less reflects that they were taken into account in the making
~-4/ Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975).
5
_ / Those factors are:
(1) The availability of orher means whereby the peti-tioner's interest will be protected.
(2) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(3) The extent to which petitioner's interest will be represented by existing parties.
(4) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
m - o c:a e
uvU s
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. of the good cause determination.
Rather, the Board focused entirely upon the sufficiency of the reason offered by the Coalition for its belated filing.
In light of West Valley, this was error.
Granted, the corollary of the proposition that the absence of a good excuse for lateness requires an especially strong showing by the petitioner on the four factors is that where the lateness has been satisfactorily explained a much smaller demonstration on these factors is necessary.
But that does not mean that the factors may ever be entirely ignored.
For example, it might appear in the particular case that the grant of an extremely tardy petition would perforce occasion substantial delay in the progress of the proceeding; that the petitioner's partici-pation likely would add nothing to the development of a sound record; and that the interest asserted in the petiticzn could be protected by other available means or would be adequately represented by existing parties.
In the totality of such circumstances, a licensing board might well be warranted in denying the petition even though the petitioner has established that his failure to have filed it on time was not due to a lack of diligence.-6/
~~6/ We do not mean to suggest that, where it has found that a good excuse has been tendered for the late filing, the Licensing Board must invariably discuss the Section (FOOTNOTE CONTINUED ON NEXT PAGE)82-081
. u.a.
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. Be that as it may, we cannot agree with the Licensing Board's conclusion that the Coalition was justified in waiting for two years before coming forth with its conten-tion related to energy conservation and the utility's rate structure.
As the Board pointed out, the Coalition relies for its late assertion of that contention on the decision of the Court of Appeals for the District of Colambia Circuit in Aeschliman v. NRC, F.2d 9 ERC 1289, which was rendered on July 21, 1976 (i.e.,
shortly before the intervention petition was filed).-7/
Although the 6/ (FOOTMOTE CONTINUED FROM PREVIOUS PAGE)
- 2. 714 (a) factors in painstaking detail.
It will frequently -- ladeed usually -- be sufficient to note in the order (if such be the case) that the factors do not weigh so heavily against the petitioner that, notwithstanding the existence of a satisfactory reason for the tardiness, intervention should be denied.
Once again, what confronts us here is the seeming failure of the Iicensing Board to have given any scrutiny to the factors.
It is this failure which we have determined to have been in derogation of Section
- 2. 714 (a) as previously interpreted.
_7/ Certiorari was granted by the Supreme Court on February 22, 1977, 35 U.S.L.W. 3570.
On the same date, certorari was additionally granted in a companion case to which the Coalition's petition also made reference.
That case is irrelevant to the consideration of the Licensing Board's decision on Contention No. 5; it will be touched upon later in this opinion in connection with the dis-position below of the other Coalition contentions.
Sp o c..
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8-Boards reassaing on the point is not altogether clear to us, it appears that it thought that Aeschliman provided a basis for Contention No. 5 which had theretofore been wanting.
We think otherwise.
To the extent that it has a bearing upon that contea-tion, Aeschliman involved a review of the Commission's decision in January 1974 in Consumers Power Co. (Midland ~
Plant, Units 1 and 2), CLI-74-5, 7 AEC 19.
In Midland, the Commission had embarked upon an elaboration of its then recent decision in Niagara Mohawk Power Corp. (Nine Mile Point, Unit No. 2), CLI-73-28, 6 AEC 995 (1973),which had overturned a ruling of a licensing board precluding an intervenor from adducing evidence concerning the energy conservation alternative. to the construction of a nuclear plant.
Among other things, the Commission had held in Midland that a licensing board need not exp. ore energy conservation alternatives unless (1) " clear and reasonably specific energy conservation contentions" have been placed before it "in a timely fashion"; and (2) the sponsor of the contentions makes "scme affirmative showing" with rela-tion thereto.
7 AEC at 32.
In the latter regard, the Ccamission had stated at an earlier point in its opinion:
82 Ce3
.m-i 1 Purported energy conservation issues must meet a threshold test -- they must relate to some action, methods or developments that would, in their aggregate effect, curtail demand for elec-tricity to a level at which the proposed facility Beyond that, the would not be needed.
issue must pertain to an alternative that is
" reasonably available."
Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (C.A.D.C.
1972).
Furthermore, the impact of proposed energy conservation alternatives on demand must be susceptible to a reasonable degree of proof.
Largely speculative and remote possi-bilities need not be weighed against a convincing projection of demand.
Here, as with many other issues under the National Environmental Policy Act of 1969, a rule of reason applies.
See Natural Resources Defanse Council v. Morton, supra.
_I d_. at 24 (footnote emitted).
It was this " threshold test" which Aeschliman rejected.
In the District of Columbia Circuit's view, NEPA forbids the imposition of a requirement that an intervenor " prove that an alternative satisfies the ' rule of reason' before the Commission will investigate it."
Rather, the court concluded,
- an intervenor's comments on a draft (environmental :Lu uement] raising a colorable alternative not presently considered therein must only bring " sufficient attention to the issue to stimulate the Commission's considera-tion of it."
Thereafter, it is incumben on the Commission to undertake its own preliminary investigation of tha profferec alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the (Final Environmental Statement].
F.2d at
- 9 ERC at 1293-94 (?ootnote cmitted).
N 984
l Aeschlbman As is readily apparent frcm the foregoing, h
assertion did not open the door for the first time to t e to energy conserva-e and litigation of contentions relating I
since the Commission's N_ine Mile Point-At least d its tion.
decision in 1973, the Coalition could have presse The effect of Aeschliman is simply to 5
Contention No.
by intervenors reduce the burden which must be assumed d in a par-desiring to have energy conservation considere No longer need the Sjidland_
ticular licensing proceeding.
it now suffices that the inter-
" threshold test" be met; the issue to venor has brought " sufficient attention to f it".
As we stimulate the Cc= mission's consideration o 8/ however, there is recently held in the Seabrook case, -
in Aeschliman an obligation to do so with due diligence; f
ts by itself, the court of appeals found that the commen l statement for the intervenor on the draft environmenta ary "stimula-the facility adecuately provided the necess 9/
tion (Seabrook Station, 8/ Public Service Co. of New Hamoshire ALhB-366, 5 NRC (January 21, See also, Illinois Units 1 and 2),
1977), commission review condinc.(Clinton Power Station
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- 2),
50-51 (July 29, 1976).
Power Co.
KLAB-340, NRCI-76/7 27, have attached no significance i.e.,
we have
_9/ For present purposes, we to the grant of certiorari in Aeschliman;the Ccamission follow Court review on assumed that it notwithstanding the pending Supremethe merit f appeals.
8*4 GEG
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. The Coalition has favored us with no good reason why it could not have raised Contention No.
5, with its assertions respecting promotional rate structures, long before last August.
And none appears.
The record reflects that a Final Environmental Statement for both units of the Three 1972.10/
That Mile Island facility issued in December document did not address the energy conservation alter-native at all.11/
Surely, if the Coalition thought that energy conservation should have been considered as an alternative to Unit 2, it both could and should have raised the matter when given the opportunity to file an inter-vention petition in 1974.
We therefore conclude that Aeschliman cannot be invoked as a justification for the late filing of the
-_0/ The FES was issued in compliance with the requirements 1
of Appendix D to 10 CFR Dart 50 (see fn.
1, suora).
The. conclusion reached therein was that the construc-tion permits should be continued and that cperating licenses should issue.
Because the operating license application for Unit No. 2 was noc filed until Acril 1974, the staff determined it was necessary to prepare a supplement to the FES.
A draft of the supplement was published in July 1976 and circulated for comment.
The final version issued in December 1976.
--ll/ The draf t of the Unit No. 2 FCS succlement (see fn.10, sucra) likewise did not considdr~that alternative.
We note in passing that the Coalition's representative (it does not here appear by counsel) commented upon the draf t supplenent but,in doing so, did not mention the omission of a discussion therein of energy conservation.
See Final Supplement to the FES, pp. A-5 to A-7.
82-OEG
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Coalition's petition.
No other excuse having been tendered, the petition should have been denied as untirely unless it appeared that,in combination, the four Section 2.714(a) factors weigh heavily in the Coalition's favor.
Once again, the Board below did not address the factors.
But, although it might have been helpful to have had the benefit of its views, a remand on the point is not recuired.
Our independent analysis satisfies us that an application of the factors here could not overcome (under the West Vallev standard) the extreme and unwarranted tardiness of the petition.
The most that can be said for the Coal.ition is that, o
f unless it is allowed to participate, its rate structure con-cerns will not be considered at all in this proceeding.12/
Because construction of Unit 2 is now almost 90% ccepleted, however, it seems hardly likely that the possibility of achieving energy conservation through alterations in the applicants' rate structures (were it to be demonstrated) could now serve as a justification for abandoning that unit at this juncture.
And, to the extent that the Coalition 12/ None of the already admitted intervenors has raised an issue relating to energy conservation and utility rate
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structures.
82~CS7
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may have a more generalized interest in obtaining rate structure reforms in the furtherance of energy conserva-tion, we would think the Pennsylvania Public Service Commission to be an available forum for the assertion and vindication of that interest.
But even if the first and 13 third factors
/ might nonetheless be thought to provide material aid to the Coalition, the second and fourth manifestly do not.
There is nothing before us to suggest that the Coalition possesses or has at its disposal any expertise which might be of real assistance in developing a sound record on Contention No.
5.
Further, the intro-duction of that contentien would manifestly broaden the issues (no other intervenor having tendered a like con-tention) and might well occasion delay.
The hearing is currently due to commence in a matter of weeks.
Yet there is at least the possibility that the discovery process would have to be reopened to allow intervenors to obtain, prior to trial, information bearing upon the effect of the applicants' rate structures upon energy conservation.
- True, as the Ccamission pointed out in West Valley, supra, 1 NRC at 276, "[a] tardy petitioner with no good excuse may be 13/ See fn. 5 supra.
82 CSS
a L-
. required to take the proceeding as it finds it".
Never-theless, given the complexity of the rate structure issue and the fact that there has been no prior discovery on it by anyone in this proceeding, the Licensing Board might be compelled to conclude that that stricture could not be rigidly applied here.
B.
What thus remains for decision is wheth'er any one of the other six contentions set forth in the Coalition's untimely petition provided a basis for the requisite good cause determination.
We conclude not.
The Coalition appears to explain the tardy assertion I
of these contentions on the basis of the invalidation in and another case decided the same day,14/
Aeschliman, supra, of the reprocessing and waste disposal portions of the men-mission's generic rule relating to the environmental effects of the uranium fuel cycle, codified in 10 CFR 51. 20 (e).15/
With one exception (No. 8), none of the contentions is 14/ Natural Resources Defense Council v. NRC, F.2d 9 ERC 1149 (D.C. Cir. July 21, 1976), certiorari cranted, 35 U.S.L.W.
3570 (February 22, 1977).
15/ For a fuller discussion of that invalidation, see Public Service of New Hamoshire (Seabrcok Station, Units 1 and 2), ALAE-349, NRCI-76/9 235,.238-39 (September 30, 1976), vacated, CLI-76-17, NRCI-76/ll 451 (November 5, 1976).
82 PcS
.. uui.
. related to those portions of the rule.
Further, as was the case with Contention No.
5, on these contentions the Coalition has fallen far short of sustaining its heavy burden on the factors set forth in Section 2.714(a).
Among other things, we have been given no cause to believe that the Coalition would make a significant contribution to the record development of any of the issues which it seeks to inject into the proceeding at this very late date.
And a potential for substantial delay 1s also present.
For its part, Contention No. 8 was fairly interpreted by the Licensing Board to assert that construction of Unit i
2 of this facility should be suspended pending ultimate a
resolution of the reproce.asing and waste disposal issues.
But, as the Board held, such an assertion is totally fore-closed by the Cc= mission's November 5, 1976 memorandum and order, issued in connection with this proceeding among 16/
others.
CLI-76-18, NRCI-76/ll 4707 To the extent that Contention No. 8 might be taken as also asserting that con-struction should be suspended in the light of the other con-tentions set forth in the petition, the short answer is that an insufficient basis has been alleged for the adoption of such a course.
16/
See also the statement of considerations acccmpanying 82 D. 1380 3, the new interim fuel cycle rule.
42 Fed.
Rec SO 13806 (March 14, 1977).
i i
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The February 14, 1977 order of the Licensing Scard is reversed and the matter is remanded with instructions to deny the untimely intervention petition of the Environmental Coalition on Nuclear Power on the ground of lack of a sub-stantial showing of good cause for failure to file on time.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD A
M n.
/h.wu/ c/C<J5, Kargaret E.
Du Flo Secretary to the f
Appeal Board 82 091
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._a.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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METROPOLITAN EDISON COMPANY,
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(Three Mile Island Unit No. 2)
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CERTIFICATE OF SER'lICC I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled by the Of fice of the Secretary of the Co=aission in this proceeding in accordance uith the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear _ Regulatory Cc==ission's Rules and Regulations.
i f
Dated at Uashington, D.C. this b
day of
,f//
197Y.
T f,
Office of the Secretaryj f'the Co==.ssion i
82 0.T N
s UNITED STATES OF MiERICA NUCLEAR RECULATORY CO.'DilSSION In the Matter of
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METROPOLITR EDISCN COMPA'iY, ET AL.
) Docket No. 50-320 -0L
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(Three Mile Island Unit No. 2)
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SERVICE LIST Edward Luton, Esq.
Dr. Chauncey R. Kepford Atomic Safety and Licensing Esard Citizens for a Safe Environment &
U, S. ' uclear Regulatory Commission York Co=mittee for a Safe Environtent Washington, D. C. 20555 2586 Broad Street York, Pennsylvania 17404 Mr. Gustave A. Linenberger Atomic Safety and Licensing Board Honorable Karin V. Carter U. S. Nuc.'. ear Regulatory Cc=nission Assistant Attorney General Washington, D. C.
20555 Office of Enforcenent Department of Environmental Resources Dr. Ernest O. Salo 709 Health and Uelfare Building Professor Harrisburg, Pennsylvania 17120 Fisheries Research Institute, WH-10 College of Fisheries Lawrence Sager, Esq.
University of Washington Sager and Sager Associates Seattle, Washington 98195 45 High Street Pottstown, Pennsylvania 19464 George F. Trowbridge, Esq.
S aw, Pitt:an, Potts, Trowbridge Covern=ent Publication Secticn h
State Library of Pennsylvania 910 17th Street, N. W.
Education Building, tox 1601 Washington, D. C.
20006 Harrisburg, Pennsylvania 17126 Stuart Treby, Esq.
Counsel for NRC Staff U. S. Nuclear Regulatory Consission Washington, D. C. 20555 82 093
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