ML19225A207
| ML19225A207 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/18/1979 |
| From: | Chandler L, Ulman M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907180555 | |
| Download: ML19225A207 (5) | |
Text
NRQ PUBLIC DOCUMENT ROOM 06/18/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY A'iD LICENSING BOARD i
q In the Matter of
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TEXAS UTILITIES GENERATING COMPANY, ET AL. )
Docket Nos. 50-445 W
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50-446
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'04g 4 NRC STAFF RESPONSE TO MUTION TO AMEND SUPPLEMENT TO PETITION FOR LEAVE TO INTERVENE On May 29, 1979, Citi:: ens for Fair Utility Regulation (CFUR) filed a "A Motion For Leave to Amend Supplement to Petition for Lecve to Intervene," in the captioned proceeding. This motion " sets forth clarifications of... [the]
issues" raised in CFUR's " Supplement to Petition For Leave to Intervene" dated May 7, 1979, and supersedes the " Motion to Amend Supplement to Petition for Leave to Intervene" (supplement or supplemental petition) served by CFllR on all participants at the prehearing conference on May 22, 1979.
For the reasons set forth below, the NRC Staff (Staff) supports CFUR's motion.
I." STATEME'IT OF POSITIC.N ON THE MOTION The Commission's regulations, specifically 10 CFR 52.714(b), require that a supplement to a petition for leave to intervene setting forth the petitioner's
-contentions be filed not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to 10 CFR 82.751a, or, where none is held, fifteen (15) days prior to the holding of the first prehearing con-ference.
In this proceeding, such supplement was, therefore, to be filed not later than May 7, 1979.
CER's supplement was timely filed on that date.
C 7 90718MTS^ 346 072
At the direction of the Board,1/ the NRC Staff (Staff) filed a memorandum on May 17, 1979,2/ setting forth its views on the admissibility of at least one contention.
In relevant part, the Staff stated that, although each petitioner had submitted one contention on the subject of quality assurance / quality control satisfying the requirements of 10 CFR 92.714(b) concerning specificity and basis, the contentions as set forth by petitioners "are frequently interspersed with the bases given".
Memorandum at 3.
Accordingly, the Staff in its Memorandum of May 17, 1979, proposed a single contention encompassing in a concise state-ment, the quality assurance / quality control concerns raised by each of the petitioners in their respective supplements.
There was further discussion of the matter at the prehearing conference on May 22, 1979.
Tr. 108-109. Also at the prehearing conference, CFUR personally served on the Board and parties a motion to amend its supple =ent, explaining, on the record, its view that the substitute contention proposed by the Staff was unacceptable.
Tr. 106-107.
As perceived by the Staff, CFUR's position on the Staff's proposed contention stemmed from CFUR's understandable lack of familiarity with the Commission's regulations acd its inability, as a pro se participant, to artfully express its contentions. This is confirmed by CFUR in its " Motion for Leave to Amend Supplement to Petition for Leave to Intervene" filed on May 29, 1979.
Although 10 CFR 82.714 does not explicitly provide for amendment of contentions, it does recognize that a petition may be amended,10 CFR 92.714(a)(3), and that additional time may be granted for filing the supplement to the petition setting forth the contentions,10 CFR 52.714(b).
In each instance, a balancing of the
-1/ Board's Order Relative to Motion for Continuance, May 9, 1979.
"NRC Staff Memorandum Regarding Contentions and Further Answer to ACORN /
WTLS Petition for Leave to Intervene".
A 2e' d '. 8 J 't U
. factors specified in 10 CFR 82.714(a)(1) is required in the event the action is after the fifteen (15) day period prior to the prehearing conference.
In the circumstances present here, the Staff believes that the motion should be granted.
The Steff believes that CFUR's lack of fauiliarity with practice especially in light of its pro se participation,3/
before NRC tribunals, justifies CFUR's belated recognition that its contentions require clarification.
Application of the factors specified in 10 CFR 92.714(a)(1) is inappropriate, in our view, where, as here, the amendment sought is not substantive in nature, i.e.,
it does not seek to enlarge the scope of the conten: ions originally advanced in the otherwise timely supplement but, rather, r.erely seeks to clarify them.
In short, the Staff believes that, having shown good cause, CFUR should be per-mitted to clarify its contentions so that the Board has before it the Best articulation of CFUR's contentions, in order to permit a sound ruling upon the admissibility of at least one contention.
II.
THE CLARIFIED CONTENTIONS Consistent with the direction of the Board in its Order of May 9, 1979, suora, the Staff will, at this time, confine its views on the contentions to whether at least one contention has been set forth with adequate specificity and basis.
In our opinion, CFUR contentions IVA - IVH2 would satisfy the
-3/ The Appeal Board has reccgnized, with regard to the requirements of 10 CFR 92.714, that there need not be "the inflexible application of pro-cedural requirements with the result that they { petitioners) are not given a reasonable opportunity to cure the defects in their petitions".
Virginia Electric and Pcwer Cocoany (North Anna Power Station, Units 1 and 2), ALA3-146, 6 AEC 631 (1973).
This is particularly the case here, where CFUR is not represented by counsel.
A pro se petitioner should not be held to the same standards, with respect to the precision of its pleadings, to which a lawyer might reasonably be expected to adhere.
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), 6 AEC a87, 489 (1973).
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requirements of 10 CFR 92.714(b) regarding specificity and basis, when read in conjunction with CFUR supplemental petition, as CFUR appropriately urges.
We continue to be of the belief that the substitute language proposed by the Staff in its May 17 Memorandum is preferable in that it states a discrete contention encompassing all of CFUR's concerns in a more succinct form, and, thus, should be the basis upon which CFUR, and the other petitioners, are admitted as parties to this proceeding.
Of course, should the Board admit CFUR and the other petitioners as intervenors, the quality assurance / quality control contention, and any other contentions, may be subject to further clarif-ficaticn and rewording as the Board deems appropriate.
Houston Power and Lighting Co., et al. (South Texas Project, Units 1 and 2), LBP-79-10, NRC (April 3, 1979).
The Staff intends to meet with petitioners and the applicant in an effort to reach agreement on the admissibility of all contentions proposed by petitioners and will submit its further views upon conclusion of these efforts.
III.
CONCLUSION For the foregoing reasons, the NRC Staff believes that good cause has been shown to permit CFUR to amend its supplement, and based on the amended supple-ment, affirms its prior position that CFUR has set forth at least one good
-contention justifying its admission as an intervenor.
/
Respectfully ubmitted, 8/[
C-Lawrence J. Chandler Counsel for NRC Staff 0, &w M
m1 Marjorie B. Ulman Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of June, 1979
} /16 075
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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)
TEXAS UTILITIES GENERATING COMPANY, ET AL. )
Docket Nos. 50-445
)
50-446 (Comanche Peak Steam Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION TO AMEND SUPPLE-MENT TO PETITION FOR LEAVE TO INTERVENE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of June, 1979:
Elizabeth S. Bowers, Esq., Chairman
- Richard W. Lowerre, Esq.
Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission Environmental Protection Division Washi.gton, DC 20555 P. O. Box 12548, Capitol Station Austin, TX 78711 Lester Kornblith, Esq. Member
- Atomic Safety and Licensing Board Mrs. Nancy Holdam Jacobson U.S. Nuclear Regulatory Commission CFUR Washington, DC 20555 1400 Hemphill Fort Worth, TX 76104 Richard Cole, Esq., Member
- Atomic Safety and Licensing Board Mr. Richard Fouke U.S. Nuclear Regulatory Commission 1668-B Carter Drive Washington, DC 20555 Arlington, TX 76010 Nicholas S. Reynolds, Esq.
Atomic Safety and Licensing Board Debevois & Liberman Panel
- 1200 17th Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC 20555 Mrs. Juanita Ellis Atomic Safety and Licensing Appeal President, CASE Panel (5)*
1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Mr. Geoffrey M. Gay Docketing and Se: vice Section (4)*
West Texas Legal Services Office of the Secretary 406 W. T. Waggoner Building U.S. Nuclear Regulatory Commission 810 Houston Street Washington, DC 20555 Fort Worth, TX 76102
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Lawrence J. Chandler 3kO hb Counsel for NRC Staff r
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