ML19276E838
| ML19276E838 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 03/06/1979 |
| From: | Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7903210398 | |
| Download: ML19276E838 (8) | |
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~y March 6, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ARIZONA PUBLIC SERVICE
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Docket Nos. STN 50-529 COMPANY, _et _al.
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STN 50-593
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(Palo Verde Nuclear Generating
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Station, Units 4 and 5)
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NRC STAFF'S RESPONSE TO PETITION FOR CO-INTERVENTION The Palo Verde Nuclear Intervenors (Petitioner) filed a " Petition for Co-Intervention" in the captioned proceeding on February 14, 1979.
The Supplemental Notice of Hearing published in the Federal Register on December 8, 1979 (43 Fed. Rea. 57694), provided that persons whose interest may be affected by the proceeding could file a petition for leave to intervene by January 8,1979. Therefore, the Petition is untimely.
Th'e NRC Staff opposes the Petition on the grounds that it fails to aduress the factors which must be considered in determining whether to grant an untimely petition; furthemore it fails to satisfy the minimum standing requirements applicable to all petitions for leave ta intervene.
?90321aSezg
R. E. York Gordon W. Hoyt Senior Vice President Utilities Director El Paso Electric Company City of Anaheim P. O. Box 982 P.O. Box 3222 El Paso, Texas 79999 Anaheim, CA 92803 David N. Barry III, Esq.
Jack E. Thomas James A. Beoletto, Esq.
Vice President Southern California Edison Company San Diego Gas & Electric Co.
P.O. Cox 800 P.O. Box 1831 Rosemead, CA 91770 San Diego, CA 92112 Byron L. Miller Arthur C. Gehr, Esq.
Assistant Vice President Snell & Wilmer Nevada Power Company
'3100 Valley Center P.O. Box 230 Phoenix, Arizona 85073 Las Vegas, Nevada 89151 Janice E. Kerr, Esq.
Gary E. Craythorn, Engineer J. Calvin Simpson, Esq.
City of Glendale Vincent MacKenzie, Esq.
119 North Glendale Avenue California Public Utilities Glendale, CA 91206 Commission 5066 State Building Ronald V. Stassi San Francisco, CA 94102 Engineer City of Pasadena Kathryn Burkett Dickson, Esq.
100 North Garfield Avenue
!! ark J. Urban, Esq.
Pasadena, CA 91109 Counsels for the California Energy Resources Conservation and Everett C. Ross Development Commission Public Utilities Director 1111 Howe Avenue City of Riverside Sacramento, CA 95825 3900 Main Street Riverside, CA 92501 Mr. Larry Bard P.O. Box 793 Atomic Safety and Licensing Tempe, Arizona 85281
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Appeal Board U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section
- U.S. Nuclear Regulatory Ccmaission Dr. Stanley L. Dolins' Washington, DC 20555 Assistant Director Eneray Programs (0EPAD)
Tom Uiamond, Esq.
Office of the Governor 1208 First City National Bank Building 1700 West Washington El Paso, Texas 79901 Executive Tower - Rm. 507 Phoenix, Arizona 85007 L u r ' wl C, L r
StephentM. Schinki
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Counsel for NRC Staff
UNITED STATES OF AMERICA
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NUCLEAR REGULATORY CCPfilSSION BEFORE THE ATOMIC SAFETY At!D LICENSING BOARD In the Matter of
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ARIZONA PUBLIC SERVICE
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Docket Nos. STN 50-592 COMPANY, et al.
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STN 50-593
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(Palo Verde Nuclear Generating
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Station, Units 4 and 5)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESP 0flSE TO PETITION FOR C0-INTERVENTION" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this 6th day of March,1979:
Robert M. Lazo, Esq., Chairman
- Michael M. Grant, Esq.
Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission 200 State Capitol Washington, DC 20555 1700 West Washington Phoenix, Arizona 85007 Victor Gilinsky Comissioner James D. Woodburn, Chief Engineer U.S. Nuclear Regulatory Commission Public Service Department Washington, DC 20555 P.O. Box 631 Burbank, CA 91503 Dr. Quentin J. Stober Research Associate Professor Samuel Gorlick, City Attorney '
Fisheries Research Institute P.O. Box 6459 University of Washington Burbank, CA 91510 400 Northeast 15th Avenue Seattle, Washington 98195 James L. Mufley, Chief Electrical Engineer & Assistant Manager George Campbell, Chairman Edward C. Farrell, Chief Assistant City Maricopa County Board of Supervisors Attorney for Water & Pcwer 111 South Third Avenue P.O. Box 111 Phoenix, Arizona 85004 Los Angeles, CA 90051 g
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. CONCLUSION The Petitioner has filed a very brief pleading in which it has~ failed to address the five factors pertinent to untimely filings in Commission proceedings.
Further, it has failed, for the reasons discussed above, to demonstrate standing to intervene in this proceeding, although the contentions which it embraces are admissible as issues in controversy.
However, the Petitioner is obviously unfamiliar with the Commission's Rules of Practice, and specifically the requirements for late petitions to intervene. The Appeal Board has made it clear that pro s_e petitioners e
will be held to a less rigid standard of pleading than those represented by experienced counsel.
See, e.g., Public Service Electric and Gas Co.
(Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487 (1973).
Therefore, the Staff believes that the Board should grant the Petitioner a reasonable period of time in which to amend its pleading ~and cure the defects which have been identified. S Respectfully submitted,
- ^ A h. ~ f Steph n M. Schinki Counsel for NRC Staff -
Dated at Bethesda, Maryland this 6th day of March, 1979.
S It is not clear from the Petitioner's pleading whether it intends to consolidate with Mr. Bard if the petition is granted.
Such con-solidation would acpear to be the most reasonable course of action under the circumstances. Clarification of this point by the Petitioner in an amended pleading may well bear upon the balancing of the five factors set forth in 10 CFR 32.714(a)..
. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371 (1973);
Duquesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243 (1973).
The Petitioner states that it " agrees" with the contentions listed in the second amendment of Larry Bard's petition for leave to intervene filed on September 11, 1979. 1/
Howeve.,
at the prehearing conference held in this matter on February 21, 1979, Mr. Bard withdrew those contentions and entered into a stipulation with the Applicant and the Staff in which the parties agreed that four con-tentions (three relating to water use and one concarning financial qualifications of the Applicant) should be admitted as matters in controversy.2/ Messrs. Fullinwider and Rhodes, who had already filed the instant Petition, participated in the discussions leading to the stipulation between the Staff and Mr. Bard, and it is the Staff's understanding that the Petitioner now seeks to raise the identical issues to those covered by the stipulation. With that understanding, the Staff has already taken the pcsition, in joining the stipulation, that the contentions in which t'he Petitioner is interested should be admitted as issues in controversy.
1/ It is unclear to the Staff whether Petitioner wishes to be represented in this proceeding by Larry Bard; if this is Petitioner's intention, it is impermissible. Since Mr. Bard is not an attorney, he may only represent his own interests, and not those of third parties. ALAB-413, suora; 10 CFR 52.713(a).
/ See " Report Regarding Stipulation Reached By the Applicant, NRC Staff 2
And Larry Bard," dated February 26, 1979.
. only his interests, not those of third parties. Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 (1977); Allied General Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station) LSP-75-60, 2 NRC 687, 690 (1975).
Judged by these standards, the petition filed by the Palo Verde Nuclear Intervenors fails to pass muster.
Although the petition indicates that two members of the group reside in the Phoenix Metropolitan area, the two individuals are not identified (it is not clear whether the individuals who signed the petition are the same individuals who are alleged to reside in proximity to the proposed facility).
Further, there is no indication that the two persons to which the petition refers have authorized the organization to represent their interests in this proceeding; neither is there any allegation that the organization has authorized Messrs. Rhodes and Fullinwider to represent it. Therefore, the Staff does not believe that the Petitioner has demonstrated, on the basis of the instant pleading, that it has standing to intervene in this proceeding.
CONTENTIONS The second basic requirement for intervention is that the petitioner must state at least one contention which is admissible as an issue in con-troversy. Mississicci Power & Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973); Louisiana Power & Liaht Co.
- and how that interest may be affected by the results of that proceeding.
Intervention as a matter of right in Commission licensing hearings is governed by judicial concepts of standing, which require that the petitioner demonstrate a personal interest in the outcome of the proceeding and that the interest is at least arguably within the " zone of interests" protected by the statute invoked.
Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976).
An organization has standing to intervene if it can show that it or its members have such an interest. Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976).
When an organization's standing is based upon the interests of its members, it must identify individual members, describe specifically how their interests will be affected by the proposed action and demon-strate that the members have authorized the organization to act on their behalf. Allied General Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station) ALAB-328, suora at 420; Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2)
ALAB-136, 6 AEC 487, 488-89 (1973); Duauesne Licht Comoany, et al.
(Beaver Valley Power Station, Unit 1) ALAB-108, 6 AEC 243, 244 at n. 2 (1973).
In addition, one claimins to represent an organization must demonstrate that he has been authorized by that orcanization to represent it, since a petitioner in an NRC proceeding normally may assert e
m a
With respect to untimely petitions,10 CFR 52.714(a)(1) provides, in pertinent part:
Nontimely filings will not be entertained absent a determination by the Commission, the presiding officer or the atomic safety and licensing board
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designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set cut in paragraph (d) of this section:
(i) Good cause, if any, for failure to file on time.
(ii) The availability or of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's partic-ipation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's partic-ipation will broaden the issues or delay the proceeding.
Since the Petitione-has failed to address any of the five factors in its pleading, there is no basis upon which this Board can grant the untimely Petition as presently framed.
STANDING The Commission's Rules of Practice 10 CFR 52.714(a)(2), require that petitioners state with particularity their interest in the proceeding b *