ML19281A265
| ML19281A265 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/26/1979 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7903090125 | |
| Download: ML19281A265 (11) | |
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3 RVED FEB 2 8 E70 UNITED STATES OF AMERICA p
m, NUCLEAR REGULATORY COMMISSION n)
E'r ojh c
ACOMIC EAFETY A'ID LICENSING APPEAL BOARD f
of Alan S.
Rosenthal, Chairman N
[IS ggf.g,f Dr. John H.
Buck Michael C. Farrar gr g
N3
$\\
co
)
In the Matter of
)
)
DUKE POWER COMPANY
)
) Docket "o.
70-2623 (Amendment to Materials License SNM-1773
)
-- Transportation of Spent Fuel from
)
Oconee Nuclear Station for Storage at
)
McGuire Nuclear Station)
)
)
Mr. Geoffrey Owen Little, Davidson, North Carolina, for the petitioner, Davidson College Chapter of the North Carolina Public Interest Research Group.
Messrs.
J. Michael McGarry, III, Washington, D.
C.,
and William L.
Porter, Charlotte, North Carolina, for the applicant, Duke Power Company.
Mr. Edward G.
Ketchen for the Nuclear Regulatory Commission staff.
DECISION February 26, 1979 (ALAB - 528)
This is a proceeding on the application of the Duke Power Company for an amendment to an outstanding special nuclear material license possessed by it.
The amendment would authorize the receipt and storage at the applicant's T
2030to125 b
v.
) McGuire Nuclear Station in Mecklenburg County, North Carolina, of spent fuel transported from its Oconee facility in Oconee County, South Carolina.
The deadline for the filing of petitions for leave to intervene in the proceeding was August 28, 1978.
See 43 Fed. Reg. 32905 (July 28, 1978).
Several such petitions 1/
were filed on or before that date and subsequently granted.
Cn October 7, 1978 -- almost six weeks after the filing deadline had been reached -- the Davidson College Chapter of the North Carolina Public Interest Research Group (Davidson) sent a letter to the Licensing Board in which 2/
it evinced an interest in participating in the proceeding.--
The letter explained that the organization had not been able to file a petition by August 28 because classes at the college had not commenced until September 6; it added tha.
_l,/
The successful petitioners were the Carolina Environ-mental Study Group, Safe Energy Alliance and Carolina Action in Charlotte.
In addition, the State of South Carolina was granted leave to participate under the
" interested State" provisions of 10 CFR 2.715(c).
A timely petition filed by the Natural Resources Defense Council was denied by the Licensing Board.
That denial was overturned by us in an unpublished order entered on February 13, 1979.
_2,/
The letter bore the date of September 7, 1978 but, at a prehearing conference held on October 24, 1978, it was disclosed that the date should have been October 7 (Tr. 64).
, "[s]ince most of our membership were in other parts of the state and the country during the summer, we were unaware of the developments towards a licensing decision. "
The Licensing Board elected to treat the letter as a petition for leave to intervene.
In accordance with an under-standing reached at a prehearing conference, Davidson later submitted a single contention:
That the prospect of a traffic accident involving a reactor-waste carrier and involving leakage of some of the contents of said carrier poses an emergency situation which public safety officials in Charlotte (i.e., police chief, fire chief, civil defense head, etc.), are not adequately prepared to handle in regards to protection of the public.
In an order entered on January 9, 1979, the Licensing Board denied the petition.
The basis for the denial was two-fold:
the petition was untimely and the contention advanced by Davidson was a " completely unsupported allegation",
devoid of either reasonable specificity or some assigned basis.--3/
_3/
The Board went on to determine additionally that there was insufficient justification for permitting intervention as a matter of discretion under the teachings of Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614-17 (1976).
But given the Board's conclusion earlier in its order that Davidson had established standing to intervene as a matter of right, there was no cause to consider discretionary (FOOTNOTE CCNTINUED CN NEXT PAGE)
. Davidson appeals.
Both the applicant and the NRC staff urge affirmance.
We reverse.
A.
As the Licensing Board recognized, whether late intervention should be allowed is dependent upon a balancing of the factors set forth in 10 CFR 2.714.--4/ In this instance,
_3/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) intervention at all.
As the Commission made clear in Pebble Springs, the discretionary intervention doctrine there announced comes into play only in circumstances where standing to intervene as a matter of right has not been established.
Ibid.
Because we do not disturb the holding below on stand-ing (see pp. 9-10., infra), it is thus unnecessary for us to address discretionary intervention here.
_4/
In relevant part, Section 2.714 (a) provides:
Nontimely filings will not be entertained absent a determination by the Commission, the presiding officer or the atomic safety and licensing board 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 out in paragraph (d) of this section:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's partici-pation 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 partici-pation will broaden the issues or delay the proceeding.
. the Board found to weigh against intervention that (1) the reasons proferred by Davidson for its tardiness were insubstantial; (2) Davidson could adequately protect its interest through the mechanism of a limited appearance statement; (3) Davidson's interest in the proceeding would be adequately represented by one of the already admitted intervenors (Carolina Action),which had raised essentially the same issue as it had; and (4) Davidson's participation likely would delay the proceeding "although it is difficult 5/
to measure the impact of any delay".--
In the Board's view, only one of the Section 2.714 factors favored late intervention:
Davidson had conducted an investigation into the capacility of certain public safety officials to respond to traffic accidents and thus might be expected to be of assistance in the development of a sound record on the issue to which its contention was addressed. --6/
This assessment can be accepted only in part.
In ccraon with the Licensing Board, we are unimpressed with Davidson's excuse for its lateness.
To be sure, most of the members of a college community may be widely dispersed during the
_5/
January 9, 1979 order, pp. 22-24.
_6/
Id. at p. 23.
. summer months when classe.s are not being held.
But in our judgment that consideration does not relieve an organ-ination such as Davidson, whose members profess an interest in what transpires in the area of the educational institution which they attend for the major portion of the year, from making the necessary arrangements to insure that that interest is protected in their absence.
In this connection, it seems reasonable to assume that the permanent or summer residences of at least some of Davidson's members were in close enough proximity to the college and its vicinity to. enable them to keep abreast of developments without untoward difficulty.
In any event, as the Licensing Board pointed out, Davidson did not act with notable dispatch once classes resumed in early September.
We part company with the Licensing Board, however, with regard to each of the other three factors which it thought to weigh against intervention.
To begin with, the Board's suggestion that Davidson could adequately protect its interest by submitting a limited appearance statement gives insufficient regard to the value of the participational rights enjoyed by parties -- including the entitlement to present evidence and to engage in cross-examination.
The Commission itself specifically referred to those rights
. several years ago in rejecting a similar suggestion in another case involving a late petition.
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 276 (1975).--7/
Secondly, the fact that Carolina Action has advanced a contention concededly akin to that of Davidson does not necessarily mean that that intervenor is both able and willing to represent Davidson's interest.
In this connection, the Licensing Board did not specifically find, and we are unprepared to find ourselves on the 5 asis of the record before us, that Carolina Action is as fully equipped as is Davidson to make a contribution to the 8/
development of a sound record on the traffic accident issue.
--7/
We find equally unacceptable, for essentially the same reason, the staff's assertion that Davidson might adequately protect its interest by making witnesses available to Carolina Action or by trans-mitting the information in its possession to appropriate state and local officials.
_8/
As previously noted, the Board below expressly found in Davidson's favor on the ability-to-contribute factor (a finding unnecessary to the granting of Carolina Action's timely petition).
We accept that finding without passing independent judgment on the quality of Davidson's investigation of the capability of public safety officials to respond to traffic accidents -- a plainly unwarranted exercise at this threshold stage of the proceeding.
-8 Finally, it does not appear to us that, so long as Davidson's participation were consolidated with that of Carolina Action 9/
under the authority of 10 CFR 2.714 (e) and 2.715a,--
there is much risk that its late intervention would bring about an undue dclay in the progress o.f the proceeding.
In short, we conclude that all but one factor -- that of showing of good cause for the late filing -- favor a
allowance of late intervention here.
Beyond that, some weight properly may attach to the fact that, although not justified, Davidson's tardiness was far from extreme.
The filing deadline was missed by a matter of weeks, not (as in the case of many of the late interventions which have ccme before us) by months or even years.
B.
Contrary to the view the staff successfully urged on the Licensing Board, Davidson's contention is specific enough.
In terms, it asserts that local public safety officials are not prepared to deal with the emergency situation which might result in the event of a traffic accident involving the carrier transporting the spent fuel from Cconee to McGuire.
9/
Section 2.714(e) empowers a licensing board to con-dition an order granting intervention on such terms as may serve the purposes of restricting duplicative or repetitive evidence and having commen interests represented by a single spokesman.
Section 2.715a deals with the general authority to consolidate parties in construction permit or operating license proceedings.
Although the proceeding at bar involves, strictly speaking, a license mnendment, we see no gcod reason why the provisions of Section 2.715a cannot be looked to in exercising the powers granted by Section 2.714 (e),
which Section applies to all adjudicatory proceedings.
. Rejecting this contention for lack of specificity flies in the face of its plain language.
- Ioreover, doing so ignores the fact that, ever since the adoption of the 1972 amendments to the Rules of Practice and the accompanying statement of considerations upon which the staff relies, contentions of similar specificity have regularly been accepted.
True, Davidson did not go on to establish that its assertion is well-founded in fact.
But, as we have had occasion to emphasize through the years, whether a particular concern is justified must be left for consideration when the merits of 10/
the controversy are reached:- See, e.g., Mississippi Power &
Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973); see also Virginia Electric Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC (January 26, 1979).
C.
In the course of holding that Davidson had standing to intervene as a matter of right, the Licensing Board concluded that the authorship of the petition by Charles Gaddy, the then chairperson of Davidson (and a student at the college),
constituted a representation that the organization has authorized intervention in the proceeding.
The appli-cant challenges this conclusion, maintaining that Davidson 10/ The applicant renews its claim below, not passed upon by the Licensing Board, that the Davidson contentien must be deemed to be an impermissible attack upcn the Commission's regulations in that there is no present (FOOTNOTE CONTINUED ON NEXT PAGE)
. was required to demonstrate that its membership had voted to seek intervention on the matter raised by the submitted contention and had authorized the chairperson to represent the organization.
We disagree.
In our view, it was enough for standing purposes that the petition had been signed by a ranking official of the organization who himself had the requisite personal interest to support an intervention peti-tion.
The applicant cites no prior case in which either we or a licensing board has demanded more in such circumstances, and we know of none.
From a
recent filing on behalf of Davidson, it appears, however, that Mr. Gaddy is no longer a student at the collage "due to personal problems", and that Davidson is now being represented by another individual whose status in the organi-zation is unclear.
In light of this development, the Licensing Board ray wish to make further inquiry to insure that, in 10/ (FCOTNOTE CONTINUED FROM PREVIOUS PAGE) regulatory requirement that emergency plans pertaining to transportation be submitted.
The staff does not join in this claim and, absent additional refinement of the contention, we are unable to say whether the applicant is right.
The matter is best left to the Licensing Board which, if it concludes following further scrutiny that the contention is invalid for the reason suggested by the applicant, will be free then to dis-miss Davidson from the proceeding.
. fact, the new representative has been duly authorized to act upon Davidson's behalf.
Insofar as it related to the Davidson petition for leave to intervene, the January 9, 1979 order of the Licen-sing Board is reversed and the cause is remanded to that Board with instructions to grant the petition.
Davidson's participation in the proceeding shall be consolidated with that of intervenor Carolina Action in accordance with the provisions of 10 CFR 2.714 (e) and 2.715a.
It is so ORDERED.
FOR THE APPEAL BOARD QA.d d>Y hin a
Marggr5E E.
Du Flo
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Secretary tc the Appeal Board
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