ML19282B742
| ML19282B742 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/22/1979 |
| From: | Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19282B732 | List: |
| References | |
| NUDOCS 7903160168 | |
| Download: ML19282B742 (26) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
}
DUKE POWER COMPANY
)
)
(Amendment to Materials License
)
Docket No. 70-2623 SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage )
at McGuire Nuclear Station
)
NRC STAFF RESPONSE TO APPEAL BY NORTH CAROLINA PUBLIC INTEREST RESEARCH GROUP OF SUPPLEMENTAL ORDER BY ATOMIC SAFETY AND LICENSING BOARD ON PETITIONS FOR LEAVE TO INTERVENE Edward G. Ketchen February 22, 1979 Counsel for NRC Staff 7903160168
1 i
TABLE OF CONTENTS Page Ta b l e o f C i ta ti o n s............................................... ii I.
I n tro d u c ti o n............................................... 1 II.
Background.................................................
2 III. Issues Presented...........................................
6 IV. The PIRG Peti tion Should be Denici as Untimely............. 7 A.
Good Cause, If Any, For Failure ta File on Time........ 7 B.
The Availability of Other Means Whereby the Petitioner's Interes t Will Be Protected............................. 8 C.
The Extent to Which Petitioner May Assist In Developing a Sound Record..............................
9 D.
The Extent To Which the Petitioner's Interests Will Be Represented By Existi ng Parties...................... ll E.
The Extent to Which Petitione/s Participation Will Broaden the Issues or Delay The Proceeding............. 12 V.
PIRG Does Not Meet Commission Requirements for Permitting Intervention as a Matter of Di scretion..................... 13 VI. The PIRG Petition to Intervene Should be Denied for Failure to S ta te a Conten ti on...................................... 18 VII.
Conclusion................................................. 19 e
ii TABLE OF CITATIONS Page NRC (AEC) Decisions Consolidated Edison Co. of New York, Inc. (Indian Point Station, Uni t 2) ALAB-243, 8 AEC 850 (1974)...................
19 Mississipoi Power and Light Company (Grand Gulf Nuclear Station, Uni ts 1 and 2) ALAB-130, 6 AEC 423 (1973)............
19 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAS-107, 6 AEC 188 (1973)...
10 Portland General Electric Comoany, et al. (Pebble Springs Nuclear Plant, Units 1 and 2) CLI-76-27, 4 NRC 610 (1976).....
6, 14, 17 Public Service Electrice and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2) ALAB-136, 6 AEC 487 (1973).. 19 Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2) ALAB-397, 5 NRC 1143 (1977)...........
14 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2) ALAB-413, 5 NRC 1418 (1977)..........................
10, 14 Virginia Electric & Power Comoany (Northa Anna Nuclear Power Station, Units 1 and 2) ALAB-522, Slip Op. (January 26,1979).....................................................
1, 8 Virginia Electric & Power Comoany (North Anna Nuclear Power Station, Units 1 and 2) ALAB-363, 4 NRC 631 (1976)...........
14 Virginia Electric and Power Company (North Anna Power Station Units 1 and 2) ALAB-256, 1 NRC 10 (1975).....................~
19 Regulations 10 CFR s2.714...................................................
2, 12, 14-19, 21, 5-7 Miscellaneous 43 Fed. Re9 32905.............................................
2 t
w wwmewe.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION AFETY AND LICEtiSING APPEAL BOARD
_BEFORE THE AT0ftIC S
)
In the Matter of
)
Docket No. 70-2623
)
DUKE POWER C0tiPANY
)
)
(Amendment to Materials License SNM-1773 for Oconee Nuclear Station)
Spent Fuel Transportation and Stor-)
)
age at McGuire Nuclear Station NRC STAFF RESPONSE TO APPEAL BY NORTH CAROLINA PUBLIC INT BOARD ON PETITIONS FOR LEAVE TO INTERV I.
Introduction idson Chapter The North Carolina Public Interest Research Group, Dav 9,1979 Supple-23, 1979 from a January (PIRG) filed an appeal on January Board (Board). The mental Order of the Atomic Safety and Licensing e of its untimely Board's Order denied PIRG's petition to intervene becaus i
in the pro-filing and the fact that the matters PIRG sought to ra se h similar interests to ceeding were already raised by another party wit N for being untimely PIRG's petition was properly dente those of PIRG.
t Group The Board appropriately determined that the Public Intere tter of of North Carolina met the standing requirements as a maTh right applying judicial concepts of standing.
hich found, PIRG set out with particularity an alleged injury w the Atomic is clearly within the zone of interest protected byP the Board activities of the proposed action to confer stand Energy Act.
See cenerally, ding.
establish PIRG's standing to intervene in this procee so found.
Power Station, Viroinfa Electric Power comoany (North Anna Nuclear 26,1979).
Units I and 2), Decision, ATIC522, Slip Op. (January and failure to state a proper contention.
The Board correctly deter-mined that PIRG should not be admitted as a matter of discretion.
Conse-quently, the f1RC Staff urges rejection of PIRG's appeal.
II.
Backaround On July 28, 1978, the fluclear Regulatory Commission published in the Federal Register a notice of opportunity for public participation in the proposed f1RC Licensing Action for Amendment to Special Materials License SNM-1773.M The amendment to Stift-1773 would authorize the licensee, Duke Power Company, to transport spent nuclear fuel from the Oconee nuclear facility for storage in the spent fuel pool located at the McGuire nu-clear facility in accordance with Duke's application for amendment dated March 9,1978. The notice provided that any person whose interest may be affected by the proceeding could file a request for public hearing on or before August 28, 1978 in the form of a petition for leave to intervene with respect to whether the proposed amendment to Sf1M-1773 should be issued.
Petitions to intervene were required to set forth the interest of the
~
petitioner in the proceeding, how that interest may be affected by the.
results of the proceeding, and the specific aspects of the subject matter' about which the petitioner sought to intervene.
Fifteen days prior to the first prehearing conference, a petitioner was required to file a statement of its contentions.U y
43 Fed. Reo. 32905.
y See 10 CFR s2.714.
A number of petitions to intervene were received in the response to the notice.1!
At the prehearing conference held in Charlotte, North Carolina on Octo-ber 24, 1978, Mr. Chuck Gaddy, Chairperson of the Davidson College Chap-ter of the North Carolina Public Interest Research Group (PIRG) distri-buted a copy of a letter / dated September 7,1978 to the Chairman of the Board appointed to rule on petitions to intervene in this proceeding.3_/
The Board ruled that the PIRG letter should be treated as a petition for leave to intervene, and afforded the parties ten days to frame a lf Petitions to intervene were timely received from the Natural Resources Defense Council (NRDC), Carolina Environmental Study Group (CESG),
Safe Energy Action (SEA), and Carolina Action.
In the " Order Following Prehearing Conference" dated November 2, 1978, the Licensing Board granted petitions for leave to intervene filed by the CESG, SEA, and Carolina Action.
SEA has since withdrawn.
See SEA " Notice of Withdrawal from Active Intervention" dated January 30, 1979. The Licensing Board also granted the petition of the State of South Carolina to participate as an interested State. Petitions for leave to intervene filed by the Natural Resources Defense Council, Inc., and the Davidson College Chapter of the North Carolina Public Interest Research Group were denied.
" Supplemental Order Ruling on Petitions for Leave to Intervene" (January 9, 1979),
- p. 2 (" Supplemental Order"). Both NRDC and PIRG appealed.
In its February 13, 1979 Order, the Appeal Board admitted NRDC to the proceeding as a matter of discretion.
_2]
Although the letter in question was dated September 7,1978, this was corrected to read October 7, 1978 on the record.
(Tr. 64.)
3/
The Petitions Board was appointed by order of the Atomic Safety and Licensing Board panel dated August 28, 1978.
response.1I PIRG indicated I that it would file a contention in support of its letter petition.
By an undated letter received by the Licensee on November 1,1978, PIRG submitted a contention which the Licensee distri-buted to the Buard and the parties.
The Staff filed its "NRC Staff Response to Davidson PIRG Petition Seeking Untimely Intervention," on November 6,1978.
The Staff opposed the PIRG petition on the grounds that it was untimely filed, and that it failed to set forth an adequate contention which would entitle it to party status.
(The Staff did conclude, however, that the PIRG petition would meet the Commission's standing requirements had the petition not been filed late.)
By its Supplemental Order of January 9,1979, the Board denied the peti-tion for leave to intervene of PIRG.
On January 23, 1979, PIRG filed its notice of appeal of the Supplemental Order and accompanying brief.
The Board found that PIRG alleged an adequate basis for standing to
' intervene in our proceedings as a matter of right.3_/ The Board, however, denied PIRG's petition to intervene for its failure to file off time. l The Board found that PIRG had made an insubstantial showing of good J
1/
Tr. 149 2/
Tr. 149 3/
Supplemental Order, pp. 21-22.
4/
Supplemental Order, p. 22.
l
. cause for the tardy petition, which was without dispute untimely.E The Board also found that in the balancing of the various factors which the Board must weigh, pursuant to 10 CFR $2.714(a)(1) in ruling on the adequacy of an untimely filing, that PIRG had failed to make a sufficiently strong showing on the remaining four factors which would warrant granting the petition by the Board in the face of PIRG's failure to make a substantial showing on the good cause factor.E The Board found that PIRG could be expected to assist in developing a sound record.3_/ However, the Board found that this factor was outweighed by the fact thut the subject matter of PIRG's proposed contention appeared to be cumulative to that of Carolina Action, another party already admit-ted to the proceeding, and that PIRG could be represented by that party.O The Board also found that PIRG's interest could be adequately protected through the limited appearance procedure and that PIRG's par-ticipation would delay the proceeding, although Petitions Board did not estimate the impact of that delay.
Thus, the Board determined that PIRG had failed to make a strong showing on the four factors when weighed against PIRG's failure to make a substantial showing of good cause for failing to file a petition to intervene on time.
y Ibid.
y Jd. p. 24.
y Id. p. 23.
4/
Id. p. 24.
The Board determined that PIRG's preposed contention failed to meet the specificity requirements of 10 CFR 2.714(a).
The Board also concluded that PIRG should not be permitted to intervene as a matter of the Board's discretion under the guidelines noted by the Commission in Portland General Electric Company, et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 fiRC 610, 614 (1976).
The Petitions Board based its conclusion on the determination that PIRG had not shown a significant ability to contribute on substantial issues of law or fact which another party admitted in the proceedings might not otherwise properly raise.E III.
Issues Presented 1..
Whether the PIRG's petition should be denied as untimely?
2.
Whether PIRG should be denied admission as a matter of discretion?
3.
Whether PIRG has failed to state an adequate contention w.ithin the meaning of 10 CFR 52.714?
y Supplemental Order, p. 25.
U 1.d
. IV. The PIRG Petition Should Be Denied As Untimely In its January 9,1979 Supplemental Order the Board correctly applied the criteria,for consideration of late petitions in denying PIRG's petition to intervene.
10 CFR 52.714 sets forth the following criteria for eval-uating untimely petitions to intervene:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interests will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.-
(iv) The extent to which the petitioner's interests will be represented by existing parties.
(v) The extent to which petitioner's participation will broaden the issues or delay the proceeding.
A.
Good Cause, If Any, For Failure To File On Time PIRG's averements in its brief on appeal are fairly exhaustive with respect to why it filed its petition to intervene over a month late.
PIRG members were students, not in the area during the summer. Internal processes required to make decisions can be time-consuming especially when organizations are attempting to function in accordance with their charter.
It is noted, however, that PIRG's petition was not filed until October 7,1978 well after the fall term commenced and that no officer of PIRG undertook to request additional time in which to file or to other-wise alert this agency of its potential concern.
The Board's determina-tion in its Supplemental Order that PIRG had failed to make a substantial showing of good cause for its failure to file on time based on the facts it had before it is not unreasonable.1/
Having failed to make a substantial showing of good cause on the timeli-ness factor, it was the burden of the petitioner to make a strong showing on the remaining four factors to merit a favorable Board ruling.
B.
The Availability Of Other fteans Whereby The Petitioner's Interest Will Be Protected Clearly, there are several other means by which PIRG can make known to appropriate officials its studies with respect to nuclear transport of radiological materials in florth Carolina.
As pointed out by the Board, "PIRG could present its material to the Board in the form of a limited appearance statement and the Board could then pursue issues it determines to be significant."El PIRG could make any knowledgeable members of its organization available as witnesses to Carolina Action, a party in the proceeding with a contention similar to the one proposed by PIRG.
PIRG could also present the results of its investigations directly to local and State officials who are responsible for traffic control for their review and consideration.1/ This is an appropriate process sihce traffic control is a subject matter that State and local authorities are, in the normal course, responsible for and capable of dealing with. There 1/
Cf., Virainia Electric & Power Company (florth Anna fluclear Power Station, Units 1 and 2), Decision, ALAB-522, slip op. (Jan-uary 26, 1979), p. 6, n 5.
2/
Supplemental Order, p. 23.
3/
PIRG Brief, p. 4.
_g_
are clearly several means by which PIRG can make its views with respect to nuclear cargo transportation in florth Carolina kn'cwn to appropriate authorities, including the fluclear Regulatory Commission.
C.
The Extent To Which Petitioners May Assist In Developing A Sound Record At the prehearing conference held in Charlotte, North Carolina on Octo-ber 24,1979, Mr. Chuck Gaddy identified himself in a representative capacity as the Chairperson for the Davidson Chapter of the fiorth Carolina Public Interest Research Group.E Then, in its January 21, 1979 motion for an extension of time to file objections to the Licensing Board's January 9,1979 supplemental order,U PIRG identified a new representa-tive, Mr. Geoffrey Owen Little.
PIRG explained that Mr. Little was taking cver Mr. Gaddy's responsibilities in these proceedings since Mr. Gaddy was no longer enrolled at Davidson College.E Mr. Little's substitution for Mr. Gaddy as PIRG's representative affects the weight to be applied to the assistance factor.
The possible tran-sient nature of PIRG members who are largely Davidson College students, we believe, weighs very heavily against PIRG admission to these jiroceedings.
y Tr. 8-9.
A letter dated September 7, 1978, corrected to read October 7,1978, which had been submitted only to the Chairman of the Licensing Board was served on the parties at the prehearing conference on October 24, 1978.
y
" North Carolina Public Interest Research Group - Davidson Motion For Extension of Time to File Objection to Supplemental Order Ruling on Petitions for Leave to Intervene," January 21, 1979.
y Ibid., p. 1.
. Already, within a short space of several months PIRG's representatives have changed. The explanation is based on the nature of and extent of the students' attendance at Davidson College.
As explained in PIRG's motion for an extension of time to respond to the Licensing Board's supplemental order, PIRG's new representative is a student at Davidson College, as was fir. Gaddy who was also a student at Davidson College.H PIRG's representative, Mr. Little, asserts that he had to write two research papers in addition to his regular course load as a basis for requesting a time extension to object to the Licensing Board's denial of its intervention.- /- Tied into Mr. Little's request for a time extension is his explanation that PIRG's participation has been affected by the fact that Mr. Gaddy is no longer enrolLi at Davidson College.3_f Thus, the facts alleged in PIRG's brief before the Appeal Board demon-strate that the assistance PIRG could offer, we speculate, would be somewhat tenuous at best.O. As PIRG's representative points out:
If Ibid., p. 1.
2]
_Id., p. 1.
3f Id., p. ;.
4]
In Tennessee Valley Authority (Watts Bar fluclear Plant, 0' nits 1 and._
2), ALAB-413, 5 fiRC 1418 at 1421-1422, note 4 (1977), the Appeal Board discussed the standing of a student on whose behalf a mother sought intervention. That decision indicates that the status of a student should b1 carefully reviewed when considerir, intervention.
Although student status might not be fatal, that status should be looked at carefu~ly.
cf. florthern States Power Comoany (Prairie Island fluclea-deneratTiig Plant, Units 1 and 2), ALAS-i07, 6 AEC 188, 189-199 (1973). The Board stated:
"Of course, when a peti-tioner asserts standing based upon a student (as distinguished from a permanent) resident, it may well be relevant how long he is likely to remain in the area where the educational institution is located.
Watts Bar, supra, 1421-22, n. 4.
"...I will admit a certain ung#amiliarity with the specificity and basis requirements of 10 CFR s2.714(a) and as I am neither the author of the PIRG petition, nor the PIR3 representative to the prehearing onference, I feel somewhat reluctant to speak to the issue...."
D.
The Extent To Which The Petitioner's Interests Will Be Represented By Existing Parties The Board accurately and adequately considered the extent to which PIRG's interests would be represented by existing parties. Although the Board indicated that PIRG could offer some assistance in developing the record, the Board found that PIRG's case appears to be cumulative with respect to other participants in the proceedings.2/ Carolina Action's Contention No. 4 was found by the Licensing Board to deal with the same matter as the one proposed by PIRG.
PIRG admits that Carolina Action's Contention No. 4 is similar to that proposed by PIRG.
However, PIRG points out in its brief that it under-took ar. investigation of the extent to which Carolina Action could be expected to represent its interest in this proceeding following the 1/
Supplemental Order, pp. 7-8.
2/
Supplemental Order, pp. 23-24.
As we explain in this brief on the assistance factar, the Staff would weight the assistance factor against PIRG's admission more than the Licensing Board did.
The Board was not aware, however, that PIRG's representative would change because of a change in student status when it issued its supplemental order of January 9,1979.
4 vammup W eM eQ e qm h*
- Supplemental Order published by the Board on January 9,1979.1/
The new, but fairly vague, factors which PIRC sets forth in its brief do not shift the balance in favor of PIRR on the representation factor.
PIRG simply states that it discovered in its conversations with Caro-lina Action that Carolina Action may elect not to press its Contention 4.
Whether this is the case or not, we believe the Licensing Board correctly ruled on the representation factor on the facts it had before it.
PIRG's interests are similar to those expressed in Carolina Action's Contention No. 4.
We suggest also that there is no prohibition against a joint effort by Carolina Action and PIRG in our proceedings.
Failure to admit PIRG as a party does not in any way prevent PIRG from making any qualified witnesses it may have available to Carolina Action for presentation of relevant and material evidence on a contention properly before the Licensing Board in these proceedings.
E.
The Extent To Which Petitioner's Participation Will Broaden The Issues Or Delav The Proceedina Tha Board found that the admission of PIRG would probably delay the pro-ceeding, although the Board was unable to give any measure to the impact of any delay. Apparently, the Board did not give great weight to the delay ftctor in denying PIRG's petition to intervene.
The facts asserted by PIRG were not sufficient to enable a precise determination of what the 1/
PIRG Brief, pp. 4-5.
W,6_
e ye
- consequences of admission would be with respect to the delay factor.
How-ever, in an indirect manner and more appropriate to 'the assistance factor as we have already discussed, it seems apparent that PIRG's participation through students who have a somewhat temporary residence in the vicinity of the proposed activity and other pressing concerns (as reflected in some of the statements in PIRG's appellate brief) could cause some delay.
In summary, PIRG has failed to make a substantial showing of good cause.
The remaining four factors set forth in 10 CFR 32.714(a) weigh against PIRG's admission. Accordingly, the Staff would urge that the petition be denied as untimely.
V.
PIRG Does Not Meet Commission Requirements For Permitting Intervention As A Matter Of Discretion The Board in its January 9,1979 Supplemental Order correctly applied the criteria for discretionary intervention in denying PIRG's petition tointervene.3/
d If Supplemental Order, p. 25; see pp. 14-16.
The Commission in Pebble Sprines,E identified the factors that bear on intervention as a matter of discretion for intervenors who do not meet judicialstandingtestsincludingthosesetforthin10CFR52.714(a)and s2.714(d). Generally, permission to intervene on a discretionary basis is available if a petitioner can (1) show significant ability to con-tribute on substantial issues of law or fact which will not otherwise be properly raised or presented, (2) set forth these matters with suitable specificity to allow evaluation, and (3) demonstrate their importance and immediacy, justifying the time necessary to consider them. /
Foremost among the factors which are to be taken into account in deciding whether to allow partic.pation as a discretionary matter is consideration of whether PIRG would have a valuable contribution to make to the Com-mission's decisionmaking process.3_/
-1/
Portland General Electric Company, et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 t1RC 610, 614 (1976).
2,f Supplemental Order, p.16; Pebble Sprinas, suora, p. 617 C_f.
Public Service Company of Oklahona, et al. (Black Fox Station, Units 1 and 2) Decision, ALAB-397, 5 tiRC 1143, 2245, n. 14 (1977);
Tennessee Valley Authority (Watts Bar tiuclear Plant, Units 1 and 2), LDP-77-36, 6 flRC 1291, 1294-95 (1977).
3f Pebble Sprinos, suora, p. 617; Vircinia Electric and Power Comoany (North Anna Power Station, Units 1 and 2), ALAB-363, 4 11RC 631, 633 (1976).
The Board reasonably concluded that PIRG should not be acmitted on a discretionary grounds because PIPG had demonstrated no significant ability to contribute to the Commission's decisionmaking process on substantial issues of law or fact which another party might not other-wise preperly raise.1/
In arriving at that conclusion the Board necessarily found that the additional factors specified by the Commission in 10 CFR 552.714(a) and 2.714(d) weighed against PIRG's discretionary intervention.2/
The Board found as an ultimate matter that PIRG would most likely not make useful contribution (i.e., "not shown any significant ability to contribute") to the proceeding.
It determined that any assistance PIRG might be expected to offer in developing a sound record was outweighed by the considerations that PIRG's participation appeared to be cumulative with that of other participants admitted in this proceeding, and that there were means by which PIRG could get the information it had developed before the Licensing Board.3_/ The Petitions Board also found, we believe 1/
10 CFR 52.714(a)(2); Supplemental Order, p. 25.
2]
Supplemental Order, pp. 14-15, 22-24.
It was not necessary for the Board to restate its findings on all the factors specified in 10 CFR ll2.714(a) and (d) on the discretionary intervention question since it had already found that those factors weighed against PIRG on the timeliness issue.
3]
Supplemental Order, pp. 23-24.
correctly, that any assistance that PIRG could offer was further dis-counted by the fact that other parties admitted would most likely deal with PIRG's concerns.
PIRG's statements in its January 22, 1979 appellate brief indicate that on the assistance factor the weight should be against PIRG's discretionary intervention. The nature of PIRG's membership makes it highly unlikely that group will have a representative fully conversant with the case throughout the hearing process.3/ The assistance factor must be weighed against what is admittedly speculation that in the future these proceedings may be further delayed from time-to-time because PIRG ;eeks accommodation of hearing schedules with examinations and interim and summer college vacation schedules.2/
There remain two factors to. consider: 10 CFR 5 2.714(d), (a)(2) and (a)(3). Section 2.714(d)(a)(2) deals with the nature and extent of petitioner's property, financial or other interest in the proceeding.
Section 2.714(d)(a)(3) deals with the possible effect of any order which may be entered in the proceeding on the petitioner's interest.--
1/
See pp. 7-8 of PIRG's appellate brief where some sort of credit is sought for the fact that PIRG's representative at the prehearing conference is not available for the appellate process.
2/
PIRG Brief, pp. 7-8; see " North Carolina Public Interest Research Group - Davidson Motion for Extension of Time to File Objection to Supplemental Order Ruling on Petition For Leave To Intervene,"
(January 21,1979),p.1.
PIRG's appellate brief touches these factors only indirectly.
With respectto52.714(d)(a)(2),thereisnothinginthe..recordwhichindi-cates that there will be any substantial effect on PIRG's property, financial or other interests by way of its participation or lack thereof in this proceeding.
The information in PIRG's submittals does not indi-cate that the outcome of these proceedings, whether favorable to PIRG's position or unfavorable, would have any effect on PIRG's interests.
Similarly, with respect to 5 2.714(d)(3), the possible effect of any order which may be entered in the proceeding on PIRG's interest could not be said to weigh in favor of allowing PIRG to intervene in this pro-ceeding.
PIRG's pipers are devoid of any particularized showing of any effect that a Board order would have on any PIRG interest.
Based on all the factors considered with respect to the matter of dis-cretionary intervention, we think that the Board's denial of PIRG's petition on discretionary grounds should be affirmed. There is suffi-cient basis in the record to support the Board's finding that PIRG's admission would not result in a valuable or useful contribution to these proceedings. The " valuable contribution factor" is the most important fc N r in the consideration of the matter of discretionary intervention.E 1/ Pebble Sorinas, supra, p. 617.
VI. The PIRG Petition To Intervene Should Be Denied For Failure To State A Contention We believe the Board properly determined that PIRG had failed to present an adequate contention.
That is, it is not sufficient merely to make a completely unsupported allegation.1/ The contention presented by PIRG for consideration reads as follcws:
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 p"blic.
In the Staff's view, this contention fails to meet the specificity and basisrequirementsof10CFRl2.714(a).
PIRG's argument in its appellate brief that its contention is as specific and may be admitted by the Board really adds nothing to the contention. /
The basis requirement was incorporated into Section 2.714(a) for a purpose.
Definition of issues and their supportive basis is the framework within which the hearing process must function as the Atomic Energy C6mmission J/
Supplemental Order, p. 25.
2/
PIRG Brief, p. 8.
. recognized in its Statement of Consideration when it promulgated the
~
section:
Intervention.
The present procedures for intervention (which stem from statutory requirements are essentially retained, but certain new responsibilities are placed on those permitted to intervene in connection with making and supporting allegations on matters they seek to place in controversy for hearing consideratien...
Definition of the matters in controversy is widely reccanized as the keystone to the efficient progress
_of a contested proceedina.
In order to put a catter in issue, it will not be sufficient merely to make an unsuccorted
,111egation.
LEmphasis supplied.
37 Fed. Rea. 15127 July 28, 1972)].
The rule is not onerous. All that is required is a conter.tiv stated with reasonable specificity and some basis assigned to it.1/ The conten-tion proferred by PIRG fails to meet this test, even considering the more lenient standards generally applicable to the pleadings of pro jie intervenors.2/
VII.
Conclusion With regard to its untimely petition, PIRG showing of good cause is not substantial.
In addition, it appears that PIRG would not be able to 1/
See Mississippi Power and Light Cocoany (Grand Gulf fluclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973).
2]
Cf. Public Service Electric and Gas Co. (Salem fluclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487 (1973), (Pro s_2 peti-tieners will be held to less rigid standards of pleading though a totally deficient petition will be rejected.)
See cenerally; Virainia Electric and Power Co. (florth Anna Power Station, Units 1 and 2), ALAB-256, 1 t1RC '.0, 18 at n. 9 (1975); Consolidated Ed~.
Co. of tiew York, Inc., (Indian Point Station, Unit 2) ALAB-243, 8 AEC 850, 853 (1974).
assist in developing a sound record at the Licensing Board stage. Alter-natives exist whereby PIRG's interests will be protected.
flamely, PIRG may assume the role of a limited appearce.
't can submit the results of any of its studies directly to the Ccmmission, the State, which would more likely transmit them to the Licensing Board, to local authorities, or to the appropriate officials of the State of florth Carolina.
Further-more, it appears that Carolina Action has proposed a contention which embraces the concerns raised by PIRG.
Finally, PIRG's participation would produce delay.
In weighing these considerations, the ?!RC Staff believes that PIRG has not made an adequate showing of good cause, that an adequate excuse for the lack of timeliness on the part of PIRG has not been provided, and that the petition should be denied as untimely.
Further-more, FIRG has not set forth an adequate contention pursuant to 10 CFR s 2.714 which would entitle it to party status. Although given an oppor-tunity to do so, PIRG has not formulated a contention with the specificity and basis required under the Commission's Rules of Practice, thus providing another ground for denial of its intervention petition.
With respect to intervention as a matter of discretion, the LTcensing Board appropriately found that PIRG should not be admitted based on its finding that it is not likely that PIRG would make a valuable contribu-tion to the proceeding.
The other factors that must be considered with respect to discretionary intervention when considered in light of PIRG's e-*
% appellate brief demonstrate that those factors weigh against PIRG's admission in this proceeding as a n:atter of discretion.
Accordingly, PIRG's petition to intervene in these proceedings should be denied.
Respectfully submitted, QW Edward G. Ketchen Counsel for f4RC Staff Dated at Bethesda, Maryland this 22nd day of February,1979.
e e
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UNITED STATES OF AMERICA flVCLEAR REGULATORY COMMISSI0fl BEFORE THE ATOMIC SAFETY AND LICENSIflG APPEAL BOARD In the Matter of DUKE POWER COMPANY Docket flo. 70-2623 (Amendment to Materials License
)
SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage )
at McGuire Nuclear Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "f;RC STAFF RESP 0flSE TO APPEAL BY NORTH CAROLINA PUBLIC IrlTEREST RESEARCH GROUP OF SUPPLEf1 ENTAL ORDER BY ATONIC SAFETY AND LICENSIflG BOARD ON PETITIONS FOR LEAVE TO INTERVEf!E" and "NRC STAFF MOTION TO ACCEPT NRC STAFF BRIEF OUT OF TIME", dated February 22, 1979 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 Corrmission's internal mail system, this 22nd day of February,1979:
- Mr. Alan S. Rosenthal, Chairman Dr. Cadet H. Hand, Jr., Director Atomic Safety and Licensing Bodega Marine Laboratory Appeal Board University of California U.S. Nuclear Regulatory Commission P.O. Box 247 Washington, D. C.
20555 Bodega Bay, California 94923
- Dr. John H. Buck
- Dr. Emmeth A. Luebke Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 W. L. Porter, Esq.
- Michael C. Farrar, Esq.
Associate General Counsel Atomic Safety and Licensing Legal Department Appeal Board Duke Power Company U.S. Nuclear Regulatory Commission 422 South Church Street Washington, D. C.
20555 Charlotte, North Carolina 28242
- Marshall E. Miller Ms. Brenda Best Atomic Safety and Licensing Board Carolina Action U.S. Nuclear Regulatory Commission 1740 E. Independence Blvd.
Washington, D. C.
20555 Charlotte, North Carolina 28205
.....