ML19289F097

Joint Applicants' Response to Palo Verde Nuclear Intervenors Amended Petition for co-intervention.Petitioners Are Not Entitled to Intervene as Matter of Right or Matter of Discretion.Certificate of Svc Encl

ML19289F097
Person / Time
Site:	Palo Verde
Issue date:	04/26/1979
From:	Bischoff C, Gehr A SNELL & WILMER
To:
References
NUDOCS 7906020030
Download: ML19289F097 (13)

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NUCLEAR REGULATORY COMMISSION $he BEFORE THE ATCMIC SAFETY AND LICENSING BOARD off'Y ,

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ARIZONA PUBLIC SERVICE )

) DOCKET NOS. STN 50-592 COMPANY, et al. )

) STN 50-593 Palo Verde Nuclear Generating )

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Station Units 4 & 5 )

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JOINT APPLICANTS' RESPONSE TO THE AMENEED PETITION FOR CO-INTERVENTION OF THE PALO VERDE NUCLEAR INTERVENORS On April 16, 1979, joint applicants Arizona Public Service Company, Southern California Edison Company, El Paso Electric Company, San Diego Gas & Electric Company, Nevada Power Company, Department of Water and Power of the City of Los Angeles, City of Anaheim, City of Burbank, City of Glendale, City of Pasadena, and City of Riverside (the

" Joint Applicants") received frca the Office of the Secretary of the Ccemission a copy of an amended petition for co-intervention signed by five individuals proposing to be called the Palo Verde Nuclear Intervenors ( " P VNI" ) (herein-after referred to as " Petitioners"), and dated March 27, 1979.

Two of the five individuals signing the amended petition, Messrs. Fullinwider and Rhodes, had previcusly 2236 293

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signed a " Petition for Co-Intervention" by PVNI in February 1979. In its Memorandum and Order dated March 22, 1979, this Licensing Board denied the petition on the grounds that (1) PVNI had not demonstrated that it had standing to inter-vene and (2) PVNI had failed to address the five factors pertinent to untimely filings given in 10 C.F.R. S 2.714 (a) (1) .

However, the Board did grant PVNI ten (10) days from the date of service of its Order to file an amended petition.

Joint Applicants oppose the amended petition on the independent grounds that (1) Petitioners have failed once again to demonstrate that they have standing to in-tervene and (2) a balancing of the five factors listed in 10 C.F.R. 52. 714 'a) (1) and addressed in the amended petition weighs against granting the amended petition.

STANDING In its amended petition, Petitioners state that they " propose to call [themselves] the Palo Verde Nuclear Intervenors for purpose of identification" and that "each of

[them] wishes to be recognized as a co-intervenor." (Amended Petition, at 1.) These statements make it unclear whether Petitioners are seeking to intervene as a group known as PVNI or as five individuals.

Regardless of Petitioners' intent, it is necessary that they demonstrate standing to intervene. An organiza-

tion has standing to intervene if it can show that it or its 1 , c (, >(

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members have an interest entitled to protection under the Atomic Energy Act. An individual has standing if he can show that he has a protectible interest. The amended pe-tition fails to demonstrate that any of the five individuals signing the amended petition holds the requisite interest.

Petitioners' attempt to establish a protectible interest is limited to the allegation that "each lives within the area of metropolitan Phoenix, and thus the health and safety of each may be affected by the outcome of the licensing pro-ceeding." (Amended Petition, at 1.)

In its March 22, 1979 Order, this Board stated that the " Petition for Co-Intervention" was defective because it failed to "specify exactly where in the Phoenix area (the two members alleged to reside in the Phoenix areal do reside or the distance from the Palo Verde Nuclear Generating Station to their residences." (Memorandum and Order, at 5.) Petitioners have failed to cure this defect in spite of the fact that it was brought to their attention so clearly by the Board. They have failed to provide an address or the distance from the Palo Verde site to the residence of any of the five individuals signing the amended petition.

Because of this defect, Petitioners have failed to establish standing for either PVNI or any of the five individuals. On this basis alone the amended petition for co-intervention should be denied.

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UNTIMELY PETITION In its March 22, 1979 Order, this Board stated that there was no basis upon which it could grant PVNI's untimely peti *. ion in view of the fact that PVNI had failed to address the factors listed in 10 C.F.R. 5 2. 714 (a) (1) .

Tho. ' actors, which are required to be considered by the Board in ruling on untimely petitions, have been addressed by Petitioners in their amended petition. A brief analysis of Petitioners' discussion of these factors, however, leads to the conclusion that the factors clearly weigh against granting the amended petition.

The first factor to be considered is "[gjood cause, if any, for failure to file on time." Petitioners state in response to this factor that they filed immediately upon learning that Larry Bard, whose own petition to inter-vene had not at the time been granted, "was in need of aid in adequately fulfilling his prospective role as citizen intervenor." (Amended Petition, at 2.) Whether there is in fact good cause for failure to file in time is a question which must be determined on the basis of the circumstances existing in each particular case. Ducuesne Licht Ccapany et al.

(Seaver Valley Pcwer Station, Unit 2) , ALA3-208, RAI-74-6, 959, 967 n.7 (1974). Petitioners here do not claim that they were unaware of the proposal to build Palo Verde Units 4& 5. Nor have Petitioners provided any information which c?.\'r l?

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would give one reason to conclude that they were unable to file the petition in a timely manner. Petitioners' state-ment simply alleges that because they were unaware that Mr.

Bard was in need of assistance in order to pursue his con-tentions adequately, Petitioners should be excused frem a timely filing.

In Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAS-444, 6 NRC 760 (1977), the Appeal Board considered an untimely petition filed by a potential intervenor which was endeavoring to substitute itself for a prior participant which had withdrawn and to pursue the same issues which that participant had advanced.

The basic explanation offered by the potential intervenor for its late filing was simply that it had been " lulled into inaction" by the prior participant. The Appeal Board rightly rejected this explanation as establishing " good cause". In drawing its conclusion, the Appeal Scard cited another case, Duke Pcwer Ccmpany (Cherokee Nuclear Station, Units 1, 2 and 3), ALA3-440, 6 NRC 642 (1977), for the general proposition that one who sits on the sidelines in reliance on the expectation that an existing participant will adequately represent the non-party's interests assumes a risk that the existing participant's involvement in the proceeding will not fulfill the non-party's expectations. A foreseeable consequence of that risk is that the persen who has delayed filing will not be permitted at a later time to

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beccme a party to the proceeding. If the explanation in Gulf States Utilities Company, where the participant had actually withdrawn from the proceeding, was insufficient to establish " good cause", the explanation offered by Petitioners here is even more deficient in view of the fact that the existing participant, Intervenor Bard, is not planning withdrawal but intends to pursue his contentions.

Furthermore, the response which Petitioners make to this first factor leads Joint Applicants to conclude that Petitioners are more interested in providing assistance to Intervenor Bard than they are in participating in this proceeding as intervenors. Joint Applicants are unaware of any Commission regulations which would require Petitioners to become parties in order to provide Intervenor Bard with the assistance they feel he requires in contacting and financing experts to support his contentions. Therefore ,

there is no need to grant intervenor status to Petitioners in order for them to achieve their objectives. Based on these considerations, this first factor weighs against granting the amended petition.

The second f actor is "[t]he availability of other means where the petitioner's interest will be protected."

Here Petitieners offer in part that "[n]o other petitioner before the Licensing Scard is en record as shcwing interest W\ V . - 2236 298

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in the contentions presented to the Board by the citizen intervenor, Mr. Larry Bard." (Amended Petition, at 2.) It is not clear to Joint Applicants on what basis Petitioners believe this statement supports their amended petition. In Joint Applicants' view, the statement shows that Petitioners are interested in the same contentions as have been pre-sented and will be pursued by Intervenor Bard. And because Petitioners are simply supporting Intervenor Bard's con-tentions, their interest will be adequately protected by an existing participant. To the extent that Petitioners feel their interest will not be sufficiently protected because Intervenor Bard is in need of assistance, Joint Applicants state again that such assistance can be provided by Pe-titioners without the need to admit them as parties to this proceeding.

The third f actor is "[t]he extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record." Consideration of this factor clearly weighs against granting the amended petition.

Petitioners have provided no information nor made any al-legations that any legal or technical expertise from among their group will be brought to bear on the contested issues.

Such expertise is necessary in order to conclude that a petitioner unrepresented by counsel will be able to cen-tribute meaningfully to a licensing proceeding. See Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center), L3P-77-59, 6 NRC 513 (1977). Furthermcre, one may

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O 2236 299 draw a negative inference of Petitioners' ability to con-tribute from the fact that they wish simply to pursue the contentions of an existing participant. See Wisconsin Public Service Corp. et al. (Kewaunee Nuclear Power Plant), LBP 24, 8 NRC 78, 83 (1978). Accordingly, this factor also weighs against granting the amended petition.

The fourth f actor is " [t]he extent to which the petitioner's interest will be represented by existing parties." Petitioners' discussion here is simply a ref-erence to their statements made in response to the second factor. Joint Applicants fail to see how Petitioners' discussion of the second fact.r is of assistance in con-cluding that Petitioners' interest will not be represented by an existing party. Assuming that one or more of the individuals signing the amended petition are within the zone of interests protected by the Atomic Energy Act, and noting Petitioners' statement that they are concerned about their safety and welfare, it is concluded that Petitioners share an identity of interest with Intervencr Bard. Therefore, their interest would be adequately represented by an exist-ing party.

The fifth and final factor is "[t] he extent to which the petitioner's participaticn will broaden the issues or delay the proceeding." Petitioners here state that they are concerned with the contentions presented to the Scard by 2236 ;00

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Intervenor Bard and also state elsewhere in their amended petition that the contentions which they wish to support are those stipulated to by Intervenor Bard, the Staff, and the Joint Applicants at the special prehearing conference held in this matter on February 21, 1979. (See " Report Regarding Stipulation Reached by the Applicant, NRC Staff and Larry Bard", dated February 26, 1979.) Therefore, it does not appear that Petitioners' participation necessarily will broaden the issues. However, Joint Applicants are concerned that Petitioners' participation will delay the proceeding.

Joint Applicants' concern in this regard is that Petitioners 1

appear to be unfamiliar with the Commission's regulations and have made no showing that they would be able to under-stand and contribute to a resolution of the technical issues to be considered. Accordingly, the fifth factor also weighs against granting the petition.

In summary, all five of the factors of Section

2. 714 (a) (1) weigh against granting Petitioners' amended petition. In Duke Power Ccmpany (Perkins Nuclear Station, Units 1, 2 and 3), ALA3-431, 6 NRC 460 (1977), where an untimely petitioner for intervention tendered no good excuse

1) It is noted that Petitioners failed to serve both their original and amended petitions on Joint Applicants and they failed in their original petition to address the factors which must be considered in determining whether to grant an untimely petition.

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for tardiness, the petition was denied even though two of the remaining four factors favored granting the petition.

Where, as in this case, none of the five factors listed in Section 2.714 (a) (1) favors granting the amended petition for co-intervention, it is clear that the amended petition should be denied as untimely. Joint Applicants reiterate that Petitioners' primary objective, which is to provide assistance to Intervenor Bard, can be achieved without their participation as parties.

DISCRETIONARY INTERVENTION Since Petitioners are not entitled to intervene as a matter of right, the remaining question is whether this Licensing Board should exercise its discretion and permit Petitioners to co-intervene. This question was analyzed by Joint Applicants in their March 9, 1979, response to PVNI's

" Petition for Co-intervention." It was concluded from that analysis that PVNI's situation was not an instance where intervention should be granted as a matter of discretion.

That analysis and the conclusion drawn therefrem remain applicable and are therefore incorporated by reference in this response.

Based on the foregoing, Joint Applicants submit that Petitioners' amended petition for co-intervention 2236 ;02 tu; -

should be denied.

RESPECTFULLY SUBMITTED this f(-fl day of April, 1979.

SNELL & WILMER By d'

/1 Arthur C. Gehr Charles A. Bischoff 3100 Valley Bank Center Phoenix, Arizona 85073 Attorneys foi Joint Applicants 2236 303 9

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UNITED STATES OF AMERICA ' $"L $1-av -

NUCLEAR RIGULATORY CCMMISSION g .Ip

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In the Matter of )

) g, 9 ARIZCNA ?U3LIC SERVICE )

COMPANY, ET AL. ) Docket Nos. STN 50-592 Palo Verde Nuclear Generating ) STN 50-593 Station, Units 4 & 5 )

CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been served upon the folicwing listed persons by deposit in the United States mail, properly addressed and with postage prepaid..

Robert M. Laco, Esq., Chairman Atomic Safety and Licensing Atcmic Safety and Licensing Appeal Scard Board Panel U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Cc=missioner Victor Gilinsky Docketing and Service Section*

U . 'S,. Nuclear Regulatory U. S. Nuclear Regulatory Commission ;_ .i Ccmmission Washington, D. C. 20555 Washington, D. C. 20555 Vincent MacKen:ic, Esq.

Dr. Quentin J. Stober Research Associate Professor Janice E. Kerr, Esq.

Fisheries Research Institute J. Calvin Simpson, Esq.

University of Washington Califernia Public Utilities 400 Northeast 15th Avenue Commission Seattle, Washington 98195 5066 State Building San Francisco, California 94102 Stephen M. Schinki, Esq.

Counsel for NRC Staff Mr. Larry Sard U. S. Nuclear Regulatory P. O. Box 793 Cc= mission Tempe, Ari ena 95291 Washington, D. C. 20555 George Campbell, Chairman Michael M. Grant, Esq.

Maricopa County Scard of Assistant At:Orney General Superviscrs 200 State Capitol 111 South Third Avenue 1700 West Washing:en Phoenix, Ari ena 85004 Phoenix, Ari:ena 35007 2236 304

O P Donald G. Gilbert Kathryn Burkett Dickson Executive Director Mark J. Urban Ari:Ona Atomic Energy CO:=nission Counsels for the California 2929 West Indian School Road Energy Resources Conservation Phoenix, Ari::ena 85017 111 Howe Avenue Sacramento, California 95825 Tom Diamond, Esq. Alan R. Watts, Esq.

1208 First City National Bank Rourke & Woodruff Building 1055 N. Main Street El Paso, Texas 79901 Suite 1020 Santa Ana, California 92701 Ron W. Watkins Vice President Ralph G. Wesson, Esq.

San Diego Gas & Electric Co. Assistant City Attorney for San Diego, California 92212 Water and Power P. O. Box 111 Los A:,geles , California 90051 tf' c km' /

Dated: ApAl 26, N79 2236 305