ML19295E795
| ML19295E795 | |
| Person / Time | |
|---|---|
| Site: | 07002909 |
| Issue date: | 12/01/1980 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19295E796 | List: |
| References | |
| NUDOCS 8012080516 | |
| Download: ML19295E795 (22) | |
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12/01/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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APPLICATION OF WESTINGHOUSE ELECTRIC
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CORPORATION FOR A SPECI AL NUCLEAR
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MATERIAL LICENSE FOR THE ALABAMA
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Docket No. 70-2909 NUCLEAR FUEL FABRICATION PLANT
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(ANFFP) TO BE LOCATED NEAR
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PRATTVILLE, ALABAMA
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NRC STAFF'S ANSWER TO PETITION FOR LEAVE TO INTERVENE FILED BY CATHALYNN DONELSON INTRODUCTION On November 10, 1980, Cathalynn Donelson untimely filed a " Petition for Leave to Intervene" (" Petition"),1 almost five months later than the dead-line specified for such filing as published in the Federal Recister notice on April 7,1980. -
For the reasons set forth below, the NRC Staff (" Staff")
believes that the Donelson Petition satisfies the standing and interest
--1/
Ms. Donelson also filed on November 10, 1980, a " Joint Motion for Substitution of Named Intervenor" (" Motion for Substitution"), along with David L. Allred, an individual who had previously filed a timely petition for leave to intervene in this proceeding.
For purposes of clarity, the Staff is filing a separate response to that motion simul-taneously herewith.
See "NRC Staff's Response to Joint Motion for Substitution of Named Intervenor" (" Response to Motion for Substitu-tion"), dated December 1, 1980.
2/
The Federal Recister notice of April 7,1980, extended the deadline for the filing of petitions for leave to intervene until June 14,1980(45 Fed. Rec. 23553).
The original notice of opportunity for hearing in this matter had been published in the Federal Reaister on March 6, 1980, and required petitions for leave to intervene to be filed on or before April 7, 1980 (45 Fed. Rec. 14724).
8&ud8 45%
, requirements for petitions for leave to intervene, as set forth in 10 CFR
@ 2.714, and that it sufficiently identifies the aspects of the proceeding as to which the petitioner seeks to intervene.
Further, the Staff believes that this " pro g" petitioner has adequately set forth facts which result in a balancing of the factors specified in 10 CFR @
2.714(a)(1)(i)-(v) in favor of her Petition.
Accordingly, for the reasons more fully set forth below, the Staff supports Ms. Donelson's Petition subject to (a) the withdrawal by David L. Allred of his petition for leave to intervene, (b) the identification by Ms. Donelson of the contentions she seeks to preserve, and (c) the finding by the Licensing Board that Ms. Donelson has identified at least one admissible contention as required by 10 CFR @ 2.714(b).5!
BACKGROUND Petitioner Donelson is not altogether a stranger to these proceedings.
Although she has not previously filed a petition for leave to intervene, the Staff notes that she is a member of the Board of Directors of the Safe Energy Alliance of Central Alabama, Inc. ("SEACA"), a membership 3/
In the event that David L. Allred does not withdraw his pending petition for leave to intervene, the Staff is of the view that petitioner Donelson will have failed to demonstrate " good cause" in support of her untimely Petition, and other factors would weigh against the admission of her Petition.
In that event, the Staff would oppose the Donelson Petition and recommend that it be denied by the Licensing Board.
See discussion infra, at 14 n.12, and 18 n.13.
. organization which has timely filed a petition for leave to intervene,O and that she joined in a Resolution authorizing SEACA to file its petition.
See Exhibit III to SEACA's Amended Petition.
Further, as a member of SEACA, Ms.
Donelson has previously authorized that organization and its attorney, Julian McPhillips, Esq., to represent her interests herein.
See Exhibit II to SEACA's Amended Petition.N Finally, the Staff has personal knowledge and recollection that Ms. Donelson attended the special prehearing confer-ence in this proceeding on August 21, 1980, and other conferences held among the parties, and that on numerous occasions she has discussed various aspects of this proceeding with the Staff.
While these facts are not dispositive of the present Petition, the Staff has included them here in order to help to acquaint the Licensing Board with some of the background to the instant Petition.
In the balance of this Answer, we will discuss, seriatim, the issues of standing and interest, aspects of the proceeding, and the factors to be considered in connection with untimely petitions for leave to intervene.
-4/
SEACA's initial " Petition for leave to Intervene and Request for a Hearing" ("SEACA's Initial Petition") was timely filed on April 7, 1980.
Subsequently, SEACA timely filed its " Amended Petition for Leave to Intervene and Request for a Hearing" ("SEACA's Amended Petition"),
on June 12, 1980.
5/
While the signatories to Exhibit II to SEACA's Amended Petition, including Ms. Donelson, state that they "all filed petitions for leave to intervene
... on April 7,1980," those individuals have not, in fact, filed petitions herein; apparently, this statement was inadvertently copied from another Exhibit to SEACA's Amended Petition, executed by other SEACA members who did file individual petitions for leave to intervene.
See Exhibit I to SEACA's Amended Petition, and Amended Petition at 1, para. 2.
. I.
Interest and Standinc It is axiomatic that a petition for leave to intervene must comply with the requirements of 10 CFR Q 2.714 That rule provides, in essence, that the petition must set forth with particularity the interest of the petitioner and demonstrate how that interest may be affected by the results of the pro-ceeding, and nust set forth also the specific aspect (s) of the subject matter of the proceeding as to which the petitioner seeks to intervene.
In considering the petition, the Licensing Board should take into account (a) the nature and extent of the petitioner's right to be made a party, (b) the nature and extent of the petitioner's property, financial, or other interest in the proceeding, and (c) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.
10 CFR ss 2.714(a)(2) and 2.714(d); Washincton Public Power Supply System (WPPSS Nuclear Projects, Nos. 3 cnd 5), LBP-77-16, 5 NRC 650 (1977).
As a general matter, it is well established that judicial concepts of stand-ing should be applied in determining whether or not a petitioner is entitled to intervene as of right.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-26, 4 NRC 610, 613-14 (1976).
These judicial concepts require a showing (a) that the action being challenged could cause injury-in-fact to the person seeking to establish standing, and (b) that the injury is arguably within the zone of interests protected by the statute which governs the proceeding.
Sierra Club v. Morton, 405 U.S.
727(1972); Barlow v. Collins, 397 U.S.159 (1970); Association of Data Processina Service Oraanizations v. Camp, 397 U.S.150 (1970); Pebble Springs, supra; Virginia Electric and Power Co. (North Anna Power Station, Units 1
. and 2), ALAB-342, 4 NRC 98 (1976).
The potential injury alleged must be particularized to the individual petitioner and not merely one which is
" s h a red i n st..
antially equal measure by all or a large class of citizens."
Edlow International Co., CLI-76-6, 3 NRC 563, 576 (1976), quoting Warth v.
Seldin, 422 U.S. 490, 499 (1975).
Various factors have been held to be suf ficient to establish the requisite standing. The Commission has recognized that sufficient interest may be demonstrated by claims that the petitioner lives within the geographical zone which might be affected by the norn.al or accidental release of fission products from the facility in question as a result of the proposed licensing action.
Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973); Northern States Power Co.
(Prairie Island Nuclear Generating Plant, " nits 1 and 2), ALAB-107, 6 AEC 188 (1973).
In this regard, it has beef. held that residence within proximity of a nuclear reactor site clearly f al's within the geographical zone and is, by itself, sufficient to establish the requisite interest.
Houston Liahtinc and Power Co. ( Allens Creek Nuclear Generating Station), ALAB-535, 9 NRC 377, 393 (1979); accord, Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-552, 9 NRC 54, 56 (1976).
While no outer limits of the geographical zone have been established, it has been held that 50 miles "is not so great as necessarily to have precluded a finding of standing based upon residence." Tennessee Valley Authority (Watts Bar Nuclear Generating Station, Unit 1), ALAB-413, 5 NRC 1418, 1421 n.4 (1977).
Sinilarly, it has been held that the pursuit of everyday activities in the vicinity of a reactor site is sufficient to establish interest.
Gulf States Utilities Co. (River Bend Station, Units I and 2), ALAB-183, 7 AEC 222, 226 (1974); and use of the area surrounding a reactor site for recreational purposes is sufficient, in appropriate circumstances, to establish the requisite interest.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, 6 AEC 173 (1973).5/
B.
The Donelson Petition When these priciples are applied to the Donelson Petition, it appears that Ms. Donelson has demonstrated the standing and interest required by 10 CFR 5 2.714 Although Ms. Donelson does not indicate the precise distances from the proposed facility to her home or work locations, it would appear that both of those locations are in fairly close proximity to the proposed plant site.
Thus, Ms. Donelson states that she resides and works in Montgomery, Alabama (Petition, paras.1 and 3), which is approximately 12 miles from the proposed ANFFP facility.1/ Further, Ms. Donelson states that she owns property in Montgomery County, Alabama, within five miles of the proposed ANFFP facility (_id., para. 2).
The Staff believes that these facts, establish-ing Ms. Donelson's residence, work and property locations within reasonably
~6/
The Staff notes that most of the cases which discuss the issue of distance from the facility involved the licensing of nuclear reactors; and, in fact, the Staf f is not aware of any cases which involve the licensing of nuclear fuel fabrication plants in which this issue is discussed. While the nature of the activities conducted at these two different types of facilities is wholly dissimilar, as is the nature of the fission products found at these two types of facilities, for the purpose of considering standing alone, the Staff has adopted the analysis found in the reactor licensing cases.
7/
See Applicant's Environmental Report (Alabama Nuclear Fuel Fabrication Plant Environmental Report (Dec.1979)), at 2-1.
close proximity of the proposed plant site, are sufficient to establish the requisite standing and interest pursuant to 10 CFR Q 2.714 II.
Aspects of the Proceedina In addition to the " interest" requirement of 10 CFR @ 2.714, a petition must also set forth with particularity the specific aspect (s) of the subject matter of the proceeding as to which the petitioner wishes to intervene.
The only relevant " aspects" of the proceeding are those which fall within the scope of the proceeding.
Although this require-ment has not yet been discussed extensively in NRC case law, it is apparent that it is intended to afford some notice to other parties to the proceeding of the issues which are likely to be litigated and, thereby, of the scope of the contested subject matter in the proceeding.
The Staff submits that the appropriate test as to whether the " aspects" of the proceeding have been identified properly is whether they put the Licensing Board and the parties on notice regarding the basic areas in which the petitioner intends to raise contentions.
In her Petition, Ms. Donelson has expressed concern over the effects of radiation releases from the proposed plant, and the effects of varicus postulated accident sequences upon her safety, health, and enjoyment or her property (Petition, paras. 5-6).
In the Staff's opinion, petitioner Donelson has identified several aspects of the subject matter of the proceeding as to which intervention is desired.
For these reasons, the Staff is of the view that petitioner Donelson has satisfied the " aspects" requirement set forth in 10 CFR 6 2.714(a)(2).
. III.
Failure to File Petition on Time As indicated in our discussion supra, at 1, Ms. Donelson filed her petition for leave to intervene almost five months after the deadline for filing had expired -- a deadline which, itself, was extended for two months beyond the originally noticed deadline for filing.b Pursuant to the Commission's regulations, petitions for leave to intervene which are non-timely filed are governed by the provisions of 10 CFR Q 2.714(a)(1).
That regulation provides, in applicable part, as follows:
% 2.714.
Intervention (a)(1)... Nontimely filings will not be entertained absent a detemination... that the petition and/or request should be granted based upon a balancing of the following factors in addit graph (d)ofthissection:yntothosesetoutinpara-(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.
8/
See n.2, supra, and accompanying text.
-9/
10 CFR 9 2.714(d) provides as follows:
(d) The Commission, the presiding officer or the atomic safety and licensing board designated to rule on petitions to intervene and/or requests for hearing shall, in ruling on a petition for leave to intervene, consider the following factors, among other things:
(1) The nature of the petitioner's right under the Act to be made a party to the proceeding.
(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interests.
See discussion supra, at 4
_g_
(iii) The extent to wtiich 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 cr delay the proceeding.
The burden of establishing the requisite " good cause" and the weight to be accorded to the other factors set forth in 10 CFR @ 2.714 with respect to a late-filed petition rests with the petitioner.
See 10 CFR 6 2.732; 10 CFR s 2.714(a)(1), Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),
CLI-75-4,1 NRC 273, 275 (1975).
Before a decision may be made as to whether or not to grant Ms. Donelsor's petition for leave to intervene, a balancing of these five factors must be undertaken.
For the reasons more fully set forth below, the Staff believes that, in the event petitioner David L. Allred withdraws his petition for leave to intervene, Ms. Donelson has adequately demonstrated facts which result in a balancing of these factors favorable to the admission of her Petition.
Accordingly, the Staff tentatively supports Ms. Donelson's Petition.
The Staff's views concerning the required balancing of factors with respect to Ms. Donelson's Petition are set forth below.
A.
Good Cause for Failure to File on Time In her Petition, Ms. Donelson has set forth various facts concerning her involvement in this proceeding to date, all under the caption " Good Cause" (Petition, pp. 3-4).
However, Ms. Donelson appears to have misconstrued the
" good cause" requirement as set forth in 10 CFR @ 2.714(1)(a)(i), for she has included under the " good cause" rubric virtually all of her assertions pertaining to the other factors required to be considered in connection with an untimely petition for leave to intervene.
The Staff believes that the following statements in the Donelson Petition are relevant to the " good cause" question -- (a) Ms. Donelson has been informally involved in the proceeding since April 1980 (Petition, p. 3, para.1); (b) Ms. Donelson assisted another petitioner, David L. Allred, in the preparation of his contentions and other pleadings herein (id., p. 3, paras.1-3), and (c) Ms. Donelson did not timely file her own petition because until now she believed that her interests would be protected by the participation in this proceeding by petitioners Allred and SEACA (M., p. 3, para. 3 ; p. 4, para. 6).
In sum, Ms. Donelson appears to assert as " good cause" for having faiied to file on tirre that she previously had relied upon the intervention of another petitioner to protect her own particular interests (M., p. 4, para. 6).
This type of assertion has been raised -- and rejected -- in other proceed-ings before the Commission, albeit in somewhat different circumstances, where the relied-upon intervener was a governmental entity rather than an individual intervenor.
Thus, in Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977), the Appeal Board deter-mined that good cause had not been demonstrated by an untimely petitioner (the Union of Concerned Scientists (UCS)) who wished to substitute for the State of Louisiana which had withdrawn as an intervenor.E/ The Appeal Board noted that "[t]he ' good cause' determination involves a consideration of both (1) the substantiality of the justification offered for the late filing and (2) the four factors specifically enumerated in 10 CFR % 2.714(a),"
6 NRC at 796.
The Appeal Board then rejected as inadequate UCS' explanation that it and its members "were lulled into inaction by the State of Louisiana,"
id., at 797, citing its earlier decision in Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1977).E In Cherokee, petitions for leave to intervene were filed by two individuals almost three years af ter the time for such filing had expired, when the
-10/ In River Bend, the State of Louisiana had intervened as an " interested state" pursuant to 10 CFR @ 2.715(c).
After having participated in the proceeding and having filed all briefs in support of its appeal from the Licensing Board's ir.itial decision on outstanding health and safety issues, the State notified the Appeal Board of its intent to withdraw from the proceeding.
6 NRC at 795.
Since "all efforts necessary for the State to perfect its appeal had already been undertaken," the Appeal Board treated the questions raised by the appeal as if the State had not withdrawn. M.
M/ In River Bend, the attorney for the late petitioner had previously served as the attorney for the State intervenor which had withdrawn.
This fact disturbed the Appeal Board, which cited the observation of the D.C. Circuit Court of Appeals in its affirmance of a Commission order denying a late intervention petition (6 NRC at 797):
We do not find in statute or case law any ground for accepting the premise that proceedings before administrative agencies are to be constituted as endurance contests modeled af ter relay races in which the baton of proceeding is passed on successively from onc legally exhausted contestant to a newly arriving legal stranger.
We find such a scheme especially abhorrent in a situation where, as here, counsel for the expiring intervenor appears newly garbed as counsel for the successive contestant.
Easton Utilities Commission v. AEC, 424 F.2d 847, 852 (1970).
Such a substitution of clients by an attorney is not involved in this pro-ceeding.
. Licensing Board had concluded hearings and was soon to publish its ultimate decision on whether construction permits should be issued.
The Appeal Board affinned the Licensing Board's denial of the petitions at such a late time in the proceeding, "as it approaches the terminal point of licensing board consideration" (6 NRC at 644), as having failed to satisfy the good cause and other requirements of 10 CFR 6 2.714(a).
There, one of the petitioners claimed that her father had died shortly before the deadline for filing petitions and that, three years later, "af ter attending some of the evidentiary hearings and examining many documents pertaining to the facility,
[the petitioner] reached the conclusion that her interests were not being adequately protected by... the State of South Carolina," which was partici-pating as an interested State. 6 NRC at 643, 645.
In rejecting these assertions, the Appeal Board concluded:
That explanation... will not carry the day.
It is not claimed that the state undertook to represent the interests of the petitioner specifically, as opposed to the public interest generally.
This being so, [the petitioner] assumed the risk that the state's degree of involvement in the proceeding would not fulfill her expectations. And a foreseeable consequence of the materialization of that risk was that it would then no longer be possible to undertake herself the vindication of her interests.
6 NRC a t 645.
The distinction between a governmental entity and an individual as " relied-upon" intervenors was noted to be potentially significant by the Appeal Board in River Bend:
The distinction between different types of interests which was alluded to in Cherokee is a potentially important one.
The broad public interest which the governmental intervenor is called upon to protect may well not coincide with the more confined personal interest possessed by the private intervenor.
Thus, even though the same issues might be raised, there could be a marked variance in the objective sought to be attained.
(Citation omitted.)
For this reason, there is at least some room for doubt as to the validity of the UCS assumption that governmental and private intervenors may be readily substituted for one another....
6 NRC at 797 n.79. g. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
Further, the Appeal Board noted that substitution of parties is not per g impermissible.
Rather, such substitution may be allowed:
"If, in the circumstances of the particular case, there is a sound foundation for allowing one entity to replace another, it can, of course, be taken into account in the making of the ' good cause' determination." 6 NRC at 796.
In the Staff's view, the circumstances surrounding the present petition for leave to intervene differ substantially from the circumstances in River Bend and Cherokee.
First, in the present case, unlike the situations in River Bend and Cherokee, the relied-upon intervenor is a private individual and not a goverrriental enti ty.
Accordingly, the rationale of those cases, viz. that good cause for prior reliance and substitution did not exist since there could be no identity of interests between the withdrawing governmental entity and the late filing private party, is inapplicable.
Also, in this case both the withdrawing petitioner ard the late-filing petitioner are individuals who reside, work, and own property within reasonably close oroximity of the proposed facility.
Accordingiy, the interests of these two individuals are relatively similar.
Further, Ms. Donelson, the late filing petitioner, actually assisted Mr.
Allred, the withdrawing petitioner, in the formulation of his contentions and in otherwise participating in this proceeding.
In our view, Ms. Donelson may well have reasonably relied upon Mr. Allred's intervention in this pro-ceeding, supported by her efforts, to protect her own interests.
- Moreover, rather than claiming to have been " lulled into inaction", as did the petitioner in River Bend, here the late petitioner has been actively involved in the proceeding almost from its inception.
These facts suggest to us that " good cause" may indeed exist in this case, sufficient to warrant the granting of the late request for intervention, in the event that Mr. Allred does, in fact, withdraw his petition.12/
The Staff does not mean to suggest for all future Cases where a petitioner or intervenor seeks to withdraw from the proceedir.g, that some other person should be allowed to pick up the " baton" and run with it as in a relay race.
Indeed, the Staff may be expected to oppose such relay-race participation in all future proceedings where the circumstances are less compelling than those presented here.
The Staff views the present circumstances as unique, inasmuch as here the late filing petitioner had actively assisted the prior petitioner in his participation and may have reasonably relied upon his intervention as being protective of her own interests.
Finally, unlike the petitions in River Bend and Cherokee, the untimely petition here was filed prior to any ruling on intervention having been made with respect to any petition for leave to intervene, rather than having been 12/ Of course, if Mr. Allred does not withdraw his petition, we would expect that Ms. Donelson's interests will continue to Le protected through Mr.
Allred's participation, as was originally anticipated by Ms. Donelson.
In that event, " good cause" for admitting Ms. Donelson's untimely Petition would cease to exist, weighing against the admission of her Petition.
15 -
filed toward the close of the licensing proceeding after hearings had con-cluded or appeals had been filed.
Accordingly, in these circumstances, the Staff believes that Ms. Donelson has made at least a minimal showing of good cause in support of her late-filed petition.
We turn now to a consideration of the other factors specified in 10 CFR 2.714 which must be included in the balancing of Ms. Donelson's Petition.
B.
Other Factors to Be Considered Under 10 CFR @ 2.714 At the outset, the Staff notes that Ms. Donelson's Petition includes very little discussion as to the other factnrs which must be considered with regard to late filed petitions for leave to intervene.
Nonetheless, for the reasons more fully set forth below, the Staff believes that Ms. Donelson has submitted sufficient information to permit a finding, upon a balancing of the factors specified in 10 CFR @ 2.714(a), that her Petition should be admitted.
1.
Other Means to Protect the Petitioner's Interests It is unclear to the Staff whether or not other meana are available to protect Ms. Donelson's interests, and Ms. Donelson has provided little information which would assist in making this determination.
Such other means, for example, might include a " limited appearance" pursuant to 10 CFR @ 2.715; tne filing of a petition for rulemaking pursuant to 10 CFR @ 2.802; the initiation of administrative p
-'adings in other forums; or the consideration of her concerns, as expr.oed in the Allred contentions, by the Licensing Board sua sponte as " Board Questions".
In the Staff's view, none of these other means appear to be es effective in protecting Ms. Donelson's interests as would be her own intervention in this proceedi ng.
The Staff is unanare of any other means whereby Ms. Donelson's interests may be fully protected other than by such intervention, g.
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 276 (1975).
Accordingly, the Staff believes that this factor weighs in favor of admitting Ms. Donelson's late Petition.
2.
Assistance in Developina a Sound Record In her Petition, Ms. Donelson asserts that she "has spent many hours analyzing the license application and environmental report" prepared by the Applicant, and has " contacted scientists and used infortnation provided by then in her research" (Petition, p. 3, para. 2).
She also asserts that "the interests of all parties and the residents of Central Alabama will be benefited" by her pa rticipation (M., p. 4, para. 7).
No information is provided by Ms. Donelson, however, as to her scientific or other expertise in matters related to the licensing of this facility, and nowhere does she assert or demonstrate that her participation in this proceeding will assist in devel-oping a sound record.
Based upon the meager information currently provided by Ms. Donelson, the Staff believes that this factor weighs against admitting her Petition.
3.
Representation of Petitioner's Interests by Existina Parties As discussed supra at 2-3, Ms. Donelson is a member of the board of direc-tors of SEACA, an organization which has petitioned for leave to intervene in this proceeding, one of whose basic corporate purposes for existence is
. to participate in this proceeding (SEACA's Amended Petition, p. 2, para. 5).
Further, as discussed suora at 3, Ms. Donelson is a member of SEACA, and has previously authorized SEACA and its attorney, Julian McPhillips, to represent her interests in this proceeding.
As part of this authorization, Ms. Donelson executed a sworn statement that she " desire [s] to be repre-sented by attorney Julian McPhillips" and that she "believe[s] that SEACA, its president and other of ficers, will well represent [her] interests" (Exhibit II to SEACA's Amended Petition, paras 2 and 3).
In her Petition, Ms. Donelson acknowledges that she "has been associated with [SEACA]" but asserts that "said organization has not presented every issue which Petitioner believes should be presented in this matter" (Peti-tion, p. 3, para. 3).
Rather, she asserts that "many issues of concern to petitioner have been advanced by David L. Allred as a result of his incor-poration of her work product into his pleadings" (id.), and that his announced intention to withdraw will have the effect that "her interests and concerns togetaer with her efforts in this matter will be lost" if she is not permitted to intervene (id_., p. 4, pa ra. 5).
Nothwithstanding these assertions by Ms. Donelson, upon comparing the con-tentions heretofore advanced both by SEACA and by Mr. Allred, the Staff believes that most, if not all of the issues raised by Mr. Allred also have been raised by SEACA.
Further, Ms. Donelson has not indicated which contentions asserted by Mr. Allred were not raised also by SEACA, and the Staff therefore cannot say with any degree of certainty that Ms. Donelson's interests will not be adequately protected by SEACA.
In the Staff's view,
- is -
Ms. Do..elson has not indicated with any degree of specificity why the continued representation of her interests by SEACA is no longer adequate, or in what way such representation fails to address specific concerns which she may have.
Similarly, Ms. Donelson has not indicated why her interests will not be fully protected by her rendering assistance to SEACA during all future proceedings in connection with the ANFFP license application.
The Staff wishes to note, however, that 10 CFR @ 2.714(a)(1)(iv) requires an exanination of whether "existino parties" will represent a late petitioner's interests.
In this case, of course, the only presently existing parties are the Staff and the Applicant, no ruling having been made as yet by the Licensing Boaro on petitions for leave to intervene.
Conceivably, the Licensing Board may altogether deny SEACA's petition for leave to intervene or may very well decline to admit many of its contentions.
For this reason, Ms. Donelson's interests may soon prove to be inadequately represented by other parties, once the Licensing Board has ruled upon SEACA's petition for leave to inter-vene.
Accordingly, the Staff believes that this factor, on balance, may weigh in favor of admitting the Donelson Petition, although it neither clearly favors nor clearly disfavors admission of the Petition.13/
4.
Broadenina the Issues or Causing Delay to the Proceedina
- In her Petition, Ms. Donelson asserts that "no prejudice to any party" will result from her intervention (Petition, p. 4, para. 7).
Further, in the
-13/ In the event that Mr. Allred does not withdraw his petition for leave to intervene, then Ms. Donelson's interests clearly would be adequately represented by him, and this factor would weigh heavily against admitting her Petition.
. presently pending Motion for Substitution, she has executed a sworn state-ment that her interests and concerns "have been incorporated into the pro-posed contentions of David L. Allred" (Motion for Substitution, p. 1, pa ra. 3 ),
and if that Motion is granted, she asserts that she "will voluntarily and knowingly assume the position of David L. Allred and step into his shoes,"
assuming "[a]ny disabilities, waivers or other steps taken by David L.
Allred" (id., p. 2, pa ra. 8).
In the Staff's view, these expressions of intent by Ms. Donelson demonstrate that her participation in the proceeding will result in neither a broadening of the issues nor an unreasonable delay to the proceeding.
In our view, she has effectively indicated that it is not her intention at present to lodge a new battery of contentions, but only to preserve some or all of those con-tentions which were previously filed with her assistance by Mr. Allred.14/
We do not perceive how the granting of her request will result in a broadening of the issues in this proceeding beyond the scope of the issues already raised by Mr. Allred.
The Staff recognizes that a delay of perhaps one or two months is inevitable if Ms. Donelson is permitted to intervene; some preliminary discussions between Ms. Donelson, the Applicant and the Staff would serve to assist the Licensing Board in its ruling on contentions, and additional time would be required to respond to those contentions which are sought to be preserved by 14/ Of course, should Ms. Donelson be granted leave to intervene, like any other intervenor, she would have the right to seek to amend her con-tentions at any time in the future, upon a showing of good cause pur-suant to 10 CFR @ 2.714(a)(3).
Ms. Donelson. This delay should be insignificant, especially at this early stage of the proceeding when a ruling on intervention has not yet been made, when contentions have not yet been admitted, and when discovery and hearings are not expected to commence for several months.15
_Cf. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 276 (1975).
Accordingly, the Staff believes that this factor weighs in favor of granting the Donelson Petition.
IV.
Need for Clarification of Contentions In the preceding discussion, the Staff has described the basis for our con-clusion that the Licensing Board may be warranted in granting Ms. Donelson's untimely petition for leave to intervene, in the event that Mr. Allred with-draws his petition.
Should the Licensing Board agree with our analysis and grant Ms. Donelson leave to intervene, the Licensing Board must then determine whether she has advanced at least one valid contention.
10 CFR @ 2.714(b).
As a result, the Licensing Board may decide to (a) require Ms. Donelson to file a supplement to her petition setting forth which of the Allred contentions she seeks to preserve, or (b) give further consideration to all of the contentiens previously filed by Mr. Allred.
15/ Whatever delay may result later in the proceeding as a result of having two intervenors, rather than one alone, may be offset by the contribu-tion that two such parties may be expected to make toward the development of a comprehensive record.
Furthermore, as noted by the Appeal Board, this type of delay is not the focus of the regulation:
Any time an intervention petition is granted--whether that petition was timely or belatedly filed--there is the consequential possi-bility that the evidentiary hearing will take longer to complete.
In my view, the Commission had in mind only that delay which could be attributed directly to the tardiness of the petition.
Long Island Lightina Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 650 n.25 (1975).
In this regard, the Staff notes that our initial discussions with Mr. Allred led us to believe that many of his contentions would be withdrawn or deferred until the pending application for license had been completed, and that additional contentions might then be withdrawn.
On November 6, 1980, immedi-ately prior to Mr. Allred's announcement of his intention to withdraw and Ms. Donelson's filing of her Petition, the Staff and the Applicant had scheduled to meet with Mr. Allred to discuss further and refine the various contentions which he had filed.
Following Mr. Allred's announcement of his intent to withdraw, that meeting was cancelled, and discussions with respect to his contentions have not since been resumed. b As a result of the presently confused state of affairs, the Staff cannot be certain as to whether Mr. Allred is, in fact, withdrawing his petition or as to which of the Allred contentions might be reasserted by Mr. Allred or by Ms. Donelson if she is permitted to intervene. Accordingly, the Staff has filed, concurrently herewith, a request that responses to the Allred con-tentions not be eequired at this time, and that a ruling on their admissi-bility be deferred, until it is clear whether any or all of those contentions will continue to be advanced in this proceeding by either Mr. Allred or Ms. Donelson.b In the event that Mr. Allred withdraws his petition and the Licensing Board determines to entertain further consideration of Ms. Donelson's Petition, the Staff suggests that the Licensing Board require Ms. Donelson
-16/ See "NRC Staff's Motion For Extension of Time In Which to File Its Response to the Contentions Filed by David L. Allred," dated December 1,1980, and filed simultaneously herewith.
17/ Id.
. to specify which of the previously filed Allred contentions she seeks to preserve through her own participation in this proceeding.
Such a requirement will serve to clarify the presently confused state of affairs which have arisen from Ms. Donelson and Mr. Allred's recent filings.
CONCLUSION For the foregoing reasons, the NRC Staff submits that petitioner Donelson has demonstrated that she has standing to intervene and possesses interests which might be affected by the outcome of this proceeding.
Further, the Staff submits that she has provided at least a minimal showing of good cause in support of her untimely Petition, as well as some information with respect to the other factors which must be considered in connection with late-filed petitions, resulting in a balancing in favor of her Petition.
Accordingly, the Staff tentatively supports the Donelson Petition, subject to (a) the withdrawal by David L. Allred of his petition for leave to intervene; (b) the identification by Ms. Donelson of the contentions which she seeks to preserve in this proceeding; and (c) the finding by the Licensing Board that Ms. Donelson has identified at least one admissible contention as required by 10 CFR Q 2.714(b).
Respectfully submitted, d.U.Dlo Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 1st day c7 December,1980
12/01/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the flatter of
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APPLICATION OF WESTINGHOUSE ELECTRIC
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CORPORATION FOR A SPECIAL NUCLEAR
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Docket Nc. 70-2909 MATERIAL LICENSE FOR THE ALABAMA
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NUCLEAR FUEL FABRICATION PLANT (ANFFP)
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TO BE LOCATED NEAR PRATTVILLE, ALABAMA
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NRC STAFF'S MOTION FOR EXTENSION OF TIME IN WHICH TO FILE ITS RESPONSE TO THE CONTENTIONS FILED BY DAVID L. ALLRED Pursuant to 10 CFR @@ 2.711 and 2.730, the NRC Staff (" Staff") hereby noves for an extension of time in which to file its response to the contentions filed herein by petitioner David L. Allred, until thirty days after the Licensing Board has ruled upon the pending " Joint Motion for Substitution of Naned Intervenor" (" Motion for Substitution").
In support hereof, the Staff states as follows:
1.
Pursuant to the Orders of the Atomic Safety and Licensing Board
(" Licensing Board") dated July 22 and September 11, 1980, petitioner David L. Allred timely filei two sets of contentior.s in this proceeding:
(a)
" Proposed Valid Contentions of Intervenor David L. Allred,"
dated August 5,1980; and (b)
" Additional Proposed Contentions of Intervenor David L. Allred," dated October 1,1980.
In his contentions, petitioner Allred raised numerous complex issues pertain-ing to various aspects of this proceeding.
9 Lap 8$ 53 3-
. 2.
Pursuant to the Licensing Board's order c' October 16, 1980, issued in the course of a telephone conference call held among the parties, petitioners and licensing Board members, the time in which the Staff may file its response to petitioner Allred's contentions expires on Decenber 15,1980.1/
3.
In the telephone conference call of October 16, 1980, the Licensing Board approved the per:posal of the Applicant, Staff and petitioners that they neet in Montgonery, Alabana on November 6-7, 1980 to continue their attempt to arrive at a stipulation of the proposed contentions.
Those stipulations, along with a nodified set of proposed contentions, were anticipated to be filed on or before December 15, 1980.
4.
On November 6,1980, representatives of the Staff and Applicant traveled to fiontgonery, Alabama, to meet with Mr. Allred and representatives of the Safe Energy Alliance of Central Alabana, Inc. ("SEACA"), to continue their efforts to arrive at a stipulation of contentions.
The meeting with SEACA conmenced at 9:00 A.M. on the morning of November 6,1980; a meeting with fir. Allred was scheduled to comence later that afternoon.
5.
During the course of our meeting with SEACA, Mr. Allred telephoned to state that he was withdrawing his petition for leave to intervene and that the necting with hin, scheduled to commence later that day, should be cancelled.
As a consequence, the Staff and Applicant did not meet with Mr.
Allred as scheduled, and cut short their stay in Montgomery.
Since then,
-1/
Letter to Julian L. McPhillips, Jr.
Esq., from Sherwin E. Turk, Counsel for NRC Staff, dated October 17, 1980, at 1.
~
. the Staff has had no further communications with Mr. Allred pertaining to his contentions or the possibility of arriving at a stipulation of those contentions.
6.
On Notember 10, 1980, the " Joint Motion for Substitution of Named Intervenor" was filed by petitioner Allred and Ms. Cathalynn Donelson.
In their motion, Mr. Allred stated that he "must withdraw from participation in the instant proceedings" (Motion, p.2, para. 6).
Ms. Donelson and Mr. Allred jointly asked that the Licensing Board "pemit the substitution of Cathalynn Donelson as the named intervenor for David L. Allred with respect to all pleadings and natters heretofore filed and addressed by David L. Allred" (id., p. 1).U 7.
As a result of the recent filing herein of the Motion for Substi-tution and of fis. Donelson's Petition for Leave to Intervene, it is unclear to the Staff (a) as to whether either fir. Allred or Ms. Donelson should be considered to be petitioners herein, and (b) as to whether any or all of the contentions previously filed by fir. Allred will continue to be advanced in this proceeding either by him or by petitioner Donelson.
2_/
Also on November 10, 1980, Ms. Donelson filed an untimely " Petition for Leave to Intervene," in which she recited as " good cause" in support of her petition that (1) she had previously relied upon ?!r. Allred's participation in this proceeding to protect her interests, (2) that "to the best of her knowledge and belief David L. Allred is withdrawing his petition", and (3) that her interests will be left unprotected "if David L. Allred withdraws his petition for intervention and Petitioner is not permitted to intervene" (Donelson Petition, p.4, paras. 4-6).
~
.a.
8.
Since it is unclear as to whether any further consideration need be given to fir. Allred's contentions, in the interest of conserving Staff resources the Staff believes that the best possible course of action is to defer filing a response to those contentions for the present time until af ter it becones clear whether a response to any or all of those contentions is appropriate.
Rather, the Staff proposes to file a response to tir. All red 's contentions, after the Licensing Board has ruled upon the pending Motion for Substitutic 9.
Counsel for the Staff has been in contact with Mr. Allred and Counsel for the Applicant, and is authorized to state that neither of those parties objects to the granting of the requested extension of tine.
WHEREFORE, pursuant to 10 CFR @ 2.730 and 2.711, the Staff hereby moves for an extension of time in which to file its response to the contentions filed by petitioner David L. Allred, until thirty days af ter the Licensing Board has ruled upon the pending Motion for Substitution.
Respectfully submitted, Richard G. Bachmann Counsel for NRC Stat r lU.ua O (YLMSL --
Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, fiaryland this 1st day of December,1980