ML19295E803
| ML19295E803 | |
| 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 8012080612 | |
| Download: ML19295E803 (4) | |
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12/01/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMtilSSION 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 SPECIAL NUCLEAR
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Docket No. 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 RESPONSE TO JOINT MOTION FOR SUBSTITUTION OF NAMED INTERVENOR On November 10, 1980, an untimely " Petition for Leave to Intervene" was filed by Cathalynn Donelson ("Donelson Petition") and, simultaneously therewith, a " Joint Motion for Substitution of Named Intervenor" (" Motion for Substi-tution") was filed by Ms. Donelson and petitioner David L. Allred.1 In their Motion for Substitution, petitioners Allred and Donelson assert that Ms. Donelson has actively worked with Mr. Allred throughout this proceeding (Motion for Substitution, paras.1, 2 and 4); that her " interests and concerns" have been incorporated in Mr. Allred's proposed contentions (M., para. 3);2/
that Mr. Allred "must withdraw from participation in the instant proceedings" (M., para. 6); and that Ms. Donelson had not previously filed a petition 1/
Mr. Allred previously had timely filed a " Petition for Leave to Inter-vene and Request for A Hearing" ("Allred Petition"), on April 7,1980.
The Staff has heretofore filed a response in support of the Allred Petition.
See "NRC Staff Answer to Petition for Leave to Intervene Filed by David L. Allred," dated April 28, 1980.
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Presumably, the petitioners refer to the " Proposed Valid Contentions of Intervenor David L. Allred," dated August 5,1980, as well as to the
" Additional Proposed Contentions of Intervenor David L. Allred," dated October 1,1980.
86.Lzg6p6 L2.
, herein, "in reliance on the petition and intervention of David L. Allred which adequately set forth her interests and concerns" (M., para. 5).
They further assert that "[i]n the absence of Allred's continued intervention and participation Donelson's interests and concerns will not be protected" (M.).
The petitioners aver that Ms. Donelson "will voluntarily and knowingly assume the position of David L. Allred and step into his shoes with respect to this matter" and that she will assume "[a]ny disabilities, waivers or other steps taken by David L. Allred" (M., para. 8).
Finally, the petitioners assert that the substitution of Ms. Donelson in place of Mr. Allred will result in "the benefit of all parties and the public interest" (M., para.
7), and that "[n]o prejudice to any party will result from the granting of this motion" (M., para. 9).
For the reasons nore fully set forth in our Answer to the Donelson Petition,3_/
in the event that petitioner David L. Allred withdraws from this proceeding, the Staff does not oppose the Motion for Substitution.
Specifically, the Staff believes that Ms. Donelson may reasonably have relied upon Mr. Allred's intervention, conducted with her assistance, to protect her interests in this proceeding.
The Staff views the Donelson Petition as demonstrating
" good cause" for the filing of a late petition, and we therefore find the present situation to be distinguishable from the circumstances surrounding the untimely petitions in Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977), and in Duke Power Co. (Cherokee 3/
See "NRC Staff's Answer to Petition for Leave to Intervene Filed by Cathalynn Donelson" (" Answer to Donelson Petition"), dated December 1, 1980, at 8-20.
. Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642 (1977).
- Further, upon a balancing of the factors specified in 10 CFR % 2.714(a)(1) governing the admission of late-filed petitions, the Staff believes that a consideration of the facts alleged by fis. Donelson results in favor of admitting Ms.
Donel son's Petition.b Having concluded that Ms. Donelson's untimely Petition should be entertained by the Atomic Safety and Licensing Board (" Licensing Board") if Mr. Allred withdraws his petition for leave to intervene, we wish to note that we would oppose such consideration of her Petition should fir. Allred not withdraw his petition. Thus, as " good cause" for untinely seeking to intervene, fis.
Donelson relies upon fir. Allred's statement of intent to withdraw (fiction for Substitution, p.2, para. 6; Donelson Petition, p.4, paras. 4-6).
Such good cause would cease to exist, of course, in the event that Mr. Allred elects to continue to participate in this proceeding.
Further, in that event a balancing of the factors specified in 10 CFR % 2.714(a)(1) would energe unfavorable to the Donelson Petition.E/
The Staff is of the view that Mr. Allred's statement of intent to withdraw from the proceeding (fiction for Substitution, p.2, para. 6) is ambiguous, at best.
Thus, while he states that he "aust withdraw" (M.), he has not done so as yet.
Further, he has not expressly conditioned such withdrawal 4/
See NRC Staff's Answer to Donelson Petition, at 8-20.
5_/
Id., at 14 n.12, and 18 n.13.
. upon the granting of Ms. Donelson's Petition.
As a result, the Staff cannot say witt certainty that Mr. Allred is or is not withdrawing fron this proceed-ing. Accordingly, while the Staff does not oppose Mr. Allred's withdrawal from this proceeding, the Staff's support of the Motion for Substitution is conditioned upon Mr. Allred's withdrawal of his petition for leave to intervene.
CONCLUSION For the reasons set forth above and in our Answer to Ms. Donelson's Petition, the Staff believes that, if Mr. Allred withdraws his petition for leave to intervene, the fiction for Substitution and fis. Donelson's untinely Petition should be granted, subject to (1) her identification of which Allred con-tentions she seeks to preserve in this proceeding, and (2) her identifi-cation of at least one admissible contention pursuant to 10 CFR % 2.714(b).
On the other hand, however, the Staff believes that if Mr. Allred does not withdraw his petition for leave to intervene, then Ms. Donelson's untimely Petition, as well as the flotion for Substitution, should be denied.
Respectfully subnitted, UAL O$
Sherwin E. Turk Counsel for NRC Staf f Dated at Bethesda, fiaryland this 1st day of December, 1980