ML19296C032

Third Hearing Conference Order Ruling on Petitions to Intervene Filed by L Burrel,W Byrd,C Glymour,Rap Funnell & Ellis.Applicants Motion Considering Issues Re LWA Granted. Motion to Add Parties Denied

ML19296C032
Person / Time
Site:	Black Fox
Issue date:	03/09/1977
From:	Head D NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
Shared Package
ML19296C015	List: ML19296C014 ML19296C018 ML19296C028 ML19296C032 ML19296C037 ML19296C039 ML19296C046 ML19296C055
References
NUDOCS 8002250088
Download: ML19296C032 (25)

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EXHIBIT B 0

gfl CNITED STA'IES OF MERICA D pgG N yP T9, NUC2AR REGULUCRY CCFMISSION o,# p t

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. yupe EEEPI THE A'ITIC SAFETl AND LICENSEiG BOARD s

In the Matter of

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b ri FUBLIC SERVICE COMPANY OF C4.AHTA,

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Docket Nos. STN 50-556 y

ASSOCIATED EIICIRIC COOPERATIVE, INC.

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SIN 50-557 L'..

and

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anz:

E.STICI FAFERS EECIRIC COOPERAITE,

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INC.

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(Black Fox, Lhits 1 and 2)

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TdIRD PRE!ARING CONFERENCE ORDER On February 15, 1977, the Atcx,ic Safety and Licensing Board (the Board) ccaducted the Third Prehearing Conference in the above-Per' identified proceeding in Tulsa, Oklah:ra. As a result of that Third

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Prehearing Ccnference, the Board makes the following rulings and orders.

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New Petitions to Intervene Five (5) new petiticas to intervene had been filed in response to the Amended Notice of Hearing (Amended Notice) issued by the Board October 20, 1976. Tne new petitioners are Mr. Iawrence Burrell, Dr.

Wallace Byrd, Dr. Clark Glym ur, Mrs Robert Ann Paris Funnell, and Ms. Sherri Ellis. Pursuant to the Board's Seccnd Prehearing Ccnfer-ence Order of January 14, 1977, these new petitioners were given 1

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M additional time to file amended petiticasE which were. received by the Board in due tire. Respcases thereto were filed by the Appli-cants, the U.S. Nuclear Regulatory Carissica Staff (the Staff), and the ct=ently admitted Intervencrs, and oral argument was held on the i ~

,r, new petiricas at the Taird Prehearing Ccnference. The Beard will h

deal with the new petitioners, seriati:n.

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Mr. Iscence Burrell With regard to interest, Mr. Einell basically relies on an eccacric interest since he is supplied with electricity by a cocpera-f.;f-i, tive that is serviced by Western Far ers Electric Cooperative, Inc.

(Western).

Tne recainder of the allegaticas in Mr. Eurrell's plead-

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l ings regarding interest do not establish any connection between those interests and the addition of Western as a co-acplicant.

Since the Arended Notice caly reopened the interventica period for perscas stose interests are affected by the addition of Western, these other

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interest allegaticas do not form a proper basis for granting the Et= ell petition as a matter of right under the rule on intervention, Section 2.714 of the Carission's Rules of Practice,10 CFR Part 2.

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In analyzing these requests for interventica, the Board has ccasidered both the initial petitions and the amended peti-t - r-ticas. Tne Board will refer herein to the initial petiticn L-and the amended petition together as the " petition".

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Concerning the aforementioned eccncmic interest, Mr. Burrell is apparently relying cn his positica as a ratepayer. The Comissicn,

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e however, has recently held that ecencaic interest of a ratepayer is

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not sufficient to provide standing to intervene as a matter of right

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E:IE since concerns about rates are not within the secpe of interests scught m

to be protected by the Atomic Energy Act.

Portland Ceneral Eleccric

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Co. (Pebble Sorinas Nuclear Plant, Units 1 and 2), CLI-76-27, IECI-p 76/12, 610, 614 (December 23, 1976).

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Also, certain of Mr. Burrell's other allegaticas regarding

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interest-might have formed a basis for intervening pursuant to the C""

original Notice of Hearing (Original Notice) issued by the Ccnmissica f

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en January 21, 1976. However, a review of the petitica reveals that j

Mr. Burrell has not established good cause for late filing if the petitica is considered as relating to the Original Notice. The Board 11 may nonetheless permit late interventica if the other factors relat-f r

ing to interventien justify it.

Nuclear Fuel Services, Inc. (West

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Vallev Recrocessina Plant), CLI-75-4,1 IEC 273 (April 15,1975).3/

i-Also, the Ecard has the discretionary pcuer to permit intervention i

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Briefly, the other interest allegaticas relate to loss of i

farm water, visiting friends and taking part in church activ-

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ities near the site, care for possible evacuees, possibility of radiatica exposure and transportatien of radioactive wastes.

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Tne factors gcverning late intervention, including the good cause requirement, are set cut in 10 CFR 2.714(a) and (d).

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t=de-Pebble Springs, stnra at 616.

Since the guidelines for exer-

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cising this discretionary power are sdstantially identical to those factors centrolling late intervention, the Board will present a tni-fied analysis with regard dereto.

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i At the cutset, the Ecard will set cut the Ccmission's statecent of the pertinent factors contained in Pebble Sorings at 616, 617:

m Scr.e factors bearing en the exercise of this discretion are suggested by ctr regulations, notably those governing the analogous case @.ere the petitica for interventien has been filed late,10 G 2.714(a), but also the factors set ford in 10 CFR 2.714(d), governing interventica generally:

(a) Weighing in favor of aliced.g intervention-r,-.

(1) The extent to which the petiticner's participatica ray reascnably be e.sgected to assist in develcping a sotnd record.

(2) The nattre and extent of the petiticner's property, financial, or other interest in the proceeding.

(3) The possible effect or any orcer wn:.ch

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ray be entered in the proceeding en the 5

petitioner's interest.

I3-(b) Weighing against allowing intervention-

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(4) The availability of other r.eans whereby petitioner's interest will be protected.

(5) The extent to wrtich de petitioner's 3

interest will be represented by exi. sting parties.

(6) The extent to which petiticner's partici-pation will inappropriately broaden or

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delay the proceeding.

Clearly, these are not the caly factors @ich m.ight be (g ~'

considered.

Other factors may be suggested by t".e practice d

of other agencies or by judicial cases, such as United Church b

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F am of Christ v. FCC, suora, which deal explicitly with the ciscretionary enaracter of scme interventicas. As a ge.eral ratter, hcwever, we m uld expect practice to develop, not through precedent, but through attentica to the ccacrete facts of particular situation...

[ Footnote cmitted]

Having taken into account the above factors, the Board finds that participation by this petitioner will be of value in tw areas.

The basis for this is that these areas have not been raised as con-tenticas by the currently acmitted Intervenors and that this peti-tiener ray well be able to present evidence in these areas that m.

cight assist in developing a sound record for decision. Further, neither area m uld tend to enlarge unduly the issues in the proceed-p p.

ing or cause an undue delay in this cause.

t-t The tw issues the Board censiders appropriate for interven-m tica by Mr. Burrell are the areas of anticipated transients without scram (AM), and sabotage. In the Board's view, the presentatica f

F of testircny in this area by Dr. Webb might be of assistance in developing the record herein. The Board therefore is admitting tm

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E (2) nea issues in centroversy. These are construed by the Board as l

i follows:

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The analyses by the Applicants and the Staff of the facilities' respcase to certain anticipated L._

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transients with sindtaneous failure of the

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m scram system (KNS) have tnderestimated both de consequences of such events and their likeli-hood, to such an extent that the facilities present an m due bnzard to the health and safety of the public.

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The Applicants' present design does not adequately protect the public frce the potential conseq' aces of sabotage at the Black Fox plant in that $e plant does not require su#ficient structural integ-

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rity and safety red =dancy to $mrt a saboteur.

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i Regarding the other ccatentions of Mr. Burrell, the Board has t

ccncluded that acst of dem are substantially identical with the lw adnitted ccatenticas of de present Intervenors and that Mr. Burrell's 4

interests will be protected by those Intervenors. /

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However, em matters in additica to the ADS and sabotage issues are not covered by the contentions of the other Intervenors.

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k These are the contention involving cmmen code failures of the I

emergency core cooling system (ECCS) piping and coolant recircularica f

piping and the ccatention relating to Class Nine accidents. The Board will, therefore, deal with these em issues here.

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In this regard it should be noted that Mr. Burrell is represented by the same cotnsel as the current Intervenors.

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In the Board's view, the ICCS contentica is not admissible since it does not allege that the mergency core cooling syst s t

I will not reet the Camtissicn's regulations.

Instead, it asserts t

that the ECCS system will fail in a manner that would have been i.

I more properly raised in the hearings with regard to the sergency core cooling syst e..

The cententica is, therefore, foreclosed by the Cam:ission decision in that proceeding. Acceptance Criteria fo.

Emergency Core Cooline Systems, CLI-73-39, 6 AEC 1085 (December 28, 1973).

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Regardir.g Class Nine accidents, Mr. Burrell has sought to raise theissueofextremelylargeaccidentsatthefacility.E Both the Staff and Applicants argue that such accidents need not be treated, r

citing precedents which turn, hcwever, upcn specific mechanisms for w

such accidents (e.g., pressure vessel failure or ECCS failure), or citing guidelines rather than regulaticas.

(Tr. 215-220.) Tne Board is not convinced that treating such accidents is generically excluded irrespective of the hypothesized mechanism. We may, indeed, wish to frame a Board question en the matter. Since, in the Board's cpinicn, i

i such matters muld be properly dealt with in the health and safety l

hearing, if at all, w shall take' this ratter under advissent, 5]

All of the other ne.7 petitioners also have raised the Class Nine g

accident issue and the Board's ruling he..ein with regird to Mr. Burrell will apply equally to them. Tne Board will not, however, repeat its ruling in its analysis of the other new e

petitions.

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pending the production by the petitioner of a credible rechanism T

other than those excluded by precedent, or the introductica by Staff or Applicants of authority showing a generic exclusion. Each is hereby given fifteen (15) days following service of this Prehear-E r

ing Conference Order to file any p15dmgs raking the aforeirntioned W..

showings. (This tire period,also applies to the other new petitioners.)

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Overall, the Board has concluded that Mr. Burrell shculd be t

adnitted as an Intervenor en a discretionary basis for the p ose l.

of participating in the AT4 and sabotage ccatentions, which are Q

hereby ad itted as issues in centroversy.

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2.

Dr. Wallace Byrd.

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A review of Dr. Byrd's petitica again indicates that the peti-t==

tiener has not established any ccmection between his interests and the additica of Western as a co-Applicant. As a result, the Board finds that the petitioner is not entitled to intervene in the proceed-ing as a ratter of right pursuant to the Arended Notice of Hearing.

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The Board has, however, analyzed.Dr. Byrd's pleadings to deter-mine whether they could form the basis for late interventien pu,rsuant i

i to the Original Notice of Hearing. A review of the petition and the L~~

responses thereto indicates that Dr. Byrd has not shown good cause D

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for late filing, but again, under West Vallev, sucra, the Board may

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nonetheless permit late interventica if other factors justdy it.

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As pointed cut with regard to Mr. Burrell's petiticn, the factors involved in considering whether to permit late intervention p.

and whether to perrit intervention on a discretionary basis are i

substantially identical and can be ccnsidered together. The Board

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has, therefore, assessed the Byrd petitica with thea in mind.

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the Board's opinica, Dr. Byrd's interests _/ will be protected ade-

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quately by the current Intervenors and the rajority of his conten-tiens are covered by the issues that will be pursued by those Intervenors.

Hcwever, in tm areas / Dr. Byrd's participatica might a2sist 7

2 in develcping a sound record for decisicn and it wculd not appea:.

that pe=issica for hi:n to participate would unduly broaden the issues or delay the proceeding. The Board, therefore, will perit

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Dr. Byrd to participate as follcws pursuant to its discretionary powers under the Pebble Sorinas decision. Dr. Byrd indicated that

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he would probably be able to secure the testircay of an expert wit-ness en the transport of radioactive raterial which will be released t

during norral cperaticas,which testimony would relate to the issue l

of the effects of Icw level radiatica exposure frca noral plant h

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These interests include a general concern for health of the

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citizens of Oklabora, work and travel in an area that could be L. -

affected by an accident at the facility and a perscnal interest in the envircarent and natural resources.

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Tne Board also has under adviscent Dr. Byrd's Class Nine accident ccatentions. See footnote 5, suora.

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A cperation.

Dr. Byrd will be allowed to participate with regard to that contention and pres mt evidence in relatica dereto. Also, he f

will be pe=itted to participate en a ccntention the Board is ad:rit-ting relating to employee radiatica exposures.

The ermloyee exposure t

cententien is set out in the Ecard's~ ruling on Ms. Ellis' petition, infra.

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_Dr. Clark G1vrcur.

Dr. Gly cur in his petitica asserts that he purchases electric.ity fran a cooperative which is served by Western and consequently relies

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cn that to sustain his interest.

However, as noted in cor:nection with the Burrell petition, this ecencaic interest as a ratepayer is not sufficient to sustain interventica as a matter of right under r

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the ruling in Pebble Sorinzs. suara. knile Dr. Glynuur does n.ake an argt:nent that the Pebble Springs case is incorrect, this Board is t"~"

bound by that Cocmissica precedent and cust reject his arge:nents on Fi

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this point.

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i-l' Considering the Glynrur petitica en the basis of it being a late filed request to participate relating to the Original Notice, f

the Board can discern nothing that establishes good cause for late

[I-filing. Nonetheless, the Board may pennit late interientica if other facters justify it, West Valley, suora.

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Since the other factors relating to pennissica of late inter-vention are substantially identical to the considerations govern-ing discreticr.ary interventica under Pebble Sorinas, the Board will analyze these factors together and set forth its evaluaticn.

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Basically, Dr. Glynrur has asserted contenticas that are already raised by the current Intervenors and, therefore, his ccn-o r

cerns will be addressed at the hearing.

In additica, a great nu-ter of his contentions are identical to those of Mr. Burrell's. As we L

have noted in connectica with the Burrell petirica, only two of b-e those contenticas raise new matters for adjudicaticn, the ALS and sumar f.

sabotage cententicas.

Further, Dr. Gl'rcur does not appear to bring

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to the proceeding any additional witnesses or particular expertise f-i-

that might assist the Board in develeping a sound record. While 6

Dr. Glyncur's participatica wuld not appear unduly to broaden or

--C' delay the proceeding, it does seem that his interests will be ade-quately represented by the present parties. Hcwever, since this l

petitioner has raised the new AB3 and sabotage ccatenticas cn the f

same basis as Mr. Burrell, the Board considers that he also should be a&.ted to participate on these issues.8_/ Dr. Glymour is admitted

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as an Intervenor as set out herein under the Board's discretionary pcwer established in the Pebble Sorings decisicn.

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The Board also has under advisement Dr. Glynuur's-Class Nine accident ccatentiens.

See footnote 5, suora.

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Ecwever, t= der the powers ccntained in Section 2.714(e) and (f), the Board, to prevent duplicaticn, is hereby censolidating Dr< Glytcur's interest with that of Mr. -Et=rell. Also, the Board is designating that the spokesran for these tw petitioners is to be Mr. Eterell, who is represented by counsel, thereby having the

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P t:ary presentation r----

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M s. Rcberta Ann Paris Ftrmell.

i M:s. Ft:mell relies on property interests and does not attempt to establish any correctica between her interests and the addition m

of Western as a co-Applicant. Accordingly, Mrs. Ftrmellis not entitled to intervene as a ratter of right in connection with the Amended Notice of Hearing. Her petition nust, therefore, be con-s.

sidered as a late filed petiticn in ccnnection with the Original m

Notice of Hearing and as a petition upon which the Board might as a

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matter of discretion permit intervention tnder the authority vested t

i in it by the Pebble Sorings decision.

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r Regarding good cause for late filing, the Board has considered l

the allegations regarding petitioner's reliance en information t<

allegedly to be supplied by the Staff. The Board will asstre for L _ _--

t-the purposes of this analysis that the Staff had indicated it would

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supply certain infomation and raterials, thereby construing the e

ratter nore favorably tomrd the petitioner. Even under these T~

circt= stances, the Board does not censider that the petiticner has m'n a sufficient shcwing of good cause to justify late filing.

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In particular, the Board notes that the petiticner mited for ans=

approxirately a year befcre taking any action to file a petition.

In tha Board's view, this ccnstitutes an unreascnably long period for the petitioner to have delayed taking further inquiry regarding intervatica, either frcxn de Staff or frca the current Intervenors.

ki The Ecard notes that the current Intervenors were kncm to this peti-tiener and had had joint discussicas of the case with the Staff.

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additica, the petitioner rakes no claim that the Staff actually advised that she muld have further ti e to file a petiticn to inter-r vene, or that there were any actual =ispresentations of her rights as a petitioner. At worst, the Staff might have failed to su ply prcmised information. Therefore, the Board ccncludes that the peti-f""

tiener has not rade a sufficient showing of good cause for late filing.

Again, unc.er West Valley. suora, turning to the other factors I

relating to late interventica and again ecnsidering those factors in connection with the similar factors involved in discretionary

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intervention, the Board rakes the following assessment.

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i Board's cpinien, the intereste alleged by this petiticner are rmote although sec.e might have sustained interventien under the Original 7

Notice of Hearing. The petitiener has only potential property inter-y ests stiich depend upon presently ccatested litigatica.

Perhaps the

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strongest argureit advanced by the petitioner is the fact that she E

visits in the area of de facility, although this is apparently a C'

randan connectica.

F Furder, it appears dat this petitioner's interests are ach-quately represented by de current Intervenors and that this peti-

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C-tiener's cententiens will be rainly covered by the a&itted centen-W tions of these Intervenors.

Ecwever, Mrs. Funnell has raised two issues that are not covered by de current Intervenors.

The first is the ATE ccatentien, wilich has already been a&itted in the Board's am rulings en de Burrell and Glyarur petitions.

The seccnd issue 50;q relates to the handling, disposal, and environ:nental effects of radio-9 w

I active wastes.

However, the Board is going to defer a ruling in that I

area in the event that the Ccranissica ma; crcrulgate an interi:n rule i

on mee disposal in the relatively near future.

If such an interi;n I

rule ir not prcculgated by early April, the Board will rule on this k

contentica as currently presented.

Considering all the circunstances, the Board has concluded that b

this petitioner should at this time be a &itted as an intervenor under F'

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4 15 C-its discro.tionary power only with regard to the AIWS issue.9/

. u-Moreover, to prevent duplication, the Board under its power in 10 m

CFR 2.714(e) and (f) is hereby designating Mr. Burrell as spokestran en the AIWS issue since he is represented by counsel and will have the benefit of professional assistance in presentatica of eviderce n

en this issue.

p Regarding the orher contentions raised by this petitioner, the Board finds that these contenticas will be adequately covered by the existing parties and that therefore this petitioner's interest will be protected in that regard. Also, in view of the Board's Pw censolidatica of this petitioner with the petitioner Burrell en the

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AIWS centention, Mrs. Funnell's participation should not unduly broaden or delay this proceeding.

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5.

Ms. Sherri Ellis.

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This petitioner also has not established any connectica between ff her interests and the addition of Western as a co-Applicant.10/

There is an allegation that the addition of Western will increase I

the chance that the plant will be built. Ecwever, this argtrent u

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In addition to this petitioner's radicactive vaste contention,

.L the Board also has under advisarent her Class Nine accident t

contentions.

See foomote 5, suora.

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The petitiener states that her parents own land serviced by W

Western but Ms. Ellis is not herself the racepayer and no Fm$

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econcxnic interest of this nature appears involved herein.

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a is not ge=ane to the issue of whether there is a nexus between the petitiener's interest and the addition of Westem.

This point might perhaps be pertinent to the financial capability of the Applicants I

but it does not relate to the petitioner's interests which pre-eaisted the advent of Westem as a co-creer of the facility. Accord-ingly, the Board finds that this petit" c has not established a

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. T' sufficient interest under the /cend

..otice of Hearing to sustain

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intervention as a mt".er of right under 10 CFR 2.714.

We can address curselves, hcwever, to the petition as a late filed recuest to intervene pursuant to the Original Notice of Hearing.

m The Board has reviewed the petitica en this basis and has detemined I

1 that the petitioner has not established good cause for late filire.

Tne petitioner alleges that she did not receive actual notice of the 6

cpportunity to intervene in the Original Notice, but this is not a justification for late filing in view of the public dissemination of F"""

i the Original Notice. Turning, under West Vallev, to the other factors that are involved in dete=ining whether late petiticas should be accepted, again the Board has considered these together with its

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assessment of whether to pernit intervention as a discretionary ratter r

since the factors are substantially the same in each instance. The i.

I Board's analysis thereon follcws.

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m With regard to the interests asserted by Ms. Ellis, her connec-tions m th the site are tenucus.

She visits the Tulsa area profes-

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sicnally as a hairstylist on certain occasicas and participates in b.

rodeos held in cocmmities near the site.

In the Board's view, these interests are rather recte and will be protected by current i

i Intervencrs. Also, alrost all of the contentiens raised by Ms. Ellis i.

are currently adritted as issues and will be covered by the present parties at the hearing. There is, however, one area that this peti-tiener has raised which is not covered by the current Inte: senors and

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r on which Ms. Ellis ray be able cc a.s ir-in developing the record for decision. That area relates to the issue of ecployee exposure to radiatica. The Board inte::prets that contentica as follows:

Tne Black Fcx facility wnl not meet the sployee a.

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exposure limitaticas of 10 CFR Part 20, and the

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health effects of splayee exposures have not been f,,

L adequately considered.

L As interpreted, the Board hereby admits this contention as an 2'*

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issue in ccatroversy, and under its discretionary pc.ers, will perrit g;

this petitiener to intervene en this issue.

Ecwever, since this petitioner's other cententicas are adequately ccvered by the current Intervenors, the Board is liriting this petitioner's participation to this issue to avoid duplication and repetition.11/ See 10 CFR h.

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2. 714(e) and (f).

The Board further notes that Petitioner Byrd has b(_

a sirilar contentica regarding the effects of radioactivity on p

11/ The Board also has under advisement Ms. Ellis' contention relating to Class Nine accidents.

See footnote 5, suora.

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W enployees.

The Board, however, is not censolidatinr, these tw peti-tions for presentation of this issue.

In light of Dr. Byrd's medical expertise and Ms. Ellis' perscnal experience, the Board feels that each should be allowed to present appropriate evidence on this issue.

L In additica, the Board has taken into account whether this partici-a pation will unduly broaden or delay the proceeding and has concluded

.-e that it will not, i

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Su:rarv.

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Regarding the five (5) new petiticas to intervene, the Board w --

censiders that it muld be appropriate to su:rarize the actica taken here2.

First, the Board has concluded that ncne of the petitioners have established a right to intervene pursuant to the Amended Notice of hearing adding Western as a co-Applicant. None have shesn a cca-i-

nectica between their interests and the addition of Western to the F

proceeding. The closest that any of the petitioners come to such a p-N connectica is the allegation that they are ratepayers of a coopera-

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i tive serviced by Western. Ecwever, under the Pebble Sorings deci-f sien, the Cctru.ssicn has determined that the interest of a ratepayer is not sufficient to sustain interventica as a tratter of right and, therefore, these argtrents were rejected by the Board.

r In addition, the Board has analyzed all the petiticas to deter-m mil:e whether gcod cause for late filing was established to pennit a-t t

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1 intervention under the Original Notice of Hearing. The Board's

,.n analysis was that none of the petitioners had established such t

good cause. The Board did, however, evaluate other factors to j

decennne whether the petitioners should nonetheless be admitted i

as set cut in West Valley, suora. Since the facters for such e

determinations are substantially identical with the factors to decede whether er not the Board shculd permit discretionary intervention under the Pebble Sorings decisica, the Board provided a tri.fied analysis of those factors.

In each instance the Board ccncluded that there were certain areas where the Board should permit participatica by the new Intervenors as a rat:er of discre-y tien.12/ Ecwever, the Ecard limited the participation to avoid V

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The Board concluded that interventica should be a ratter

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or discretion rather than a justified late intervention

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as of right in each case. The Board censicered the late intervention issue a close one as to each petition in view of the greater burden of justificatica for a late petiticner C-where good cause for late filirg; cannot be shown. West

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Valley, suora at 275. As the Board ccncluded in each T

instance tnat intervention should be permitted as a catte.

of discretion, the Board does not deen it necessary to rule specifically on late intervention. The Board should note, i

hcuever, that its rulings limiting the new Intervenors'

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participation to certain issues would be the same even if j-the Board found the interventicns justified as late filed r

petiticas. The Board ccasiders such limitaticns are war-i ranted under its authority to restrict duolicatica and

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repetition, and to consolidate parties.

See 10 CFR 2.714(e) s_.

and (f), and 2.715a.

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L-duplicarica and repetition under the powers vested in it under 10 CFR q

2. 714(e) and (f).

Further, in certain circunstances where the newly

-p-admitted issue was cccmon to scce of the new Intervenors, the Board I

consolidated the presentaticas and designated a spokesman with regard t-to the particular issue.

On the AT.&and sabotage issues the Board E

designated Mr. Burrell as spokesman since he was represented by b-counsel. However, on the eployee exposure issue, the Board indi-cated that both Dr. Byrd and Ms. Ellis will be allowed to make their I

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own presentations.

Further, the Board censidered the possible impact of admitting

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w these new Intervenors en the agree-upon schedule for the hearing.

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i In balancing various factors, the Board has concluded that permitting such intervention will not unduly delay the proceeding er broadening the issues to be ccasidered.

If scra delay shculd necessarily be caused by this new intervention, the Board ccasiders that as 'unavoid-I able and necessary to ensure appropriate public participation in the

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i hearing process. The Ccumission was careful to note that this is an j

i=portant factor in its discussica of discretionary intervention in the Pebble Soriras decisicn.

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C lm II. Fbtions At de Taird Prehearing Conference the Board ccnsidered three noticas: (1) Applicants' Motion to Ccasider Issues Relevane to j

A Lirited Work Authorization; (2) Applicants' Motion to Carpel Disccverf; i

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and (3) Intervencrs' dbtion to Recen' sider Applicacica to Add Parties.

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The folicwing is the Board's rulings with regard thereto.

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Motica to Ccasider Issues Relevant to LIG Ccncerning the Applicants' Motion to Ccnsider Issues Relemnt F-to Limited Work Authorizatica, the Eoard granted that notion after brief discussion at the Tnird PreWing Conference (Tr. 327-329).

l While the retica may not be necessary since an Un hearing is pro-

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vided for in 10 CFR 2.761a, nothing in de regulations prohibit the r

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Applicants frca making a formal request by retica and it can properly

'.5 e-be granted unless there is gced cause for denial of the LWA hearing.

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In this case, the Intervencrs' opposition constituted a challenge to f.

the UG regulatica,10 CFR 50.10(e), rather than a shcuing of valid

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reascas for not having an LWA hearing.

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2.

M cion to Camel Discoveri r

I-The Board took the Applicants' Moticn to Campel Disccvery tr. der advisement at the Third Prehearing Conference. Tais cof; ion was a l'*

k request by the Applicants to canpel the Intervenors to answer certain

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spec:.fic interrogatories that had been propetaded, and the Board will deal with the interrogatories separately.

m Intenogatory No. 1 is the fast questien involved.

It relates i

to potential consequences at Black Fox frcm a possible explosica of sect a barge carrying e:glosives en the Verdigis River. A review of the pertinent pleading 13/ indicates that the Intereenors' answer is not f

respcnsive to the inten ogatory. The Board ccacurs with the Appli-cants' analysis and therefore grants the motica to ccngel with regard to Intenogatory No. 1.

Tne seccad interogatorf involved in Intenogatory No. 3(d)

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relating to soil runoff and soil erosion. Again ccasidering the C

pleadings, the Board ccncurs with the Applicants that the answer e

t is not respcnsive to the interrogatory. Accordingly, the 3 card hereby grants the Applicants' retica to ecnpel regarding Interrogator /

No. 3(d).

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Tne next intenogatories involved are Nos. 4(d) and (g), relating

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to noise irpacts on the adjacent land frcm the constrxtica and

-i cperatica of the facility. Tne Board is going to deny the :mtien en Intenogatory 4(d) since an overall reading of the pleadings reveals

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13/ 'Ihe pleadings referred to in this sectica for each interrogatorf at issue are the i:.terrogatory a:id its answer, plus the motica F

to cccpel and the responses thereto.

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position with regard to noise sampling and is respcasive to the interrogatorf. With regard to Interrogatory 4(g), however, the m

t Board is going to grant the motica to ccupel. 'Ihis interrogatory i

relates to the Intervenors' Contentien 22e, which alleges non-

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cocpliance with noise standards and regulations.

Applicants had requested de Intervenors to identify the specific standards and f'

regulaticas involved and to particularize the respects in which the Applicants fail to cceply wid each such requirment. This is proper disecvery and de Intervenors' respcase that there is a lack k

of cocpliance with all suca requirmants is too general to be cen-sidered respcasi,a.

Nor is the Board perstaded that this discoverf N

sccehow shifts the burden of proof-it is strictly a discovery matter and does not relate to any burden of proof issue.

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'Ihe next interrogatory involved is N?. 5 which relates to cca-s pliance by de Aoplicants with applicable federal, state and local L" "'

-L clean air requir rents. Again, the Board is going to grant the motica on the s ue basis it granted the cctica relating to Interrog-atory 4(g).

Interrogatory 5 scught the same specifics for air stand-ards as ' (g) sought for noise requirrents and the Inter /enors pro-i vided the same general answer that the facility will not cceply with all clean air requirrents.14/ The Intervenors are required to r--

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14/ There was a notation that there was a special concern regarding nondegredatica but the reference was too vague to be responsive.

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identify the specific clean air standards and requirenents involved and to give particulars of why the facility will not cmply with m

L each, as requested by Interrogatory 5.

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Interrogatory No. 11 is the next interrogatory involved and it

!6 relates to renedial measures to be utilized if cooling twer drift causes drage to vegetation.

The interrogatory seeks in part (a) i to have the Intervenors particularize the drage that will result fract the drift and in part (b) to identify the remedial measures which

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the Intervenors say should be taken. An analysis of the pleadings indicates that the Intervenors' answer challenges the Applicants'

'N mus-analysis of the drift issue as cpposed to describing the potential drage and reedial measures with regard thereto. As such, the Intervenors' answr is not responsive and the Board will grant the hat _

cotica to cccpel.

.g The final interrogatory is No.13 which relates to ccepi.iance I-~

by the Applicants with applicable federal, state and local water quality requirenents. Again, Intervenors have res p ded that the Applicants will not be in empliance with any such requireents while Applicants' interrogatory asks that the Intervenors identif,/ the specific requirenents and particularize in which respect the Appli-l cants will fail to cmply with each require.ent. As set cut above s-with regard to noise and air standards, such a generalized answer b

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ba,mw is not responsive to the interrogatory. Acccrdingly, the Board will grant the motion to compel with regard to Interrogatory 13.

W In view of the above rulings, the Board hereby orders that the Intervenors respond to Applicants' Interrogatories 1, 3(d), 4(g), 5, i'

11 and 13 cn o before Friday, March 25, 1977.

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3.

Motion to Recensider Acolication to Add Parties I'

The final motica discussed at the Tnird Prehearing Ccnference

,f was de Intervenors' Motion to Reconsider Application to Add Parties.

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t While this motien was not at issue at the time of the Third Prehear-ing Conference, responses frm. the Applicancs and the Staff have ncu been received. The Board concurs with the positicas taken by the Applicants and the Staff that the Intervenors bave not raised any new grounds since the denial of the original motica that would warrant reversal of the Board's earlier decisicn and fom an appro-priate basis to add the Depart =ent of the Interior as a party.

t Accordingly, the Board hereby denies the Intervenors' motica to t

recensider.

l IT IS SO ORDETED.

FOR TrE AImIC SAFETl AND LICENSD;G BOARD b

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' Daniel M. Heac, Chainran Dated at Bethesda, Maryland, i l>

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this 9th day of March,1977.

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