ML19305E024
| ML19305E024 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 04/07/1980 |
| From: | Conner T CINCINNATI GAS & ELECTRIC CO., CONNER, MOORE & CORBER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004220156 | |
| Download: ML19305E024 (28) | |
Text
I 3
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
f
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The Cincinnati Gas & Electric
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Docket No. 50-358 Company, et al.
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)
(Wm.
H. Zimmer Nuclear Power
)
Station)
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APPLICANT'S ANSWER TO PETITION FOR LEAVE TO INTERVENE BY ZIMMER AREA CITIZENS AND ZIMMER AREA CITIZENS IN KENTUCKY AS AN INTERESTED PERSON l
i Over four and one half years ago, the Nuclear Regula-i tory Commission ("NRC" or " Commission") published a Notice l
of Hearing on the application of The Cincinnati Gas and Electric Company, et al.,
(" Applicant") for an operating license for the Wm. H.
Zimmer Nuclear Power Station, Unit 1 (40 Fed. Reg. 43959; September 24, 1975).
The Notice stated that petitions for leave to intervene must be filed in I
accordance with the Commission's Ruler of Practice set forth l
in 10 C.F.R. Part 2, by October 24, 1975.
The Notice further stated that untimely petitions to intervene would not be entertained absent a determination by the Atomic Safety and Licensing Board (" Licensing Board") that the late petitioner had made a substantial showing of good cause for failure to file on time, based on the factors set out in 10 C.F.R.
- 52. 714 (a), in addition to the matters specified in 10 C.F.R.
- 52. 714 (d).
0422o $
8
i on March 21, 1980, a copy of the joint petition for leave to intervene by Zimmer Area Citizens ("ZAC") and Zimmer Area Citizens of Kentucky ("ZACK") was served upon I
the Licensing Board and the parties in the pending pro-ceeding.
For the reasons discussed below, the Licensing Board should deny the late-filed petition for leave to intervene because petitioner has failed to demonstrate good cause for the late filing, failed to meet its considerable burden in justifying intervention, and otherwise failed to meet the I
requirements of 10 C.F.R. S2.714.
In essence, the petition is a transparent attempt to inject further delay into the present proceeding by seeking participation of yet another group of intervenors whose interests are essentially the same, if not identical, to those of individuals and groups already admitted to the proceeding.
Specifically, there is absolutely nothing shown in the petition to differentiate the stance of petitioner from Dr. Fankhauser's position in the proceeding.~
Petitioner's avowed purpose is to " actively work to stop Zimmer from going on line.
" as stated in the attached newspaper advertisement inserted by petitioner, inter alia.
Despite the work of the duly constituted Federal, State and local authorities in developing an emergency plan
--1/
Dr. Fankhauser's position, of course, is echoed by MVPP.
As the Board must have observed, many of the persons identified with the petitioner have been present for_much of the evidentiary hearings to date.
with the Applicant, petitioner now presumes that it can advise this Board and the Commission on that issue without any demonstration whatsoever of even the barest qualifica-l tions.
I.
The Petition For Leave To Intervene Is Clearly Out Of Time l
And Good Cause Has Not Been Shown Petitioner concedes, as it must, that its petition is i
extremely untimely.
Its attempt to justify late inter-i vantion by the recent formation of ZAC and ZACK is a boot-
{
strap argument which falls far short of good cause.
Nor is I
good cause established by petitioner's assertion that it has t
waited to intervene until it has developed what it regards as sufficient " expertise."
To the contrary, petitioner has demonstrated no expertise with regard to the subject matter of its petition so as to make any showing whatsoever that it l
can assist in the development of a sound record.
- Moreover, i
as shown below, petitioner's representatives have made i
numerous statements, limited appearances, and have been present at the prehearing conferences and evidentiary sessions I
before the Licensing Board.
Petitioner has chosen to rely i
upon the efforts of other intervenors to protect its interests and cannot at this late stage argue that such representation is inadequate as a basis for intervention.
In addition to its failure to establish good cause for 1
late intervention, petitioner has failed to satisfy any of l
I t.
the other criteria set out in 10 C.F.R.
S2.714 for con-sideration of late petitions.
Specifically, Section 2.714 (a) (1) (1-v) requires a balancing of five factors as follows:
(i)
Good Cause, If Any, For Failure To File On Time.
The importance of establishing good cause to excuse I
late intervention was emphasized by the Commission in the West Valley Reprocessing Plant proceeding.
There, the Commission stated:
I s
Obviously, an important policy consideration underlying the rule is the public interest in the timely and i
orderly conduct of nur proceedings.
As the Commission has recognized,
" fairness to all parties.
and the obligation of administrative agencies j
to conduct their functions with ef-i ficiency and economy, require that i
Commission adjudications be conducted without unnecessary delays."
Late petitioners piaperly have a substantial burden in justifying their tardiness.
And the burden of justifying intervention on I
the basis of the other factors in the rule is considerably greater where l
the latecomer has no good excuse.
_2/
The standard established under the West Valley rule has been applied by the Appeal Board in numerous subsequent decisions
_2/
Nuclear Fuel Services (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 275 (1975) (emphasis added).
The Commission stressed that " favorable findings on some or even all of the other factors in the rule (for late intervention] need not in a given case outweigh the effect of icexcusable tardiness."
Id.
l
e.
to disallow inexcusably late petitions.- /
3 None of the reasons offered by petitioner justifies late intervention under these precedents.
The petitioner association was 4/
admittedly formed at least one year ago.
It is also I
asserted that many of its members "were engaged in research i
and self-education of the subject matter [ operation of a nuclear power facility] before formation of the citizens' association."-
It is surprising that ZAC fails to list its President, Mr. Eugene Erbe, as one of its " representatives."
Mr. Erbe, in his capacity as President of that organization, was one of the first to make a limited appearance in this proceeding.
6/
The name of Mrs. Mary Reder, head of ZACK-is also j
conspicuous by its absence; she has been designated as the representative of Mentor, Kentucky, already admitted as a participant in this proceeding, and would be expected to take an active part in this proceeding.
{
3/
Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-559, 10 NRC 162 (1979);
Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 I
and 3), ALAB-440, 6 NRC 642, 643 (1977) ; Duke Power Co.
(Perkins. Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977) ; Project Management Corp. (Clinch River Breeder Reactor. Plant), ALAB-354, 4 NRC 383 (1976).
_4/
Petition for Leave to Intervene at 1-2.
_5/
Id. at 2.
_6/
See attachment to Applicant's Answer to Petition of Mentor, Kentucky (January 11, 1980).
l
l i
t Not surprisingly, petitioner does not claim that its f
representatives or members lacked notice of their right to seek to intervene in this proceeding seasonably some four j
and one half years ago.
Indeed, the record is clear that many such representatives either made limited appearances at prehearing conferences or were observers in the hearing room 7/
for most, if not all, of the Licensing Board's sessions.--
)
i Furthermore, petiticaer cannot dispute that Company officials have participated in discussions with representatives of the organization beginning as early as last May.
An organiza-tion's late petition to intervene was denied in Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), Docket Nos. 50-522, 50-523, " Denial of Petition to Intervene" (November 20, 1979), rejecting petitioner's assertion "that the limited appearance which has already i
1 7/
For example, Eugene Erbe identified himself as the President of ZAC at the prehearing conference on May 22, 1979 (Tr. 221), where Margaret Erbe made a limited ap-pearance (Tr. 285).
Marjorie Sauer made a limited ap-pearance at an evening session on June 20, 1979 (Tr.
951).
Sr. Alice Gerderman made a limited appearance at a morning session on November 14, 1979 (Tr. 3162).
Vicky Anderson-Mayer made a limited appearance at the prehearing conference on May 22, 1979 (Tr. 246), as did Patricia Wilfert (Tr. 342).
Nancy Juillerate made a limited appearance at an evening session on June 26, 1979 (Tr. 1555).
Sharon L.: Porter made a limited appearance at the evening session on June 20, l
1979 (Tr. 926).
It should be noted that petitioner's request to be represented by lay " representatives" as well as an attorney is not in accordance with the Licensing Board's Memorandum and Order Concerning Intervenor's Requests to Utilize Lay Representatives dated June 13, 1979.
l l
,,_.1
been granted to it.
. was an inadequate opportunity fully to present and protect the concerns of its members."--8/
The reasons offered by petitioner for its late inter-vention are plainly unavailing.
Although petitioner states that it "was not in being as a group or association within the time for prompt filing of its application for leave to 9/
intervene,"- petitioner's representatives cannot so easily circumvent the required showing of good cause for lateness I
by the simple expedient of forming a "new" organization.
The Appeal Board in the Shearon Harris proceeding expressly rejected newly acquired standing by an organization as a basls for late intervention, holding that neither the recent arrival of an individual in the general vicinity of the nuclear facility nor the recent creation of an organization would justify late intervention:
We agree with the Licensing Board, however, that this explanation for the tardy filing cannot carry the i
day.
If newly acquired standing (or organizational existence) were suf-i ficient of itself to justify per-mitting belated intervention, the necessary consequence would be that the parties to the proceeding would i
never be determined with certainty until the final curtain fell.
As-
_8/
The Licensing Board was persuaded that " limited appearances in this proceeding have established that (petitioner's members] have been aware of plans for the Skagit project for a long time prior to (the late petition to intervene]."
Slip op. at 2, 7-8.
_9/
Petition for Leave to Intervene at 2.
l t
suredly, no adjudicatory process could be conducted in an orderly and expeditious manner if subjected to such a handicap.
10/
l The Appeal Board in the Allens Creek proceeding like-wise rejected la+e intervention by an individual who had only recently become a resident nearby the nuclear facility.--'11/
As noted by the Court of Appeals for the district of Columbia in a decision later cited by the Appeal Board in the Gulf States proceeding, the NRC is not obliged'to regard its I
cases "as endurance contests modeled after relay races in which the baton of proceeding is passed on successively from one legally exhausted contestant to a newly arriving legal stranger."
Petitioner cannot, therefore, pick up the baton on emergency planning issues at this late date.
El In the WPPSS Nuclear Project proceeding, the Licensing Board disallowed the timely intervention of an organizational petitioner where it was established that none of its members had standing at the time of intervention.
The Board con-10/
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979).
11/
Houston Lighting & Power Co. (Allens Creek Nuclear
~~
Generating Station, Unit 1), ALAB-582 (February 22, 1980).
-/
Gulf States Utilities Company (River Bend Station, 12 Units 1 and 2), ALAB-444, 6 NRC 760, 797 (1977), citing Easton Utilities Commission v. AEC, 424 F.2d 847, 852 (D.C. Cir. 1970).
l 13/
Washington Public Power Supply System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330 (1979).
cluded that tne resulting lack of organizational standing at that time could not be " cured" retroactively by the acqui-sition of new members who themselves could not establish good cause for late intervention.
Otherwise, stated the Board, the rules for out-of-time filings, would be "an open invitation for an organization whose membe,rship is far removed from the facility and who claimed'to have membership t
in the vicinity of the site to later try to recruit individuals in the vicinity as members and gain a retroactive recognition 14/
of interest."-- Accordingly, late intervention by individuals who themselves could not establish good cause for an out-of-I time filing cannot be cured by simply creating a "new" organization to intervene in their stead.--15/
Petitioner's second reason for late intervention, that it "has not heretofore sought intervention until it achieved the degree of expertise sufficient to be productive and i
16/
l assistive as a party,"-
is equally unavailing.
On analysis, this is merely a restatement of the oft-rejected argument by late petitioners who claim they have been preoccupied with 14/
Id. at 336.
I 15/
The Petition for Leave to Intervene admits that the combined association, ZAC-ZACK, was formed solely in response to the concern of its members regarding l
"the potential hazards to health and property from the operation of a commercial nuclear power facility and the means and methods available for protection of the public in the regulation on such a facility for.
r relatively safe operation."
Petition for Leave to Intervene at 2.
ly Petition for Leave to Intervene at 2.
i
other matters and have only recently focused attention on 11/
intervention.
For example, in the Skagit proceeding, the Appeal Board rejected this issue stating:
In this respect, there is nothing unique about the [ petitioners']
situation.
Participation in any complex adjudicatory proceeding -
whether being conducted in the courts or before an administrative
[
agency - is both time-consuming and a drain on the often limited re-l sources of the participants.
This being so, what the [ petitioners) ask is that the universally accepted practice of proscribing deadlines for intervention petitions be dis-carded by this Commission in favor of a rule which would permit each prospective intervenor to decide for I
himself the precise time at which he should transfer his attention and resources from the pursuit of other concerns.
[W]ere such a rule adopted the adjudicatory process likely would break down entirely.
18/
i 17/
Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552,10 NRC 1 (1979).
Petitioners argued that their limited legal and scientific resources were devoted to other matters prior to their late petition to intervene.
18/
10 NRC at 6-7.
The Appeal Board also cited its earlier decision in Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 644 (1977):
Most persons in our society are con-Eronted with many and varied demands apon their tLue.
The practical effect of acceptance of petitioner's explana-tion therefore would be a free license to make the timing of an intervention petition a matLer wholly dictated by personal convenience.
The contemplation of the Commission's Rules of Practice is clearly otherwise.
Nor cocid any adjudi-catory process function effectively, if at all, in such circumstances.
l i
- l l-As a final justification for its late filing, peti-tioner seems to imply that its eleventh-hour request to j
intervene is based on a canvassing of the intervenors who are currently parties to this proceeding as well as the Commonwealth of Kentucky, none of which, petitioner has i
determined, "will represent the interest, concern, pro-l ductivity or contribution of this petitioner."- /
19
- However, as stated in the decisions discussed above, a petitioner in an NRC licensing proceeding cannot arrogate to itself the right to intervene at any time, based upon its own assess-i ment of priorities and its ability to contribute to the I
record.
Otherwise, as the Appeal Board in Skagit observed:
[P]ersons potentially affected by i
the licensing action under scrutiny would be encouraged simply to sit back and observe the course of the proceeding from the sidelines unless and until they became persuaded that.
l their interest was not being adequately l
represented by the existing parties and thus that their own active (if 1
belated) involvement was required.
l No judicial tribunal would or could sanction such an approach and it is equally plain to us that it is wholly foreign to the contemplation of the l
hearing provisions of both the Atomic Energy Act and the Commission's regu-lations.
20/
While petitioner focuses upon its belated efforts to become familiar with the issues pertaining to emergency planning as a product of the accident at the Three Mile 19/
Petition for Leave to Intervene at 3.
20/
10 NRC at 173 (footnote omitted).
l '
Island Nuclear Station, Unit 2, the fact remains that emer-gency planning has been an issue in this proceeding since 1975.
Heretofore, there has been absolutely no showing that I
the " concerns" which petitioner seeks to raise anew could not have been raised by it in a timely manner under the l
original Notice.
To the contrary, the contentions in this proceeding are clearly within the scope of petitioner's 21/
1
" concerns."--
Its members have relied upon Dr. Fankhauser l
and the other parties to represent its interest in the i
proceeding, in particular, as those interests pertain to emergency planning issues.
It is not permissible under the i
commission's rules for intervention that in midstream peti-l tioner now asserts that those interests are being inadequately 22/
served.
l 21/
Thus, the October 22, 1975 Petition for Leave to I
~~
Intervene filed by Dr. David B. Fankhauser raised l
emergency planning contentions in paragraphs 8 and 9.
Noting Dr. Fankhauser's contention relating to f
"the need for good evacuation planning," inter alia, L
this Licensing Board granted his Petition for Leave to l
Intervene by Order dated November 29, 1975.
Dr.
Fankhauser's emergency planning contentions were amended and expanded in his Amended Petition to Inter-vene, dated December 23, 1975.
By Order dated March 19, j
1976, this Licensing Board granted Dr. Fankhauser's Amended Petition to Intervene, specifically granting i
i contentions 3 and 4 relating to emergency planning.
Slip op. at 11-3.
See also pages 14-15, infra.
22/
In this respect, a recent decision in the Three Mile Island proceeding, the restart of Unit No. 1, is en-lightening.
In denying leave to file two new contentions, the Board stated that the mere reliance upon NUREG/CR-1270 by the intervenor as the basis for its new contention (F,ootnote 22/ continued on next page) l
,e,
1 The situation here is no different than the circum-stances in the Cherokee proceeding, where the Appeal Board
+
ruled that protracted inaction by a petitioner who had attended evidentiary hearings could not be justified by claiming that her interests were not being adequately pro-tected by any of the existing parties, including a par-t ticipating State:
l That explanation similarly will not carry the day.
It is not claimed i
s that the state undertook to represent the interests of the petitioners specifically, as opposed to the public interest generally.
This being so,
[ petitioner) assumed the risk that the state's degree of involvement in i
the proceeding would not fulfill her expectations.
And a forseeable con-l sequence of the materialization of that risk was that it would then no longer be possible to undertake her-self the vindication of her interests.
23/
l 22/
(continued)
"does not qualify as new information, since the basis for the subject matter of the contentions existed long before NUREG/CR-1270."
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit I
No. 1), Docket No. 50-289, " Memorandum and Order Re-i jecting CEA Contentions Pursuant to Review of NUREG/
CR-1270 at 2-3" (March 18, 1980).
The Board noted that previously admitted contantions were very similar to the untimely contentions proposed by the intervenor, j
confirming that there was no basis to find that the intervenor had " advanced contentions based on sig-nificant new particularized information within an old general subject."
i 23,/
Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1977).
1
The Appeal Board held in the Three Mile Island and Perkins--'24/
proceedings that judicial decisions rendered after the point for timely intervention would not excuse late petitions i
covering issues that could have been timely raised.
Analogous-ly, ZAC-ZACK cannot in this instance rely upon TMI developments as an excuse for eleventh-hour intervention on general emer-gency planning issues which have always been within the scope of this proceeding.
Certainly, petitioner's members knew enough at earlier stages to make them " duty-bound to take at least some steps to obtain such readily available 1
information as might be required to protect their interests l
in reasonably timely fashion,"- /
25 because "[a]n administrative hearing would be a meaningless charade if those with ample opportunity to participate were allowed to stand idly by and then, nevertheless, demand a replay when they do not like l
the result."
Accordingly, petitioner has failed to show good cause for its untimely petition.
24/
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 i
and 3), ALAB-431, 6 NRC 460 (1977); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-T5T, 5 NRC 612 (1977).
25/
Houston Lighting & Power Co. (Allens Creek Nuclear l
Generating Station, Unit 1), ALAB-574 (January 10, 1980) (slip op. at 11).
--26/
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-583 (March 12, 1980) (slip op. at 3).
I i
l i
(ii)
The Availability of other Means Whereby The Petitioner's Interest Will Be Protected In addition to demonstrating that the late petitioner i
lacks any good cause for failure to file on time, the l
i existence of previously admitted, timely contentions in the same subject area "also provides the linchpin for finding l
that there is no other reason for admitting (the late]
contentions.
(The late petitioner's] belatedly expressed 27/
l s
generalized interest will be represented by existing parties."
As indicated by the Applicant's Emergency Plan, FSAR l
i volume 9, Appendix F (rev. July 1979), emergency planning i
will require implementation by numerous other State and 5
federal agencies, including the State of Ohio, the Commonwealth i
of Kentucky, the United States Department of Energy, the United States Coast Guard, and the State of Ohio Adjutant l
General's Department, Since most of the concerns expressed by ZAC-ZACK pertain to the utilization of warning devices f
f and adequacy of evacuation measures, for which the State and county agencies will assume primary responsibility, it 27/
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), Docket No. 50-289, " Memorandum and Order Rejecting CEA Contentions Pursuant to Review
[
of NUREG/CR-1270" (March 18,1980) (slip op. at 4).
As t
we note in Section II below, the late petition does not even list the requisite contentions, but only out-lines subject areas relating to " concerns" about the emergency planning.
I l
I follows that petitioner's concerns should be addressed to l
those other agencies.--29/
l (iii)
The Extent To Which The Petitioner's Participation May Be Reasonably Expected To Assist In Developing A Sound Record I
While petitioner expresses concern over emergency plan-l ning issues, there is nothing in the petition to support its members' claim to any special expertise in the area that would assist this Board in the development of a sound record.
In fact, petitioner concedes that as of the time ZAC-ZACK f
was formed a year ago, the organization did not even regard i
itself as having " achieved the degree of expertise suffi-
-30/
cient to be productive and assistive as a party." - To assume that petitioner's members have achieved any sub-stantial degree of knowledge or expertise within that period f
i is contrary to logic and common experience.
Certainly, l
petitioner's generalized assertions that it has acquired "information and knowledge of the subject matter and has involved itself in conducting educational meetings to inform 31/
the public"-
do not demonstrate that petitioner has met its burden of showing any special qualifications or expertise 29/
As discussed in section (iv), pages 18-21, infra, emergency planning issues are being actively considered and litigated by the Staff, Dr. Fankhauser and State participants.
l 30/
Petition for Leave to Intervene at 2.
31/
Id.
l that would assist the Board.
Nor do the " regulatory re-visions mandated by the experience and subsequent findings 32/
i of the Three-Mile Island accident"-
in any way support petitioner's qualifications as a late intervenor.
As the Commission stated in the Pebble Springs proceed-ing, the controlling decision on intervention:
Permission to intervene should prove more readily available where petitioners show significant ability to contribute i
on substantial issues of law orsfact l
which will not otherwise be properly
^
raised or presented, set forth these matters with suitable specificity to allow evaluation, and demonstrate their importance and immediacy, justifying the time necessary to consider them.
33/
In the Black Fox proceeding, the Appeal Board described the petitioner's ability to make a valuable contribution to the decision-making process as " foremost among those factors as applied to allowing participation on the part of one lacking standing to intervene as a matter of right."- /
34 Ap-plying this standard, the Appeal Board in the Watts Bar i
proceeding disallowed intervention by a petitioner who lacked standing as a matter of right, noting:
32/
Id. at 2-3.
--33/
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976).
34/
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1145 (1977).
See also Virginia Electric & Power Company (North Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 633 (1976).
the absence of some clear indication that the petitioner has a substantial contribution to make on a significant safety or environ-mental issue appropriate for con-sideration at the operating license stage There is nothing before us which might suggest that this peti-i tioner is qualified by either specialized education or pertinent experience to make a substantial contribution on one or more of the contentions which she seeks to have litigated.
Nor.
does she profess to have expert as-sistance available to her.
35/,
The late petition in this case is devoid of any infor-mation that might establish petitioner's qualifications by scientific or technical training and experience to offer credible assistance to the Board.
Petitioner's failure to l
specify its credentials or those of its members is much like the situation in the Allens Creek proceeding, where the Appeal Board recently disallowed intervention by a concerned citizen who, like petitioner here, "has offered nothing beyond his bare assertion which might lead [the Board] to believe that he would be able to make a significant contri-bution to the development of an evidentiary record on one or more safety issues."
(iv)
The Extent To Which The Petitioner's Interests Will Be Represented By Existing Parties Petitioner claims that it is " uniquely representative" 35/
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422-23 (1977).
36/
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582 (February 22, 1980) (slip op at 9).
i l
of the concerns and " interest of children of pre-school and 37/
school age."--
This assertion by way of ipse dixit will not withstand serious scrutiny of the record.
First, the NRC Staff always has the obligation of protecting the public health and safety in an operating license proceeding and it can scarcely be doubted, in light of the Commission's current 38/
rulemaking on emergency planning,-
as well as its conduct of on-site facility reviews, that the Staff will do all that is necessary to assure adequate coordination among the 39/
responsible State and federal emergency planning agencies.
Also, the existing intervenors will fully represent petitioner's interest with regard to emergency planning by virtue of their pursuit of the admitted contentions on emergency planning.
/
-40 Further, on March 4, 1980, the Commonwealth of 37/
Petition for Leave to Intervene at 3.
38/
See 44 Fed. Reg. 75167 (December 19, 1979).
39/
In addition to the agencies discussed on page 15, supra, it is noted that the Federal Emergency Mobili-ation Agency is responsible for reviewing the adequacy of State and local emergency response capacity.
- Thus, while these State and federal agencies are not parties to the proceeding, their participation in the formula-tion of the emergency planning procedures for Zimmer will assure the representation of petitioner's interest with regard to warning, evacuation and similar emergency planning concerns asserted by petitioner.
40/
See note 21, supra.
1 Kentucky petitioned for leave to participate in this pro-ceeding as an interested State pursuant to 10 C.F.R. 52.715(c).
The Licensing Board granted the request on April 1, 1980.
The l
Commonwealth of Kentucky stated the following as the basis for its proposed participation:
Kentucky is particularly concerned about the adequacy of emergency ' plan-ning for the facility as applied to Kentucky.
The emergency plan for the Zimmer Nuclear Power Station is in-adequate to protect the health '
and safety of the inhabitants of the Commonwealth.
The Commission no doubt recognizes this fact in the aftermath of the accident at Three Mile Island.
The Zimmer emergency plan does not meet the requirements of the proposed amendments to 10 C.F.R. Part 50, and 10 C.F.R. Part 50, Appendix E.
The Commonwealth supports the general concept of the proposed revisions and has requested that the applicant provide financial and other assistance to state and local agencies to develop
{
adequate state and local emergency plans i
in Kentucky for the Zimmer Nuclear Power Station.
Without additional funding, state and local emergency planning for the Zimmer Nuclear Power Station will be inadequate.
4_1_/
Finally, it is noted that the City of Mentor, Kentucky, has been granted leave to participate under Section 2.715(c),
and has likewise expressed concern as to cmergency planning:
Our principal concerns are the adequacy of emergency planning and preparedness, i.e., whether 41/
Petition for Leave to Intervene as an Interested State at 2-3 (March 4, 1980).
I l
adequate emergency plans do exist and whether those plans can ef-fectively be implemented in the event of an emergency at the facility; we are especially con-cerned with the ability to com-municate emergency situations and adequate instruction to those who live within our city; we are concerned with evacuation of persons, if necessary, and care and protection of non-evacuated '-
animals and property if evacuation is required; we are concerned with the monitoring of all radiological i
releases from Zimmer, our ability to verify such monitoring, and the ability of such monitoring adequately to provide warning of dangerous or unsafe releases of i
radiation from Zimmer.
42/
Significantly, the City of Mentor has designated Mrs. Mary Reder as its rep.resentative.
Since Mrs. Reder is also the head of ZACK, it is logical to conclude that her presence will assure the advocacy of petitioner's viewpoint on the record of the proceeding.
Accordingly, the participants who have already focused l
their attention on emergency planning issues are sufficient in number and range of interest to assure adequate considera-43/
tion of all the concerns expressed by petitioner.--
42/
Petition of Mentor, Kentucky, to Participate Pursuant to 10 C.F.R.
S2.715(c) at 1 (becember 28, 1979).
43/
In this regard, it is noted that petitioner overstates its authority in presenting itself "as representing the citizens of Ohio and Kentucky."
Petition for Leave to Intervene at 2.
Only a State has standing to represent the interest of its citizenry parens patriae pursuant I
to Section 2.715 (c).
Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-345, 4 NRC 212, 213 (1976).
I I
I
(v)
The Extent To Which The Petitioner's Participation Will Broaden The Issues Or Delay The Proceedings Notwithstanding petitioner's recognition of the fact i
that it must " accept the proceedings in this advanced stage as petitioner finds them,"
a grant of the petition could, given the late stage of the proceedings, dreate further un-due delay owing to the possible need for additional plead-ings, additional prehearing conferences, additional time for evidentiary hearings, additional cross-examination, and possibly evidence-in-chief.
Sign.' tantly, the Commission recently reaffirmed that the rules for intervention under Part 2 authorize licensing boards to restrict "duplicative f
or repetitive evidence and argument."~~45/
i In sum, petitioner has altogether failed to make a substantial showing of good cause for its untimeliness under Section 2. 714 (a) (i), and the late petition fails to pass muster on any of the remaining factors under subsections (ii) through (v), especially in light of the considerably l
t i
44/
Petition for Leave..to Intervene at 7.
t 45/
Denial of Petition for Rulemaking by The Cincinnati' Gas & Electric Co.,
45 Fed. Reg. 17704, 17705 (March 19, 1980).
t I
I i
a F
l i
greater burden petitioner must bear for lack of good cause for filing late.--46/
II.
The Petition For Leave To Intervene Should Be Denied Because Petitioner Has Not Specified Its Contentions Under the Commission's Rules of Practice for interven-tion, a list of the contentions which petitioner seeks to j
have litigated in the matter, and the basis for each con-1 tention set forth with reasonable specificity, must be filed not later than 15 days prior to the special prehearing j
conference or the first prehearing conference.
10 C.F.R. 5 2. 714 (b).
Thus, a late petition which is filed after the holding of the special prehearing conference, which in this instance was held on January 23, 1976, must contain the i
requisite list of contentions with the basis for each con-tention set forth with reasonable specificity.-~47/ A timely 46/
Discretionary intervention should also be denied, in-asmuch as the exercise of the Board's discretion is based on the same factors already considered with respect to i
petitioner's late filing, i.e.,
those set forth in 10 l
C.F. R. S2.714(a) and (d).
See generally Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422-23 (1977); Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1151 n.14 (1977) ; Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
i 42/
Certainly, a late petition to intervene would be subject to standards at least as strict..as those applicable to new contentions by existing parties.
The Statements of Consideration accompanying the Amendment of the Commission's Rules of Practice in 1978, see 43 Fed. Reg. 17798 (April 26, 1978), make it clear that late filed petitions and amended or expanded contentions are to be judged by the same criteria under Section 2.714.
See also Duke Power Company (Oconee Nuclear Station and McGuire Nuclear Station), LBP-79-2, 9 NRC 90, 105 (1979).
statement of a petitioner's proposed contentions is neces-sary in order to allow the applicant and Staff to take a position on the contentions to facilitate prompt disposition by the Board and in order to address the question of whether 3
the petitioner's presence will expand the issues.
By contrast, the late petition filed by ZAC-ZACK does not list contentions, much less set forth the basis for each with reasonable specificity.
The petition does not reflect any knowledge or familiarity with Zimmer emergency planning as set forth in FSAR, Voluce 9, Appendix F, or with any of the Commission's interim guidelines or the proposed rule, or any awareness of the status of emergency planning issues in this proceeding.
Instead, the petition merely outlines certain " concerns" relating to the adequacy of warnings, medical staff and facilities, and the adequacy of evacuation measures.
The position of the petitioner with regard to these concerns is not set forth in " particularized, factually supported" contentions, and "[t]here is no duty placed upon a licensing board to recast contentions offered by one of the litigants in order to make those contentions acceptable."
Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-77-48, 6 NRC 249, 251-52 (1977).
Especially at this late stage, over four years after the first prehearing conference in this proceed-ing and more than four years after emergency planning was pleaded as a contention, the failure of petitioner to set
forth even a single contention and to specify its basis falls far short of the requirements of Section 2.714(a) and (b) for late intervention.
Conclusion For the foregoing reasons, it is submitted that peti-tioner has failed to show good cause for $ts late petition and has also failed to satisfy the other hequirements for late intervention under 10 C.F.R. 52. 714 (a) and (b).
The petition should be. denied.
Respectfully submitted, CONNER & MOORE Tro onner, Jr.
t Mark J. Wetterhahn Counsel for the Applicant April 7, 1980 v-v
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~ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) ) l The Cincinnati Gas & Electric ) Docket No. 50-358 i company, et al. ) ) (William H. Zimmer Nuclear Power ) i Station) ) i CERTIFICATE OF SERVICE ~- ~ Iherebycertifythatcopiesof"Appkicant'sAnswer'to Petition for Leave to Intervene by Zimmer Area Citizens and Zimmer Area Citizens in Kentucky as an Interested Person," dated April 7, 1980, in the captioned matter, were served upon the following by deposit in the United States mail this 7th day of April, 1980: Charles Bechhoefer, Esq. Michael C. Farrar, Esq.. ,1 Chairman, Atomic Safety Atomic Safety and Licensing l and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory 7 l Commission Commission { Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper, Member Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Appeal Board Panel i Board U.S. Nuclear Regulatory School of Natural Resources Commission University of Michigan Washington, D.C. 20555 i Ann Arbor, Michigan 48109 Chaiman, Atomic Safety and Mr. Glenn O. Bright, Member Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Charles A. Barth, Esq. Counsel for the NRC Staff Richard S. Salzman, Esq. Office of the Executive Legal Chairman, Atomic Safety and Director Licensing Arpeal Board U.S. Nuclear Regulatory U.S. Nuclear..tegulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 l William J. Moran, Esq. Dr. Lawrence R. Quarle:> General Counsel Atomic Safety and Licensing Cincinnati Gas & Electric t Appeal Board Company U.S. Nuclear Regulatory Post Office BoF 960' Commission Cincinnati, Ohio 45201 Washington, D.C. 20555 I 1 s
Mr. Chase R. Stephens Leah S. Kosik, Esq. Docketing and Service Branch Attorney at Law Office of the Secretary 3454 Cornell Place U.S. Nuclear Regulatory Cincinnati, Ohio 45220 Commission Washington, D.C. 20555 John D. Woliver, Esq. Clermont County Community William Peter Heile, Esq. Council Assistant City Solicitor Box 181 City of Cincinnati Batavia, Ohio 45103 i Box 214 Cincinnati, Ohio 45202 David K. Martin, Esq. Assistant Attorney General Mrs. Mary Reder Acting Director Box 270 Division of Environmental Law Route 2 Office of Attorney General California, Kentucky 41007 209 St. Clair Street Frankfort, Kentucky 40601 Andrew B. Dennison, Esq. Attorney at Law 200 Main Street Batavia, Ohio 45103 My J. Wetterhahn i f e l '}}