ML19309F910
| ML19309F910 | |
| Person / Time | |
|---|---|
| Issue date: | 03/14/1980 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| RULE-PRM-2-7, TASK-CC, TASK-SE SECY-80-144, NUDOCS 8005010623 | |
| Download: ML19309F910 (22) | |
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8005010/,2,3 UNITED STATES NUCLEAR REGULATORY COMMISSION SECY-80-144 March 14,1980 WASHINGTON, D. C. 20555 CONSENT CALENDAR ITEM
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For:
The Commissioners From:
Howard K. Shapar, Executive Legal Director Thru:
Willian J. Dircks, Acting Executive Director for-Operations
Subject:
DOCKET NO. PRM-2-7 PETITION FOR RULEMAKING FILED BY WELLS EDDLEMAN TO AMEND 10 CFR PART 2 TO EXTEND "G000 CAUSE" FOR LATE FILED PETITIONS TO INTERVENE TO PERSONS NEWLY ARRIVED IN VICINITY OF NUCLEAR POWER PLANT AND TO NEWLY FORMED ORGANIZATIONS Purcose:
To obtain Cer6 mission approval to publish a notice of denial of the petition (Enclosure A) in the FEDERAL REGISTER.
Ca teao ry:
This paper covers a routine matter.
Discussion:
On January 4,1979, Mr. Wells Eddleman of Durham, North Carolina, filed a petition for rulemaking with NRC requesting amendirent of Part 2, " Rules of Practice for Domestic Licensing Proceedings." Specifically, petitioner requested that 10 CFR 5 2.714(a)(1)(i) be changed to recognize and pennit a person or corporation newly arrived in the vicinity of a nuclear power plant, or an organization fonned after the deadline for intervention, to petition with cood cause for the late filing to intervene.
In otner words, " good cause" for late filed petitions to intervene would explicitly encompass the fact of recent arrival of persons or corporations, or the recent formation of organizations in the vicinity of a nuclear power plant site.
A notice of filing of the petition requesting comments by April 9, 1979 was published in the FEDERAL REGISTER on February 8, 1979 (44 F.R. 8043-44). Twenty-one comments were received.
Six comments, of which five were from private citizens including the petitioner himself and one from an environmental group, were in support of the petition.
Fifteen comrrents, of which nine were from private citizens, three from utilities, two from law firms, and one from an officer of an aca-demic institution, opposed the proposed rule change.
Those in favor of the proposed rule change generally believed that their rights as citizens were somehow
Contact:
M. Staenberg, OELD 492-8689 l
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The Commissioners abridged by not being permitted to participate in a nuclear licensing proceeding--no matter how late their entry. Those opposed to the proposed rule change argued that it was unnecessary (that the existing rules already permit late intervention upon a proper balancing of factors), potentially disruptive to licensing proceed-ings, likely to delay or obstruct licensing without corresponding benefit to public, and contrary to proper adjudicatory process.
The attached Federal Register notice of denial of the petition (Enclosure 4) explains, as did the Board deci-sions in the specific case in which this petitioner was denied permission to intervene, that while encouraging public participation in NRC proceedings, the Commission's policy is also to encourage efficiency and to avoid undue delay or prejudice to the rights of existing parties in such proceedings.
The notice of denial further explains that the conse-quence of the proposed rule change, which would permit late intervention in NRC proceedings to persons or corporations simply on the basis of their new arrival in the vicinity of a nuclear power plant site or to an organization on the basis of its recent fonnation, could be decisions where certainty and finality would be open to question and an adjudicatory process which could not be conducted in an orderly and expediticus manner.
The notice nevertheless makes clear that late intervention may be granted to such persons or organizations upon their meeting the existing factors set forth in 10 CFR 9 2.714 governing late filed petitions.
Recommendation:
That the Commission 1.
Approve the attached Notice of Denial of Petition for Rulemaking (Enclosure A) for publication in the FEDERAL REGISTER and close Docket No. PRM-2-7.
2.
Note a.
A letter transmitting a copy of the Notice of Denial will be sent to Wells Eddleman at the same time that the notice is dispatched to the FEDERAL REGISTER for publication (Enclosure B).
b.
Denial of the petition for rulemaking does not constitute a major Federal action significantly affecting the quality of the human environment.
The Comissioners.
Accordingly, no environmental impact statement, negative declaration or environmental impact appraisal need be prepared.
c.
The House Comittees on Interior and Insular Affairs, Interstate and Foreign Commerce, and Government Operation, and the Senate Comittee on Environment and Public works will be infomed (Enclosure E).
d.
A public announcement will not be issued.
Coordination:
The Chaimen of the Atomic Safety and Licensing Appeal Board Panel and the Atomic Safety and Licensing Board Panel and the Division of Rales and Records in the Office of Administration concur.
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howard K. Shapar Executive Legal Director Enclosures :
"A" Notice of Denial of Petition for Rulemaking "B"
Draft letter to Wells Eddleman "C"
Petition for Rulemaking "D"
Draft letter for Congressional Committees Comissioner's comments or consent should be provided directly to the Office of the Secretary by cob Tuesday, April 1,1.980.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT March 25, 1980, with an information copy to the Office of the Secretary.
If the paper is of sucS a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of April 7, 1980.
Please refer to the appropriate Weekly Commission Schedule, when published, i for a specific date and time.
1 DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations ASLBP ASLAP Secretariat O
ENCLOSURE A D
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flVCLEAR REGULATORY COMMISSI0ft (Docket flo. PRM-2-7)
Wells Eddleman Notice of Denial of Petition for Rulemaking flotice is hereby given that the fluclear Regulatory Commission has denied a petition for rulemaking (PRM-2-7) submitted by Mr. Wells Eddleman, Rt.1, Box 183, Durham, florth Carolina. The petition requested the Commission to amend its regulation, " Rules of Practice for Domestic Licensing Proceedings,"
10 CFR Part 2, 5 2.714(a)(1)(1) relating to what constitutes good cause for a late filed petition to intervene.
Specifically, the suggested amendment would, in petitioner's view, explicitly recognize and permit a person or corporation newly arrived in the vicinity of a nuclear power plant or an ceganization fonned after the deadline for intervention to petition with good cause for the late filing to intervene. While petitioner asserts that it is his belief that " good cause" already includes the faci. of recent arrival or formation of an organization, the amendment is offered to make this explicit and to possibly gain for this petitioner standing in a proceed-ing in which his late filed petition to intervene was denied for failure to show good cause.
Specifically, the petitioner requests that the Commission amend 5 2.714 of 10 CFR 2 as follows; replacing section (a)(1)(1) with this wording:
E!! CLOSURE A
. (i) Good cause if any, for failure to file on time.
Good cause shall include acquiring an interest in the proceeding, particularly by exercising Constitutional rights (e.g., free movement), after the deadline for filing, provided such acquisition of interest was not primarily intended to give cause for leave. to intervene.
Further, any organization formed after the deadline for intervention but without the express intent to circumvent the filing deadline by so organ-izing, and any corporate person moving into the vicinity of a nuclear power plant a significant office, factory or moveable property shall also be considered as having good ceise for nontimely filing.
A notice of filing of the petition requesting comments by April 9,1979 was published in the FEDERAL REGISTER on February 8, 1979 (44 F.R. 8043-44).
Twenty-one comments were received.
Six comments, of which five were from private citizens including the petitioner himself and one from an environ-mental group, were in support of the petition.
Fifteen comments, of which nine were from private citizens, three from utilities, two from law firms, 1
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and one from an officer of an academic institution, opposed the proposed rule change.
Those in favor of the proposed rule change generally believed that their rights as citizens were somehow abridged by not being permitted to participate in a nuclear licensing proceeding--no mn.tter how late their
. entry. Those opposed to the proposed rule change argued that it was unneces-sary (that the existing rules already permit late intervention upon a proper balancing of factors), potentially disruptive to licensing proceedings, likely to delay or obstruct licensing without corresponding benefit to public, and contrary to proper adjudicatory process. The petition and comments are available for public inspection at the flRC Public Document Room at 1717 H Street, fl.W., Washington, D.C.
In his petition, petitioner also states that:
I personally have an interest in this proceeding because I unwittingly moved close to a nuclear plant site in 1977 (12 August), and wish to be afforded the same opportunity to petition to intervene as anyone who was living in the area when the plant was proposed or its initial hearings held.
I do not ask any suspension of any proceedings.
I do request that should this proposed rule be adopted in whole or in part it be applied to my case retroactively to this date or to the date of filing of any petitions to intervene which makes a point of late intervention by exercise of Constitutional rights etc.
as specified in my proposed rule, including the right to a rehearing based on this proposed rule if and when -
it is made part of 10 CFR 2.
The proceeding to which petitioner refers is Carolina Power and Light Co.,
Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4, Dkt. Nos. 50-400, 401, 402, and 403.
In November 1978, Mr. Eddleman petitioned the Licensing Board to permit him to intervene on behalf of himself and the Kudzu Alliance.
The petition was very late (Notice of hearing and opportunity to intervene was published September 29,1972).
In explaining the lateness of his peti-tion, Mr. Eddleman reported that the Kudzu Alliance did not exist and that he was not a resident of the relevant area until June 1977. On January 9, 1979, the Licensing Board rejected the petitioner's theory that good cause for a late petition to intervene includes the femation of an organization or the arrival of a new resident in the area of a nuclear power plant site after the deadline for filing intervention petitions, and denied the petition.
On February 13, 1979 the Atomic Safety and Licensing Appeal Board affirmed the Licensing Board's denial of the untimely petition.
Specifically, the Appeal Board stated:
It may well be that, as has been asserted, Mr. Eddleman has not long resided in the general vicinity of the Shearon Harris facility and that the Alliance is of recent origin.
We agree with the Licensing Board, however, that this explana-tion for the tardy filing cannot carry the day.
If newly acquired standing (or organizational existence) were sufff-cient of itself to justify pemitting belated intervention, the necessary consequence would be that the parties to the proceeding would never be determined with certainty until the final curtain fell. Assuredly, no adjudicatory process could be conducted in an orderly and expeditious manner if sub-jected to such a handicap.
No appeal was taken to the Commission nor did the Commission review the matter on its own.
In view of the petition for a rule change, the Ccmmis-sion has reviewed the entire matter raised by the petitioner.
Rather tha.n inquiring into whether the existing rule has been correctly interpreted in past Licensing Board and Appeal Board decisions, the Commission has now considered whether the rule itself, as presently interpreted, ought to be changed as suggested by petitioner or whether it should remain as written.
Since its inception, the Commission has recognized the need for and desf r-ability of effective public participation in the nuclear power plant licensing process. At the same time, the Commission is concerned with and responsible for efficiency in the Commission's adjudicatory process.
In that connection, the Commission believes that unnecessary or inappropriate delays should be avoided whenever possible in the conduct of public hearings.
The Licensing Boards and Appeal Boards are well aware of their duty to main-tain the integrity of the Commission's regulations as to the efficient l
conduct of its proceedings while carrying out the Commission's expressed interest and objective of affording public participation in the licensing The Commission continues to believe that the initial decision process.
whether to grant or deny late ir.tervention is most properly made by the
. presiding officer or licensing board designated to rule on the petition and that the existing factors set forth in 10 CFR 92.714 are sufficient guidance in arriving at that decision. The following facters are to be balanced in reaching a decision whether a late filed petition to intervene should be granted:
(1) good cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be pro-tected; (3) the extent to which petitioner's participation may reasonably be expected to assist in developing a sound record; (4) the extent to which petitioner's interest will be represented by existing parties; and (5) and the extent to which the petitioner's participation will broaden the issues or delay the proceeding.
In addition, the following factors are also to be considered: (1) the notice of 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; and (3) the possi-ble effect of any order which may be entered in the proceeding on the peti-tioner's interest.
In the present case, as in others,I/ the Licensing Board and Appeal Board denied a late petition to intervene and rejected as the reason for the late-ness that the person or corporation was newly arrived in the vicinity of the nuclear power plant site or that the organization was newly formed (after the date for timely filing).
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See Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), LBP-78-63, 8 AEC 330, aff'd, ALAB-238, 8 AEC 656 (1974).
. It is well established that the adjudicatory process, whether before the courts or administrative tribunals, must be conducted in a manner to assure the integrity and orderly dispatch of the proceeding, to avoid undue delay or prejudice to the rights of existing parties and to permit finality in the process. The consequences of the proposed rule change--which would permit late intervention in an iiRC proceeding to a pcrson or corporation simply on the basis of recent arrival in the vicinity of a nuclear power plant site, or to an organization on the basis of its recent formation--would be decisions whose certainty and finality would be open to question and an adjudicatory process which could not be conducted in an orderly and expeditious manner.
The Commission has therefore concluded that the " good cause" requirement of 10 CFR 9 2.714(a)(1)(1) should not be amended to explicitly encompass the situation of a newly arrived resident or newly formed organization in the vicinity of a nuclear power plant.
This, by itself, does not, in the Com-mission's view, establish good cause to permit late intervention.
Late intervention by a newly arrived person or newly formed organization may be granted, however, upon meeting the other factors set forth in 10 CFR 92.714 as discussed above.
In view of the foregoing, the Commission has denied the petition for rule making filed by Wells Eddleman on January 4,.1979.
A copy of the Commission's
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letter of denial is available for public inspection at the NRC Public Docu-ment Room at 1717 H Street, N.W., Washington, D.C.
Dated at Washington, D.C., this day of
, 1980.
For the Nuclear Regulatory Commission.
Samuel J. Chilk
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Dear Mr. Eddleman:
This is in regard to your petition for rulemaking dated January 9,1979 requesting the Nuclear Regulatory Commission to amend its " Rules of Practice for Domestic Licensing Proceedings," 10 CFR Part 2, to explicitly recognize and permit a person or corporation newly arrived in the vicinity of a nuclear power plant, or an organization formed after the deadline for intervention, to petition with good cause for the late filing to intervene.
After careful review and consideration of your propasal and for the reasons set forth in the attached Notice of Denial of Petition for Rulemaking, the Nuclear Regulatory Commission has denied your petition for rulemaking.
Sincerely, Samuel J. Chilk Secretary ENCLOSURE B
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. Notwithstanding my belief.,that $ CFR see 1.on 2.71h allows auperson newly arrived in the vicinity of a nuclear power plant s'ite to petition with good cause to intervene, and notwithstanding my belief that any
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shell also be considered as having good cause for nontir.ely filing. "
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n2go 2 petition for propicad Iulo naking 14 Jan 1979 the "ight of persons', corborations, and grouns that come on ne scene during the long ' licensing nrocess butlaf ter the ' deadline for filing, carticularly those who have done so without intent t1
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I personally have an interest in this oroceeding because I co ":::ev"'c :1 ~s: e nb gn.' solo eda av:'lc bes co2 vietur!:2.0L noitu1~e:~n unwittingly moved close to a' nuclear power plant site in 1977 (12 n.
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I do recuest tha t. should. this u.rono. s. ed rule be adouted in whole or in cart it. be soulied to ny case retroactively to this date, or to the date of filing of any petitions to intervene
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The Honorable Morris K. Udall, Chaiman Subcommittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of Representatives Washington, D.C.
20515
Dear Mr. Chairman:
Enclosed for your infomation are copies of a Notice of Denial of Petition for Rulemaking in Docket No. PRM-2-7, Mr. Wells Eddleman to be published in the Federal Register. The petition filed on January 4, 1979 requested the NRC to amend its Rules of Practice for Domestic Licensing Proceedings, 10 CFR Part 2, to recognize and permit a person or corporation newly arrived in the vicinity of a nuclear power plant, or an organization formed after the deadline for intervention, to petition with good cause for the late filing to intervene.
Notice of receipt of the petition was published in the Federal Register.
Twenty-one public comments were received, of which the majority opposed the proposed rule change.
For the reasons stated in the enclosed notice, the Commission has concluded that the petition should be denied.
Sincerely, Howard K. Shapar Executive Legal Director
Enclosure:
Notice of Denial of Petition for Rulemaking cc: Rep. Steven Symms ENCLOSURE D l of 4
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The Honorable Gary Hart, Chaiman Subcommittee on Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C.
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Dear Mr. Chairman:
Enclosed for your infomation are copies of a Notice of Denial of Petition for Rulemaking in Docket No. PRM-2-7, Mr. Wells Eddleman to be published in the Federal Register.
The petition filed on January 4,1979 requested the NRC to arrend its Rules of Practice for Domestic Licensing Proceedings, 10 CFR Part 2, to recognize and permit a person or corporation newly arrived in the vicinity of a nuclear power plant, or an organization formed after the deadline for intervention, to petition with cood cause for the late filing to intervene.
Notice of receipt of the petition wcs published in the Federal Register.
Twenty-one public comments were received, of which the majority opposed the proposed rule change.
For the reasons stated in the enclosed notice, the Commission has concluded that the petition should be denied.
Sincerely, e
Howard K. Shapar Executive Legal Director
Enclosure:
Notice of Denial of Petition for Rulemaking cc:
Sen. Alan Simpson 1
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The Honorable John C. Dingell, Chaiman Subcommittee on Energy and Power Committee on Interstate and Foreign Commerce United States House of Representatives Washington, D.C.
20515
Dear Mr. Chairman:
Enclosed for your information are copies of a Notice of Denial of Petition for Rulemaking in Docket No. PRM-2-7, Mr. Wells Eddleman to be published in the Federal Register. The petition filed on January 4, 1979 requested the NRC to amend its Rules of Practice for Domestic Licensing Proceedings, 10 CFR Part 2, to recognize and permit a person or corporation newly arrived in the vicinity of a nuclear power plant, or an organization fc ced after the deadline for intervention, to petition with cood cause for the late filing to intervene.
Notice of receipt of the petition was published in the Federal Register.
Twenty-one public comments were received, of which the majority opposed the proposed rule change.
For the reasons stated in the enclosed notice, the Commissica has concluded that the petition should be denied.
Sincerely, Howard K. Shapar Exe,cutive Legal Director
Enclosure:
Notice of Denial of Petition for Rulemaking cc: Rep. Clarence J. Brown ENCLOSURE D 3 of 4
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The Honorable Toby Moffett, Chairman Subcommittee on Environment, Energy and Natural Resources Committee on Government Operations United States House of Representatives Washington, D.C.
20515
Dear Mr. Chairman:
Enclosed for your information are copies of a Notice of Denial of Petition for Rulemaking in Docket No. PRM-2-7, Mr. Wells Eddleman to be published in the Federal Register. The petition filed on January 4,1979 requested the NRC to amend its Rules of Practice for Domestic Licensing Proceedings, 10 CFR Part 2, to recognize and pennit a person or corporation newly arrived in the vicinity of a nuclear power plant, or an organization formed after the deadline for intervention, to petition with good cause for the late filing to intervene.
Notice of receipt of the petition was published in the Federal Register.
Twenty-one public comments were received, of which the majority opposed the proposed rule change.
For the reasons stated in the enclosed notice, the Commission has concluded that the petition should be denied.
Sincerely, Howard K. Shapar Executive Legal Director
Enclosure:
Notice of Denial of Petition for Rulemaking cc:
Rep. Paul McCloskey i
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