ML19309G456
| ML19309G456 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 04/22/1980 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY |
| References | |
| LBP-80-14, NUDOCS 8005060343 | |
| Download: ML19309G456 (19) | |
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L-tG[* k' ATOMIC SAFETY AND LICENSING BOAFG-
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Charlr.s Bechhoefer, Chairman P
T,r. Frank F. Hooper Glenn O. Bright 3[I N g n Wlo In the Matter of
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CINCINNATI GAS & ELECTRIC
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Docket No. 50-358 OL COMPANY, ET AL.
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(William H. Zimmer Nuclear Station)
)
MEMORANDUM AND ORDER (April 2Z; 1980)
On March 21, 1980, an untimely petition for leave to inter-vene in this operating license proceeding was filed jointly by two organizations, Zimmer Area Citizens (ZAC) and Zimmer Area Citizens of Kentucky (ZACK).
ZAC represents certain Ohio citizens, whereas ZACK represents persons residing in Kentucky.
The Appli-cants oppose the petition.
The Staff would grant it, subject to the furnishing by ZAC-ZACK of an adequate contention.
No other psrty has responded to the petition.
Subj ect to ZAC-ZACK's furnishing at least one adequate contention, we agreeswith the Staff that the organization's intervention petition should be granted.
A.
Before turning to the question of timeliness, we must first ascertain whether the petition before us demonstrates that other requir ements for intervention have been satisfied.
To be admitted, a petitioner must show that it has standing to l
intervene aad that it is advancing at least one acceptable I
L
--- ---U
. ~ ~.
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. contention.
10 CFR 52.714(a) and (b).
As a basis for standing, ZAC and ZACK each claim that they have members residing from one to ten miles from the plant.
Twelve individuals are listed, with their addresses.
At least some, if not all, of these addresses are located within 10 miles of the plant (e.g., the addresses in California, Kentucky and New Richmond and Point Pleasant, Ohio).
SER, NUREG-0528, Fig.
2-1. ZAC-ZACK claims, inter alia, that it is concerned about the health of its members, the safe operation of the facility, "and the effect upon petitioner's safety and property in the event of emergency, particularly in view of its members' homes being located within a ten-mile radius of the facility and its children attend-ing schools within that radius."
The Staff asserts that the organ-ization has standing, and the Applicants advance no claim to the contrary.
We agree that ZAC-ZACK has demonstrated its standing to participate in this proceeding.
Houston Lighting and Power
,Co_. (South Texas Project, Units 1 and 2), ALAE-549, 9 NRC 644, 646 (1979); Virginia Electric and Power Co. (North Anna Nuclear l
Power Scation, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979);
Public Service Co. of Indiana (Marble Hill Nuclear Generating l
Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976).
l l
With respect to the contention requirement, the ZAC-ZACK petition at this time includes no contentions, al' hough 1t sets t
forth certain general " issues" with respect to which the organ-ization seeks intervent, ion.
The order we are issuing requires
the petitioner to satisfy the contention-require-ment as a pre-condition to its admission to the proceeding.1/
B.
The primary issue raised by the intervention petition before us is its admitted tardiness.
This proceeding commenced more than 4 years ago, and intervention petitions were required to be filed by October, 1975.
40 Fed. Reg. 43959, 43960 (September 24, 1975).
In these circumstances, we may grs-nt the petition in question only after balancing the five factors specified in 10 CFR 52. 714(a).
1.
The first f(ctor is whether there is " good cause" for the delay.
ZAC-ZACK at 2nces three reasons for its tardiness.
It claims (1) that its two constituent organizations were established shortly after the accident at Three-Mile Island (which occurred in March, 1979) and hence that it was not in existence when a timely filing could have been submitted; (2) that it did not seek inter-vention until it achieved the degree of expertise " sufficient to be productive and assistive as a party"; and (3) that it "now seeks intervention in view of the regulatory revisions mandated by the experience and subsequent findings of the Three-Mile Island accident."
It emphasizes the latter point by stressing the i
"several new developments with respect to the standards govern-ing evacuation and monitoring."
1/
A petitioner seeking intervention after the normal time. for submission of contentions should as a general rule include contentions in its petition.
But in view of the normally bifurcated procedure envisaged by 10 CFR $2.714(b), we will l
permit ZAC-ZACK to file its contentions at a later date.
1
. We agree with the Applicants that the first two reasons do not constitute adequate " good cause" for ZAC-ZACK's tardy fiffng..
The Appeal Board has rejected newly-acquired organizational existence as an acceptable reason for delay in seeking intervention.
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, U' nits 1-4), ALAB-526, 9 NRC 122, 124 (1979);
see also Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC (February 22, 1980).2/
Moreover, ZAC and ZACK were organized almost a year ago and, presumably, might have sought intervention considerably earlier.
And the organization's acquisition of expertise, while certainly to be encouraged, does not seem to us to constitute
" good cause" for not earlier informing the Board and the parties of its intention to participate.
To the extent this reason may be deemed to reflect a preoccupation with other matters (a position advanced by the Applicants), it is also clear that it cannot serve as " good cause" for tardiness.
Dake Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 644 (1977).
The Applicants have misconstrued ZAC-ZACK's third expressed reason for tardiness -- i.e., new regulatory developments 2/
The WPPS decision also cited by the Applicants held only that deficiencies in organizational standing could not be cured retroactively (a) as to obviate the need for application of the so 10 CFR 52.714 factors.
Washington Public Power Supply l
System (WPPS Nuclear Project No. 2), LBP-79-7, 9 NRC 330 (1979).
But it suggests that the " cure" may not be enough per se to establish good cause" for lateness.
. in areas such as emergency planning and monitoring.
They claim that ZAC-ZACK could have intervened at the outset on issues such as emergency planning and monitoring, and they cite cases holding that a petitioner cannot sit back and, if it decides that its interests are not being adequately represented by existing parties, thereafter seek for that reason to enter the
. proceeding.
- See, e.g.,
Cherokee, ALAB-440, supra at 645; Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-583, 11 NRC (March 12, 1980) (slip op.,
- p. 3).
ZAC-ZACK has not advanced the adequacy or lack thereof of other parties' participation as a basis for " good cause" for delay but, rather, only to demonstra. e that other parties will not adequately represent its interests -- a showing which is relevant to another of the factors which must be balanced under 10 CFR 52.714(a) (see pp. 12-13, infra).
Instead, what ZAC-ZACK's
" good cause" argument amounts to is that the regulatory developments themselves constitute " good cause" for the late intervention.
We agree with the Staff that the recent regulatory l
developments in emergency planning (including evacuation) and radiological monitoring do constitute " good cause" for ZAC-ZACK's untimely filing.
It is true, of course, that emergency planning and radiological monitoring could have been raised as issues back in 1975, when the proceeding commenced.
Both Dr. Fankhauser and the City of Cincinnati did so.
But, at the time, the relief which could be granted was far less than what it is today.
For example, as late as 1977 emergency planning would have extended no further from the facility than the low population
- zone (LPZ), which for this plant <fepresents a radius of about 3 miles from the facility (SER, $2.1.2).
New England Power Co.
(NEP, Units 1 and 2), ALAB-390, 5 NRC 733 (1977).
Any plan for evacuation sought by an intervenor would have been limited to that I
area and hence would have excluded the residences of many, if not most, of the ZAC-ZACK members who have been identified to us, particularly those residing in Kentucky.
The Commission at that time indicated, however, that it was in the process of reviewing these questions "as a priority matter."
Id., CLI-77-14, 5 NRC 1323 (1977).
About a year later, the Commission published proposed rules, which it directed be used on an interim basis, providing l
for emergency planning outside the LPZ in specified circumstances.
(
43 Fed. Reg. 37473 (August 23, 1978).
In the same time frame, the Commission and the Environmental Protection Agency also undertook a joint study which recommended, inter alia, the establishment for emergency planning purposes (including evacuation) of Emergency Planning Zones (EPZs).
NUREG-0396, December, 1978 The Commis-sion has endorsed the concepts in that report.
44 Fed. Reg. 61123 (October 23, 1979).E/
And the Staff issued guidelines incorporating those concepts.
NUREG-0610, September, 1979.
The EPZs for air-borne exposures would extend about 10 miles from the facility and l
l 3/
EPA has also endorsed the EPZ concept.
45 Fed. Reg. 2893 (January 15, 1980).
. for ingestion pathways about 50 miles.
No special circumstances would have to be shown to justify emergercy planning within such EPZs.
But an applicant would be free tu seek smaller zones, and any party could seek to justify larger zones, in appropriate circumstances.
In December, 1979, the Commission issued revised pro-posed amendments which superseded the 1978 interim proposals and sanctioned the guidelines in NUREG-0610 for interim use.
44 Fed.
Reg. 75167, 75168 n. 1 (December 19, 1979).
And just last month, as the Staff points out, applicants have been advised to comply, on an interim basis, with NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plan :
and Preparedness in Support of Nuclear Power Plants."
In short, the criteria'for emergency planning have undergone vast changes since the inception of this proceeding.
The scope of relief which we can consider has expanded greatly.
And while emergency plaining issues could have been, and were, accepted back in 1975, those issues were necessarily narrower than those which we may entertain today.
The most recent emer-gency planning regulatory developments occurred in March, 1980, and I
the changes are still evolving.
Similarly, according to the Staff, the NRC's radiological monitoring standards are also under-going change, with the most recent revision being incorporated t
in a March 7,1980 draft of NUREG-0660, "NRC Action Plans Developed as a Result of the TMI-2 Accident."b/
i 4/
The Board has not had acc9ss to this draft.it for questioning the Staff s description of But we have no reason l
l
The availability of new information appearing in previously unavailable documents has long been recognized as a valid reason for accepting new contentions or for admitting new intervenors.
Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-25, 5 AEC 13, 14 (1972);
see also Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 385-87 (1979);
M., ALAB-539, 9 NRC 422 (1979); M., ALAB-344, 9 NRC 630 (1979);
accord, Carolina Power and Light Co.,(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, 4), LBP-78-4, 7 NRC 92, 97 (1978).
The publication of significant changes in the criteria governing 1
emergency planning and radiological monitoring in riarch,1980 consti-tutes new information on these subjects and provides " good cause" for the petitioner's delay until March, 1980 in its seeking inter-vention with respect to these matters.
We note that the ZAC-ZACK petition seeks intervention not only with respect to emergency planning and radiation monitoring, I
but also with regard to "the adequacy of research and expertise pertaining to thyroid disorder, or disease, leukemia, and other untoward effects, of and to children due to radiation release and radioactive effluents."
ZAC-ZACK hcs provided no new infor-mation or other reason explaining its tardiness in seeking inter-vention on this subject, and we are not aware'.of any, Me'therefore find no " good cause" for ZAC-ZACK's tardiness on this matter.
We accordingly balance the first factor in favor of admitting
. ZAC-ZACK, but only with respect to issues bearing on emergency planning or radiological monitoring.EI Notwithstanding this showing of " good cause" for the untimely filing, we must also consider and balance the other factors appearing in 10 CFR 52.714(a).
But as strong a demonstration on those factors is not required as in the case where an adequate showing of " good cause" for lateness has not been made.
Metropolitan Edison Co. (Three-Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 616 (1977); cf. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975).
We turn now to those other factors.
2.
The second factor for consideration under 10 CFR 52.714(a) is the availability of other means whereby the peti-tioner's interest will be protected.
This factor has been construed j
as bringing into consideration means other than participation as a party in the subject NRC proceeding whereby the petitioner itself can protect its interests.
Long Island Lighting Co.
(Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 647-48 (1975).
ZAC-ZACK asserts generally that there are no other means for protecting its interests, although it does not address the issue in any detail.
l 5/
If ZAC-ZACK becomes a party, it will of course have the same right as other parties to raise additional issues based on new information.
A
- The Applicants suggest that ZAC-ZACK might seek l
relief from other State or Federal agencies, inasmuch as "most" of the organization's concerns pertain to matters for which those agencies will assume primary responsibility.
The Staff, on the other hand, states that it is not aware of any formal adjudicatory proceedings which would afford petitioners the opportunity to participate in a hearing on the issues of emergency planning and radiological monie.oring, "although other agencies are considering l
issues relating to emergency planning."
l It does not appear to us that the entire scope of relief available in this proceeding could be obtained by ZAC-ZACK before any other governmental agency or group of agencies.
The Applicants do not appear to claim otherwise, asserting only that "most" of the relief would be available elsewhere.
The avail-ability of only partial relief, however, does not satisfy the condition that there be means available to protect the petitioner's interest; for some part of that interest per force would not be protected.
We find, therefore, that there are no other means l
available whereby ZAC-ZACK's interest will be adequately protected, and we balance this factor in favor of ZAC-ZACK's admission to this proceeding.
3.
The third factor under 10 CFR 52.714(a) is the extent to which the petitioner's participation may be expected to assist i
in developing a sound record.
Both the Applicants and Staff agree
. that the ZAC-ZACK petition does not indicate whether the organi-zation hc.s any special expertise, either through its members or other qualified experts, which could be of assistance in develop-ing a sound record.
Indeed, the Applicants refer to ZAC-ZACK's assertions (made in connection with its " good cause for delay" argumente) that its expertise is developing, and they maintain that the organization's single year of existence is not sufficient for ZAC-ZACK to have developed expertise.
The Staff, however, notes that some members of ZAC-ZACK (who reside near the plant) may possess some practical working knowledge as to transportation and traffic conditions which may be relevant to emergency planning.
In our view, the possible knowledge of transportation and traffic conditions by certain ZAC-ZACK members could prcve of assistance to us in developing a sound record, assuming the organ-ization's contentions encompass such matters.
This is particularly true with respect to members living in Kentucky, an area which does not appear to be of primary interest to the other private party intervenors in this proceeding (although it is of concern to the City of Mentor and the Commonwealth of Kentucky).
Absent any contentions at this time, however, we are unable to accord much weight to ZAC-ZACK's showing on this factor, and we accord-ingly balance it (although not strongly so) against admission of the organization.
. 4.
The fourth factor we must consider is the extent to which the petitioner's interest will be represented by exist-ing parties.
Specific contentions concerning emergency planning and monitoring have, of course, been sponsored by Dr. Fankhauser and the City of Cincinnati.
However, these parties represent only Ohio residents.
The City of Mentor, Kentucky, and the Commonwealth of Kentucky are also participating with respect to these subjects, l
but they did not (and were not required to) advance any specific contenti6ns in this regard.
ZAC-ZACK claims that these other parties will not adequately represent the tocality of its interests, particularly with respect to the interests of pre-school and school sge children residing within ten miles of the facility in both Kentucky and Ohio.
The Staff agrees with this assessment.
The i
Applicants claim that ZAC-ZACK's interests will be adequately l
represented, not only by existing intervenors (including the City of Mentor and the Commonwealth of Kentucky) but also by the NRC Staff.
We agree with ZAC-ZACK and the NRC Staff that the interests represented by the organization diverge in some measure from those represented by other participants, considered either singly or in totality.
Particularly is this so with respect to interested governmental bodies, whose interests are " presumably broader" than those of any private party.
West Valley, CLI-75-4, supra, 1 NRC at 275.
Nevertheless, it appears to us that ZAC-ZACK's l
Ohio interests in emergency planning and monitoring will likely be adequately represented by existing parties, which have advanced several contentions in these areas.
On the other hand, ZAC-ZACK's Kentucky interests do not appear to be adequately represented.
The existing Kentucky participants are both doing so pursuant to 10 CFR $2.715(c), and neither has sponsored any contentions on emergency planning or monitoring (although they have indicated their intent to participate on these subjects).
That being so, we cannot say that all of ZAC-ZACK's interests will be represented by existing parties, and we balance this factor in ZAC-ZACK's favor.
We expect, however, that ZAC-ZACK will submit at least one acceptable' contention bearing upon emergency planning or radiological monitoring Ji'n' Kentucky, and our. balancing.of this factor 1
in ZAC-ZACK's favor is subject to its doing so.
5.
The fifth and final factor under 10 CFR 52.714(a) is the extent to which the petitioner's participation will broaden the issues or delay the proceeding.
ZAC-ZACK claims that its participation will not have these effects, inasmuch as it " accepts that it must take the proceedings as it now finds them."
See West Valley, CLI-75-4, supra, 1 NRC at 276.
ZAC-ZACK also points out that the hearings pertaining to evacuation and monitoring have been recessed pending the development of new criteria in these areas.
The Applicants perceive that some delay could result from ZAC-ZACK's participation, owing to the possible need for l
{
' i additional pleadings, additional prehearing conferences, addi-ll tional time for evidentiary hearings, additional cross-examination, and possibly evidence-in-chief.
On the other hand, the Staff indicates that little, if any, delay should occur.
It does not expect the hearings on emergency planning or radiological monitor-ing to be held until late fall 1980 or early 1981, and it expects that no more than a week's delay would result from ZAC-ZACK's presentation of its own evidence (if it chooses to do so) or from its cross-examinatien.
The Staff asserts that a delay of this magnitude does not substantially prejudice the Applicants' rights.
It also points out that we have authority to control any potential delay resulting from the discovery process.
Balancing the rights of the Applicants and ZAC-ZACK in regard to delay, the Staff con-cludes that the interests'of the petitioners should prevail.
We agree.
Our order permitting ZAC-ZACK to partic-ipate will provide that it must take the proceeding as it finds it and limit its sponsorship of contentions to those subjects as to which it has shown " good cause" for delay and which have not as yet been scheduled for hearing --- i.e., emergency planning and radiological monitoring.
With.'this limitations the' issues i
before us will not be broadened (although their scope may be somewhat expanded).
We will exercise care in avoiding duplicative l
testimony or cross-examination, so that delay should be minimal.
To the extent that ZAC-ZACK's contentions may overlag and seek similar relief as those of other parties, we will require that j
such contentions be consolidated.
10 CFR $2.715a.
l
It should be remembered that the same Three-Mile i
Island accident which engendered the formation of ZAC and ZACK l
also creatad a hiatus in this proceeding.
Issues such as those on which ZAC-ZACK seeks to participate have had to be substan-tially delayed to accommodate TMI-inspired developments.
Though ZAC-ZACK's tardiness under normal circumstances might have proved fatal, in the present situation we cannot close our eyes to the realities of nuclear licensing in the era of TMI and the concom-itant obligation we face to provide every. reasonable opportunity to develop a complate record on significant safety questions.
Given the steps we are taking to minimize delay, the small effect on the progress of this proceeding which can foreseeably result from the action we are here taking is far out-weighed by the potential for achieving a more satisfactory answer to the serious questions which we face in this proceeding.
1 6.
In sum, upon balancing the five factors, we find
" good cause" for the untimely filing, to the extent ZAC-ZACK wishes to raise issues concerning emergency planning and radiological monitoring; no other means available whereby ZAC-ZACK's interests will be adequately protected; no other party that will adequately represent ZAC-ZACK's Kentucky interests; and no broadening of the issues or significant delay likely to result from the admission of ZAC-ZACK on the terms we have provided.
Although ZAC-ZACK has not yet demonstrated that its participation will i
i assist in developing a sound record, its submission of contentions and its representation of certain interests diverse from those of other participants could lead to that result.
In those circum-stances, end subject to ZAC-ZACK's submission of at least one adequate contention, we find the balance of the factors to favor adm'ssion of the petitioner as a party to this proceeding.
C.
The Staff would afford ZAC-ZACK 30 days within which to submit contentions.
Following such submission, other parties would have to be afforded time to respond to the contentions.
A substantial period would thus have to elapse before we could apprcve contentions (assuming they are adequate) and initiate discovery.
In order to alleviate any delay, we would urge the Applicants and Staff to attempt to reach agreement with ZAC-ZACK as to the acceptability of contentions.
To this end, we direct ZAC-ZACK to provide copies of proposed contentions to the Appli-cants and Staff (and other parties if it wishes) within 20 days of service of this Order.
(We repeat that at least one contention must bear upon emergency planning or radiation monitoring in Kentucky.)
The Applicants and Staff and ZAC-ZACK shall then try and reach agreement on contentions and shall report to us within 20 days of the service of the proposals the results of such negotiations (and their positions on proposed contentions,'to.the extent they cannot reach agreement).
Thereafter, we will issue an order indicating which contentions, if any, are acceptable.
. Formal discovery shall commence with our acceptance of the con-l tentions, except that, if there is agreement of the parties on any particular contentions, discovery may commence as of the time such agreement is communicated to us.
(Informal discovery may commence at any time.)
In our Memorandum and Order of August 7,1979, LBP-79-22, 10 NRC 213, we established a discovery schedule for certain contentions which provides, inter alia, that discovery requests must be submitted within 10 days of service of the Staff's recommendations for monitoring and emergency planning arising from the TMI accident.
Responses were to be submitted within 15 days after service of a discovery request.
10 NRC at 218.
The same schedule will govern ZAC-ZACK's contentions.
However, to the extent discovery requests are filed earlier than the latest date indicated above, they should provide at least 30 days for response (to the extent that the response date does~not extend beyond the
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latest date for response permitted ay our August 7, 1979 schedule).
D.
In its petition, ZAC-ZACK designated 12 individuals as "its representatives" (two of whom apparently are attorneys) and requested that all papers be served upon one of those attorneys.
We are not ce tain whether the 12 individuals were listed for representation purposes or as part of ZAC-ZACK's demonstration i
of standing to intervene.
In any event, the Applicants and Staff both construe the petition as requesting that any or all l
. 1 l
of the named individuals be permitted to appear as ZAC-ZACK's representative in the proceeding.
The Applicants point out that i
this arrangement would not be in accord with our Memorandum and Order Concerning Intervenors' Requests to Utilize Lay Repre-sentatives, LBP-79-17, 9 NRC 723 (1979).
The Staff asks us to provide that 2AC-ZAdK may only appear and be represented by its-counsel <
i l
In its participation in this proceeding, ZAC-ZACK will be l
l bound by the same terms as are imposed on other intervenors by LBP-79-17.
Thus, ZAC-ZACK will normally not be permitted to use non-attorney members in the presentation of its own case, or in the cross-examination of other parties' witnesses on
(
issues raised by ZAC-ZACK (except as permitted by 10 CFR 52.733).5/
l But although we encourage ZAC-ZACK to have an attorney present at all times, we will permit designated non-attorney members of the organization to represent ZAC-ZACK's interests in issues raised by other parties or by the Board itself.
9 NRC at 725.
1 1
Subject to its furnishing at least one adequate contention, ZAC-ZACK's petition for leave to intervene is granted.
This Order is subject to appeal pursuant to the terms of 10 CFR 52.714a.
It will become final for. purposes of appeal, l
/
Each of the aIttorney[ whom ZAC-ZACK intends to. use as its 6
representative should file a notice 'of appearance, as provided by 10 CFR $2.713(a).
. however, only folicwing our issuance of a further order accept-ing or rejecting contentions.
Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-472, 7 NRC 570, 571 (1978).
FOR THE ATOMIC SAFETY AND LICENSING BOARD b
?l%
dd
$O J
Charled Bechhoefer,, Chairman R~
Bright, who is recovering from surgery following an accident, did not participate in the consideration or disposition of the matters discussed herein.
Dated at Bethesda, Maryland, this 22nd day of April, 1980.
i l
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