ML19318B430
| ML19318B430 | |
| Person / Time | |
|---|---|
| Issue date: | 05/20/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19318B429 | List: |
| References | |
| RULE-PRM-2-7 NUDOCS 8006260139 | |
| Download: ML19318B430 (6) | |
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10' CFR Part 2
[ Docket No. PRM-2-7]
Wells Eddleman; Notice of Denial of Petition for Rulemaking AGENCY:
U. S. Nuclear Regulatory Comission ACTION:
Denial'of Petition for Rulemaking
SUMMARY
- The Nuclear. Regulatory Comission is hereby denying a petitiion for rulemaking (PRM-2-7) submitted by Mr. Wells Eddleman.
The petitioner had requested the Comission to amend its regulations to provide that a person or corporation newly. arrived 'in the vicinity of a nuclear power plant, or an organization formed after the deadline for intervention, be deemed to have shown good.cause for the late filing of a petition for leave to intervene.
FOR FURTHER INFORMATION CONTACT:
Bruce A. Berson, Office of the Executive d
Legal Director, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, Telephone:: 301-492-7678.
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SUPPLEMENTARY INFORMATION:
The petition for rulemaking (PRM-2-7) submitted
' by Mr. Wells Eddleman, Rt.1, Box 183, Durham, North Carolina requested the Nuclear Regulatory Comission to amend its regulation,."Reles of Practice for j
Domestic Licensing. Proceedings," 10 CFR Part 2, E 2.714(a)(1)(i) relating to
.what constitutes good cause for a late filed petition to intervene. The
. suggested amendment would, in petitioner's view, explicitly recognize and i
- 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
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petition with good cau'se.for the late filing to intervene. While petitioner l
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- asterts that it is his belief that'" good cause" already includes the fact of.
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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 proceeding in which his late" filed. petition to intervene was denied for.
. failure to show good cause.
Specifically, the petitioner requests that the Commission amend i 2.714 of 10 CFR 2 as follows, replacing section (a)(1)(i) with this wording:
(1) 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 ir.terest was not primarily intended to give cause for leave to intervene.
Further, any organization fonned 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 cause 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 l including the petitioner himself and one from an environ-
-mental group, were in' support of the petition.
Fifteen comments, of which nine 4ere from private. citizens, three from utilities, two from law firms, and one from-an officer of an academic institution, opposed the~ proposed 9
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rule. change. Those'in favor of the proposed rule change generally believed that _their rights as citizens were abridged by not being pemitted to par-ticipate 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 c1 ready pennit late intervention upon a proper balancing of factors), potentially disruptive to licensing proceedings, likely to delay or obstruct licensing without corresponding benefit to
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_public, and contrary to proper adjudicatory process.
The petition and
. comments are available for public inspection at the NRC Public Document Room at U 1/ H Street, N.W., Washington, D.C.
Since its inception, the Commission has recognized the need for and desir-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 conduct of its proceedings while carrying out the Commission's expressed
' nterest and objective of affording public participation in the licensing i
process.
The Commission continues to believe that the initial decision-whether-to grant or deny late intervention 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. When a Board rules on a late petition, for interven' ton and applies these fcctors, it is making a determination which
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. is heavily dependent on the facts and circumstances of the particular case.
The following factors 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 protected; (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) the extent to which the petitioner's participa-tion will broaden the issues or delay the proceeding.
In addition, the following factors are also to be considered:
(1) the nature 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 possible effect of any order which may be entered in the proceeding on the petitioner's interest.
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 NRC proceeding to a person 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.
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. The Commission has therefore concluded that the " good cause" requirement of 10 CFR 5 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
.vic n ty of a nuclear power plant. This, by itself, does not, in the Com-ii mission's view, automatically establish good cause to permit late interven-tion.
Late intervention by a newly arrived person or_ newly formed organiza-tion may be granted, however, upon full consideration of the factors sat forth in 10 CFR 52.714.
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 ' a 1977 (12-August), and wish to be afforded the same opportunity to petition to intervene as anyone who was living in the area 4
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.
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. The proceeding to which petitioner refers is Carolina' Power'andlight'C6.,
Shearon Harris Nuclear Power Plu. :, Units 1, 2, 3, and 4, Okt. Nos. 50-400, 401, 402, and 403. Our determination on the proposed rule renders moot petitioner's request ftr retroactivity.
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 letter of denial is available fr.; public inspection at the NRC Public Docu-ment Room at 1717 H Street, N.W., Washington, D.C.
Dated at Washington, D.C., this 20th day of May
, 1980.
For the Nuclear Regulatory Commission.
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a if Samuel J. Chilk Secretary of the Commission l
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