ML19323G609
| ML19323G609 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 05/19/1980 |
| From: | Dennison A ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8006060371 | |
| Download: ML19323G609 (15) | |
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. .e DOCKETED e g USNRC ,;
MAY 2 31980 >
UNITED STATES OF AMERICA C orric, ,, tn, s,c,,:,,, 5 NUCLEAR REGULATORY COMMISSION l s wy,&,,,0 smin BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD -ie d*
In the Matter of : -
CINCINNATI GAS AND ELECTRIC :
COMPANY, ET AL. : DOCKET NO. 50-358 (Wil:11am H. Zimmer Nuclear :
Power Station) :
BRIEF IN OPPOSITION TO NOTICE OF APPEAL SUBMITTED ON BEHALF OF ZIMMER AREA CITIZENS-ZIMMER AREA CITIZENS OF KENTUCKY PETITIONER
'l PRELIMINARY STATEMENT A citizens' group was formed by residents living within the ten-mile radius of the Zimmer Nuclear Power Station shortly after the accident at the Three-Mile Island nuclear facility. Ohio res-idents formed Zimmer Area Citizens (ZAC) and thereafter Kentucky l
residents formed the Kentucky counterpart (ZACK), each subscribing to '
the same principles and concerns (each being a part of the same and -
consisting of chapters, if you will, membership being depended upon residency) . The citizens group, as an interested person, filed its petition for leave to intervene in the proceedings sub judice settin forth good cause for late filing; the absence of other means for the l
l protection of the group's interest; the extent to which the group's I participation might reasonably be expected to assist in developing s 903%\\
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sound record; the absence of the group's interest being represented by existing parties; the extent to which the group's participation might broaden the issues or delay the proceedings; and the stan of the group to become a party to the proceedings as reflected by the nature of the group's right under the Act; the nature of the group's interest in the proceedings as arising from property fin- ,
ancial and other interests, especially the group's interest in the i health and safety of school children -- and their children -- who attend schools within tne plume pathway exposure of the plant;and the possibla effect of any order issued by the Atomic Safe ty and l j
Licensing Board as affecting the interest of the group 1/ .
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Information obtained from the investigation of the Three Mil e -
Island accident sponsored a suspension of the Zimmer Station hearings i and the introduction of proposed, other things, interim rule changes altering, among emergency preparedness within the Low Population Zone --
1 the three-mile radius of a nuclear power facility -- and increased i 1
the zone of preparedness to a plume exposure pathway of t en miles and i j
an ingestion pathway of 50 miles as Emergency Planning Zones it to say, Suffice the proposed rules amending 10 C.F.R.
SS50. 33 (g) , 50.47, 50.54(s) through (v) and Part 50, Appendix 2/
E,~ together with the presentation of NUREGs for interim use, 3/
were perceived by the group as significant and substantial change in the safety consideration for the operation of commercial nuclear power plants .
The group, satisfied that it complied with the balancing of 1/
Petition for leave to intervene as an interested party .
i 2/ 44 Federal Register (No. 245) 75167, et seg. (December 19, 1979).
3/
See NUREG-0654/ FEMA-REP-1 (January 1980, release for interim use).
O interests set forth in 10 C.F.R. 52.714, prepared and filed its petition for leave to intervene on March 21, 1980 an'd thereafter the applicant lodged a vigorous objection, the staff supported intervention and on April 22, 1980 the Atomic Safety and Licensing Board tentatively granted the intervention, conditioned on the -
submission of at least one adequate contention and directed the petitioner to prepare and submit t'o applicant and staff its proposed contentions for potential agreement by the parties for purpose of expediting the matter.~4/
on May 8, 1980 applicant filed its Notice of Appeal and accompanying Brief in Support of Notice of Appeal claiming that I the Atomic Safety and ficensing Board should have denied the petition ,
and asserting that the Board exceeded the Commission's regulations pertaining to late filing requirements; seeking by its appeal a I reversal and vacation of the April 22, 1980 Memorandum and Order and i
a direction from this Board denying the petition.
Parenthetically, petitioner posted its proposed contentions to applicant and staff on May 15, 1980.
ARGUMENT 1
-l T. The Licensing Board followed the rules of l
1 practice by granting the pe ti tion wi thou t l l
the schmission of contentions and did noc '
l exceed its jurisdiction. l l
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{ Before one may reach the issues sought to be raised here, the question of this Board's jurisdiction to hear the appeal must be 4/ Memorandum and Order at 16.
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g addressed from the posture that the order issued below is not a 5
5 final order from which an appeal can be lodged.
The applicant misconceives the order below as granting the
- petition. There is no order granting the petition; only an order 4
3 providing that if the petition'er submits at least one adequate .
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contention then tt.2 petition will be granted.-S/ 10 C.F.R. S2.114a (c)
- provides for appellate review only after an order has issued granting the petition for leave to intervene. The Board below, recognizing the jurisdictional mandate of 10 C.F.R. S 2. 714 a (c ) , stated that its j order "will become final for purposes of appeal, however, only follow-ing our issuance of a further order accepting or rejecting conten-6/
tions."-
! The applicant claims the absence of vested jurisdiction, while attempting to vest absent jurisdiction as it suits and benefits its 7
advocacy stance. On one hand, applicant attempts to ignore the jurisdictional requisite of a final order, while, on the other, at-tempts to attack clearly pronounced jurisdiction. The best that can
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be said of applicant's appellate posture is that it is premature.
Turning to the jurisdictional question which applicant advances
-- without prejudice te waiving the claim that this Board is without 7/
jurisdiction to hear this appeal -- 10 C.F.R. 52.714 presents no auth-ority supporting applicant's position.
Petitioner, without question, filed its petition for leave to intervene untimely. If the tardiness of the petition, in and of itsel
- l. would have resolved the question, no petition for leave to intervene i
5/ Memorandum and Order at 2-3, 13, 16, 18. )
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6/ Memorandum and Order at 18-19.
7,/ See Point Two of this Brief.
s would have been contemplated, much less have been prepared and filed.
10 C.F.R. 52.714, however, permits late filing of petitions for g leave to intervene based upon paragraphs (a) (1) (i) through (v) and (d) through a balancing of those factors.
10 C.F.R. S2.714 presents a procedural rule dealing in par't
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with timely . filing, dealing in part with untimely filing, and in part dealing with the hybrid of the two. By way of example, the first sentence of 10 C.F.R. 52. 714 (a) (1) applies equally to timely and untimely filed petitions; the third sentence of paragraph (a) (1) 4 applies only to timely filed petitions; and the fourth sentence of that paragraph applies only to late filed petitions.
Paragraph (b) of 10 C.F.R. S2.714 presents the procedural -
resolve of applicant's issue. The first portion of that rule directs
, attention to the time factors involved in filing contentions as a supplement to a timely filed petition for leave to intervener and, of course, that provision does not .Jovern the response to the issue presented, except perhaps, to highlight the rule's intent that con-tentions not be made a part of the petition -- at least, where timely
- filed. The following sentence provides the sanction that if the petitioner fails to file the supplemental document setting forth the contentions -- and separate from the petition for leave to interveno -
l that petitioner will not be permitted to participate as a party. The imposed sanction is removed in the following sentence vesting discre- l tion in the Board and providing that " Additional time for filing the supplement may be granted based upon a balancing of the factors in paragraph (a) (1) of this section." That procedural provision is the very essenco of ZAC-ZACK's petition for leave-to intervene: the balancing of the factors in (i) through ' (v) of paragraph (a) (1) , which l
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w provides the requisite jurisdiction by rule and discretion in the Board below to authorize the grant of additional time for the filing of contentions.
If the intent of the subje at procedural rule was to require the inclusion of contentions a's a basis for considering the merits-of untimely filed petition- for. leave to intervene, within the context of balancing the factors of 10 C.F.R. S2.714 (a) (1) (i) through (v) and (d), then,it must be concluded that such a provision .would have been stated. Upon scrunity of 10 C.F.R. S2.714, nowhere in the rule does it demand that contentions be placed within the body of the petition for leave to intervene; to the contrary, the rule mandate the opposite: a separate and supplemental presentation of contentions.,
A citizen seeking to intervene as an interested person cannot be deemed to act at his peril and,although satisfying the balancing of interest factors,have his untimely filed petition declared fatal for lack of a stated contention -- although concerns, interests and issues are set forth -- where the rule specifies the contrary and i
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is otherwise silent on the subject. l Applicant seeks to justify its position and preclude this petitioner's participation upon its self-proclaimed interpretation of rules of procedure, its attempted reliance upon distinctions without a difference and through speculation which suggests the openinc l of the classical Pandora's Box, none of which is controlling or authoritative on the issue presented.. l Petitioner sets forth in its petition for leave to intervene as an interested person its concerns and the issues which it perceives
, and which set the guideline-backdrop for its subsequently filed pro-posed contentions. The applicant urges a quarrel not warranted. If
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this proceeding was being delayed, which it is not, because of argument pertaining to the contentions, or that applicant was in 2
some other way jeopardized, perhaps it might then be warranted.
But
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no jeopardy is present. It seems of little consequence whether the Board below decides the issue of the adequacy of contentions 5
g as a part of the petition for leave to intervene or as a separate E
document; it doesn't change the issue and it doesn't change the 3
final status of admission or rejection of the party and it certainly i
= doesn't influence the applicant's ability to challenge sufficiency g or broadness of'the contentions,if that be the case.
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- There is no meri't in discussing applicant's speculation that petitioner's contentions will broaden Ehe issues where those con-
.". tentions have yet to be determined as to their adequacy by the Board 3
3 below (for which this appeal most certainly exposes its prematurity),
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}_ in discussing applicant',s assertion that the Board below revamped j the late intervenion requirements by its contingent grant of admission
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) in the face of rule's provision that additional time for filing
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g contentions as a supplement may be granted based upon the balancing l
of the factors of 10 C.F.R. 52.714 (a) (1) (i) through (v) as set forth in paragraph (b) of the rule, or in discussing applicant's auth-orities not in point.
The Board below did nothing improper or without authority in rendering its Memorandum and Order.
II. The Order sought to be appealed is not a final order vesting jurisdiction to this Board for review and the appeal is premature.
As with the discussion in the preceeding issue, applicant l i
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seeks to claim jurisdiction where none exists and to disclaim juris-i
, diction where it does exist. Aside from its novelty, applicant's inconsistent positions do not pass rule muster.
The Order below repeatedly states that the issue of petitioner' admission to the proceedings has not been finally determined and will not be determined until that Board passes upon the adequacy of petitioner's contentions, providing admission if at least one con-tention is cufficient, denying admission if no adequate contention is presented.
From the posture of the Board's decision appeal can be lodged by the party adversly affected by virtue of either 10 C.F.R.
j S 2. 714a (b) or (c), as the case may be.
Applicant seek's by its appeal to have this Board do what it .
}? claims the Board below did: revamp and rewrite the rules of procedure.
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i i Applicant seeks to have this Board ignore the explicit language of j 10 C.F.R. S 2. 714a (c) : "An order granting a petition * *
- is appeal-able by a party * * *." (Emphasis Supplied).
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- The instant appeal is premature and this Board has no juris-diction to consider the matter.
III. " Good cause" is a fa c t ua l ques tion and absent explici t a uthority cannot be considered "as a ma tter of law. " ~
It is difficult to follow applicant's argument that since there is no precise governing precedent of the facts present here announcing, as a matter of law, that good cause cannot be established b 3 such facts, but upon similar facts precedents advise the finding of good cause; therefore, based upon the facts present here petitioner cannot establish, as a matter of law, good cause for the late filing 5
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j of its petition for leave to intervene as an interested person.
Not only does applicant not present any authority for its general proposition, but it presents no authority for its specific
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proposition that significant changes in emergency planning and monit-oring in March 1980, expanding the geographical zone of concern for 5
the health and safety of the public, as well as the criteria for determining potential danger to the public, presents no good cause e
, for late filing of a petition for leave to intervene by citizens g affected by such alterations. Rather, applicant attempts to support its position that the decisions relied upon by the Board below are i
somehow distinguishable because such decisions related to changed i
3 conditions and circumstances in the physical plant, if that be .
j a distinction in the rationale. If a distinction does exist it is j a distinction without a difference.
i Where the evolving investigation of the ramification of the
- potential hazards of nuclear power requires the revision of rules i
and regulations for the protection of the health and safety of populations within the hazard zone of the nuclear facility not there-tofore specifically considered, that newly involved and affected population cannot be barred from subsequent participation on the basis that, as a matter of law, no good cause is present for their intervention. To accept what applicant suggests would result in a freezing of rights at a point in time after which new areas of dem-ography, topography, access routes, state of emergency preparedness and other factors become relevant to a proceeding and to deny to l a viable population now within the exposed zone the right of the citizen's imput in such hearings in the consideration of such factors
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J If intervention must be broadened as applicant suggests, then.
so it must, for in the balance rests the rights of licensee and
. public and the only way that balance can be struck is to permit both the opportunity to be heard and from such hearing the resolve of the questions addressed. For reasons unknown, applicant appears to be overly concerned with and by petitioner's presence. A concern for delay is not pertinent: first, no hearings are presumed to be conducted until late 1980 or early 1981; second, it complains about the approach taken by the Board below in an effort to expedite matters, and, third, it creates potential delays by presenting pre-mature appeals. The applicant complains that petitioner will broaden 2 i the issue; however, the Board exercises control over that factor and is required to exclude the broadening of any issues not warranted.
Petitioner remains puzzled concerning applicant's stance that one must be an expert to participate in the subject hearing, or that 4
one is somehow required to present a hearing within the context of l i
a petition for leave to intervene. Applicant cites no authority that l I
before standing can be found to intervene as a party to a licensing !
I proceeding one must be an expert in some facet of that hearing, or '
l that within a petition for leave to i:.tervene that the petitioner is
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required to set forth a complete list, with supp'orting discussion, of the rules and regulations of Nuclear Regulatory Commission, pre- I sent and proposed, interim guides. It is petitioner's understanding that the instant hearing is open to the . citizen and that the capabil-ities, or lack thereof, of petitioner will be established in the course of the hearings, and the matter ought to rest on that premise.
There is simply no authority for applicant's brash proposition 10 -
that, as a matter of law, petitioner has failed to establish good cause for the . late presentation of its petition for leave to intervene.
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IV. The person cannot be divided and no consideration can be sponsored for a denial of the Ohio counterpart while a dmi t ting the Kentucky segment.
Applicant's argument under this issue rests in applying portions of the petition for leave to intervene by an interested person and the Memorandum and Order of the Board below out of context.
The petition, for leave to intervene as an interested person sets forth that the group is distinguishable only as to residency of its members, all other factors remaining constant, and that it ~
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is a person as defined by 10 C.F.R. S2. 4 (o) (1) .- For purposes of background the citizens' group comprised of Kentucky and Ohio res-idents presents itself as a single intervenor representing the interest of an Ohio-Kentucky citizen residing within 10-miles of 9/
the Zimmer Station. Notwithstanding applicant's interpretation, 1
petitioner explicitly states that it "now seeks intervention in view of the regulatory revisions mandated by the experience and subsequent f 10/ l findings of the Three-Mile Island accident."--(Emphasis supplied). '
Again, applicant draws from context one of the five factors to be balanced in deciding late admission, as if that factor alone is controlling. Whether petitioner's Ohio interest in emergency planning and monitoring "will likely be adequately represented 8/ Petition at 1-2.
9/ Id. at 2.
10/ Id. at 2-3, in which it is further noted that the hearing pertain-Ing to evacuation and monitoring had been recessed until definitive regulations have been prepared. Memorandum and Order at 3.
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by existing parties" remains to be seen, especially in light of the.
qualifying term: "will likely."--11/In considering the '" good cause" fact no attempt was made by the Board below to distinguish between the
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Ohio and Kentucky portions of the person! Likewise, no difference was 13/
noted concerning the "availab'ility of other means" factor! The third factor, " extent to which participation may be expected to assist in developing a sound record," while not considered in favor of inter-vention, presented no distinction, observing only that Kentucky in-14/
formation might prove more assistive! The fourth factor has been pre-viously discussed, and the fifth factor, " broadening the issues or 15/
delaying the proceedings," again admits no difference!-
Applicant's statement that the Board's finding was " supported almost wholly by considerations pertaining to ZACK" is unfounded by 16/
the record! Both from the standpoint that the significant issue of
" good cause," as the main factor, was found favorable to petitioner without regard to Ohio-Kentucky considerations, and the appplication of the Low Population Zone before the recent revision to the increasec l
radius of the Emergency Planning Zones, applicant's position under 1
this issue is without merit. i Applicant raises a straw man to be aptly swept aside. While 11/ Memorandum and Order at 12-13. l 12/ Id. at 4-9.'
13/ Id . a t 9 - 1 '.
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_1_4/ -Id. at 1 -12.
15/ Id. at 13-15.
16/ Applicant's Brief at 11.
12/ Memorandum and Order at 9, 5-7, respectively.
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the premise advanced by applicant is, at first blush, novel, that premise is nonetheless faulty in two respects. First, applicant's factual presentation is not supported by the record; and, second, the petitioner is a person as defined by regulation and must be considered as a whole, single entity incapable of division. From ,
that fatal premise the reasons flowing therefrom are equally fatal.
The decision of the Board below must be affirmed.
CONCLUSION For the reasons advanced in this Brief, the applicant's appeal must be dismissed as prematurely filed; and, in the alternative, the Memorandum and Order of the Atomic Safety and Licensing Board .
must be affirmed.
W Respectfully submitted, s
ANDREW B. DpMNISON 200 Main Street Batavia, Ohio 45103 Counsel for Petitioner ZAC-ZACK May 19, 1980 ,
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- S J DoexsTro UNITED STATES OF AMERICA %
ussac 5 NUCLEAR REGULATORY COMMISSION h 1.'A'I 2 31980 >' I '
Ofnce cf the Secret 2rf In the Matter of : , Cm 22& Men CINCINNATI GAS AND ELECTRIC COMPANY, ET AL.
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- DOCKET NO. 50-358 ~ N (William H. Zimmer Nuclear :
Power Station)
CERTIFICATE OF SERVICE I hereby certify that copies of "Brief in Opposition to Notice of Appeal F;bmitted on Beha'lf of Zimmer Area Citizens-Zimmer Area Citizens of Kentucky, Petitioner," dated May 19, 1980, in the within proceedings have been served on the following persons by posting the same in the U.S. Mails, postage prepaid, this 20th day of May, 1980:
Charles Bechhoefer, Esq., Chairman Richard S. Salzman, Esq., Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Panel Board ~
Nuclear Regulatory Commission U.S.
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
'. Dr. Frank F. Hooper, Member Dr. Lawrence R. Quarles Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Panel Board ,
School of Natural Resources U.S. Nuclear Regulatory Commission i
l University of Michigan Washington, D.C. 20555 Ann Arbor, Michigan 48109 Mr. Glenn O. Bright, Member Michael C. Farrar, Esq.
Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Board Panel ,
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Chairman, Atomic Safety and Licensing _
Chairman, Atomic Safety,and Licensing Board Panel Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 William J. Morgan, Esq.
Charles A. Barth, Esq. General Counsel U.S. Nuclear Regulatory Commission Cincinnati Gas & Electric Company Room MNBB 9604 P. O. Box 960 7735 Old Georgetown Road Cincinnati, Ohio 45201 Bothesda, Maryland 20014 l
Leah S. Kosik, Esq.
Mr. Chase R. Stephens 3454 Cornell Place Docketing and Service Branch Cincinnati, Ohio 45220 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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Troy N. Conner, Esq. W. Peter Heile, Esq.
n Conner, Moore & Corber Assistant City Solicitor 3 1747 Pennsylvania Avenue, N.W.
j Washington, D.C. 20006 Room 214, City Hall Cincinnati, Ohio 45202 John D. Woliver, Esq.
j P.O. Box 47 Mary Reder Box 270 l 550 Kilgore Street
- Ba ta via , Ohio 45103 Route 2 .
_ California, Kentucky 41007 j David K. Martin, Esq.
Assistant Attorney General Robert A. Jones, Esq.
Acting Director Prosecuting Attorney f 154 Main Street Division of Enviromental Law Batavia, Ohio 45103 1 Office of the Attorney General 209 St. Clair Street ;
j Frankfort, Kentucky 40601 I 5
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ANDI32W B. DENNISON__
200 Main Street
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Batavia, Ohio 45103 Counsel for Petitioner ZAC-ZACK b l
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