ML19344B317

Response in Opposition to Victaulic Co of America Et Al 800613 Petition to Intervene.Petitioners Failed to Show Good Cause for Late Filing.Discretionary Admission,Not Admission as Matter of Right,May Exist.Certificate of Svc Encl

ML19344B317
Person / Time
Site:	Three Mile Island
Issue date:	08/18/1980
From:	Sholly S AFFILIATION NOT ASSIGNED
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8008260509
Download: ML19344B317 (15)

Text

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SHOLLY, 8/18/80 c' ,

. UNITED STATES OF AMERICA 2 %XEith f

. NUCLEAR REGULATORY COMMISSION j , ,~~%'Ro - L 3 23f#gl*~0 Before the Atomic Safety and Licensing Board Zy ,

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In the Matter of )

)

METROPOLITAN EDISON COMPANY, ET AL. - ) Docket No. 50-289

. ) (RESTART)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

__ )

INTERVEP.0R STEVEN C. SHOLLY ANSWER TO PETITION TO INTERVENE OF VICTAULIC COMPANY OF AMERICA, ET AL. FILED WITH THE COMMISSION ON JUNE 13, 1980 Pursuant to 10 CFR 2.714(d), Intervenor Steven C. Sholly herein sets -

forth his response to the PETITION OF VICTAULIC COMPANY OF AMERICA, LEBAfiON STEEL FOUNDRY, P. H. GLATFELTER CO., MACK PRINTING, S I HANDLING SYSTEMS, INC., ALLOY RODS DIVISION OF ALLEGHENY LUDLUM INDUSTRIES, INC., AND HARSCO l CORP. TO INTERVENE, which was served upon the parties to the above-captioned proceeding by hand delivery en June 13, 1980. The joint parties, herein referred to as VICTAULIC E &., seek leave from the Board to intervene in the THI-1 Restart proceeding.

BACKGROUND

1. On July 2,1979, the Nuclear Regt.latory Commission issued an Order directing that Three Mile Island Nuclear Station Unit No. 1 (TMI-1) be main-tained in a safe shutdown condition pending further order of the Commissicn.

The Order further specified that a public hearing 'vould precede any restart of TMI-1. The basis for che Order lay in the finding by the Commission that 8008260509 OJ og

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. the NRC lacked the " requisite reasonable assurance" that TMI-1 could be

• operated without " endangering the health and safety of the public." (Comm1w.un Order, July 2, 1979, page 1).

2. On August 9, 1979 the Commission published an Order and Notice g Hearing which provided for an adjudicatory proceeding before an Atomic Safety and Licensing Board on the proposed restart of TMI-1. The Order of August 9,1979, specified at page 15 that any person whose interest may be affected by this proceeding may file a written petition to intervene by September 4,1979 (this date was subsequently extended to September 14,1979).

Among the issues noticed for hearing in the Acgust 9,1979, Order at page 7 were:

a. The manaaerial capability and resources of the Licensee -

to safely operate Tit!-1 while decontamination efforts were in progress at THI-2.

b. The financial qualifications of the Licensee to safely operate THI-1.

3. In a Memorandum dated September 18, 1979, the Atomic Safety and

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Licensirig Board set October 22, 1979, as the date by which final contentions were to be filed in a supplement to the petitions to intervene (Memorandum, September 18, 1979, page 2).

ANALYSIS OF PETITION BY VICTAULIC ET AL.

4. The Commission's Rules of Practice, specifically 10 CFR 2.714, governs petitions to intervene. Precedent in Commission proceedings are n .

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~3-also relevent to a determination of whether the petition of VICTAULIC E_T &.

meets the requirements for nontimely filings.

5. 10 CFR 2.714(a)(1)(i) specifies that one of the factors to be considered by the Board in determining whether to accept a late petition is

" Good cause, if any, for failure to file on time."

VICTAULIC E &. assert at page 8 of the petition that a rate filing by the Licensee before the Pennsylvania Public Utility Commission (PUC) on July 29,1980 "has made it clear to Petitioners' that they have very vital interests at stake in the TMI-1 restart proceeding which have not up to this point been totally discernible." For a number of reasons enumerated below, this statement does not satisfy the " good cause" test for a late filing.

First of all, VIC1 AULIC E A_L,. assert that a rate filing before a Commonwealth agency finally made it clear to them that they have vital interests at stake in the restart proceeding, presumably financial interests judging from the remainder of the petition. It is difficult to find the I

petitioners diligent in protecting their interests in this matter for a

[ number of reasons. Two of the joint petitioners, P. H. Glatfelter and Lebanon Steel Foundry, were . parties to the so-called "show cause" proceeding before the PUC with respect to the Licensee's certificate of public convenience (PUCOrder,May 23, 1980, pages 1 and 2). The PUC proceeding also dealt with the removal of TMI-1 from Licensee's rate base. This proceeding should certainly have made clear the financial ir.terests of the two cited parties in the proceedings governing Ti1I-1, before both the PUC and NRC. The PUC proceeding referred to began on September 20, 1979, when the PUC ordered the Licensee to show cause why TMI-1 should not be removed from the rate base.

The proceeding broadened when on November 1,1979, the PVC ordered the Licensee to show cause why its certificate of public convenience should not be revoked.

SHOLLY, 8/18/80 '

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The PUC proceedings covered 27 days of testimony producing 4,000 pages of transcript before the parties to that proceeding were permitted to file briefs and present oral arguments before the PUC Commissioners. These proceedings received extensive press coverage in local newspapers. The interrelationship between the PUC and NRC proceedings was mada made clear several times in the proceeding, by motions relating to subpoena of NRC witnesses and by the very nature of the reason why THI-1 was ultimately removed from Licensee's rate base (i.e., that it was no longer "used and useful" because it had. been shut down by NRC order). P. H. Glatfelter and Lebanon Steel Foundry should, therefore, be dismissed as joint petitioners without further consideretion unless the petition meets other requirements very clearly; this will be addressed below.

In fact, since the joint petitioners' major interest in the proceedings is the financial interests of the petitioners, another consideration is important.

In ALAB-289 (2 NRC 395, 396), the Atomic Safety and Licensing. Appeal Board in the Matter of North Anna Station, Units 1 and 2, ruled that:

"In deciding whether a petition to intervene which has been filed late should be granted, one factor which must be considered is whether the late petitioner has some other means of protecting its interests, e.g., the ability to participate in a state proceeding on essentially the same matter."

l The joint petitioners all had the opportunity to participate in the previously cited PUC proceedings. All will have the opportunity to participate in further PUC proceedings which will be held on the most recent rate request by the Licensee. The NRC does not directly determine the financial costs of electricity by setting utility rates in Pennsylvania. Therefore, the petitioners I

are most directs affected by decisions issued by the PUC. NRC's indirect impact on rates by way of ordering the shutdown of TMI-1 is not totally the

f SHOLLY, 8/18/80 the issue here, since even if the NRC issues an order permitting the restart ,

of TMI-1, the PUC would still have to act by placing TMI-1 back in the Licensee's rate base. It is the orders of the PUC which have caused the financial losses (alleged) of the petitioners, not orders of the NRC. The NRC's financial concerns here relate to whether the Licensee has sufficient financial resources to operate TMI-1 safely, a concern which will largely depend on rulings by the PUC. The appropriate forum for expression of the petitioners' concerns about costs due to rates is the PUC, not the NRC. The petitioners had and will continue to have the opportunity to avail themselves of PUC proceedings to protect their financial interests.

Should the Board find that the PUC proceedings do not represent an appropriate state proceeding within the meaning of the North Anna decision, the Board muss still judge the petitioners' diligence in assessing their .

potential financial interests in the TMI-1 restart proceeding: The diligence of the petitioners in this respect is highly suspect. The original August 9, 1979 Order and Notice of, Hearing cited financial and management issues as being within the scope of the proceeding as mandatory issues. Failure of the petitioners to read the Federal Register notice of the hearing is not an excuse for late filing (LPB-78-18, 7 NRC 932). There has been front page press coverage of prior proceedings before this Board during Special Prehearing and Prehearing Conferences. There have been other Commission rulings in this proceeding related to intervenor funding, hydrogen gas control, and management issues which could have served to alert the petitioners to this proceeding.

In summary, there is in the petition by VICTAULIC E]; AL. no good cause established for untimely filing of the petition to intervene.

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6. According to 10 CFR 2.714(a)(1)(fi through v), in addition to

• considering " good cause", there are four other factors which must be balanced in order to make a determination as to the disposition of a nontimely petition:

a. The availability of other means by which the petitioner's interest will be protected.

b. The extent to which the petitioner's participation may reasonably be expected to assist in developing a soynd record.

c. The extent to which the petitioner's interest will be represented by existing parties.

The extent to which the petitioner's participation will

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d.

broaden the issues or delay the proceeding.

There have been a number of cases which have a bearing op the consideration of these factors. These are:

a. ALAB-384, 5 NRC 612, in which the Appeal Board ruled that late petitioners have a substantial burden in justifying their lateness, and that the burden of justifying inter-vention based on the other four factors in 10 CFR 2.714(a) is considerably greater when the latecomer has no good excuse.

b. ALAB-444, 6 NRC 760, in which the Appeal Board rul'ed that a finding that a petitioner's participation will not substantially broaden the issues or delay the proceeding is not dispositive of the question of " good cause".

c. ALAB-289, 2 NRC 395, in which the Appeal Board ruled that admitting a new party just before a hearing starts

" ineluctably" tends to cause confusion, complications and delay; a board is, therefore, justified in giving the

" delay" factor substantial weight in deciding whether to grant a petition to intervene filed close upon the start of the hearing, particularly where the intervention at the last moment may force other parties to forego important procedural rights to avoid such consequences. .

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7. In assessing how the petitioners have met the tests in 10 CFR 2.714(a),

there are a number of relevant points to be made from the petition. First of all, the assertion at page 6 of the petition that the petition " clearly meets" the standards of 2.714(a) is not supported by the remainder of the petition. Referring to ALAS-384 (5 NRC 612) as stated above, the petitioners, having shown no good cause for a late filing of the petition to intervene, bear a burden which is " considerably greater" in justifying acceptance of the petition based on the four factors in 2.714 as outlined in 6 above. It is this considerable burden with respect to these four factors that the petition fails to satisfactorily meet.

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In assessing how the petition meets the first test (the availability of other means by which the petitioners' interest will be protected), a s

number of factors are relevent. As noted before in this filing, the petitioners are most directly affected in terms of their alleged economic losses by the decisions of the PUC. Participation by the petitioners in PUC proceedings

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will therefore serve to protect their interests most directly. The petition at page 7 asserts that the petitioners' interest can only be adequately represented by full participation in the proceeding, and that the petitioners seek "to represent essential issues not otherwise properly represented." This assertic is made without explanation of what essential issues are not being

" properly represented", how the petitioners can assist in " properly" representing these issues (specifically in terms of evidence, witnesses, plan of participation, legal briefs, etc.), and why the parties already admitted to the proceeding cannot or will not adequately represent these issues. Fart of the responsibility of the petitioners in seeking to intervene just before the hearing is to begin places a considerable burden on the petitioners in terns of specificity of information in the petition. Assertions in the petitisi, without exolanation

SHOLLY,8/18/80

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or basis, do not meet the test of " considerable burden."

Further, there are other means by which the petitioners' interest may be protected which fall short of full participation in the proceeding, but which offer some measure of influence over the development of the cases and the manner in which the final decision is reached. For instance:

a. Not being a party to the proceeding, the petitioners are free to directly address the Com:ssion on their concerns.

b. The petitioners can consult with the Commonwealth to determine the extent to which their positions are similar, and can to that extent assist in developing the record through cooperation _

__ _ _ _ _.. . ____. _ . . _. ~ with attorneys for the Commonweal th. Similarly, the petitioners can pursue a similar vein with the Licensee or any other party. There has been no evidence presented to the Board either in the petition or on the record during the Second Prehearing Conference.that such exploratory efforts have been undertaken.

c. The petitioners are free, as is any party, to. participate by way of limited appearance. Written statements may be added to the record in this manner. Should the petitioners make a substantial showing in this manner, the Board may adopt the issue (s) raised by the statements (although there is certainly no guarantee of this). ,

d. Further, since this matter will be reviewed directly by the Commission upon completion of the proceedings and the rendering of an initial decision by the Board, the l petitioners are free by 10 CFR 2.715(d) to file a. brief

" amicus curiae" with the permission of the Board. There is no apparent reason at this juncture why such permission would not be granted by this Board.

e. Further, also by virtue of 10 CFR 2.715(d), the petitioners may, with approval by the Commisaion, address the issues

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in oral argument before the Commissioners.

For the petitioners to assert at page 7 of the petition that "there are i no other means whereby Petitioners' interests can be adequately protected" (emphasis added) is simply not borne out by the facts of the situation.

There are in fact a number of means by which the petitioners may seek to l ,

protect their interests, and the adequacy of these means must be balanced

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by the Board against other factors in determining whether to grant the petition.

This is particularly so when considering the extent to which the participation of the petitioners in the proceeding will broaden the issues or delay the proceeding. In ALAB-289 (2 NRC 395), the Appeal Board ruled that admitting a new party just before a hearing starts " ineluctably" tends to cause confusion, complications and delay, and that boards are justified in giving the delay factor " substantial" weight in deciding to grant the petition, particularly when doing so may force other parties to forego important procedural rights to avoid the consequences of delay. These procedural rights include, most prominently, discovery of the petitioners by interrogatories, depositions, _

and requests for the production of documents. There is a very clear potential for delay in this proceeding it the petitioners are admitted as parties; this proceeding is already more than a year behind schedule as set forth in the Commission's' August 9, 1979, Order and Notice g Hearing.. This intervenor is not willing at this late stage of the proceeding to forego the procedural rights with regards to the opportunity to address the petitioners' contentions and the bases therefore, and the opportunity for discovery of the petitioners. -

The extent to which this will delay the proceeding may be estimated as follows:

3. Board rules on petition following receipt of answers from the parties (answers to be filed 23 August, will be received by the Board no later than 28 August under normal mail service delay times). This assumes a ruling on the 28th of August (the same day some answers to the petition may be received).

b. The Board gives the petitioners a week to file contentions.

This takes us to 4 September.

c. Parties have 10 days from service of contentions to file answers (Staff has 15 days--it is presumed that Staff will file within 10 days in this instance). The answers to the contentions are received by the Board no later than five days after service and are ruled upon immediately.

This takes us to 26 September.

d. A minimal discovery period is permitted by the Board,

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, no shorter than 10 days to file discovery requests and an additional 10 days (following five days for mail service) for responses to be filed. A further delay before hearing would be necessary to permit the parties with managem6nt issues to make whatever adjustments are necessary to their cases and testimony, a period of say 10 days. This takes us to 21 October.

This is a substantially abbreviated sequence of events, and would pl~ ace a substantial burden upon the parties. It is offered as an example of the magnitude of the possible delay--it h not meant to be construed by the Board or the parties as representing a reasonable schedule, one which allows full recognition of the peocedural rights which are due -

the parties, and full recognition of the burden which such a sequence would place upon the parties at this late date.

Another factor to be considered is the extent to which the participation -

of the petitioners may be reasonably expected to assist in developing a -

sound record. Based on the " substantial burden" on petitioners absent good cause for late filing to prove their justification for admission as parties, the information offered in the petition at page 7 is insufficient to permit the Board to find in the petitioners' favor. Petitioners provide no information 1

on precisely how their participation can be expected to assist in developing a sound record. There is in the petition no information on proposed witnesses, exhibits, plans for cross-examination, nor any indication as to how the l

petitioners plan to pursue the case. There is no indication that the petitioners l

intend to produce a direct case, or whether they intend to rely upon cross-examination. There is no explanation of the background of the attorneys for the petitioners in the administrative procedures involved in NRC proceedings.

In short, there is nothing in the petition which addresses the question of the extent to which the petitioners' participation can assist in developingsa

SHOLLY, 8/18/80 sound record of the proceedings other than non-specific assertions that such participation "would greatly aid in the development of a sound record" and that NRC policy has encouraged such participation. This does not meet even minimal consideration of the question, and utterly fails to meet the test of "c.onsiderable burden

• where no good cause for late filing has been established.

Finally, the extent to which the petitioners' interest will be representea by existing parties. The petitioners assert at page 6 of the petition that they have reviewed the partiest and contentions and that

" Petitioners' interests will not be represented by existing parties."

The petitioners further assert "The great majority of those participating in the hearing process appear to advocate positions contrary to Petitioners' interests." Petitioners note that governmental positions may prove not -

to be contrary to their own positions, and that Licensee's positions will not be antagonistic nor parallel either.

There are a number of conclusions to be drawn from these assertions. ,_

First, the petitioners state that the " great majority" of the parties appear to advocate positions contrary to those of the petitioners. The parties which do appear to advocate similar positions are not identified in the petitioner, nor are the parties with contrary views specifically identified.

Even more basic, the petition does not set forth the positions of the petitioners . The hearing record of the Second Prehearing Conference (which is not yet available to the public at the Harrisburg POR), will reflect to the best of this Intervenor's recollection that Mr. Tortorice stated in general terms that the petitioners' positions would be that the Licensee has both the necessary management capabilities and financial qualifications to safely operate TF11-1. There is no basis given either in the petition

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nor in the transcripts (as best I can recollect) for these positions.

The petitioners acknowledge that the Licensee may at least in part represent its views, although exactly how and to what extent are not made clear in the petition. The petitioners further acknowledge that the Connonwealth and other governmental parties may "not prove to be contrary to Petitioners' interests." Again, there is no further explanation.

SUMMARY

A. Petitioners have failed to show " good cause" for the lateness -

of the petition to intervene.

B. Based upon this lac'k of showing, and with reference to ALAB-38:

(5 NRC 612), where there is no good cause shown for nontieely petitions, the burden of justifying intervention based on the other four factors in 10 CFR 2.714(a) is considerably greater.

C. Based on the foregoing, the petitioners' discussion qf the other four factors in 10 CFR 2.714(a) is inadequate to ceet the " substantial burden" test, particularly where there is no good cause for lateness.

D. There are other means available whereby the petitioners' interests may be protected.

E. The petitioners' interests are not totally precluded from being represented in the proceeding oy tne petitioners' own admission.

F. The extent to which the petitioners can reasonably expected to assist in developing a sound record is not clear from 'the petition.

G. There will certainly be a delay caused by the admission of the petitioners as a party to the proceeding.

H. This Intervenor will not forego procedural rights in this regard revolving around the right to respond to contentions prior to Board action, and the right to discovery of the petitioners with a reasonable time thereafter to prepare the case.

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," ARGUMENT In view of the facts set forth above, there is no basis in law under th? Commission's regulations to grant intervenor status to VICTAULIC ET, AL.

as a matter of right. Further, petitioners P. H. Glatfelter and Lebanon Steel Foundry were both aware of the relationships between the NRC proceeding and their alleged financial interests (which are not specifically discussed or quantified in the petition nor in the transcript of the Second Prehearing Conference) as a result of their participation in the PUC proceedings on "show-cause" orders affecting the Licensee, and therefore, there is no excuse whatever for their lateness in filing for intervention; those two petitioners should be dismissed without further consideration.

There may be a basis for discretionary admission of VICTAULIC _ET, AL.

(minus P. H. Glatfelter and Lebanon Steel Foundry). Mcwever ,in the event that the Board is inclined to admit the petitioners on a discretionary basis, there can be no basis for abridging the rights of the parties to reply to the contentions of the petitioners and to undertake discovery of the petitioners unencumbered by other hearing related responsibilities, except those which would normally ::crue during discovery. In this case, it would be the Licensee that would be most directly af'>ct ' ._ f 'he delay in the proceedings which admission of VICTAULIC 11 AL,. would inevitably cause. Licensee would have to bee agreeable to the necessary delay to accomodate the rights of the intervenor parties. Otherwise, the petition to intervene of VICTAULIC ET AL. should be denied not only on legal and procedural grounds, but on discretionary grounds as well. Inasmuch as the petitioners have failed to establish good cause for late filing and have failed to meet the test of considerable burden with respect to the other four factors to be cnnsidered under 10 CFR 2.714(a), to admit the petitioners

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SHOLLY,8/18/80 _

on a discretionary basis without providing adequate relief to the other parties would constitute, in this Intervenor's judgment, an abuse of discretion.

The parties, the Board and the petitioners should be aware that if the petitioners are admitted on a discretionary basis without adequate provision for comment on their contentions and discovery on the petitioners, that the decision for discretionary admission will be immediately appealed.

DATE: 18 August 1980 RESPECTFULLY SUBMITTED, StevenC.Sholly, prose _(/

304 South Market Street Mechanicsburg, PA 17055 w--717/233-4241 h--717/766-1857 e

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r SHOLLY, 8/13/S0 UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

METROPOLITAN EDISCN CCt'PA'iY, E AL.. ) Docket No. 50-2S9

) (RESTART)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

)

CERTIFICATE OF SERVICE I hereby certify that a sirgle cocy of INTERVENOR STEYEN C. SHCLLY ANSWER TO PETITION TO INTERVEt:E OF VICTAULIC CCr*PA'iY OF AMERICA, ET tl. FILED WITH THE COMMISSION CN JUNE 13, 1980 was served upcn these pars 3Es en the service list belcw by descstt in the United States : ail, first class, postage prepaid, this 19th day of August,1980.

A Steven C. Stolly

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- Mr. Robert E. . Kelly, Esq. Walter W. Cchen, Esq. , Censc=er Advocate Duane, Morris i Heckscher Depart:ent of Jurtice P.O. Sox 1003 Strawberry Square,14:n Floor 203 Pine Street, Suite 401 Harrisburg, PA 17127 Harrisburg, PA 17103 John Levin. Esq.

Mr. Ivan W. 32.ith, Esq. Pa. PUC Chair an, Atc=ic Safety and Sox 3265 Licensing Board Panel Harrisburg, PA 17120 U.S. Nuclear Regulatory Ccemission Washington, D.C. 20555 Office of the Executive Legal Directer U.S. Nuclear Regulatcry Cc =issien Dr. Walter H. Jordan Washington, D.C. 20555 881 West Guter Drive -

Oak Ridge, TN 37830 Office of the Secretary U.S. Nuclear Regulatory Cc cission Dr. Linda W. Little Washington, D.C. 20555 5000 Herritage Drive ATTN: Decketing and Service Sectien Raleigh, NC 27612 Karin W. Carter, Esq.

505 Executive House P.O. Sox 2357 Harrisburg, PA 17120 George F. Trewbridge, Esq.

Shaw, Pittran, Potts & Trewbridge 1800 M Street, N.N.

Washington, D.C. 20006