ML19345D499
| ML19345D499 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 12/09/1980 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8012150243 | |
| Download: ML19345D499 (8) | |
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Nd UNITED STATES OF A'iERICA NUCLEAR REGULATORY C04'tISSION n
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- 2 BEFORE THE AT0ft!C SAFETY AND LICENSING C0APJ O
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TEXAS UT; 2ENERATING C0!!PANY, Docket Nos. 50-445 E_TA1
)
50-445 (ComanchereaK Steam Electric Station, Units 1 and 2)
)
NRC STAFF'S RESPONSE TO " MOTION TO GRANT CASE SEPARATE INTERVENOR STATUS" AND " MOTION TO APP 0 INT CASE AS LEAD PARTY FOR CONSOLIDATED CONTENTIONS" On October 31, 1980, the Atomic Safety and Licensing (" Licensing Board")
issued its " Announcement of Plans for Consolidation of Parties" ("Announce-ment"), in which it invited each of the intenenors to infona the Licensing Board "of its choice for the lead party for each of the contentions."
Thereaf ter, on November 20, 1980, Intervenor Citizens Association for Sound l
Energy (" CASE") filed two motions in response to the Licensing Board's Announcement, as follows:
(1) " Motion to Grant CASE Separate Intervenor S ta tus "
(" Separation Motion"), and (2) " Motion to Appoint CASE As Lead Party for Consolidated Contentions" (" Lead Party Motion").O For the reasons more fully set forth below, the NRC Staff ("Staffd) opposes CASE's Separa-tion Motion; further, as we indicatti in our comments on the Licensing y
Comments on the Licensing Board's Announcement were also filed by the Applicant and by the other intervenors in this proceeding - Texas Association of Community Organizations for Refonn Now (" ACORN"), and Citizens for Fair Utility Regulation ("CFUR"). The Staff does not believe that the Licensing Board's Announcement pennits the filing of responses to those coninents and, accordingly, we have not done so.
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i Board's Announcenent,2_/ the Staff expresses no view as to which intervenor should serve as " lead intervenor" for any particular contention and, i
accordingly, we neither support nor oppose CASE's Lead Party Motion.
i i
i In its Announcement, the Licensing Board indicated that it plans to con-I j
solidete the intervening parties pursuant to 10 CFR 6 2.715a "so that for each accepted contention, one intervenor will represent itself and the other two intervenors throughout the proceeding" (id.). As the Staff indicated in our comments on the Licensing Board's Announcement, since the Licensing Board has already consolidated contentions raised by the various intervenors which raise substantially the same question, the further proposal to consoli-date intervenors for those contentions "is merely the additional step of consolidating the presentation of the intervenors' eviderice and argunent as pemitted by 10 CFR 5 2.715a" (Staff Comments, at 1-2).
As we indicated, in our view such consolidation is appropriate in that it "will serve to reduce j
the presentation of duplicative and repetitive evidence and argument while, at the same time, it will preserve the rights of the intervening parties to obtain full adjudication of their contentio,1s" (i_d_., at 2).1/ In our vies, d
such consolidation will serve the interests of all the parties in that it will result in a more orderly and expeditious proceeding.
2/
"NRC Staff's Comments on Plans for Consolidation of Parties" (" Staff Comments"), filed November 20, 1980.
I 3/
While the Staff supported the Licensing Board's plan to consolidate the intervenors with respect to further discovery, presenting direct evidence and conducting cross examination, we suggested that consolidation as to the submission of proposed findings of fact and conclusions of law and the presentation of argument be deferred for the present time (Staff Comments,at2-3).
In its Separation Motion, CASE contends that the consolidation will result in "no recognizable benefits" (Separation Motion, at 4, para. 7), that it would " prejudice the rights of CASE" (M., at 2); and that any " alleged benefits" are far outweighed by the costs" which CASE asserts would result fron consolidation (M., at 5).
Such " costs" are asserted by CASE to be as follows:
(1)
Inadequate representation of CASE's interests and " concerns, enphases and approaches to issues," particularly upon cross-examination (id.,
and p.8, para 714)p.2, para,1; p.4, para. 5; p.7, para.11; (2)
Incomplete cross-examination, raising of issue, and development of a record (id., p.2, para.1; p.5, para. 8; p.8, para. 14; and p.8, para. 16);
(3) Additional time and effort required to be expended by CASE in coordinating with the other intervenors (,id., p.2, para.1; and p. 7, para.13) para. 4; pp.5-6, para 9; p.7, para,12; p.3, pa ra. 3 ; p.3, (4)
Increased financial costs for long-distance telephone calls, copying, driving to neetings and mailing of documents (M.,
- p. 3, pa ra. 2 ; p.3, pa ra. 3 ; p. 7, pa ra. 13 ; a nd p. 8, pa ra.
16); and (5) Anxiety and risk of accident resulting fran possible night-.
time driviop to neetings with other intervenors (M., p.7, pa ra. 10).*
In the Staff's view, CASE has failed to demonstrate that the planned con-solidation of it;tervenors will result in any significant prejudice to its interests. There is no reason to believe that with proper preparation, one intervenor alone should not be able to represent the interests of the 4/
CASE is also concerned over the prospect of having to co-ordinate with the attorneys representing ACORN and CFUR (Separation Motion, p.4, para. 6), and the possibility of having to use copies of documents of poorer quality than the copies which would be sent to the lead intervenor (M., p. 8, pa ra. 15 ).
i 4-other intervenors as to each c,f the consolidated contentions, and to render fully effective participation in this proceeding. While this may require coordination among the intervenors in advance of the hearing, the time and effort expended in such coordination will clearly result in a more orderly and expeditious proceeding, to the benefit of all the parties. Also, whatever additional financial burden such coordination will entail is likely to be insignificant, and in any event would certainly be outweighed by the.
likely reduction in hearing days and the costs associated with such savings in time, e3ct., work-time lost, driving and meal expenses, preparation of testimony, ar.d other litigation-related costs.
While CASE has expressed some concern over the time and risks associated with driving to meet with the other intervenors, we note that CASE has acknowledged that the 'atervenors are "within 30 miles of each other and in the same city (in the instance of CASE and ACORN)" (Separation Motion, p.9, pa ra, 17). We believe that this statement demonstrates that no great incon-venience or prejudice will result from the intervenors being required to coordinate their efforts on the consolidated contentions.
Further, we believe that CASE's concern over night-time driving ignores other pcssi-bilities, such as meeting on weekends or arranging to have the other inter-venors drive to a location convenient to CASE in the event of any night-tine meetings.E/
5/
Similarly, we believe that CASE's concerns over working with attorneys, receiving poor quality copies, and risking automobile accidents-(supra, n.4 and accompanying text), is wholly speculative and fails to demon-strate any substantial risk of prejudice to CASE's interests.
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5-The Staff notes that assertions of prejudice similar to those raised by CASE were rejected by the Appeal Board in Portland General Electric Co. (Trojan fiuclecr Plant), ALAB-496, 8 NRC 308 (1978).
There, the Appeal Board rejected as impernissible an interlocutory appeal from a consolidation order by an intervenor who complained that he lived 200 miles from the facility while the other two intervenors lived within 40 miles of the facility (_id., at 3 09 ).
The Appeal Board noted, however, that in any event the appeal appeared "to be without substantial merit" (id., at 310). The Appeal Board quoted the Licensing Board's observation, as to the three intervenors in that case, as follows:
There is no basis to conclude that their common interests would be prejudiced by consolidating them as intervening parties, or that they would individually have a significant ability to contribute on s bstantial issues of law or fact which will not otherwise be properly raised or presented.
Varying degrees of asserted pros-pective injury do not affect their ability to jointly engage in discovery, the presentation of evidence, cross-examination, preparation of briefs and proposed findings of fact and conclu-sions of law, proper arguments to the Board, and the other facets of an adjudicatory hearing.
Jd_., a t 310. The Appeal Board then rejected the intervenor's claim of prejudice resulting from the fact that he "does not live in relatively close pron:inity to the other two intervenors" (i_d., at 310):
[This distance] conceivably might make it more difficult for him to coordinate his efforts with theirs. But he has provided no cause to believe that effective coordination will prove in,possible.3_/
3f
[He] can, of course, communicate with the other intervenors by mail or telephone and, ;dditionally, if necessary, arrange to meet with them when in the vicinity of their residccces on other business.
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In the Staff's view, the " prejudice" alleged by CASE as the likely consequence of the Licensing Board's consolidation plan - where the distances between the intervenors is miniscule compared to the distances in the case of the Trojan intervenors - is no more compelling than the asserted prejudice in Trojan.5/ We believe that here, as in Trojan, the intervenor has not demonstrated that any significant prejudice will result from consolidation.
i Accordingly, CASE's Separation Motion should be denied.
Respectfully submitted,
\\tA,u) ed D Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 09th day of December,1980 4
6/
As noted in Trojan by the Appeal Board, "nothing... will prevent [the in*>rvenors] from later endeavoring to obtain full or partial relief from provisions of that order should the consolidation turn out in prac-t1 e to be necessarily and significantly prejudicial to the protection of their interests" (8 NRC at 310-11).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0"IC SAFETY AND LICENSING BOARn In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY, ET AL.
)
Docket Nos. 50-445
)
50-446 (Comanche Pe ak Steam Electric St: tion,
)
Units 1 and 2)
)
I CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S RESPGNSE TO "M0 LION TO GRANT CASE SEPARATE INTERVENOR STATUS" AND " MOTION TO APPOINT CASE AS LEAD PARTY FOR CONSOLIDATED CONTENTIONS" in the above-captioned proceeding have been served on the following Oy deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclea. Regulatory Commission's internal mail system, this 09th day of December, 1980:
Valentine B. Deale, Esq., Chai rnan David J. Preister, Esq.
Atonic Safety and Licensing Board Assistant Attorney General 1001 Connecticut Avenue, N.W.
Environmental Protection Division Washington, DC 20036 P.O. Box 12548, Capitol Station Aus tin, TX 78711 Dr. Forrest J. Remick, Member Atomic Safety and Licensing Board Mr. Richard Fouke 305 E. Hamilton Avenue 1668-B Carter Drive State College, PA 16P01 Arlington, TX 76010 Dr. Richard Cole, Member
- Arch C. McColl III, Esq.
Atomic Safety and Licensing Board 701 Cornerce Street U.S. Nuclear Regulatory Commission Suite 302 Washington, DC 20555 Dallas, TX 75202 Nicholas S. Reynolds, Esq.
Jeffery L. Hart, Esq.
Debevoise & Liberman 4021 Prescott Avenue 1200 17th Street, N.W.
Dallas, TX 75219 Washington, DC 20036 Atomic Safety and Licensing Mrs. Juanita Ellis Board Panel
- President, CASE U.S. Nuclear Regulatory Cont ssion i
1426 South Polk Street.
' Washington, DC 20555 Dallas, TX 75224 Atomic Safety and Licensing Appeal Mr. Geof frcy M. Gay Panel (5)*
West Texas Legal Services U.S. Nuclear Regulatory Commission 100 Main Street (Lawyers Bldg. )
Washington, DC 20555 Fort Worth, TX 76102 w-g.
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Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555
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Sherwin E. Turk Counsel for NRC Staff
12A)9 /80 UNITED STATES OF AMERICA NUCLEAR P,EGULATORY COMMISSION BEFORE THE AT0fi!C SAFETY AND LICENSING BOAPJ Ir. the Matter of
)
TEXAS UTILITIES GENERATING C0".PANY, Docket Nos. 50-445 ET AL.
)
50-445 (Comanche Peak Steam Electric Station, Units 1 and 2)
)
NP,0 STAFF'S RESPONSE T0 " MOTION TO GRANT CASE SEPARATE INTERVENOR STATUS" AND " MOTION TO APPOINT CASE AS LEAD PARTY FOR CONSOLIDATED CONTENTIONS" On October 31, 1980, the Atomic Safety and Licensing (" Licensing Bord")
issued its " Announcement of Plans for Consolidation of Parties" ("Announce-ment"), in which it invited each of the intervenors to infom the Licensing Board "of its choice for the lead party for each of the contentions."
Thereaf ter, on November 20, 1980, Intervenor Citizens Association for Sound Energy (" CASE") filed two motions in response to the Licensing Board's Announcement, as follows:
(1) " Motion to Grant CASE Separate Intervenor Sta tu s "
(" Separation Motion"), and (2) " Motion to Appoint CASE As Lead Party for Consolidated Contentions" (" Lead Party Motion").M For the reasons more fully set forth below, the NRC Staff (" Staff") opposes CASE's Separa-I tion Motion; further, as we indicated in our comments on the Licensing 1/
Comments on the Licensing Board's Announcement were also filed by the Applicant and by the other intervenors in this proceeding --Texas Association of Community Organizations for Reform Now (" ACORN"), and Citizens for Fair Utility Regulation ("CFUR")... The Staff does not believe that the Licensing Board's Announcement permits the filing of j
responses to those comments and, accordingly, we have not done so.
f02?2 50*t3 b
Board 's Announcement,2_/ the Staff expresses no view as to which intervenor should serve as " lead intervenor" for any particular contention and, accordingly, we neither support nor oppose CASE's Lead Party Motion.
In its Announcement, the Licensing Board indicated that it plans to con-solidate the intervening parties pursuant to 10 CFR 6 2.715a "so that for each accepted contention, one intervenor will represent itself and :he other two intervenors throughout the proceeding" (i_d.).
As the Staff indicated in d
our comments on the Licensing Board's Announcement, since the Licensing Board has already consolidated contentions raised by the various interver. ors which raise substantially the same question, the further proposal to consoli-date intervenors for those contentions "is merely the additional step of consolidating the presentation of the intervenors' evidence and argunent as penaitted by 10 CFR l 2.715a" (Staff Comments, at 1-2).
As we indicated, in our view such consolidation is appropriate in that it "will serve to reduce the presentation of duplicative and repetitive evidence and argument while, at the same time, it will preserve the rights of the intervening parties to obtain full adjudication of their contentions" (id., at 2). / In our view, such consolidation will serve the interests of all the parties in that it will result in a more orderly and expeditious proceeding.
-2/
"NRC Staff's Comments on Plans for Consolidation of Parties" (" Staff Comments"), filed November 20, 1980.
3/
While the Staff supported the Licensing Board's plan to consolidate the intervenors with respect to further discovery, presenting direct evidence and conducting cross examination, we suggested that consolidation as to the submission of proposed' findings of fact and conclusions of law and the presentation of argument be deferred for the present time (Staff Comments, at 2-3).
In its Separation Motion, CASE contends that the consolidation will result in "no recognizable benefits" (Separation Motion, at 4, para. 7), that it would " prejudice the rights of CASE" (M., at 2); and that any " alleged benefits" are far outweighed by the costs" which CASE asserts would result froo consolidation (M., at 5).
Such " costs" are asserted by CASE to be as follows :
(1)
Inadequate representation of CASE's interests and " concerns, emphases and approaches M issues," particularly upon cross-exanination (id., p.2, para.1; p.4, para. 5; p.7, para.11; and p.8, para. 14);
(2)
Inconplete cross-examination, raising of issues and development of a record (M., p.2, para.1; p.5, pard. 8; p.8, para. 14; and p.8, para.16);
(3) Additional time and effort required to be expended by CASE in coordinating with the other intervenors =(id., p.2, para.1; and p. 7, para.13) para. 4; pp.5-6, para. 9; p.7, para,12; p.3, pa ra. 3 ; p.3, (4)
Increased financial costs for long-distance telephone calls, copying, driving to meetings and mailing of documents ( M.,
p.3, para. 2; p.3, para. 3; p.7, para.13; and p.8, para.
16); and (5) Anxiety and risk of accident resulting fran possible night-time drivi to neetings with other intervenors (M., p.7, pa ra. 10).
In the Staff's view, CASE has failed to demonstrate that the planned con-solidation of intervenors will result in any significant prejudice to its interests. There is no reason to believe -that with proper preparation, one intervenor alone should not be able to represent the interests of the y
CASE is also concerned over the prospect of having to co-ordinate with the attorneys repre;enting ACORN and CFUR.(Separation Motion, p.4, para. 6), and the possibility of having to use copies of documents.of poorer quality than the copies which would be sent tp the lead iatervenor (M., p. 8, pa ra. 15 ).
- other intervenors as to each of the consolidated contentions, and to render fully effective participation in this proceeding. While this may require coordination among the intervenors in advance of the hearing, the time and effort expended in such coordination will clearly result in a more orderly and expeditious proceeding, to the benefit of all the parties. Also, whatever additional financial burden such coordination will entail is likely to be insignificant, and in any event would certainly be outweighed by the likely reduction in hearing days and the costs associated with such savings in time, e.g., work-time lost, driving and meal expenses, preparation of testimony, and other litigation-related costs.
While CASE has expressed some concern over the time and risks associated with driving to meet with the other intervenors, we note that CASE has acknowledged that the intervenors are "within 30 miles of each other and in the same city (in the instance of CASE and ACORN)" (Separation Motion, p.9, pa ra. 17). We believe that this statement demonstrates that no great incon-venience or prejudice will result from the intervenors being required to coordinate their efforts on the consolidated contentions.
Further, we believe that CASE's concern over night-time driving ignores other possi-bilities, such as meeting on weekends or arranging to have the other inter-venors drive to a location convenient to CASE in the event of_ any night-time meetings.E 5_/
Similarly, we believe that CASE's concerns over working with attorneys, receiving poor quality copies, and risking automobile accidents (supra, n.4 and acccmpanying text), is wholly speculative and fails to demon-strate any substantial risk of prejudice to CASE's interests.
The Staff notes that assertions of prejudice similar to those raised by CASE were rejected by the Appeal Board in Portland General Electric Co. (Trojan fiuclear Plant), ALAB-496, 8 NRC 308 (1978). There, the Appeal Board rejected as impermissible an interlocutory appeal from a consolidation order by an intervenor who complained that he lived 200 miles Tom the facility wisile the other two intervenors lived within 40 miles of the facility (M., at 3 00 ).
The Appeal Board noted, however, that in any event the appeal appeared "to be without substantial merit" (M., at 310). The Appeal Board quoted the Licensing Board's observation, as to the three intervenors in that case, as follon's :
There is no basis to conclude that their common interests would be prejudiced by consolidating them as intervening partir.;, or that they would individually have a significant ability i.o contribute on substantial issues of law or fact which will not otherwise be properly raised or presented. Varying degrees of asserted pros-pective injury do not affect their ability to jointly engage in discovery, the presentation of evidence, cross-examination, preparation of briefs and proposed findings of fact and conclu-sions of law, proper argunents to the Board, and the other facets of an adjudicatory hearing.
M.,at310.
The Appeal Board then rejected the intervenor's claim of prejudice resulting from the fact that he "does not live in relatively close proximity to the other two intervenors" (M., at 310):
[This distance] conceivably might make -it more difficult for him to coordinate his efforts with theirs. But he has provided no cause to believe that effective coordination will prove impossible. l 3,j
-[He] can, of course, communicate with the other intervenors by mail or telephone and, additionally, if necessary, arrange to meet with them when in the vicinity of their residences on other business.
1.
In the Staff's view, the " prejudice" alleged by CASE as the likely consequence of the Licensing Board's consolidation plan - where the distances between the intervenors is miniscule compared to the distances in the case of the Trojan intervenors - is no more compelling than the asserted prejudice in Trojan.E We believe that here, as in Trojan, the intervenor has not demonstrated that any significant prejudice will result from consolidation.
Accordingly, CASE's Separation Motion should be denied.
Respectfully submitted, b.d b Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 09th day of December,1980 y
As noted in Trojan by the Appeal Board, "nothing... will prevent [the intervenors] from later endeavoring to obtain full or partial relief from provisions of that order should the consolidation turn out in prac-tice to be necessarily and significantly prejudicial to the protection of their interests" (8 NRC at 310-11).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0"IC SAFETY AND LICENSING BOARn In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY, ET AL.
)
Docket Nos. 50-445
)
50-446 (Comanche Peak Stear. Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S RESPONSE T0 " MOTION TO GRANT CASE SEPARATE INTERVENOR STATUS" AND " MOTION TO APPOINT CASE AS LEAD PARTY FOR CONS 3LIDATED CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Conmission's internal mail system, this 09th day of December, 1980:
Valentine B. Deale, Esq., Chai rnan David J. Preister, Esq.
Atonic Safety and Licensing Board Assistant Attorney General 1001 Connecti cut Avenue, N.W.
Environmental Protection Division Wasnington, DC 20036 P.O. Box 12548, Capitol Station Austin, TX 78711 Dr. Forrest J. Renick, Member Atonic Safety and Licensing Board Mr. Richard Fouke 305 E. Hanilton Avenue 1668-B Carter Drive State College, PA 16P.01 Arlington, TX 76010 Dr. Richard Cole, Member
- Arch C. McColl III, Esq.
Atomic Safety and Licensing Board 701 Commerce Street U.S. Nuclear Regulatory Commission Suite 302 Washington, DC 20555 Dallas, TX 75202 Nicholas S. Reynolds Esq.
Jeffery L. Hart, Esq.
Debevoise & Liberman 4021 Prescott Avenue 1200'17th Street, N.W.
Dallas, TX 75219 Washington, DC 20036 Atomic Safety and Licensing Mrs. Juanita Ellis Board Panel
- President, CASE U.S. Nuclear Regulatory Commission 1426 South Polk Street Washington, DC 20555 Dallas, TX 75224 Atomic Safety and Licensing Appeal Mr. Geoffrey M. Gay Panel (5)*
West Texas Legal Services U.S. Nuclear Regulatory Commission 100 Main Street (Lawyers Bldg.)
Washington, DC 20555 Fort Worth, TX 76102
. - ~
i l Docketing and Service Section (7)*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 d'
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t Sherwin E. Turk Counsel for NRC Staff