ML19347B156
| ML19347B156 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 09/29/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-615, ISSUANCES-CP, NUDOCS 8010010699 | |
| Download: ML19347B156 (8) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:CIISSICN ATOMIC SAFETY AND LICENSING APPEAL BOARD e.'..., '.
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Alan S. Rosenthal, Chairman Dr. John H. Buck I'h@ # '#[../
' W., / "bf Thomas S. Moore v'.~,
7g, In the Matter of
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DUKE POWER COMPANY
) Docket Nos. STN 50-488
)
50-489 (Perkins Ntelear Station, Units 1,
)
50-490 2 and 3)
)
)
)
Mr. David Springer, Mocksville, North Carolina, appellant pro se.
Mr. J. Michael McGarry, III, Washington, D.C.,
for the applicant, Duke Power Company.
Mr. Charles A. Barth for the Nuclear Regulatory Commission staff.
DECISION Septerber 29, 1980 (ALAB-615)
This construction permit proceeding involving the proposed Perkins nuclear facility was instituted by a notice of hearing published on July 19, 1974.
During the 1
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ensuing years, the Licensing Board has issued several partial initial decisions.
See LBP-78-25, 8 NRC 87 (1978); LBP-78-34 8 NRC 470 (1978); LSP-80-9, 11 NRC 310 (1980).
In the last of these decisions, rendered on February 22, 1980, the Board be-low determined that there was no alternate site "obviously superior" to that chosen by the applicant for the location of 1/
the Perkins facility.
What transpired in the wake of the issuance of that decision is amply developed in ALAB-597, 11 MFC 370 (1980) and need not be detailed here.
Suffice it for present purposes to note that on April 15, 1980 -- almost two months after the decision was handed down --
David S,pringer filed a petition with the Licensing Board in which he sought leave to intervene in the proceeding (as well as certain allied relief).--2/
Upon being expressly authorized l
l_/
The reasons why this question remained open at that late date were explained at the outset of the decision.
11 NRC at 311-12.
4 2/
This was the second occasf on on which Mr. Springer (who assertedly owns property on the Yadkin River in the vicinity of the Perkins site) had attempted to enter the proceeding.
His first intervention petition -- filed in April 1977 (more than two and one-half years after the deadline specified in tha notice of hearing) -- had been denied below as untimely.
On his appeal, we had affirmed that denial.
ALAB-431, 6 NRC 460 (1977).
At about the same time, we dismissed an appeal taken by Mr. Springer (as a nonparty) from the denial below of his motion to dismiss the proceeding.
ALAB-433, 6 NRC 469 (1977).
3/
by us to do so,--
the Licensing Board proceeded to determine j
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~~
whether the petition should be granted despite its untimeliness.
l In an order entered on August 14, 1980, the petition was denied.
Among other things, the Board pointed out (order, p. 7) that "the petition [was] out of time in the extreme with.:o ef-fort on the petitioner's part to address" the factors which, by 5/
virtue of 10 CFR 2.714 (a),-- must be weighed in passing upon 6/
a late petition.
Mr. Springer now appeals from that order.-~
A.
Not long ago, we took the " occasion to stress anew the imperative necessity that all participants in NRC adjudicatory proceedings -- whether le.wyers or laymen representing themselves or orga'nizations to which they belong -- familiarize themselves at the outset with" the Commission's Rules of Practice.
Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station,
_3 /
ALAB-597, supra, 11 NRC at 872.
4/
The staff had raised a question respecting the Board's authority to act upon the petition in light of the fact that Mr. Springer's principal purpose in seeking intervention at this very late date was to obtain further ccesideration be-low of the alternate site issue decided in ti.e February 22 partial initial decision.
_5/
See p. 4, infra.
j5/
The appeal is opposed by both the applicant and the NRC staff.
The applicant's passing suggestion thr : the appeal was untimely is without merit.
Because the order below was served by mail on August 15, the appeal was due on the date filed (September 2).
10 CFR 2.714a, 2.710.
64 4-Unit 1), ALAB-609, 12 NRC fn.1 (August 25, 1980).
"3y doing so", we went on to observe, " participants will both (1) enhance their ability to protect adequately the rights of those l
they-represent; and (2) avoid the waste of time and resources which inevitably accompanies the taking of action forbidden by l
the Rules".
Ibid.
The papers filed by Mr. Springer graphically illustrate the point.
The Rules of Practice are most explicit in establishing the criteria by which late intervention petitions must be judged.
Section 2.714(a), 10 CFR 2.714(a), provides that such a petition "will not be entertained absent a determination l
oy [the, Licensing Board) that [it] should be granted based upon l
a balancing of the following factors * * *":
(i)
Good cause, if any, for failure to file on time.
(iii The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's parti-cipation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
l (v)
The exter.t to which the petitioner's parti-l cipation will broaden the issues or delay the proceeding.
Needless to say, the late petitioner must address each of those five factors and affirmatively demonstrate that, on balance,
)
they favor permitting his tardy admission to the proceeding.
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 275 (1975), Houston Lighting and Power Co.
)
i (Allens Creek Nuclear Generating Station, Unit 1), ALAS-582, 11 NRC 239, 241-42 (1980) ; Virginia Electric and Power Co.
1 (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 j
(1975); Project Management Corp. (Clinch River Breeder Reactor 1
Plant), ALAB-354, 4 NRC 383, 388-89 (1976).
Yet, as the 1
Licensing Board noted, Mr. Springer made no endeavor to shoulder that burden.
Indeed, his petition was devoid of the slightest hint of a recognition that its fate hinged upon 7/
the Section 2.714(a) factors.
Rather, what the Board was told in the petition and its supporting documents was (1) that the February 22 decision had been influenced by an allegedly deliberate misrepresentation by the NRC staff with regard to the position of the State of North Carolina on a crucial aspect of the alternate site inquiry, and (2) that all facts material to the inquiry had not been presented to the Licensing Board.
It thus would appear that 7/
The same may be said of the affidavit and brief filed below by Mr. Springer in support of the petition (on May 22 and August 6, 1980, respectively).
Although the brief was divided into two sections -- one addressed to "sub-stantive issues" and the other to " procedural issues" --
no mention was made in either of Section 2.714(a) or its requirements.
Although appearing pro se, it is our understanding that Mr.
Springer is a lawyer.
See ALAS-431, supra, 6 NRC at 464.
Mr. Springer was under the misapprehensien that it is open to anyone to obtain entry into a proceeding after the issues have been decided by the trier of fact if that person believes the decision rested upon an incomplete or inaccurate record.
- But, s/
had he consulted the Commission's intervention rule,--
it would (ot should) have become immediately obvious that, in order to press his complaints respecting the merits of the Licensing Board's decision and the underlying record, it was first necessary for him to acquire party status under the terms of the rule.
In short, the intervention petition was patently deficient and, as such, a fit candidate for denial.
Nothing in Mr. Springer's appellate papers might induce us to overlook that fact.
Our review of licensing board action on an intervention petition has to be based upon what had been presented to (and therefore taken into consideration by) that board.
Allens Creek, ALAB-582, supra, 11 NRC at 242.
In any event, Mr. Springer's brief to us does not come to grips with the Section 2.714 (a) factors any more satisfactorily than did his petition below.
Instead, Mr. Springer's papers perpetuate the erroneous view that ao obstacles stand in the path of his endeavor to mount an atcack upon the treatment below of the alternate site issue.
j3_/
I.e., Section 2.714 (a).
1
P 3.
For the above reascns, Mr. Springer's appeal must fail.
It is worthy of note, however, that a total of 102 exceptions to the February 22 partial initial decision have been filed by intervenors Mary Apperson Davis, et al. and currently await briefing.
A cursory examination of those exceptions discloses that they are far-reaching in scope and embrace, inter alia, all of the matters which Mr. Springer now would raise himself were he clothed with party status.
(In this connection, the intervenors unsuccessfully moved the Licensing Board either to reconsider the February decision or to reopen the record.
The motion was explicitly based upon the contents of Mr. Springer's intervention petition and 9/
supporting affidavit.)
Thus, if briefed by the intervenors7-those matters will receive the same attention on appellate review as would have been accorded them had Mr. Springer demonstrated an entitlement to intervention.
Insofar as it denied Mr. Springer's untimely petition for leave to intervene, the August 14, 1980 order of the Licensing Board is affirmed.
_9 /
See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 744 (1977), and cases there cited.
_g-It is so ORDERED.
FOR THE APPEAL BOARD b.b44sM C. JeaQ Bishop SecretP_y to the Appeal Board
.