ML19350D260
| ML19350D260 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 04/13/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8104150063 | |
| Download: ML19350D260 (12) | |
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4/13/81 4
s UNITED STATES OF A!1 ERICA NUCLEAR REGULATORY COMMISS10ft BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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S0'JTH CAROLINA ELECTRIC
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Docket No. 50-395-0L GAS C0!1PAfiY
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f4RC STAFF OPPOSITION TO UNTIMELYPETITIONFORLEAVETOINTERVENh h
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INTRODUCTION p
The notice of opportunity for hearing in this matter was pJblished on April 18, 1977.
(42 Fed. Rec. 20203). The Notice provided an opportunity for any person whose interest might be affected by the proceeding to file a petition for leave to intervene no later than fiay 18,1977 pursuant to 10 C.F.R. Q 2.714.
The Notice further provided that nontimely petitions for leave to intervene would not be granted in the absence of a substantial showing of good cause for the late filing, encompassing the factors set forth in 10 C.F.R. 2.714(a).
On March 23, 1981, almost four years after the filing date set forth in the Notice and within three months of the June 22, 1981 hearing, 810435goQ g
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- Fairfield United Actior. (FUA or Petitoner) filed an untimely petition for leave to intervene in this operating license proceeding.E The Staff opposes this extrecely late petition on the grounds that no good cause (certainly no substantial good cause) has been denonstrated for its late filing nor has an adequate showing on the balance of the pertinent factors in 10 C.F.R. ! 2.714(a)(1) been made.
II. DISCUSSIO!!
A late intervention petitioner nust address the five pertinent factors in 10 C.F.R. i 2.714(a)(1), and "affimatively demonstrate that on balance, they favor his tardy admission into the proceeding."
Cuke Power Co. (Perkins tiuclear Station Units 1, 2, and 3), ALAS-515, 12 fiRC 350, 352 (1980); fluclear Fuel Services, Inc. (L'est Valley Reprocessing Plant), CLI-75-4, I fiRC 273, 275 (1975).
That section provides that nontimely filings will not be entertained absent a detemination that the petition should be granted based upon a balancing of the following factors:
i If Tne petition also seeks to intervene in some presumed antitrust proceeding involving the Summer facility.
There is no such proceeding and this Board lacks,iurisdiction to entertain antitrust i
matters.
Public Service Co. of Indiana (f4arble Hill t'uclear Generating Station, Units 1 and 2), ALAB-316, 3 fiRC 167 (1976).
Under Section 105(c)(2) of the Atonic Energy Act, there is no antitrust review at the operating stage unless the Connission determines that such review is advisable on the ground that signifcant changes in the Licensee's activities have occurred since the construction pemit review.
The Commission is presently considering a request made several years ago by an electric utility cooperative to undertake such a review.
(1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation 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.
(v) The extent to which the peitioner's participation will broaden the issues or delay the proceeding.
The Commission has only this month emphasized that licensing boards are expected to denand compliance with the specificity and lateness requirements of 10 C.F.R. 9 2.714.
Pacific Gas and Electric Company (Diablo Canyon Units 1 and 2), CLI-81-5, flRC
, slip op, at 5
( April 1,1981).
The first factor in 10 C.F.R. % 2.714(a)(1) is whether there is good cause for the filing delay.
This is a prominent consideration in the decision whether to grant a late intervention petition.
The Appeal Board has ruled that where no good excuse is tendered for the tardiness of a petition, a petitioner's demcnstration on the other factors must be particularly strong.
Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3), ALA9-431, 6 NRC 460, a62 (1977).
Petitioner alleges several reasons it considers good cause for failure to file on time.
Petition at 2-5.
These reasons include:
(1) allegations of nisinformation by the Applicant regarding the effects of plant construction and operation; (2) the ignoranca of Petitioner's members as to their intervention rights and remedies; (3)
Petitioner's recent incorporation and the recent move of some of its nembers into the vicinity of the plant; (4) the bar preventing the Intervenor from presenting an affirmative case; (5) inadequate maintenance of the local
public document room; and (6) the changes in Commission regulations resJlting from the accident at Three f1ile Island, Unit 2 (TitI-2).
First, charges of misrepresentation by the Applicant in its dissenination of information to the public regarding the plant are unsubstantiated, and denied by the Applicant.U econd, with regard to S
professed ignorance of its rights, renedies, and potential interests in the proceeding, there is nothing in the record to demonstrate that Petitioner excerised due diligence to apprise itself of these matters.
Neither Staff counsel nor, to his knowledge, members of the NRC Staff responsible for the review of the Sumner application, were contacted by any known nenber of FUA before its petition was filed regarding any aspect of this proceeding or Petitioner's interest therein.
As Petitioner admits, it did not undertake a thorough inquiry into its rights and remedies until February 1981.
(Petitionat4.)
If such diligence had been exercised years earliar, Petitioner would have been fully apprised of its rights.
In addition, failure to read the Federal Register does not justify the nontimely filing of an intervention petition.
New England Power & Light Company (NEP, Units 1 and 2),
LSP-78-18, 7 NRC 932, 933-34 (1978); See Houston Lighting and Power Co.
( Allens Creek Nuclear Generating Station, Unit 1), ALAB-574,11 NRC 7 (1980).
Here, the connencement of the Summer licensing process was well publicized in local newspapers, thereby infoming area residents about the Applicant's plans and their rights and remedies with regard thereto.
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See Applicant's answer to the present petition, dated April 2,1981 at 4.
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- 1, Third, the relatively recent incorporation of Fairfield United a tion (September 1980) and the fact that some of Petitioner's nenbers c
recently noved into the area do not conprise good cause for this nontinely petition. The Appeal Board has rejected newly acquired standing or organizational status as an excuse for delay in seeking interventior;.
Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 - 4), ALAB-526, 9 NRC 122, 124 (1979); See Houston Lighting & Power Company, (Allens Creek Generating Station, Unit 1), ALAB-C82, 11 NRC 239 (1980). If newly acquired standing were j
sufficient of itself to permit late intervention, the result would be that "the parties to the proceeding would never be detennined with certainty until the final curtain fell. Assuredly, no adjudicatory process could be conducted in an orderly and expeditious nanner if subjected to such a handicap." Shearon Harris, 9 NRC at 124. floreover, quite apart from the inception of FUA, nembers of the group have resided i
in the vicinity for up to 35 years.
See, e.g., Affidavit of James ".
"Bubba" Lyles, III, which acconpanies the petition.
Fourth, Petitioner relies on the present bar preventing the Intervenor from putting on an affinnative case as good cause for its late intervention.
This ruling emanated from Intervenor's noncompliance with l
2oard discovery orders.
Any disadvantage which a party nay suffer as a result of its own deliberate actions or inactions do not vest litigation perogatives, thus lost, to a nonparty in the proceeding. Moreover, this bar was relaxed, to sone extent, during the April 7-8, 1981 prehearing conference.
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l 4 l A petitioner cannot sit back and, upon deciding that its interests are not being adequately protected by existing parties, seek intervention on that basis.
See Duke Power Company (Cherokee Nuclear Station, Units 1, 2, and 3), ALN-440 6 NRC 643, 644 (1977); Pacific Gas & Electric Corpany (Diablo Canyon Power Plant. Unit 1 and 2), ALAB-583,11 NRC 447, 443(1980).
It is incumbent upon an interested person to act affirma-tively to protect himself in administrative proceedings. Nader v.
f;uclear Regulatory Commission, 513 F.2d 1045,1054 (D.C. Cir. 1975).
The integrity of the Commission's adjudicatory process would be compromised and principles of fundamental fairness to the litigants abrogated if such an excuse were found to justify such a late pctition.
See_ Pupet Sound Power and Licht Co. (Skagit fluclear Power Project, Units 1 and 2), ALAS-559, 10 f;RC 162, 172-73 (1979), vacated as root, i
CLI-80-34, 12 f RC 407 (1980).
Fiftn, Petitioner's allegations about improper maintenance of the local pJblic document roon (LPDR) are similarly unavailing.
Local public docu. tent roons are maintained as a public courtesy when resour:es pemit and adequate space and staff are available. They are not required by statute or regulation. Tne LODR was relocated several years ago fecn Fairfield County Library to Richland County Public Library because of l
inaceauate facilities at the original location.3_/ The Ricnland I
County Public Library has never had the staff to care for the files; hence, the Applicant has voluntarily maintained them.
In recent nonths, the library has expressed a desire not to participate in the LDOR progra, 4
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See Staff letter to Board, de ted June 20, 1977.
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any nore.
Efforts are being rede to find another location. Whatever impact the maintenance of the LPDR has had on petitioner, it does not constitute good cause for delaying its filing over four years. There are other ways to obtain relevant information which a diligent person should be expected to pursue, including through the NRC Staff.
Finally, Petitioner's reliance on post-TMI requirements as providing good cause for late intervention is similarly misplaced. The TMI accident occurred on March 28, 1979, two years ago.
Since then tne reconmendations of the Lessons Learned Task ForceN and TMI Task Action 5
Plan _/ culminated in the Commission's approval of a list of TMI-related requirements for new operating licenses issued on May 15,1980,(NUREG-0694) and on October 28, 1980 (NUREG-0737). These documents aere the subject of Commission policy statements of June _/ and December,1980,7I 6
respectively. While both policy statements provide a procedure by which parties to an adjudication can seek to introduce relevant issues based on significant new infomation, neitner confer any intervention rights to nonparties.
The second factor to be considered is whether other reans are avialable to protect petitioner's interest.
Wnile this proceeding is the best forun to litigate concerns regarding radiological health and safety, Petitioner's interest could be protected by permitting ce-ber(s) to make 4/
See NUREG-0578, dated July, 1979.
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NUREG-0660, Volumes I and 2, dated May 1980.
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45_ Fed. M. 41738.
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45 Fed. Req. 85235.
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j limited appearance state ent(s) pursuant to 10 C.F.R. 9 2.715(a). See, Tennessee Valley Authority (Brown Ferry Units 1 and 2), ALAB-341, 4 NRC 95,96(1976).
Petitioner is also free to furnish financial, technical or legal assistance to the Intervenor. Viroinia Electirc Power Company (North Anna, Units 1 and 2), ALAB-289, 2 NRC 395, 399 (1975).
In addition, Petitioner does have other means, outside of the adjudicatory process, to bring its concerns to the NRC. The NRC Staff, for example, i
has yet to complete its review of emergency planning considerations, an a
area in which Petitioner professes particular interest.
1 ihe third factor, the extent to which Petitioner can assist in developing a sound record also weighs against pemitting late intervention.
Petitioner has not indicated any special expertise of its
.nembers or other cualified experts, which would aid in the developnent of 1
a sound record.
See Cincinnati Gas and Electric Co. ('.,'illiam H. Zi.maer i
Nuclear Station), LBP-80-14,11 NRC 570, 576 (1980).
The fourth factor, the extent to which the Petitioner's interest will be represented by existing parties, also disfavors late intervention. Many of the contentions listed in the petition are encompassed by contentions already admitted to this proceeding. Quite apart from this, the NRC Staff his the statutory duty, which it intends t
to faithfully discharge, to protect the radiological health and safety of I
the public.
Finally, factor five, the extent to which Petitioner's participation I.
will broaden the issues or delay the proceeding, weighs heavily against the grant of late intervention.
The Staff is fimly concitted to the disposition of this proceeding as expeditiously as possible consistent i
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-g-uith the development of an adequate decisional record.
See 10 C.F.R. Part 2, Appendix A, $V.
The Staff believes that, with the documented completion of its safety and environmental review, the Board will have such a record.
In addition to its failure to provide an adequate participation for its extremely late petition. Petitioner has not
- isplayed any particular ability (such as the introduction of expert
. stimony) to significantly contribute to the development of an adequate decisional record.
The hearing in this matter is approxinately 2 months away and the date for filing testimony approximately six weeks away. All rarties have acknowledged the compressive nature of the schedule. The introduction of i
a,aw party and new contention (s) at this juncture, in contravention of 10 C.F.R. i 2.714, will inevitably broaden the issues and ursduly delay the hearing, post-hearing, and post-decisional process.
The Appeal Board in Viroinia Electric & Power Company (North Anna Station, Units 1 and 2),
ALAB-289, 2 NRC 395, 400 (1975), concluded that even if a petitioner were required to take the proceeding as it finds it, / " experience teaches that the adnission of a new party just before a hearing starts, is bound to confuse or complicate matters." The Appeal Board further stated that:
[D]elay can otherwise be avoided only if the parties adverse to the [ petitioner) forego important procedural rights, including the right to discovery....It is scarcely equitable to give the
[ petitioner] credit for not causing delay when that result could be achieved only because the circumstances would coerce other parties into waiving substantial rights.
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Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 276 (1975).
Id.
Since Petitioner sat idly by as a spectator, and did not pursue its rights in a timely canner, such procrastination should not be allowed.
It would operate as a hardship on the parties and disrupt an orderly administrative process.
CONCLUSION As demonstrated above, consideration of the factors governing nontimely intervention weighs heavily against acceptance of the present petition and, accordingly, it should be denied.
Respectfully submitted, L.Ce _. ~':\\!J Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Paryland this 13thday of April,1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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SOUTli CAROLINA ELECTRIC & GAS
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Docket No. 50-395 COMPANY
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Virgil C. Summer Nuclear Station, Unit 1
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF OPPOSITION TO UNTIMELY PETITION FOR LEAVE TO INTERVENE in the above-captioned proceeding have Leen 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 Commission's internal mail system, this 13th day of April, 1981.
Herbert Grossman Esq. Chailm n Richard P. Wilson, Esq.
Atomic Safety and,Licens,ing Board Assistant Attorney General U. S. Nuclear Regulatory Commission S. C. Attorney General's Office Washington, D. C. 20555 P. O. Box 11549 Columbia, South Carolina 29211 Dr. Frart F. liooper School uf Natural Resources Mr. John Ruoff Univer ity of t ichigan P. O. Box 96 Ann ' oor, Michigan 48109 Jenkinsville, S.C.
29065 Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Board Brett Allen Bursey I
U. S. Nuclear Regulatory Commission Route 1, Box 93-C Washington, D. C.
20555 Little Mountain, South Carolina 29076 l
Ceorge Fischer, Esq.
Atomic Safety and Licensing i
Vwe President and General Counsel Board Panei' South Carolina Electric and Gas U.S. Nucler,r Regulatory Commission Company Washington, D. C.
20555 j
Po.st Office Box 764 l
Columbia, South Carolina 29202 i
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Atomic Safety and Licensing Randolph R. Mahan, Esq.
Appeal Panel (5)*
S. C. Electric & Cas Company U.S. Nuclear Regulatory Commission Post Office Box 764 Washington, D. C.
20555 Columbia, S. C.
29218 Docketing and Service Section (3)*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Joseph B. Knotts, Jr.
Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C.
20036
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Steven C. Goldberg Counsel for NRC Staff I