ML19350E376
| ML19350E376 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 06/15/1981 |
| From: | Guild R FAIRFIELD UNITED ACTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-642, ISSUANCES-OL, LBP-81-11, NUDOCS 8106220015 | |
| Download: ML19350E376 (12) | |
Text
{{#Wiki_filter:, , , - _ _ _
'1-
'i. l%
fi - _I n f l lQ
~
s DOCKETED '\ U;nna S _\' f _JUN 18gg y
~
UNITED STATES OF AMERICA [ ' Of30f daSe:rtt 7 NUCLEAR REGULATORY COMISSION [(kDko A
'In the Matter of: )
.. SOUTH CAROLINA ELECTRIC AND GAS Docket No. 50-395-0L COMPANY,:et al.- ) (V..'gil C. -Summer Nuclear ' Station, . June 15, 1981
~ Unit 1) ')
)-
PETITION F0P> REVIEW.
.n v g
# 1 Or. John C. Ruoff
%[ tj % P.O. Box 96 D b{p b ~
Jr Ainsville, South Carolina G; 2906"
.E- 3(13 ] 9 19 M " i.g** Authorized Representative k 8 Robert Guild 314 Pall Mall 4/[]rq f Columbia, South Carolina 29201 Counsel For Petitioner Fairfield United Action h '8106 220.015
- t < ,
e
' TABLE CF CONTENTS ~
- Page J
SUMMARY
OF' DECISION OF WHICH REVIEW'IS SOUGHT . . . . . .-. . . . . . 1-
~
- CITATIONS TO THE RECORD'BEFORE "!E ATOMIC SAFETY
~AND LICENSING APPEAL BOARD'..................... 2'
. STATEMENT OF ERROR BY THE ATOMIC SAFETY. AND
. LICENSING APPEAL BOARD. . . . . . . . . . . ._. . . . . . . . . . . 4
- STATEMENT 0F REASONS FOR COMMISSION REVIEW I
-THE COMMISSION SHOULD CONSIDER WHETHER REGULATORY DEVELOPMENTS IN THE AREAS OF-EMERGENCY PLANNING AND CORPORATE MANAGEMENT CAPABILITY AFTER THE THREE MILE ISLAND (THI) ACCIDENT CAN PROVIDE: GOOD CAUSE FOR LATE INTERVENTION IN PENDING LICENSE CASES. . . . .- 7 II THE COMMISSION SHOULD CONSIDER WHETHER A LICENSING BOARD HAS DISCRETION TO ADMIT A NEW PARTY WITH KNOWLEDGE AND EXPERTISE TO ASSIST IT IN DECIDING IMPORTANT TMI-RELATED HEALTH AND SAFETY ISSUES WHICH IT CONCLUDES'WILL NOT OTHERWISE BE ADEQUATELY PRESENTED . . . . . . . . . . . . . . . . . . . . . . . 9 CONiLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 e
l i g-v - , -vi y >,,r w, - - - ,-v- y gr v wr-
5.. < t w i LFairfield United Action (FUA)'hereby petitions the Comission
~
pursuant tol10 CFR S 2.786; to review the decision of the Atomic. Safety and Licensing Appeal Board reversing an order of.the Licensing Board which granted FUA's : Petition to: Intervene, in part, and provided that FUA be ad-mitted as; a party but .take the proceedings as they currently . stood.
- Fairfield United Action respectfully requests the Comission grant this petition to review important questions of law,' fact, procedure and policy' affecti.ng the public health' and safety decided erroneously by the Appeal' Board. FUA' requests the Comission provide for expedited briefing and oral argument and that it enter an order granting FUA's Petition to Inter- ,
vene'in these~ proceedings.
SUMMARY
OF DECISION OF WHICH REVIEW-IS SOUGHT In South Carolina Electric and Gas Company, et al. (Virgil C. Sumer Nuclear Station, Unit 1), ALAB-642,13 NRC (June 1, 1981), the Appeal Board reversed the April 30, 1981, Order of the Licensing Board, LBP-81-11, 13 NRC , insofar as it granted the intervention petition of Fairfield
' United Action and remanded the cause with instructions to deny' the petition as untimely.
The Appeal Board determined that Fairfield United Action's tardiness in seeking to intervene was not excused by revisions in Comission policy concerning emergency planning and corporate management capability following the Three Nile Island accident or by the other circumstances surrounding l . . FUA's late filing. The Appeal Board also. rejected the Licensing Board's
e
- m - .
Judgement to admit-FUA on.these post-TMI related' contentions, without for - mal . discovery or' delay in commencement of the hearing, to assist in the development of a sound record in these areas in which FUA members were well-
~
-versed; and the Licensing-Board's further determination that FUA should be
. permitted to cross-examine witnesses on issues raised in the only existing intervenor's contentions because of the Licensing Board's " lack-of confi-dence in the other intervenor's ability to effectively prepare his caseLand because of the contribution we believe FUA might make on all of the issues."
South-Carolina Electric and Gas Company, el al. (Virgil C. Summer Nuclear Station, Unit 1), Remainder. of Order Following Fourth Prehearing Conference, at p. 10_(May 13,.1981). CITATIONS TO THE RECORD BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
-The Applicants, South Carolina Electric and Gas Company and South Carolina Public Service Authority, and the Nuclear Regulatory Commission Staff each appealed from the Licensing Board's decision which granted FUA's Petition in part on the grounds that FUA's Petition to Intervene should have been wholly denied pursuant to 10 CFR S 2.714a(c).
The Applicants' appeal presented the question, inter alia, of whether the Licensing Board improperly assessed the good cause factor, "partcularly in treating as good cause mid-1980 TMI requirements on emergency planning and management capability," Applicants' Notice of Appeal, pp.1-2 (May 8, 1981), which question they argued extensively, Applicants' Brief, pp. 2-11
-(May8,1981). The Staff, likewise, challenged "the Board's finding that under the circumstances of this case, Petitioner's reliance upon post-TMI requirements provided good cause for late intervention with regard to cor-
*w
t porate management.and emergency planning contentions," NRC Staff Brief at
- p. 3. Fairfield United Action argued that _ application of the analysis of
.the Board in Cincinnati Gas 'and Electric _ Co. (William H. Zimmer Nuclea tion),LBP-80-14,11NRC570(1980), to the circumstances of its late filing established good cause with respect to its TMI-related contentions. .FUA' Brief,pp.'6-8(May20,-1981). The Appeal. Board declined to pass on the Li-
- censing Board'sdeterminatio1 that FUA had good cause to wait until the mid-
~ die-or latter part of 1980 before filing its THI-related contentions, but did conclude that " post-TMI events cannot possibly serve to justify FUA's ALAB-642-election to wait until the end of March 1981 to file its petition,"
at pp. 7-8. Both the Applicants and the Staff challenge the Licensing Board's exer-cise of. discretion ir. admitting FUA to assist it in the development of a-Both com-sound record for decision on important health and safety issues. plain that admission of FUA would convert and essentially default proceeding into a more or less contested case:
. . .the Board's action turns a moderately contested pro-
.ceeding into a seriously contested one without adequate consideration of the Applicants' rights and obligations to their customers.
(Applicants' Brief, p.18 (May 8,1981)) One genuine effect of the Board's Order is to " shore-up" the existing intervenor, who, as the Board aptly noted
-has been less than diligent in presenting his case . . . .
the entry of a fresh litigant ?n opposition to the license is fundamentally unfair to the oJer litigants and estab-lishes an undesireable (NRC Staff Brief, p. 9 Mayp(recedent 11, 1981)) for future cases. Fairfield United Action argued that such considerations were inappropri-ate, FUA Brief, p. 6 (May 20, 1981), and that the Licensing Board properly admitted FUA to protect the integrity of the adjudicatory process and en-
- sure that it had available a sound record for decision on vital health an safety issues affecting the public. Ld.,p.14.
d /
- . , - ~ , - -
The Appeal Board conceded the applicability of the " abuse of discre-
- tion" standard in~ reviewing -Licensing Board decisions on late interventions, but. understood it to permit "close scrutiny of the factual and legal ingre-dients" of the decision. ALA8-642, at 5. It expressed-concern -for " simple fairness" to the applicants and staff and the need to conduct licensing ~in "an orderly fashion," Id. at'6. The Appeal Board acknowledged the Licensing Board's " conviction that Mr. Bursey-(the existing intervenor) was incapable of making a significant contribution to the development of the record," Id at 17, acknowledged the Licensing Board's conclusion.that FUA's contribution would likely be " substantial," I_d. at 16, but rejected both the. Licensing Board's factual findings on FUA's ability to. contribute, Id_. at 16-22, and the legal propriety of the Licensing Board's consideration of the existing intervenor's incapacity to contribute:
As we see it, the Board's perception of Mr. Bursey's abilities and his likely contribution to the proceeding could not possibly serve as justification for allowing FUA to come into the proceeding at the last moment. (,Id.at17) Instead of admitting FUA to remedy such deficiencies, the Appeal Board con-cluded that the Licensing Board was empowered only to "take a more active role in the proceeding itself" through interrogation of witnesses "to in-sure that the issues were thoroughly explored," _Id. at 17. STATEMENT OF ERROR BY THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the view of petitioner Fairfield United Action the decision of the f Appeal Board in this matter, ALAB-642, reversing the Order of the Licensing! ' Board, LBP-81-11, 13 NRC (April 30,1981) which granted FUA's Petition to Intervene in part, is clearly erroneous with respect to necessary factual
r -
- 5.-
issues and frepresents improper resolution of im'portant questions of law, policy. and. procedure affecting the public health end safety,- 10 CFR S 2.786, in the following particulars. The Appeal' Board erroneously applied the five factor test provided. for at 10-CFR S 2.714(a)(1) in failing to' defer to the proper exercise of broad discretion by the Licensing Boara under the. circumstances of this case to consider FUA's reasons for tardiness as well as the extent to which' FUA may be expected to assist in developing'a sound record, the unavaila-bility of.other means or existing parties to protect FUA's interest, andl the limited degree by which FUA's participation will broaden the issues or delay the proceedings in light- of the procedural measures. adopted by the-
- Licensing Board. Nuclear FueliServices, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975).
The Appeal Board erroneously failed to' recognize recent develop-- ments in ~ Commission policy and in Applicant corpliance in the areas.of emer-gency planning and corporate management capability after the Three Mile Is-land (TMI) accident as representing the basis for the consideration of new or amended contentions on such issues in pending operating license proceed-ings. See, Statement off Policy; Further Commission Guidance for Poyar_ Reactor Operating Licenses, CLI-80-42, 45 FR 85236, at 85238 (December 24,1980): The Ccmission believes that where the time for filing contentions has expired in a given case no new TMI-related contentions should be accepted absent a showing of good cause and balancing of the factors in 10 CFR S 2.714(a)(1). i The Appeal' Board erroneously failed to consider the cumulative effect of each of the undisputed facts and circumstances advanced by FUA in ex-
. planation for its late-filing as establishing " good cause" but instead con-sidered each only in isolation. In failing to credit FUA with substantial 4
, D 900d~ cause for its' lateness the Appeal Board erroneously required FUA to -{
9 shoulder a " considerably greater" burden to justify its intervention on the basis of the other factors.
- The Appeal Board was clearly erroneous in resciving the factual issues of FUA's ability to assist in developing a sound record and the extent to which FUA's participation will broaden the issues or delay .the proceedings in a manner contrary to the resolution of the necessary factual issues by the Licensing Board.
The Appeal Board erroneously failed to defer to the Licensing Board's proper exercise of discretion in admitting FUA to assist it in developing a sound record upon which to decide important TMI-related health and safety issues when it concluded that the assistance it required in reaching such decisions would not be available from the existing parties, particularly from the only existing intervenor who "was incapable of making a significant contribution to the development of the record." ALAB-642, at 17. The Appeal Board improperly credited Applicants' and Staff's reluctance to meet Fairfield United Action in what would become a " seriously contested" case, Applicants' Brief, supra, p.18, as a basis for its decision, ALAB-642 at 6, in the face of the Licensing Board's conclusion that FUA's' par-ticipation in the proceeding was necessary for it to make the findings re-quired for the issuance of an operating license, 10 CFR S 50.57, based on a sound record produced in a truly adversary proceeding.
19 . ,. H 7- I
- . - 1 STATEMENT OF. REASONS FOR. COMMISSION REVIEW I
die COMMISSION SHOULD CONSIDER WHETHER Rt.NLATORY DE-
.VELOPMENTS IN THE AREAS OF EMERGENCY PLANNING AND COR-P0 RATE MANAGEMENT CAPABILITY AFTER THE THREE MILE IS-LAND (TMI) ACCIDENT CAN PROVIDE GOOD CAUSE FOR LATE INTERVENTION IN PENDING LICENSE CASES.
The Commission should grant Fairfield United Action's Petition for Re-view to consider.the circumstances where Licensing Boards should be able to admit new parties as in Zimmer, supra, and new TMI-related contentions, Sunner LBP-81-11, supra, in pending power reactor operator license cases. The Commission clearly has anticipated that evolving regulatory poli-cies in the aftermath of the Three Mile Island accident will impact on Li-censing Boards in their conduct of pending proceedings and may alter the showing required to be made by applicants for approval of operating licenses: In reaching their decision, the Boards should interpret existing regulations and regulatory policies with due ~ con-sideration to the implications for those regulations and policies of the Three Mile Island Accident. In this regard, 1 it should be understood that as a result of analyses still underway, the Commission may change its present regulations and regulatory policies in important aspects and thus com-pliance with existing regulations may turn out to no longer warrant approval of a license application. 1 Suspension of 10 CFR 2.764 and Statement of Policy on Adjudicatory Proceedinq, . 44 FR 65050 (November 9, 1979); quoted in Further Commission Guidance for Power Reactor Operatir3g_ Licenses; Statement of Policy, 45 FR 41738 (June 20, 1980), and in Statement of, Policy; Further Commission Guidance for Power _ Reactor Operating Licenses, CLI-80-40, 45 FR 85236 at 85238 (December 24,1980).
.The Commission has determined that pending operating license applications are to be judged against present NRC regulations as supplemented by TMI-related
+ -
.,..v._ , ~,.7 _ .-
y requirements reflected in Requirements _ for_ Operating Licenses, NURE (June _1980),- now superseded by Clarification of TMI Action Plan Requ NUREG 0737 (October 1980); and that individual adjudicatory hearings are the appropriate forum for resolving at least.some claims with respect to these new requirements. 45 FR at 85238. With respect to new requirements regarding emergency planning, the Li censing Board in this proceeding adopted the analysis of another Board i Zinner, supra, that the expanded scope of relief now available in the license proceeding, particularly the extension of emergency planning to an Eme 19 , 1980), cy Planning Zone (EPZ) of about 10 miles, 45 FR 55402 (August justified tardiness in filing on this issue at least until the middle or This Licensing Board latter part of 1980. LBP-81-11, slip opinion at 6. adopted a similar analysis in finding justification for an equal delay in filing on corporate management capability issues which have been the obj of Commission focus in the post-TMI era. Id. Commission policy and Applicants' compliance in the area of emergency planning remained in a state of development at the time of FUA's filin March 1981, e.g. Functional Criteria for_ Emergency _ Response Facilities, Local county plans related to NUREG 0696, was published in February 1981. The South the plant were published between December 1980 and April 1981. Carolina state plan was published April 17,1981, 46 FR 22459, and the A SER, Supp. 2, p. 22-2. plicants' emergency exercise was conducted May 1,1981. The Applicants' submitted their " Comparison of Management / Tech Resources to Regulatory Guidance," to the NRC Staff by transmittal dat January 31, 1981, in response to the Commission's " Draft Report for Interim Use and Comment," Guidelines _ for_ Utility _ Management _ Struct Resources _, NUREG 0731, which was published September 1980.
7 , The Commission should consider whether these developments represent 5
- such new information as to establish good cause for'the belated' filing of contentions on these subjects, under the circumstances of the ca'se.
11 THE: COMMISSION SHOULD CONSIDER WHETHER A LICENSING BOARD HAS DISCRETION TO ADMIT A NEW PARTY WITH KNOWLEDGE AND EXPERTISE TO ASSIST IT IN DECIDING IMPORTANT TMI-RELATED
'EALTH AND SAFETY ISSUES WHICH IT CONCLUDES WILL NOT OTHERWISE BE ADEQUATELY PRESENTED.
The Commission has recognized that individual adjudicatory proceedings are the appropriate . forum for. the rr.soluticn of clatns regarding operating 45 FR license applicants' compliance with post-TMI regulatory requirements. at 85238. In its recent Statement of Policy _on Conduct of Licensing Pro-ceedings,CLI-81-8(May?.0,lo81)3 the Commission recognized the Three Mile Island accident " required a reexamination of the entire regulatory structure," g., p.1, and that Commission attention and resources have since been fo-I cused on the preparation of an action plan specifying changes necessary for In light of the backlog of pend-reactors as a result of the accident. Id. ing license applications resulting from the focus of attention, the Comis-sion emphasized the responsibility of licensing boards to manage "the balanced and efficient conduct of all phases of the hehring process." M.at2. The licensing boards themselves must resolve the difficulties presented by the potentially conflicting goals of ensuring a thorough review of appli-l cant compliance with post-TMI regulatory developments in efficiently and expeditiously conducted proceedings. The Commission should consider whether a licensing board may accomplish this difficult task through the exercise of the " broad discretion" granted l it under the authority of West Valley, supra,1 NRC 275, by the admission
' ~
c>. 7, .: of-a new party with~ knowledge and expertise to' assist it ir. building 4a ident.e record,. under appropriate procedural restrictions, where otherwise 'ev on vital' health and safety issues will not t,e adequately- presented.
. CONCLUSION For the foregoing reasons, the Petition for Review should be -g
'and an order entered admitting Fairfield United Action as an Intervenor in these proceedings.
I
. lune 15, 1981-RQbertGuiid314 Pall MaNi Columbia, South Carolina 29201 Counsel
- /
Dr. John C. Ruoff P.O. Box 55 Jenkinsville, South Carolina 29065 Authorized Representative For Petitioner Fairfield United Action I u -_p_ _ v v
y 3,
^
s g - % . .
- . l i
m . s UNITED STATES'0F AMERICA ;
/ _ i 4
- NUCLEAR REGULATORY. COMMISSION
~
LIn the Matter of: . ):
. ;)- ~
. SOUTH' CAROLINA: ELECTRIC'AND GAS- ) Docket No. 50-395-0L
- -COMPANY, et al. )'
~ ) June 15, 1981' (Virgil C. Sume Nuclear Station, ; iUnit1)'
- CERTIFICATE- 0F- SERVICE' I!hereby certify' that copies of " Petition for Review" were served ,
upon the following persons;by deposit in Lthe United States mail, first T telass postage prepru, this 15th day of June 1981. Comissioner-John F. Ahearne Alan S.- Rosenthal, Chairman U.S.: Nuclear Regulatory Comission Atomic Safety and Licensing Appeal Washington,.DC- 20555' Board Panel-U.S. Nuclear Regulatory Comission Comissioner Peter A. Bradford Washington, DC 20555 U.S. Nuclear Regulatory Comission ~ Washington, DC 20555 Dr. John H. Buck, Member Atomic Safety and Licensing Appeal Comissioner Victor Gilinsky Board Panel U.S. -Nuclear Regulatory Comission U.S. Nucle.c Regulatory Comission Washington,,DC 20555- Washington, DC 20555
- Comissioner. Joseph M. Hendrie Christine N. Kohl, Member U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Appeal Washington, DC 20555 Board Panel U.S. Nuclear Regulatory Comission Samuel J. Chilk~ Washington, DC 20555 Secretary to the Comission -
U.S. Nuclear Regulatory Comission Dr. Frank F. Hooper Washington,'DC 20555 School of Natural Resources University of Michigan Chase R. Stephens, Chief Ann Arbor, MI 48109 Docketing and Service Section Office of the Secretary Gustave A. Linenberger
- U.S. Nucler Regulatory Comission Member, Atomic Safety and Licensing Washingtor DC 20555 Board Panel U.S. Nuclear Regulatory Comission Herbert.Grossman, Esq. Washington, DC 20555 CF.Mrman, Atomic Safety and Licensing Joard Panel
.U.S. Nuclear Regulatory Comission i Washington, DC: 20555 l l
l
g i ' Chairman, Atomic Safety and . George Fischer, Esq.
-Licensing Board Panel Vice President and Group Executive -
.U.S. Nuclear Regulatory Commission . Legal Washington, DC ;20555 South Carolina Electric & Gas Company-P.O.l Box 764 Steven C. Goldberg, E:,q. .
Columbia, SC 29218 Office of the -Executive Legal Director . Mr. Brett Allen Bursey U.S. ' Nuclear Regulatory Cor ,isifon Route _1, Box 93-C Wash' -ton,.DC 20555 Little Mountain, SC 29076 '
. Richard P. Wilson, Esq. .
Randolph R. Mahan Assistant Attorney General . South Carolina Electric & Gas Company South Carolina Attorney General's P.O. Box 764. Office Columbia, SC 29218 P.O. Box 11549 Columbia, SC 29211 Joseph B. Knotts , Jr. , Esq. Debevoise & Liberman 1200 .17th Street, N.W. Washington, DC 20036 [U M [ RobertGuildd p i
}
, .- .- - . . ,, . _ . , . _ , _ . -_ - . . - - - . .- ..}}