ML20005A357

Opposes Fairfield United Action (Fua) Petition for Review of ALAB-642 Re Late Intervention in Licensing Proceeding, Per 10CFR2.786(b).FUA Has Presented No Question Which Would Warrant Review of Denial.Certificate of Svc Encl

ML20005A357
Person / Time
Site:	Summer
Issue date:	06/26/1981
From:	Hollar D SOUTH CAROLINA ELECTRIC & GAS CO.
To:	NRC COMMISSION (OCM)
References
ALAB-642, ISSUANCES-OL, NUDOCS 8106300244
Download: ML20005A357 (11)

Text

.

Dato: Juno 26, 1981 UNITED STATES OF AMERICA 4 NUCLEAR REGULATORY COMMISSION / '

BEFORE THE COMMISSION J<. '

E' ' '

.981 s In the Matter of: )

)

y he $$ S' SOUTH CAROLINA ELECTRIC AND ) g '

6

, GAS COMPANY, et al. ) Docket No. 50-395-OL

)

(Virgil C. Summer Nuclear )

Station, Unit 1) ) -

V

~ &' .

t- 0 9

APPLICANTS' ANSWER vPPOSING FAIRFIELD

• Dg UNITED ACTION'S PETITION FOR REVIEW 1% 4 .J 4 ,N I. BACKGROUND AND

SUMMARY

OF W I.

APPEAL BOARD DECISION On March 23, 1981, Fairfield United Action ("FUA") filed a petition to interW ne in the above-deuignated license proceeding

--almost four years after publication of the public notice of an opportunity for hearing. 42 Fed. Reg. 20203 (April 18, 1977).

In support of its petition to intervene, FUA argued, inter alia, that regulatory developments following the Three Mile Island accident provided good cause for the extreme lateness of the peti-tion. Both Applicants and the NRC Staff opposed admission of FUA within three months of evidentiary hearings scheduled to commence i

on June 22, 1981.

The Atomic Safety and Licensing Board issued a Partial Order, dated April 30, 1981, admitting FUA as an intervenor with respect l to ten of its enumerated contentions relating to emergency planning I

and corporate management issues. LBP-81-ll, 13 NRC . On I l

8106 30 p ,

2 appeal by Applicants and the NRC Staff, the Atomic Safety and Licensing Appeal Board reversed. ALAB-642, 13 NRC (June 1, 1981).

The Appeal Board held that FUA had failed to meet the five-factor test for lato intervention set forth in the Commission's regulations at 10 C.F.R. { 2.714(a). ALAB-642 at 24. The Appeal Board issued a Memorandum and Order denying FUA's application to stay the effec-tiveness of ALAB-642. ALAB-643 (June 15, 1981). FUA now petitions the Nuclear Regulatory Commission for review of ALAB-642 pursuant to 10 C.F.R. $ 2.786(b).

Applicants South Carolina Electric and Gas Company and South Carolina Public Service Authority oppose FUA's Petition for Review.

The Appeal Board decision in ALAB-642 correctly analyzed all the relevant factors governing late intervention in NRC licensing pro-ceedings. The Petition for Review raises no important issues that would justify the Commission exercising its discretion to review the Appeal Board's decision.

II. ARGUMENT A. THE APPEAL BOARD CORRECTLY ASSESSED ALL THE RELEVANT FACTORS IN DETERMINING THAT FUA S FFTITION TO INTERVENE WAS UNTIMELY.

The Appeal Board recognized that the decision on whether to admit FUA as an extremely late intervenor is governed by the requirements in 10 C.r'.R. $ 2.714(a). ALAB-642 at 4. In assess-ing the five factors therein. the Appeal Board properly concluded that FUA's petition to intervene was fatally deficient in meeting those requirements. 1/ In opposition to FUA's instant petition to

-1/ FUA assigns as error the failure of the Appeal Board "to defer to the proper exercise of broad discretioni by the Licensing l

4 0

3 intervene, Applicants will consider separately the requirements that the Appeal Board weighed against FUA.

1. Good Cause In support of the position that there was good cause for FUA's extreme lateness in petitioning for intervention, FUA argues gener-

. ally that the regulatory emphasis on corporate management and emer-gency planning issues in the wake of the Three Mile Island accident justifies the lateness of petitions seeking to raise such issues.

FUA relies primarily upon a March 21, 1980 licensing board decision in Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570 (1980) which permitted late intervention on the basis of certain developments in emergency planning. Petition for Review at 3, 7-8. As Applicants argued (Applicants' Brief at 3-4 ) and as the Appeal Board properly recog-nized, the Zimmer decision provides no basis for accepting a peti-tion for review filed over a year later. The Appeal Board found it unnecessary to determine whether the Licensing Board was correct in concluding that regulatory developments provided good cause for delay until the middle or latter part of 1980, because the Appeal Board reasoned "the post-TMI events cannot possibly serve to 1 cont./

Board" in evaluating FUA's compliance rith the five factors permitting late intervention under 10 C.F.R. ( 2.714(a)(1).

Petition for Review at 5-6. Contrary to FUA's implications, the Licensing Board does not have unbounded discrok.on to determine compliance with the regulations and the Appeal Board is not obliged to accept without critical review such determi-nations. Indeed, the decisions relied upon by the Appeal Board (ALAB-642 at 5) clearly contemplate that the Appeal Board will ,

provide the kind of careful scrutiny of the record under-taken by the Board in the instant proceeding.. See Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-334, 4 NRC 383 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 20, ALAB-384, 5 NRC 612 (1977).

i justify FUA's election to wait until the end of March 1981 to file its petition." ALAB-642 at 8.

This conclusion has ample factual support in the record. As discussed in Applicants' Brief before the Appeal Board (at 3-5),

the significant developments with regard to emergency planning issues were identified in 1979, evolved during the early part of 1981, and culminated in publication of the final rule on emergency planning on August 19, 1980. 45 Fed. Reg. 55402. Similarly, corporate management developments were finalized well before the March 23, 1981 date on which FUA filed its petition to intervene. (Applicants' Brief at 5-8) .

FUA's reliance upon a numoer of documents published in late 1980 and early 1981 relating to emergency planning and corporate management (Petition for Review at 5, 8-9) is misplaced. In its arguments before the Appeal Board, FUA nowhere suggested that such developments provide good cause for its belated petition to inter-vene. The Commission's regulations, 10 C.F.R. { 2.786(b)(4)(iii),

explicitly state: "A petition for review will not be granted to the extent that it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Board." FUA does not suggest that it could not have raised these matters before the Appeal Board, and they should not be considered by the Commis-sion for the first time on review. Furthermore, the documents do not challenge the Appeal Board's basic conclusion that emergency planning and corporate management requirements were established much earlier. Ongoing correspondence of the type cited by FUA is part and parcel of the licensing and regulatory process. None of l

l

5 these documents established any new regulatory requirements concern-ing which FUA might be justified in raising late contentions. 2/

2. Broadening of the Issues and Delay of the Proceeding The record clearly supports the Appeal Board's conclusion that admission of FUA at this time will broaden the issues in the pro-ceeding considerably and almost inevitably result in delay. FUA's assignment of error in this regard (Petition -for Review ct 6) is without support. As emphasized by the Appeal Board (ALAB-642 at 15), FUA's contentions concerning emergency planning are much broader than the single emergency planning contention raised by the existing intervenoi, Mr. Brett Bursey. Similarly, FUA's management capa-bility contentions go far beyond the contentions previously raised by the existing intervenor and the Licensing Board itself.

As the Appeal Board emphasized, delay in the evidentiary hear-ings is almost inevitable because of the broadening of the issues and because the lateness of FUA's intervention makes impossible the use of procedural mechanisms designed to prevent unnecessary delay (e.g., discovery ~and summary disposition). ALAB-642 at 11-13.

In accordance with the holding in Virginis Electric & Power Company (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395 (1975),

Applicants should not be forced to forego such important procedural l

i 2/ FUA's quotation from and reliance upon Further Commission I - Guidance For Power Recctor Operating Licenses-Revised Statement or Policy, 45 rad. Reg. 85236, 85238 (Dec. 24, 1980), is curious indeed. The excerpt quoted by FUA (Petition for Review at 5) clearly contemplates that contentions may not be raised under circumstances like the instant one, where the proposed intervenor has shown no good cause for the tardiness of its petition.

FUA also suggests that tne Appeal Board erred in not considering the " cumulative effect" of i ts various explanations for the l

- - - - - . - --..,~~n-n

6 rights in order to prevent postponement of the hearings. 3/

3. Contribution to a Sound Record The Appeal Board properly concluded that FUA's showing of its ability to contribute to development of the record in this proceed-ing is "not strong enough to warrant, standing alone, the grant of its inexcusably and materially late petition." ALAB-642 at 20.

In view of the limited number of witnesses which FUA proposes to introduce, and the vague qualifications of the witnesses and of FUA's Authorized Representative, the ability of FUA to contribute any indispensable perspectives on the issues in this proceeding is at best problematic. This is particularly so when, as emphasized by the Appeal Board, the Licensing Board has the option of conducting its own examination of the witnesses to elucidate the same information.

ALAB-642 at 17. In view of FUA's utter inability to show good cause for the lateness of its petition and the considerable delay which is likely to flow from FUA's admission at this time, FUA's proposed contributions to the record are not such as to warrant its admission to this proceeding.

B. THE PETITION RAISES NO IMPORTANT ISSUES WHICH WOULD WARRANT CONSIDERATION BY THE COMMISSION Section 2.786 of the Commission's Rules, 10 C.F.R. $ 2.786, 2 cont./

lateness of the petition to intervene. Petition for Review at 5 Whatever this is intended to mean, the Appeal Board clearly con-cidered the entire record and totality of circumstances in reach-ing its decision in ALAB-642.

i -

-3/ FUA. misrepresents the positions of the Appeal Board, Applicants

~

and NRC Staff when it asserts that the Appeal Board erred in crediting " Applicants' and Staff's reluctancre to meet Fairfield l

l l

I provides for discretionary review of Atomic Safety and Licensing Appeal Board decisions by the Nuclear Regulatory Commission. Section 2.786(b)(1) provides that a party to the proceeding may petition the Commission on the ground that the decision is " erroneous with respect to an important issue of fact, law, or policy." 10 C.F.R.

$ 2.786(b)(1). Whether to grant or deny a petition for review is within the discretion of the Commission, except that Section 2.786 (b)(4) enumerates a number of conditions in which denial of the petition is app ;priate. As relevant herein, the regulations state:

(i) A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense and security, consti -

tutes an important anti-trust question, involves an important procedural issue, or otherwise raises important questions of public policy.

10 C.F.R. $ 2.786(b)(4)(i). Thus, the regulations clearly contem-

' plate that the Commission will grant a petition for review only when it raises "important matters."

The instant petition raises no such important matters.

3 cont./

United Action in what would become a ' seriously contested' case..." (Petition for Review at 6). As is apparent from the material quoted by FUA (Petition for Review at 3), the Applicants and NRC Staff only raised the issue of unfairness to the exist-

, ing litigants should FUA be admitted shortly before commencement of the evidentiary hearings. The Appeal Board's consideration of that issue is, of course, entirely appropriate under 10 C.F.R.

$ 2.714(a)(1). l

+ - - , - - , -- - ,n --n

i 8

Contrary to FUA's assertions (Petition for Review at 9-10), the record is wholly devoid of any suggestion that all matters relating to public health and safety will not be adequately addressed even if FUA fails to obtain party status. As the Appeal Board properly recognized (ALAB-642 at 25), the Licensing Board, Staff and the Commission itself are charged with exploration of matters raised in FUA's emergency planning and corporate management contentions, particularly as they relate to the public health and safety.

No novel or unsettled questions are presented by FUA. The Appeal Board's decision is wholly consistent with precedent denying party status to would-be intervenors that have shown no good cause for the extreme lateness of their petitions to intervene. See North Anna, supra, and Puget Sound Power & Light Co. (Skagit Nuclear Power Projects, Units l' and 2), ALAB-559, 10 NRC 162 (1979), vacated as moot, CLI-80-34, 12 NRC (1980). Further, the situation is distinguishable from that in Skagit in which the Commission issued an order denying the petitions for review, but exercised its discre-tion under 10 C.F.R. $ 2.786(a) to consider one issue sua sponte.

The novel issue which the Commission did decide to review was whether the status of petitioners there as American Indian Tribes provided I sufficient cause for the lateness in filing a petition to intervene.

Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), [1980] Nuclear Regulation Reports T 30, 439 (January 16, i

1980). The instant petition presents no issue of comparable novelty to warrant the Commission's consideration.

I t

. ._ .. - .~ _ - ._ . ___ _

9

. III. CONCLUSION In ALAB-642, the Atomic Safety and Licensing Appeal Board properly concluded that Fairfield United Action failed to comply with regulatory requirements, 10 C.F.R. $ 2.714(a), governing late intervention. This conclusion is thoroughly supported by the record and by prior Appeal Board decisions. FUA has presented no question which would warrant the Commission exercising its discre-tion to review the denial of FUA's petition to intervene. For all the foregoing reasons, Applicants urge that the Petition for Review te denied.

Respectfully submitted, Joseph B. Knotts, Jr.

Dale E. Hollar Counsel for Applicants Date: June 26, 1981 t

i I

l

UNITEL STATES. OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

SOUTH CAROLINA ELECTRIC AND )

GAS COMPANY,~et _al.

) Docket No. 50-395-OL

)

(Virgil C. Summer Nuclear )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer Opposing Fairfield United Action's Petition for Review" in the above captioned matter, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 26th day of June, 1981.

Ch' airman Joseph M. HendriIe Samuel J. Chilk Office of the Commission Secretary to the Commission U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Herbert Grossman, Esq.

Commissioner John F. Ahearne Chairman, Atomic Safety and Office o'f the Commission Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Cormissioner Peter A. Bradford Dr. Frank F. Hooper Office of the Commission School of Natura.1 Resources U.S.' Nuclear Regulatory University of Michigan Commission Ann Arbor, Michigan 49109 Washington, D.C. 20555 Mr. Gustave A. Linenberger Commissioner Victor Gilinsky Member, Atomic Safety and Office of the Commission Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Ieonard Bickwit, Esq. Alan S. Resenthal, Chairman Oeneral Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory

~ '

Appeal Board Commission U.S. Nuclear Reg'ulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

m. ~. - _ . _ . . . _ - _ . _ _ . . . _ . _ . _ ...-. _ ._.. _

Dr. John H. Buck, Member Dr. John C. Ruoff Atomic Safety and Licensing P.O. Box 96 Appeal Board Jenkinsville, South Carolina U.S. Nuclear Regulatory 29065 Commission Washington, D.C. 20555 Mr. Brett Allen Bursey Route 1, Box 93-C Christine N. Kohl, Member Little Mountain, Atomic Se.fety and Licensing South Carolina 29076 Appeal Board

. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chase R. Stephens, Chief Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission

[

e, Washington, D.C. 20555 Dale E. Hollar Chairman Atomic Safety and Counsel to Applicants i

Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Steven C. Goldberg, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard P. Wilson, Esq.

Assistant Attorney General South Carolina Attorney General's Office P.O. Box 11549 Columbia, South Carolina 29211 George Fischer, Esq.

Vice President and Group Executive - Legal South Carolina Electric &

Gas Company i P.O. Box 764 Columbia, South Carolina 29218 Robert Guild, Esq.

314 Pall Mall  ;

Columbia, South Carolina 29201

• - . __ _ _ . . _ . - , . _ _. _._ . _ . _ _