ML20009D204

Statement Supporting Fua Petition to Intervene.Possible Delay Does Not Lessen Importance of Full Consideration of Issues Raised by Intervenor to Record & ASLB Decision. Certificate of Svc Encl

ML20009D204
Person / Time
Site:	Summer
Issue date:	06/15/1981
From:	Sheldon K Sierra Club
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20009D206	List: ML20009D204 ML20009D209
References
ISSUANCES-OL, NUDOCS 8107230278
Download: ML20009D204 (10)

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UNITED STATES OF AMERICA ,

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' y' SOUTH CAROLINA ELECTRIC AND GAS ) Docket No. 50-395'-06 .

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(Virgil C. Summer Nuclear Station, ) June 15, 1981 Unit 1) )

STATEMENT OF SOUTH CAROLINA CHAPTER OF THE SIERRA CLUB IN SUPPORT OF INTERVENTION BY FAIRFIELD UNITED ACTION The South Carolina chapter of the Sierra Club submits the following statement in support of the appeal by Fairfield United Action, Inc. (FUA or petitioner) of the Appeal Board's reversal of the Lict... sing Board's decision granting FUA's petition to intervene in the Virgil C. Summer licensing proceedings. In the opinion of the South Carolina chapter of the Sierra Club, the Licensing Board did not abuse its discretion in admitting FUA to the proceedings.

On the contrary, the Licensing Board's decision reflects a careful application of the tests established in 10 CFR 2.714(a) for disposition of untimely intervention petitions. The resulting decision is well supported by the circumstances surrounding FUA's petition and by Coramission law. It should be upheld.

The key consideration in resolving cases ruling on untimely petitions to intervene is 'the Commission 's admonition" "DSO s

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4 A f that 10 CFR 2.714(a) was " purposely drafted to give Licensing Boards broad discretion" to consider the circumstances of individual cases

~ Nuclear Fuel Services (West Valley Reprocessing Plant) CLI-75-4, 1 NRC;273, 275.(1975) . See-also, Florida Power & Light Co. (St.

Lucie Nuclear Power Plant, Unit No. 2) ALAB 420, 6 NRC 8 (1977). As a consequer.ce, the Appeal Board's role in reviewing Licensing Board decisions on. intervention is limited. Pub}ic Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) ACAB 339, NRCI 76/7'20, 24 (July 27, 1976); Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB 354, 4 NRC 383, 389, 390 (1976).

[A]n Appeal Board should reverse a Licensing Board's order denying intervention only if it clearly appears that in combination the four factors of 1G CFR 2.714(a) weigh so heavily in petitioners' favor that abuse of discretion is involved.

Florida Power & Light,- supra, 13.

The same principle applies to Licensing Board decisions granting intervention. The Appeal Board role is circumscribed to a determination of whether the Licensing Board has exceeded its i

substantial authority to-conduct the licensing proceedings. The Appeal Board lacks the authority to substitute its judgnent for that of the Licensing Board concerning the appropriate parties to a proceeding. Nor is the Appeal Board authorized to conduct an independent: balancing of the factors set forth in 10 CFR 2.714(a).

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-Unless it is apparent from the Licensing Board's decision that its conclusion is not justified.by reference to the requirements of the regulation, the decision is entitled to deference.

When examined in light of other cases in which intervention has been granted and the four factors of 10 CFR 2.714(a), it cannot be

. said that the Licensing Board abused its discretion in granting the intervention petition of Fairfield United Action.

The opinion of the Commission in West Valley (Nuclear Fuel Services, supra) provides a good illustration since it is the seminal case interpreting the requirements of 10 CFR 2.714. In West Valley the Commission stated that the regulation directs the

~ Licensing Board first, to.assese whether a late filing oetitioner

has made.a showing'of good cause for his failure to file on time,

- and second,.to weigh the. reasons given for tardiness against the four factors listed in the regulation. These factors are:

{1) The availability of other means whereby petitioner's interest will be protected; (2) The' extent to which petitioner's pa 'icipation may reasonably be-expected to assist in .. "' loping a sound record; (3) Trie extent to which the petitioner's interest is representated by existing parties;

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(4) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

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If good cause exists for the late filing, the four factors are less important'to the intervention decision. If no good cause exists for the late filing, then significant countervailing reasons must be present to tilt the_ balance-in favor of intervention.

In West Valley the Commission agreed with-the Licensing Board that the grounds offered ~by Erie County for its late filing were "without merit." The Commission then proceeded to examine the four

~ factors in the regulation to ascertain whether they would warrant admitting:the County in spite of its tardiness. With respect to the third factor, the Commission found that other parties to the proceedingi bot lh private and governmental, had advanced contentions that were "substantially identical" to those of the County. With respect to the second factor, the Commission found that the County had not :shown' any special expertise or access to evidence not available to existing parties. '1me Commission r 'ed that the County could- uake a limited appearance or avail itself of other means of

. protecting its interest (Factor 1). Finally, the Commission I acknowledged that the fouth factor -- delay -- was a "particularly weighty consideration" and warned the County that it might be require'd to take the proceeding as it found it.

Despite the seeming lack of substantial reasons to do so, the Commission held that-the County should be admitted to the

proceeding, primarily because the existing parties "may not

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. effectively _ represent the County's interests." The Commission also

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" acknowledged:that'theLother means available to protect the County's

' interest,-i.e. a#1imited' appearance, were not an adequate substitute Jfor' participation in the proceeding.

--A1 comparison lof the West Valley decision with'the Licensing Board's. decision admitting FUA establishes that the Board was on much1fdrmer ground:in approving,FUA's untimely intervention than was Ethe Commission in admitting Erie County. To begin with, unlike West r

Valley,~ the; Licensing Board found the existence of good cause for

~ the' delay of.FUA'in' filing its.Three Mile Island related

~ contentions. As' discussed in the Licensing-Board decision and in L the -pleadings of :FUA, ample evidence exists to support this finding, since1 regulatory policy and' requirements are still evolving in the

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aftermath:of"the1Three' Mile Island accident. Even the Staff adknowle'dges that .:it1has not' yet completed its review of emergency fplanning considerations. It is well settled that new information

-and recent regulatory' developments do constitute " good cause" for '-

delay,-even though the issues conceivably could have been raised at

'an earlier time. Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear; Station).LBP 80-14, 11 NRC 570-(April 1980).

EvenLin the absence.of good cause'for late filing, the Licensing Board's decision"to admit FUA was well within the sound exercise of c

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'its. discretion. With respect to the first factor in 10 CFR 2.714(a), the Commission has previously concluded that a limited r,ppaarance statement, . which the Staff suggests would be a suitable means'for FUA to protect-its interest, is not an adequate substitute

-for participation as a party, with a party's attendant procedural rights. Nuclear Fuel' services, supra at 275. The other means suggested:by the staff, " bringing [FUA's] concerns to the NRC," or

" furnishing financial technical or legal assistance to the Intervenor" are similarly inadequate. Historically, the NRC has paid little attention to the expression of " concerns" by groups which are not parties to licensing proceedings. The assertion that FUA interests will be-protected by helping an intervenor who has made no contribution to the' proceeding and who has not raised the

~~same issues is absurd.- Unlike West Valley, no party to the Summer

. proceedings.has raised contentions "substantially identical" to those of FUA. Thus, FUA is not represented by existing parties and

'has no means, other than inteiver.cion, to protect its interest.

o The second factor in 2.714(a), the extent to which petitioner may reasonably-be expected to assist in developing a sound record, was obviously thefmost significant consideration in the Board's decision to admit FUA. Once again, unlike West Valley, the Suumer Licensing Board found that FUA had shown special expertise not possessed by.the existing intervenor. The Board concluded that FUA was likely to.make a subste. ial contribution to the proceedings.

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d-The second factor of 2.714 is the one which a Licensing Board has the greatest ability to assess. It is the Licensing Board and not the Appeal ~ Board, after all, which has the responsibility for the conduct of the licensing proceedings. It is the duty of the Licensing Board to develop a sound record upon which a rational and defensible-decision can be based. The record must contain sufficient evidence to support the findings required by the Atomic Energy Act and the Commission's regulations that the health and safety of the public will be' adequately protected when a nuclear plant'is licensed. For all these reasons the Licensing Board's judgment concerning an intervenor's contribution to the record should not be disturbed absent significant countervailing considerations.

Neither the Applicant nor the Staff have advanced reasons sufficient to warrant reversal of the Licensing Board's decision.

The Staff has complained about strained resources and an interrupted y

~1itigation game plan, yet concedes that the licensing proceedings are the best forum to litigate radiological health and safety issues. The Applicant is concerned that a " fresh" opponent will be allowed to' enter the ring.

.Both arguments miss the critical point. The licensing proceeding isinot'a game. Its purpose is to gather evidence with which to make a decision about licensing a nuclear power plant, a highly complicated and potentially dangerous piece of machinery.

The consequences of error in the decision may be severe. The Staff and. Applicant com! erns pale in comparison to the importance of the issues raised by FUA. The questions of the Applicant's cm,petence

to operate the facility and the effectiveness of emergency plans are central to.the Licensing Board's ultimate findings under the Atomic Energy Act. They are also matters which the Staff and Applicant are required.to. consider, even in the absence of an intervenor. The Lpresence of FUA.as a new intervenor does not alter this obligation 7or-render the proceeding unfair to the Applicant.

Finally, with respect to the factor of delay, the Licensing

-Board carefully circumscribed FUA's participation in order to avoid dela'y. It warned, as did the Commission in West Valley, that FUA had'to take the proceeding as it found it. Certainly the Licensing Board has sufficient authority to control the proceedings to avoid undue delay. Sec 10 CFR 2.757. Iloweve r , the mere fact that some delay.mayfoccur does not lessen the importance of a full consideration of the issues' raised by FUA to the record and to the decision of the Licensing Board.

.In cum, the Commission should examine the decision of the Licensing Board in the context of its earlier rulings on intervention and the requirencnts of 2.714(a). This examination will establish that the Licensing Board did not abuse its broad discretion in deciding to admit FUA tc the V.C. Summer licensing proceedings. The Licensing Board's decision should be affirmed.

Respectfully submitted, f.

., . Sierra Club Legal Defense Fund Karin P. Sheldon

1. ' 1424 K Street, N.W., Suite _600 j Washington, D.C. 20005 Counsel for South Carolina d[ (202) 347-1770' Chapter, Sierra Club T

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UNITED STATES OF N4 ERICA

[ - NUCLEAR REGULATORY COMMISSION

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In the Matter of )

) Docket No. 50-395-OL SOUTH CAROLINA ELECTRIC AND GAS COMPANY, --et al. )

C.. Summer Nuclear Station, ) June 15, 1981 6 '(Virgil Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Statement of South Carolina Chapter of the Sierra Club in Support of Intervention by Fairfield United Action" and " Request for Leave weretoserved File Statement in Support upon the following of_Fairfield United Action Appeal"first class postage prepaid, persons by United States mail,

.this- 2 117 day of July 1981.

6 Alan S. Rosenthal, Chairman' Dr. Frank F. Hooper Atomic Safety and Licensing School of Natural Resources Appeal Board Panel University of Michigan U.S. Nuclear Regulatory Com- Ann Arbor, MI 48109 mission (Washington, DC- 20555 Mr. Gustave A. Linenberger Member, Atomic Safety and Dr., John H. Buck, Member Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Com-Appeal Board Panel mission Washington, DC 20555 U.S. Nuclear Regulatory Com-l

. mission Chairman, Atomic Safety and Washington, DC 20555 Licensing Board Panel i  : Christine:N. Kohl, Member U.S. Nuclear Regulatory Com-Atomic Safety and Licensing

' mission Washington, DC 20555 Appeal Board Panel U.S.-Nuclear Regulatory Com-mission George Fischer, Esq.

Washington, DC 20555 Vice President and Group Executive South Carolina Electric & Gas

. Herbert Grossman, Esq. Company Chairman, - Atomic Safety and P.O. Box 764

' Licensing Board Panel Columbia, SC 29218 U.S. Nuclear 1 Regulatory Com-mission

' Washington, DC' 20555

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l Steven C. Goldberg, Esq. Richard P. Wilson, Esq.

Assistant Attorney General Of fice of the Executive Lc- South Carolina Attorney Cencral's gal Director U.S. Nuclear Pcgulatory Com- Office mission P.O. Box 11549 Washington, DC 20555 Columbia- SC 29211 Mr. Brett Allen Bursey Randolph R. Mahan

~ Route 1, Box 93-C South Carolina Electric & Gas

. Little Mountain, SC 29076 Company P.O. Box 764 Columbia, SC 29218 Mr. Chase R. Stephens Docketing and Service Section Office of.the Secretary Joseph B. Knotts, Jr.

U.S. Nuclear Regulatory Com- Debevoise & Liberman mission 1200 17th Street, N.W.

Washington, DC 20555 Washington, DC 20036 Chairman Nunzio J. Falladino Commissioner Peter Bradford U.S. Nuclear Regulatory . Com- U.S. Nuclear Regulatory Commission mission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Victor Gilensky Commissioner John F. Ahearne U.S. Nuclear Regulatory Commission U,.S. Nuclear Regulatory Com- Washington, D.C. 20555 mission Washington, D.C. 20555 4

dC. INT'C RC/ M lleather Noble Subscribed 'and sworn to before me this 2/ day of July, 1981.

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Notary Public hann S. Ammerman Notary Public District of Cclumbia My Commission Expires 11/30/83 i-