ML20028A816
| ML20028A816 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 11/23/1982 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8211290072 | |
| Download: ML20028A816 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COM4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of DETROIT EDISON COMPANY
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Docket No. 50-341 (Enrico Fermi Atomic Power Plant, Unit 2)
NRC STAFF RESPONSE TO THE MONROE COUNTY, MICHIGAN APPEAL OF THE DENIAL OF ITS UNTIMELY TETITION TO INTERVENE l
1 Colleen P. Woodhead Counsel for NRC Staff November 23, 1982 l
1 DESIG'i D CRIGINAL f
Certified By i
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8211290072 821123 i
PDR ADOCK 05000341 j
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COP 94ISSION.
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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DETROIT EDISON COMPANY h)I Docket No. 50-341 (Enrico Fermi Atomic Power Plant.
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Unit 2)
NRC STAFF RESPONSE TO THE MONROE COUNTY, MICHIGAN APPEAL OF THE DENIAL OF ITS UNTIMELY PETITION TO INTERVENE Colleen P. Woodhead Counsel for NRC Staff November 23, 1982 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY COPEISSION BEFORE THE ATOMIC SAFETY AND LICEMSING APPEAL BOARD In the Matter of DETt0IT EDISON COMPANY Docket No. 50-341 (Enrico Fermi Atomic Power Plant, Unit 2)
NRC STAFF RESPONSE TO THE MONROE COUNTY, MICHIGAN APPEAL OF THE DENIAL OF ITS UNTIMELY PETITION TO INTERVENE I.
INTRODUCTION By letter dated November 8,1982 addressed to the Atomic Safety and Licensing Board (Licensing Board) the Board of Comissioners of Monroe County, Michigan (County) gave notice of its appeal of the October 29, 1982 Licensing Board denial of the untimely petition to intervene filed by the County on August 27, lor 2.
The County's appeal lacks merit and should be denied.
II. BACKGROUND This proceeding began in 1978 upon the docketing of the Detroit Edison Company's (DECO or Applicant) application for an operating license for the Enrico Fermi Atomic Power Plant, Unit 2 (Fermi 2). At that time, notice of opportunity for hearing on the operating license was published in the Federal Register. Petitioner Citizens for Employment and Energy (CEE) was admitted as a party in 1979 and two of its contentions were admitted for adjudication.E On March 31-April 2,1982 an evidentiary 1]
Originally, eight CEE contentions were admitted. However, CEE withdrew five contentions at the July,1981 prehearing conference and one contention was summarily dismissed on motion pursuant to 10 CFR i 2.749.
.. hearing was held in Monroe, Michigan. The sole witness for CEE was a Monroe County Comissioner. The record was closed by Licensing Board Order of April 19, 1982. Proposed findings of fact and conclusions of law were submitted by Staff and Applicant in May,1982. No proposed
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findings were filed by CEE. On August 27, 1982 the Monroe County Board of Comissioners petitioned th( Licensing Board to reopen the record, allow the intervention by the County, and admit for litigation several issues concerning the County's emergency plan and facilities. On September 6, CEE filed a response in support of the County's petition and itself moved to reopen the record to admit for litigation two of the issues previously withdrawn by CEE. On October 29, 1981 the Licensing Board issued its Initial Decision (I.D.) concerning the litigated issues and denied the County's petition and CEE's motion. On November 8, 1982 CEE filed thirty-four exceptions to the Initial Decision with the Comission and, on the same date, the County filed its appeal of the denial of interventionE which includes a request for an extension of time to file exceptions to the Initial Decision. The County's appeal on the denial of intervention is now pending before the Appeal Board.
2f As noted above, the County inproperly filed the notice of appeal with the Licensing Board rather than the Appeal Board.
W III.
ISSUES PRESENTED The issues presented on appeal are:
(1) Whether the County's appeal of the ruling denying it inter-vention in this proceeding is procedurally adequate; and (2) Whether, in any event, the Licensing Board abused its discretion in ruling that the five factors of 10 CFR H 2.714 weigh against granting the County's untimely petition for leave to intervene.
IV. ARGUMENT A.
The County's Appeal is Precedurally Defective and Should Be Summarily Denied The Commission's Rules of Practice provide for appeal of Licensing Board decisions wholly denying petitions to intervene. 10 CFR 2.714a(b).
However, the rules require that the notice of appeal must be supported by an accompanying brief. 10CFRi2.714a(a). The County has not filed a brief in support of its appeal. However, in a letter to the Licensing Board it has listed several reasons why it believes it should be allowed to intervene, some of which are raised for the first time.E The letter elleges error in general by the Licensing Board but no specific references to the Board's decision are made nor are any supporting citations of legal authority for its arguments provided. Additionally the County submits several proposals for changes in the Comission's rules and practices and
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Letter, Atomic Safety and Licensing Boa d from Arden T. Westover.
Sr., November 8,1982.
_. _ _ _ _ requests an extension of time to file " exceptions" to the Initial Decision. The County has never been a party to the proceeding which led to the Initial Decision and, accordingly, it has no right to file excep-tions to that decision. 10 CFR l 2.762.
Failure to file a brief along with the notice of appeal of a denial of a petition to intervene has previously been held to preclude consideration of the appeal and resulted in dismissal. Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2) ALAB-140, 6 AEC 575 (1973). The Appeal Board has pointed out the difficulty in countering assertions for which no clarifying reasons and supporting authorities or evidence is provided. Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC 43, 49-50 (1981).O Without some citation of a particular finding by the Licensing Board which is alleged to be error or to be contrary to the Commission's Rules of Practice, the County's petition is a mere argument that it should be granted intervention regardless of the facts and applicable law.
Failure to provide a procedural history of the case related to the issue on appeal has also been held as grounds for n'ismissal. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-388, 5 NRC 640 (1977). The Appeal Board has also stated that it will not consider new assertions not raised before the Licensing Board.
Houston Power and Light Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980); Salem, supra, at 49.
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Although the Appeal Board's admonition in Salem was made in the context of the briefing necessary in support of exceptions to an I
initial decision, the same need for a full explanation and supporting authorities exists in appeal of rulings on intervention.
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The County's appeal papers exhibit all of these defects. Because of these defects, it is the Staff's view that the County's appeal of the Licensing Board's ruling on intervention should be dismissed for failure tocomplywiththerequirementsof10CFR$2.714a(a).
B.
The Licensing Board's Decision Did Not Constitute An Abuse of Discretion In the event that the Appeal Board does consider the merits of the County's appeal, the Licensing Board's decision should be affirmed.
Under the Comission's Rules of Practice, an untimely petition to intervene will not be entertained unless, upon a balancing of the five factorsin10CFRl2.714(a)(1),E the Licensing Board finds that a shcwing by the petitioner has been made which weighs in favor of admission.
It is well settled that failure to show good cause for late intervention places a heavy burden on the petitioner to justify the late filing based on the other four factors. Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431 6 NRC 460, 462 (1977) and casescitedtherein.N y
The five factors set out in 10 CFR $ 2.714(a)(1) are (i)Goodcause,ifany,forfailuretofileontime.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii)Theextenttowhichthepetitioner'sparticipationmay i
reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petiitoner's interest will be represented by existing parties.
(v)Theextenttowhichthepetitioner'sparticipationwill broaden the issues or delay the proceeding.
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Where, as here, the petition to intervene is several years late.
that burden is " enormously heavy." Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 & 2),
ALAB-559,707RC 162,172 (1979).
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_. _ _ The appellate review of the Licensing Board's application of the five factors' is governed by the " abuse of discretion" standard, even though this standard does not foreclose close scrutiny of the facts and law contained in the licensing board's conclusions. South Carolina Electric and Gas Company (Virgil C. Sumer Nuclear Station, Unit 1),
ALAB-642,13NRC881,885(1981) and cases cited therein.
The Licensing Board denied the County's untimely petition because of the County's failure to support its admission on all except factor four. (I.D. 1 78). The Licensing Board set out in some detail the many items of documentary evidence in the record which show that the County was 1
inexcusably late with its petition, and which contradict the County's assertion that it has only recently discovered defects in its emergency plan, which was developed by County officials in 1980-81, was submitted to FEMA in 1981, and was tested in a full-scale exercise in early February 1982 (I.D.167). Added to these facts is the participation of a County Commissioner in the adjudicatory proceeding as a member of and witness for CEE since 1979 and the attendance by other County officials at the hearing where they made limited appearance statenents. The facts of 4
record give ample support to the Licensing Board's conclusion that the County has not shown good cause for such an extremely late petition to intervene, filed four years after notice of opportunity to intervene and five months after hearing. Nothing in the County's appeal papers casts doubt on the validity of the Licensing Board's finding that there is no good cause for the extremely late petition to intervene.
Having failed to show good cause for its tardiness, the County is constrained to make a very strong showing on the remaining four factors, i
according to the precepts in Perkins, supra. Yet, as pointed out by the 4
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___._ Licensing Board, the County merely made unsupported assertions concerning the other factors so that only factor (iv), lack of representa, tion of its interest by another party, could be found to weigh intheCounty'sfavor(I.D. 11 73, 74, 75, 77), whereas the fifth factor, weighed heavily against admission of the County and the many new issues it wished to raise concerning the County's emergency plan.
(I.D.1176, 77). Thus, the Licenisng Board's review of the circumstances of this proceeding and the County's lack of any justification for its untimely petition to raise entirely new issues shows clearly that a balancing of the five factors weighs heavily against reopening the record in this proceeding to allow the County's intervention.
In its appeal, the County has basically ignored the five factors for late intervention which must be applied and balanced in determining whether to admit the County. In so doing, the County has wholly failed to show that the Licensing Board abused its discretion in denying the petition to intervene.
The Licensing Board's decision was a sound one and should be affirmed.
i V.
CONCLUSION For the foregoing reasons, the Appeal Board should deny the appeal of the Monroe County Board of Commissioners for the County's failure to prosecute its appeal in the manner required by 10 CFR i 2.714a and Com-mission caselaw.
If the appeal of the denial of intervention is considered on its merits, the decision of the Licensing Board should be affirwed.
Res ectfully submitted,
(
Colleen P. Woodhead Counsel for NRC Staff i
Dated at Bethesda, Maryland i
this 23rd day of November, 1982 i
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UNITED STATES OF AMERICA NUCLEAR %GULATORY C0tEISSION BEFORE THE AT0 HIC SAFETY AND LICENSittG APPEAL BOARD In the Matter of DETROIT EDISON COMPANY Docket No. 50-341 l'
(Enrico Fermi Atomic Power ~ Plant, Unit 2)
CERTIFI'CATE OF SERVICL '
I hereby certify that copies of "NRC STAFF RESPONSE TO THE MONROE COUNTY, MICHIGAN APPEAL OF THE DENIAL OF ITS UNTIMELY PETITION TO INTERVENE" in the above-captioned proceeding hav'e been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system this 23rd day of Novemt,er,1982:
- Stephen F. Eilperin, Chairman Dr. David Schink Administrative Judge Adninistrative Judge Atomic Safety and Licensing Appeal Board Department.of Oceanography U.S. Nuclear Regulatory Comission Texas A & M University Washington, DC 20555 College Station. TX 77840
- Thomas S. Moore Harry Voigt, Esq.
Administrative Judge LeBoeuf Lamb, Leiby & MacRae Atomic Safety and Licensing Appeal Board 1333 ' Jew Hampshire Ave.nue, NW U.S. Nuclear Regu7at.ory Comission Suite 1100 Washington, DC 20555 Washington, DC 20036
- Dr. Reginald L. Gotchy Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, DC 20555 John Minock, Esq.
305 Mapleridge
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Gary L. Hilhollin, Chairman Ann Arbor, MI 48103 Administrative Judge 4412 Greenwich Parkway, NW Peter A'. Marquardt, Esq.
Washington, DC 20007 The Detroit Edison Company 2000 Second Avenue
- Dr. Peter A. Morris Detroit, MI 48226 Administrative Judge Atomic Safety and Licensing Board Arden T. Westover, Sr.
U.S. Nuclear Regulatory Comission Paul E. Braun11ch, Legal Advisor Washington, DC 20555 Board of Comissioners Monroe County, Michigan 19 East First Street-Monroe, MI 48161,
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- Atomic Safety and Licensing B6ard Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555
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N LI Colleen P. Woodhead Counsel for NRC Staff
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