ML20031B340
| ML20031B340 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 09/22/1981 |
| From: | Guild R FAIRFIELD UNITED ACTION, GUILD, R. |
| To: | U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT |
| Shared Package | |
| ML20031B338 | List: |
| References | |
| ALAB-642, NUDOCS 8110010246 | |
| Download: ML20031B340 (5) | |
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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT e
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FAIRFIELD UNITED ACTION,
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Petitioner,
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No.
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NUCLEAR REGULATORY COMMISSION, )
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Respondenc.
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PETITION FOR REVIEW Fairfield United Action hereby petitions the Court for review of the decision of the Respondent Nuclear Regulatory Comission denying its Petition to Intervene in the nuclear power plant operating license proceeding entitled SOUTH CAROLINA ELECTRIC AND GAS COMPANY, ET AL. (Virgil C. Sumer Nuclear ~>tation, Unit 1), Docbc No. 50-395 OL.
die decisioa ef f ae Atomic Safety and Licensing Appeal Board, ALAB-642, i
June 1,1981, reversing the April 30, 1981, order of the Atomic Safety and Licensing Board, which hst. gran're?. Fair-f$ eld United Action's Petition in part is attached hereto as Exhibit A.
This decision became final agency action on July 29,1981, wb2n the comission declined to grant review. The letter notice from the decretary of the Comission dated July 31, 1981, is attached hereto as Exhibit B.
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8110010246 810922 PDR ADOCK 05000395 0
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a Pursuant to 28 U.S.C. Section 2344 Petitioner states ac follows:
- 1) Fairfield United Action is a not-for-profit mem-bership organization of persons residing and working in Fair-field County, South Carolina in close proximity to the Virgil C. Summer Nuclear Station, Unit 1, which is the subject of an operating license application by South Carolina Electric and G.:,s Company, et al. to the Respondent Nuclear Regulatory Com-mission as required by the Atomic Energy Act of 1954. The Licensing Board which was convened to conduct hearings on this application granted FairO*.ld United Action's late interven-tion request wi*.h respect to important emergency planning and management capability issues which had been the subject of significant revisions in commission policy in light of the Three Mile Island accident which occured af ter the original intervention deadline in the proceeding had passed. The orde.r granting this intervention was reversed on appeals : by the Applicant and Commission Staff. By a vote of 2 to 2 the Com-mission itself declined to e: ercise review of the Appeal Beard decision. The operating license application remains pending before the Liecasing Board.
2)
The Court's jurisdiction in tnis matter is pro-vided for in 28 U.S.C. Section 2342 and 42 U.S.C. Section 2239.
Venue in this Court is expressly provided for in 28 U.S.C.
Section 2343.
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Relief is sought on the grounds that the Respon-dent Commission's action in denying tha Pati. Loner's request to intervene violatc, the Administrative Procedure Act, the Atomic Esergy Act and the United States Constitution.
4)
Petitioner seeks for relief on order of th!.s Court remanding this matter to the Respondent Nuclear Regula-tory Commission with directions to admit Petitioner to this opeuting license proceeding and to permit Petitioner a full opportunity to be heard in support of its interest in this mat-ter.
Petitioner further regre,ts that the Nuclear Regulatory Commission be directed to refrain from granting the operating license sought by the Applicants until sue.h time as Petitioner has been provided such as opportunity to be heard.
September k 981.
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VW Robert Guild 314 Pall Hall Columbia, S.C. 29201 (803) 252-0929 Attorney for the Petitioner i
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e UNITED STATES COURT OF APPEAL FOR THE DISTRICT OF COLUM",IA CIRCUIT FAIRFIELD UNITED ACTION,
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Petitioner,
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v.
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No.
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NUCLEAR REGULATORY COMMISSION, )
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Respondent.
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CERTIFICATE OF SERVICE I hereby certify that copies of the attached " Peti-tica for Review" were served upon the following persons by deposit in the United States mail, first class postage pre-paid, this 23rd day of September, 1981.
l Chase R. Stephens, Chief Steven C. Goldberg, Esq.
Docketing and Service Section Office of the Executive Office of the Secretary Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 l
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Herbert Grossman, En.q.
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Chairman, Atomic Safety and Richard P. Wilson, Esq.
Licensing Board Panel Assistant Attorney General U.S. Nulesar Regulatory Commission South Carolina Attorney Washington, D.C. 20555 cm eral's office Post Office Box 11529 Alan S. Rosenthal, Chairman Columbia, S.C. 2'9211 Atomic Safety and Licensing l
Appeal Board Panel Mr. Brett Allen Bursey U.S. Nuclear Regulatory Commission Rout.e 1, Box 93-C Washington, r,C. 20555 Little Mountain, S.C. 29067 l
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_2 George Fischer, Esq.
Vice President and Group Exe.utive-Legal South Carolina Electric and Gas Company Post Offeie Box 764 Cvlumbia, S.C. 29218 Joseph B. Knotts, Jr. Esq.
Debevoise and Liberman 120017th Street, NW Washia.gton, D.C. 20036 3
N Jy Robert Guild
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IU1ATED CORRES19NDENN UNITED STATES OE' AME3YCA NUCLEAR REGULATORY COMMISSION 4
ATOMIC SAFETY AND LICENSING APPEAL BOARD 1
Docg Administrative Judges, USimm SEP2 8198gl. {8 Alan S. Rosenthal, Chairman DMee d ce {tg g Dr. John H. Buck Do g g3 e
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Christine N. Kohl
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In the Matter of
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SOUTH CAROLINA ELECTRIC AND GAS
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Docket No. 50-395 OL COMPANY ET AL.
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(Virgil C. Summer Nuclear Station,
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Unit 1)
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Mr. Joseph B. Knotts, Jr., Washington, D.
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for the appellants South Carolina Electric and Gas Company y
et al.
Mr. Steven C. Goldberg for the appellant Nuclear Reg-ulatory Commission staff.
Dr. John C. Ruoff, Jenkinsville, South Carolina, and Mr. Robert Guild, Columbia, South Carolina, for the appellee Fairfield United Actior.,
DECISION June 1, 1981 (ALAB-642)
This operating license proceediag involves Unit 1 of.the Summer nuclear facility, located in Fairfield CoOnty, South Carolina.
It was instituted more than four years ago by the publication of a notice of opportunity for hearing.
42 hd_. Reg. 20203 (April 10, 1977).
In response to that notice, one intervention petition and e
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-3 of both the applicants and the staff,1/ on April 30 the Board granted the FUA pet.iti.
and accepted 10 of its 27 contentions for lif.igation.
LLP-81-11, 13 NRC Dissatisfied with that result, those parties have appealed under 10 CFR 2.714a.
FUA urges af-firmance.1!
I.
No one disputes that, as the Licensing Board determined, FDA has satisfactorily demonstrated the requisite standing to inter-On that score, its petition is supported by the affidavits vene.
of several of ;ts members containing averments that they (1) reside, work and engage in outdoor recreational activities in the vicinity of the Summer site; and (2) have authorized FUA to represent their interests through participt. tion in this proceeding.
That is plainly sufficient to satisfy the interest requirements of 10 CFR l/
Neither Mr. Bursey nor South Carolina took a position on the controversy.
3/
No appeal has been, or could be, prosecuted by FUA from This is be-the rejection of the remaining 17 contentions.
cause the Commission's Rules of Practice "do not permit a per-i son to take an inte -locutory appeal from an order entered on his intervention petition unless that order has the effect of denying the petition in its entirety".
Houston Lightir.g and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-585, 11 NRC 4f9, 470 (1980), and authorities there cited.
At the conclusion of its brief in support of the grant of in-tervention, FUA requested oral argument.
Such requests are addressed to the discretion of this Board and will be granted 10 CFR only if at least one member votes in favor of it.
In this 2.763; Appendix A to 10 CFR Part 2, Section IX (e).
the Board unanimously concluded that the part.ies'
- instance, positions on the issues presented by the appeals have been adequately developed in the briefs and that oral argument would not be helpful.
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status to the organization.
M. at (slip opinion, p. 13).
FUA 1
was cautioned, however, that it m:su "take the proceeding as it cur-rently stands * * *".
M. at (slip opinion, p. 4).
It is well-settled that the appellate review of licenring i
board application of the five factors is governed by the " abuse of discreti on" standard.
- See, e.g., Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 5 NRC 8, 13 (1977) ; Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354 ;' 4 NRC 383, 389, 390 (1976), and cases there cited.
But it is equally clear that this standard does not foreclose our close scrutiny of the f actual and legal in-gredients of the analysis underlying the board's ultimate conclu-sion.
ALAB-420, supra; ALAB-354, supra; Metropeditan Edison Co.
(Three. Mile Island Nuclear Station, UU : 2), ALAB-384, 5 NRC 612 -
(1977).
And we think that Ehe obligation to undertake such an ex-amination is particularly apparent in the circumstances of gis ca: e.
As will be discussed in greater detail infra, the Licensing Board did not find that FUA was warranted in waiting until March 1981 before seeking to intervene.
As also will be seen, our own appraisal of the record confirms that FUA's tardiness wa mani-festly unjustified.
This being so, the validity of the grant of
_7-as financial qualifications (Nos. 3 und 4); seismicity (Nos. 5 and 6); sterm generatcr tube integrity (No. 14 ) ; quality control (No.
15); diesel generato; reliability (No. 16) ; cic.s 9 accidents (No.
17); anticipated transients without scram (No. 18); license condi-tion implementation (No. IS); storage and transportation of spent (Nos 20-22); health effects of radiation releases during fuel normal plant operation and as a result of the uranium fuel cycle (No. 23) ; systems interactions (No. 24) ; contro*A room design (No.
25); and hydrogen control (No. 2 6 ).
In its decision, the Licensing Board summarized the vari-A.
ety of reasons assigned by FUA for the failure to have sought in-LBP-81-ll, suora, tervention on any issue at a much earlier date.
13 NRC at islip opinion, pp. 2-3).
In large measure, those reasons were found inrmbstantial.
Id. at (slip opinion, pp.
4-5)..Nevertheless, the Board concluded that, in light of the revisions made in the Commission,'s criteria for emergency planning following'the Three Mile Island accident, FUA had good cause to wait until the middle or latter part of 1980 before filing its contentions on that subject.
" [B]ecause of the Commission's focus on management capability in the post-TMI era", the Board reached a similar conclusion with regard to "the delay in filing the manage-Id. at (slip opinion, pp. 5-6).
ment capability contantions".
t The Board below nevertheless found the " good cause" factor B.
"to be of alm st no weight (or of slight waight against petitioner) in deciding upon the intervention with regard to the corporate man-agement and emergency planning issues".
13 NRC at (slip opin-f ion, p.
7).
Central to this finding was the Board's articulated belief that no other party to the proceeding had been disadvantaged t
and that by the filing in March (rather than considerably earlier) l I_d at d
the pnaress of the proceeding would not be delayed.
(slip cpinion, pp. 6-7). E/
It seems manifest We disagree with the Board on both scores.
to us that %e introduction of FUA and its accepted contentions It is not entirely clear from an earlier statement in ihc 5/
Board's discussion on this point whether the Icard might have thought that these considerations bear upon the exist-ence of good cause for the tardy filing in March, as op-posed to the possible significance of the absence of auch We have specifically in mind the observation v. hat cause.
"[h]ad that added delay in filing disadvantaged any parties other than petitioner itself (by circumscribing its pre-hearing cctivities), or delayed the proceedings, we might find a lack of good cause".
13 NRC at (slip opinion, pp. 6-7).
Obviously, whether there is " good cause" for a lata. filing depends wholly upor the substantiality of the rencons as-M r their signed for not havc.ng filed at an earlier date.
the consequences of the tardiness are to be looked
- part, at in connection with the other factors (most particularly the fifth one, dealing with delay and the broadening of We shall assume that the Licensing Board 4
the issues).
recognized this consideration and that its finding quoted in the text was intended to mean only that the " good cause" factor did not weigh heavily against FUA in the overall assessment of the delinquent petition.
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1.
Had FUA sought and obtained intervention la a more timely fashion, the applicant and the staff could have instituted dis-covery against it wit!. oat jeopardizing the present commencement date for the evidentiary hearing.
The Licensing Board acknowl-
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edged that f act but went on to express the opinion that " discovery world not have benefitted them on the issues we are admitting".
This is said to be so because FUA "has made full disclosure in its supplemental petition of the bases for its contentions, including the names or officer of its potential witnesses to the extent we are admitting its cor.tentions, for the Board will not allow Gdi-tional witnesses".
13 NRC (slip opinion, pp. 3-9).
ihe principal difficulty with that line of reasoning is that Parties it ascribes too limited a role to the discovery piccess.
to a proceeding are entitled to obtain in advance of hearing much more than simply n summary statement of the bases for their ad-versaries' claims and some identificat or of potential witnesses whose testimony might support those clasms.
Rather, as we had re-cent occasion to stress, "(iln modern administrative and legal practice, pretrial discovery is liberally granted to enable the parties to ascertain the f acts 'in complex litigation, refine the issues, and prepare adequately for a nore expeditious hearing or trial".
Pennsylvania Power and Light Co. (Susquehanna Ster.m Elec-tric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322 (1980),
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2.
Equally unpersuasive is the Licensing Board's treatment of the impact of the tardy intervention upon the ability of the opplicants and the staff to seek summary disposition of one or more of FUA's admitted contentions.
The Board opined that neither the corporate management nor the en.ergency planning issues are now ausceptible of summary disposition.
13 NRC at (slip opinion,
- p. 9). 'By that, the Board presurrably meant that a trial coulo not be entirely avoided on those issues.
But it scarcely follows that none of the specifa.c claims set forth in FUA's numerous contentions we W.d be disposable summarily -- in part if not in whole. 8_/
- Thus, by countenancing FUA's intervention at such a late date that pre-trial resort both to discovery and to summary dirposition proce-dures became practical impossf_bilities, the Board has created the substantial danger that hearing time will be unnecessarily expended nd, thus, wasted.
3.
The Licensing Board reasoned that, because "the corporate management and emergency planning issues had already been edmitted I
to the proceeding (by Board question or intervenor (i.e., Bursey]
contention)", the issues would not be broadened by FUA's admission I
13 NRC at (slip opinion, to the proceeding on those subjects.
p.
- 8).
We cannot egree.
Only one of Mr. Bursey's contentions even remotely brings in-in contention to question the applicants' managerial capabilities:
_8f Some of those specific claims are summarized infra, pp.14-15.
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. Insof ar as emergency planning is concerned, Mr. Bursey's single contention in that area (A8) focused upon the applicants' osserted lack of adequate preparations for "the implementation of
[its] emergency plan in those areas where the assistance and co-operation of state and local agencies are required".
Our exam-ination of the record does not disclose -that the Board nas under-taken on its own to raise additional emergency planning issues.
- Thus, Yet the FUA contentions manifestly have done }decisely that.
it is cic_.2d in varior', subparts of contention 7 that, among other the applicants' plan does not meet minimum staffing require-
- things, ments; that realistic estimatus of evacuation times have not been developed; that adequate means have not been provided fcr the pro-
- those without access to motor vehicles; that no provi-tection i sions have been made for the distribution and use of "radioprotec-that on-site emergency first aid capability is inade-tive" drugs; and that the applicants' meteorological monitoring equipatnt quate; The other FUA emergency planning does not satisfy NRC requirements.
contentions (8 through 13) likewise contain assertions which broaden significantly what Bursey contention A8 called upon the applicants and the staff to confront in their prefiled testimony and at the hearing.
The Licensing Board undoubtedly was aware of the expansive reach of the FUA contentions, It is a fair inference, therefore,
e of any inte. tion of intervening in this proceeding, through their participation in rate-making proceedings and in the ongoing emer-wncy planning".
13 NRC at (slip opinion, p.10).
In addition, while acknowledging that it "perhaps" did not constitute grounds for allowing FUA intervention, the Board re-corded its conviction that it.. Bursey was incapable of making a significant contribution to the development of the record.
The Board pointed to that intervenor's manifested " inability to effec-tively manage his case and suggested that it could not count on d
assister.ce from him in thi resolution of the corporate menagement question that it had raised (although " valuable assistance" on that 13 NRC at (slip question was to be expected of the staff).
opinion, pp. 10-11).
As we see it, the Board's perception of,tr.
Bursity's abili-ties and his likely cientribution to the proceeding could iiot *0ossi-bly serve as justification for allowing FUA to come into the pro-ceeding at the last moment.
It is often the case that one or another of the parties
- , a proceeding will give the presiding board legitimate cause to question its ability to make an effec-When confronted tive presentation on the issues in controversy.
with such a situation, the-board may well have to take a more ac-tive role in the proceeding itself.
For example, it may find it necessary to undertake its o.m interrogation of the witnesses.b!
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See 10 CFR 2.718(g).
See also, Consumers Power Co. (Midland Units 1 and*2), ALAB-283, 2 NRC 11, 20 (1975), where
- Plant, "the Board made a determined effort to insure that the issues were thoroughly explore'd".
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which involved the lead applicant (South Carolina Electric' and Gas Company).
" (T]hrough that proceeding", it is averred, he "became educated and informed about the organization, manage-ment and operation of the Applicant and the design, construction, and plans for the operation" of the Summer facility.
- Further, his participation in the programs of FUA over the past year has enabled him to "become educated on the subject of the design and operation of nuclear power plants and the probable effects of (Summer) operation".
2.
At the April 7-8, 1981 prehearing conference which, inter alia, addressed the FUA petition, Dr. Ruoff told the Licensing Board that he did not have an available witness to support the man-agement capability contentions in that petition (Tr. 467).
- Instead, it is his apparent intention to restrict himself to the cross-oxacination of appif. cant (and possibly staff) witnesses (Tr. 477, 479, 482, 657-55).
And, as previously noted (p. 11, supra), in its April 30 order the Board made it plain that FUA will not be permitted to add witnesses at this point.
Without f ar more particularization of his experience and knowledge than is set forth in his affidavit or was provided at the April 7-8 conferenco we are unable to discern any basis for concluding that Dr. Ruofi 3 participation as a cross-examiner is imperative to the development of a comprehensive record on the
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'.. to pursue any relevant lines of inquiry as might be Dr. Ruoff on the basis of his participation in a single rate proceeding and less than one year's association with a community-based organization.
3.
FUA does propose to present one or more witnesses in sup-port of its emergency p'i.anning contentions.
At the April 7-8 pre-l hearing conference, Dr. Ruoff made specific reference to Dr. Janet Greenhut and Marlene Bowers Andrews (Tr. 592-96).
Dr. Greenhut is a physician and FUA member.
Dr. Ruoff informed the Board that, i
because he had not been able to obtain "as yet" an expert on radio-l He noted that logical health, he might call upon her to testif,y.
"Dr. Greenhut has done some research into that area with some medical literature" (Tr. 596).
Ms. Andrews was described by Dr.
Ruoff as "an expert in psychology who has been doing work on nu-clear emergencies, radiological emergencies" (Tr. 595).
She was I
said to have agreed to appear as a FUA witness (ibid. )'.
(
i Apart from those named individuals, Dr. Ruoff expressed an interest in calling "the emergency preparedness people from the four county area, the four counties within the plume exposure pathway, emargency planning zone' (Tr. 59 3).
He conceded, how-t I
ever, that he had not obtained a commitment from any such persons to testify on FUA's behalf (ibid.).
He also reaffirmed the asser-tion in the FUA petition (as part of the basis for contention 7) that FUA has members (including himself) who possess " unique" i
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We have no quarrel with the Licensing Board's conclu-sions respec. ting the remaining two factors.15,/
13 NRC at (slip opinion, pp. 11-12).
Given the -Board's appraisal of the manner in which Mr. Bursey is carrying forward his own intervention, there is little reason to suppose that he would adequately rep-resent FUA's interest.
Moreover, once again, the FUA and Bursey
' claims differ in significanc measure.
And while the applicants and the staff point out that FUA merbers might choose to make lim-l ited appearance statements, we are not persuaded that, in the cir cumstances of this case, their interest would be fully protected by such restricted participation in the proceeding.
Nor do we i
l perceive other means which might serve that purpose. -
But, as the Licensing Board itself correctly observed, those t
i factors "are given relatively lesser weight than the other factors".
13 NRC at (slip opinion, p. 11).
Indeed, it is most difficult 14 /
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the Licensing Board directed that those employees be made
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available at the hearing for FUA examination.
We do not l
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deem them to be FUA witnesses and, further fir.i no basis e
for conjectura on how fruitful FUA's examination of them night prove te be.
In the same order (at pp. 9-11), the Board ruled that FUA also would be permitted to cross-examine on the issues raised by Mr. Bu::say's contentions -- which encompass sev-eral subjects (e.g.,
seismicity) apart from corporate man-agement and emergency planning.
There is an equal lack of basis for an informed prediction respecting the utility of i
FUA's exercise of that privilege.
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I.e., the availability of other means whereby the petitioner can protect its interest and the extent to which other par-ties will represent that interest.
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It does not follow from FUA's exclusion from the proceeding that its concerns perforce will be ignored in the licensing of Insofar as they overlap either matters placed in this reactor.
controversy by Mr. Bursey or issues raised by the Board sua sponte (see 10 CFR 2.760a), it will be the Board's responsibility to re-To the extent that quire their adequate evidentiary exploration.
they go beyond the bounds of the hearing as fixed prior to the belated FUA intervention attempt, under the long-prevailing reg-ulatory scheme these concerns fall within the province of the staff.
In all events, an operating license may not issue unless and until this agency makes the findings specified in 10 CFR 50.57 -- in-cluding the ultimate finding that such issuance "will not be As to inimical to * *
- the hs \\th and safety of the public".
those aspects of reactor operation not considered in an adjudica-tory proceeding (if one is conductedl6/), it is the staff's duty to insure the existence of an adequate basis for each of the req-uisite Section 50.57 determinatic~.
Insofar as it granted the intervention petiticn of Fai; field United Action, the April 30, 1981 order of the Licensing Board, On the opera ting license level, a hearing is required only 16/
in response to a successful petition for leave to intervene.
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and request therefor.
Section 189a. of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239 (a).
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None of the reasons FUA offered for the delay -- set forth by the Licensing Board,13 NRC at
_ (slip opinion, pp. 2-3) -- proves persuasive.
Indeed, its inaction is inconsistent with its pro-fessed concern about this plant and this procceding.
2.
One means does exist, however, by which FUA can contrib-The ute to this proceeding without being afforded party status.
organization can furnish financial, technical, legal, or other Vircinia assistance to the sole existing intervenor, Mr. Bursey.
Electric and Power Co. (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 399 (1975).
This, of course, provides no fully satisfactory substitute for direct participation (see p. 23, supra).
But if FUA is sincere in its interest -- and there is no reason to doubt that it is -- it will grasp this opportunity enthusiast!-
cally. S I note in this connection that FUA's counsel, Mr. Guild 2/
(see fn.12, 'e era), at one time was to have appeared in
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.g this proceedit., as a witness for Mr. Bursey on his Con-(May 13, 19 81, Order at pp. 3, 11-12).
- Thus, tention A2 there is an octensible connection between FUA and the intervenor that would facilitate an offer (and accept-ance) of assistance from the former.
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