ML20038A432
| ML20038A432 | |
| Person / Time | |
|---|---|
| Issue date: | 10/20/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-IR, TASK-SE SECY-A-80-158, NUDOCS 8110300084 | |
| Download: ML20038A432 (10) | |
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s) i UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 INFORMATION REPORT SECY-A-80-158 October 20, 1980 ADJUDICATORY _
For:
The Commissioners James A. Fitzgerald
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From:
Assistant General Counsel REVIEW OF ALAB-615
Subject:
(In the Matter of Duke Power Company)
Perkins Nuclear Station, Units 1, 2, and.3 Facility:
To inform the Commission of an Appeal Board
Purpose:
decision, review of which has_ not been sought, gndwhich, in our opinion, 9
D'.C Review Time Expires:
October 31, 1980, as extended.
ALAB-615 affirms the Licensing Board Order of Discussion:
August 14, 1980 denying Mr. David Springer's petition for leave to intervene in this construc-tion permit proceeding involving the preposed Perkins Nuclear facility.
Since the notice of this proceeding was published on July 19, 197h,-
the Licensing Board has issued several partial the last cf which was rendered initial decisions,60.
on February 22, 19 Almost two months later, on April 15, 1980, David Springer filed a petitlen with the Licensing Board in which'he sought leave to intervene in the proceeding. */
(See ALAS-591, R'j ALAB-597 for a more complete account of what has fl
( I,~, y transpired since the issuance of the February, 1980 decision.)
After much administrative volley-in6, the Licensing Board finally, on August Ib, 1980, denied Mr. Springer's petition as being "out h h3 k of time in.the extreme with no effort en the peti-tiener's part to address the criteria recuired by 10 CPR $2.714 for a late filed petition."
(p. 7 of August 14, 1980 order.)
On September h, 1980, Mr. Springer appealed that order.
An earlier petition to intervene was filed by Mr. Springer in
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April 1977 (more than two and one-half years after the deadline U
specified in the notice of hearing.)
-C information in this recud vn3 b.uJ in accordance with the Fpom of in!cl I
CONTACT:
Martha A. Torgew, 000
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The Appeal Board affirmed the Licensing Board's denial of Mr. Springer's intervention petition after agreeing that the petiticner made no effort even to address the 10 CFR 2.71b(a) factors l
which nust be weighed in passing on a late petition.
The intervention petition and its supporting documents asserted only that (1) the February 22, 1980 decision was based on an allegedly deliberate misrepresentation by the NRC staff as to the positien of the State of North Carolina, and (2) that all the material facts were not presented to the Licensing Board.
The Appeal Board stated that the inter-vention petition "was patently deficient and, as such, a fit candidate for denial."
It-further found nothing in the appellate papers to induce it to overlook the deficient interven--
tion petition, because those papers also did not address any of the section 2.714(a) factors.
In denying Mr. Springer's appeal, the Appeal Board did no e that the other intervencrs in the proceeding have filed a total of 102 excep -
tions to the February 22, 1980 partial initial decision, which exceptiens are far-reaching in scope and cover all of the matters which the Springer petition would raise.
$1 Reconnendation:
[(
Jam s A.
zj; rald Assistant General Counsel
Attachment:
ALAB-615 DISTRIBUTION Comissioners Comission Staff Offices Secretariat
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ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S.
Rosenthal, Chairman Dr. John H. Buck Thomas S. Moore
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In the Matter of
)
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DUKE POWER COMPANY
) Docket Nos. STN 50-488
)
50-489 (Perkins Nuclear Station, Units 1,
)
50-490 2 and 3)
)
)
)
Mr. David Springer, Mocksville, North Carolina, appellant pro se.
Mr. J.
Michael McGarry, III, Wachington, D.C.,
for the applicant, Duke Power Company.
Mr. Charles A. Barth for the Nuclear Regulatory Cor mission staff.
DECISION September 29, 1980 (ALAB-615)
This construction permit proceeding involving the proposed Perkins nuclear facility was instituted by a notice of hearing published on July 19, 1974.
During the d
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the Licensing Board has issued several partial i
ensuing years, initial decisions.
See LBP-78-25, 8 NRC 87 (1978); LBP-78-34, 8 NRC 47 0 (1978); LBP-80-9, 11 NRC 310 (1980).
In the last of these decisions, rendered on February 22, 1980, the Board be-low determined that there was no alternate site "obviously superior" to that chosen by the applicant for the location of I/
the Perkins facility.
What transpired in the wake of the
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issuance of that decision is amply developed in ALAB-597, 11 NRC 870 (1960) and need not be detailed here.
Suf fice it for present purposes to note that on April 15, 1980 -- almost two months af ter the decision was handed down --
David Springer filed a' petition with the Licensing Board in which he sought leave to intervene in the proceeding (as well 2/
as certain allied relief).
Upon being expressly authorized
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The reasons why this question remained open at that late date were explained at the outset of the decision.
11 NRC at 311-12.
This was the second occasion on which Mr. Springer (who 2/
assertedly owns property on the Yadkin River in the vicinity
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of the Perkins site) had attempted to enter the proceeding.
intervention petition -- filed in April 1977 (more His first than two and one-half years after the deadline specified in the notice of. hearing) -- had been denied below as untimely.
-On his appeal, we had affirmed that denial.
ALAB-431, 6 NRC 460 (1977).
At about the same time, we dismissed an appeal taken by Mr. Springer (as a nonparty) from the denial below of his motion to dismiss the proceeding.
ALAB-433, 6 NRC 469 (1977).
by us to do so,--3/ the Licensing Board proceeded to determine 4/
whether the petition should be granted despite its untimeliness.
In an order entered on August 14, 1980, the petition was denied.
Among other things, the Board pointed out (order, p. 7) that "the petition [was) out of time in the extreme with no ef-fort on the petitioner's part to address" the f actors which, by 5/
virtue of 10 CFR 2.714(a),
must be weighed in passing upon
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Springer new appeals from that order.~-
a late petition.
Mr.
A.
Not long ago, we took the " occasion to stress anew the imperative necessity that all participants in NRC adjudicatory proceedings -- whether lawyers or laymen representing themselves or organizations to which they belong -- familiarize themselves at the outset with" the Commission's Rules of Practice.
Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, 3/
ALAB-5 9 7, supra, 11 NRC at 872.
staff had raised a question respecting the Board's t
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The authority to act upon the petition in light of the fact that
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Mr. Springer's principal purpose in seeking intervention at this very late date was to obtain further consideration be-i low of the alternate site issue decided in the February 22 partial initial decision.
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See p. 4, infra.
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The appeal is opposed by both the applicant and the NRC staff.. The applicant's passing suggestion that the appeal was untimely is without merit.
Because the order below was served by mail on August 15, the appeal was due on the date filed (September 2).
10 CFR 2.714a, 2.710.
...;.~...
Unit 1), ALAB-609, 12 :;RC f n.1 (August 25, 1980).
"By doing so", we went on to observe, " participants will both (1) enhance their ability to protect adequately the rights of those they represent; and (2) avoid the waste of time and resources which inevitably acconpanies the taking of action forbidden by the Rules".
Ibid.
The papers filed by Mr. Springer graphically illustrate the point.
The Rules of Practice are most explicit in establishing the criteria by which late intervention petitions must be judged.
Section 2. 714 (a), 10 CFR 2.714(a), provides that such a petition "will not be entertained absent a determination by [the Licensing Board) that [it) should be granted based upon a balancing of the following factors * * *":
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's parti-cipation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's parti-cipation will broaden the issues or delay the proceeding.
Needless to say, the late petitioner must address each of those five factors and affirmatively demonstrate that, on balance,
they favor permitting his tardy admission to the proceeding.
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 275 (10 5), Houston Lighting and Tower Co.
(Allens Creek Nuclear Geners.cing Station, Unit 1), ALAB-582, 11 NRC 23 9, 241-4 2 (1980) ; Virginie Electric and Power Co.
(North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 (1975); Project Manacement Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 388-89 (1976).
Yet, as the Licensing Board noted, Mr. Springer made no endeavor to shoulder that burden.
Indeed, his petition was devoid of the slightest hint of a recognition that its fate hinged upon 7/
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the Section 2.714 (a) factors.
Rather, what the Board was told in the petition and its supporting documents was (1) that the February 22 decision had j
been influenced by an allegedly deliberate misrepresentation by the NRC staff with regard to the position of the State of North Carolina on a crucial aspect of the alternate site inquiry; and (2) that all facts material to the inquiry had not been presented to the Licensing Board.
It thus would appear that
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The same may be said of the affidavit and brief filed below by Mr. Springer in support of the petition (on May 22 and August 6,1980, respectively).
Although the brief was divided into two sections -- one addressed to "sub-stantive issues" and the other to " procedural issues" --
no mention was made in either of Section 2.714(a) or its 4
requir ements.
Although appearing pro se, it is our understanding that Mr.
Springer is a lawyer.
5ee ALAB-431, supra, 6 NRC at 4 64.
bb. Springer was under the misapprehension that it is open to anyone to obtain entry into a proceeding after the issues have been decided by the trier of f act if that person believes the decision rested upon an incomplete or inaccurate record.
- But, 8/
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had he consulted the Commission's intervention rule, it would (or should) have become immediately obvious that, in order to press his complaints respecting the merits of-the Licensing Board's decision and the underlying record, it was first necessary for him to acquire party status under the terms of the rule.
In short, the intervention petition was patently deficient and, as such, a fit candidate for denial.
Nothing in Mr. Springer's appellate papers might induce-us to overlook that fact.
Our review of licensing board action on an intervention petition has to be based upon what had been presented to (and therefore taken into consideration by) that board.
Allens Creek, ALA3-582, supra, 11 NRC at 242.
In any event, Mr. Springer's brief to us does not come to grips with the Section 2.714 (a) factors any more satisfactorily than did his petition below.
Instead, Mr. Springer's papers perpetuate the erroneous view that no obstacles stand in the path of his endeavor to mount an attack upon the treatment below of the alternate site issue.
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I.e., Section 2.714(a).
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1 B.
For the above reasons, Mr. Springer's' appeal must
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fail.
It is worthy of note, however, that a total of 102 exceptions to the February 22 partial initial decision have been filed by intervenors Mary Apperson Davis, et al. and currently await briefing.
A cursory examination of those exceptions discloses that they are f ar-reaching in scope and embrace, inter alia, all of the matters which Mr. Springer now would raise himself were he clothed with party status.
(In this connection, the intervenors unsuccessfully moved the Licensing Scard either to reconsider the February decision or to reopen the record.
The motion was explicitly based upon the contents of Mr. Springer's intervention petition and
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supporting affidavit.)
Thus, if briefed by the intervenors, those matters will receive the same attention on appellate review as would have been accorded them had Mr. Springer j
demonstrated an entitlement to intervention.
Insof ar as it denied Mr. Springer's untimely petition for leave to intervene, the August 14, 1980 order of the Licensing Board is affirmed.
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See Cleveland Electric Illuminatine Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 744' (1977), and cases there cited, i
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It is so ORDERED.
FOR Ti1E APPEAL BOARD h_.b4 b)
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C. JeaQ Bishop Secretdty to the Appeal Board