ML20052D114

Order Affirming NRC Decision Denying Fairfield United Action Petition to Intervene.Reliance on Another Intervenor to Protect Interest Does Not Constitute Good Cause for Failure to File on Time

ML20052D114
Person / Time
Site:	Summer
Issue date:	04/28/1982
From:	Edwards, Gordon J, Robb U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
To:
Shared Package
ML20052D107	List: ML20052D104 ML20052D114
References
81-2042, NUDOCS 8205060285
Download: ML20052D114 (2)

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t!OT U EE PUBLISRID - SEI LOCAL EULE 8 (f) hitch 5tates Ennrf nf Appeals

• FoR THE DISTRICT oF CoLUMBI A CIRCUlT No. 81-2042

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September Term,19 81 Fairfield United Action, Petitioner United States Court of Appeals

v. fer the Dis'ri:t of C:l:.v.bia Circuit R!.ED APR 2 81982 Nuclear Regulatory Co= mission and United States of America, Respondents GEORGE A. FISHER South Carolina Electric and Gas Company, CLERK et .l., Intervenors PETITION FOR REVIEW OF AN ORDER OF THE. NUCLEAR REGUIATORY COMMISSION Before: ROBB and EDWARDS, Circuit Judges; and JAMES F. GORDON,* United States Senior District Judge for the Western District of Kentucky 0RDER This cause came on to be heard on a review of the final decision of the Nuclear Regulatory Co= mission (hereinaf ter, NRC) denying the Petitioner's late petition to intervene in the operating license proceeding for the Virgil Su=mer Nuclear Station, Unit 1, currently pending before the Atomic Safety and Licensing Board (hereinaf ter, Licensing Board) of the NRC. The court has fully considered the brief s and oral arguments presented by the parties.

There is no need for an opinion. See, D.C. Cir. R. 13(c).

This court's review of the NRC decision is limited to a determination of whether 'the NRC abused its discretion in denying Petitioner's petition to intervene. We conclude that the NRC did not abuse its discretion. Under NRC regulations, whether nontimely petitions should be entertained depends on a balancing of the following factors:

"(i) Good cause, if any, for f ailure 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 pr.rticipation 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 participation will broaden the issues or delay 'the proceeding."

CFR 2.714(a).

8205060285 820503 g PDR ADOCK 05000 0 entry of judgment. The Court looks rith disfavor uBon motions to file bills of costs cut of ti=e.

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hitch 5fafes Enttri of Appeals FoR THE DISTRICT oF CoLUMBI A CIRCu1T NO. 81-2042 September Term,19 81

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The Licensing Board concluded from its consideration of the above f actors, that Petitioner should be permitted to intervene. The NRC's Appeals Board, however, found that tlie Licensing Board had misconstrued and improperly applied the relevant factors, and, accordingly, had abused its discretion in allowing Petitioner's intervention. Our review of the record convinces us that the Appeals Board was fully justified in its reversal of the Licensing Board.

The Petitioner filed its motion to intervene four years af ter the deadline for filing such petitions and less than three months before the date of the licensing hearing in which it d'esired to participate. The record establishes that Petitioner f ailed to file a petition to intervene until this late date because it was relying on another intervenor to protect its interest. Obviously, such reliance does not constitute " good cause for f ailure to file on time".

Further, as the Appeals Board observed, Petitioner's intervention at this time would significantly broaden and perhaps delay the license proceedings to the substantial prejudice of those already parties. In light of the absence of justification for Petitioner's delay and the prejudice that intervention at this et:>e would cause, the NRC did not abuse its discretion in denying Petitioner's petition to intervene.

For the foregoing reasons, it is ORDERED AND ADJUDGED by this Court that the final decision of .the Nuclear Regulatory Co=sission denying Petitioner's petition to intervene in the operating license proceeding for the Virgil Sumcier Nuclear Station, Unit 1 is affirmed.

Per Curiam

• . For the Court I k Georg A. Fisher Clerk

• Sitting by designation pursuant to 28 U.S.C. 8294(d).

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