ML20058A501
| ML20058A501 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 06/17/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AIA, TASK-SE SECY-81-378, NUDOCS 8110290080 | |
| Download: ML20058A501 (13) | |
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t SECY-81-378 June 17, 1981
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ADJUDICATORY ISSUE I
(Affirmation)
For:
The Commissioners From:
James A.
Fitzgerald l
Assistant General Counsel l
Sub'ect:
11; THE MATTEE OF SOUTH CAROLINA ELECTRIC AND GAS CO., ET AL. (VIRGIL C. SUMI4ER NUCLEAR l
STATION, UNIT 1), ALAB-643 (JUNE 15, 1981)
A';D ALAB-6h2 (JUNE 1, 1931)
Furpose:
70 inform the Commission of two Appeal Board deci-sions (ALAE-642 denying a petition for late inter-l vention, and ALAS-643 denying an application for a I
sta:,' pendin5 Commission review of ALAS-643 fo recom-mec,
1 s n d... _..to recommend that
'l c). f l
~ ~ -. - - -
Discussion:
The Commission is called upon in this OL proceeding.
to censider whether to stay ALAB-642 which ordered the denial of a late. intervention petition.
The OL hearing as to which-intervention was sought is to commence June. 22, 1981.
The Appeal Board denied petitioner's application for a stay (ALAB-643).
Neither ALAE has been appealed, although appeals-are considered very likely.
No stay has been requested of the Commission, but the Appeal Board F
has ferwarded the papers bercre it 6GC recommends,that W>
4 SECY NOTE:
This paper is identical to advance copies which were hand-8110290080 930412 carried by OGC to Comrnission offices PDR FDIA CILINSK92-436 PDR on June 16, 1981.
CONTA"$mer,OGC ja a::::1c: rf.th th t;iom CIluf; N UOU C.W.ke 634-32SS Act, camions 2 - 4.84
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-e Both boards agreed that FUA offered no adeouate justification for its late intervention.
l
-I
-- --r'However, the boards u'civergeo on Lneir analyses 1Er the effect of late intervention.
The Licensing Board envisioned little harm from the intervention, but the Appeal Board found that such intervention effectivaly required the NRC Staff and the applicant (., to forgo the benefits of discovery against FUA unless i
they agreed to a hearing delay, and (2) to give up the opportunity to pursue summary disposition as to.
'~
some of the issues raised by FUA.
LLY S As to whether late intervention would unduly broaden the issues for hearing, the Licensing Board found decisive the fact-that the proceeding already included the " general subject matter" of the FUA concerns.
The Appeal Board thought that test was too narrow.
FUA's content $ons addressed subjects already in the proceeding, but the contentions were "far from 'substantially identical' to either those
[of the existing intervenor) or the Board's
[sua sponte] ouestion."
ALAB-642, Slip ~Op. at 16.
Thus, FUA's intervention would " broaden" the issues in a literal sense, and Appeal Board believed that properly weighed against late intervention under 10-CFR 2.714(a)(1)(v).
The boards also differed on the next factor, viz.,
the extent of petitioner's likely contribution to the proceeding.
In finding that FUA's intervention offered the real possibility of a substantial centribution "to developing a sound record," the Licensing Board relied on FUA's pleadings and argu-ment which, in the Board's view, revealed petitioner to be well-versed on the matters it wished to raise.
To a lesser extent, the Board also relied ap the inadequacies of the existing intervenor, j
~
Evaluation of~thi like1y worth of late ELN. i
,,g
a intervention, the Appeal Board believed,.should focus on the qualifications and experience of the petitlener and its witnesses, and should take some account of the extent to which such qualifications and experience differ from that of the Licensing Board members.
On these considerations, the Appeal Ecard found FUA's likely contribution to be " pro-blematic," and not decisively in favor of interven-tion.
The Appeal Board did not disagree with the Licens-ing Scard on the remaining factors (i.e.,
the availability of other means whereby the petitioner can protect its interest and the extent to which other parties will represent that interest) which favored granting late intervention.
However, it i
observed, as had the Licensing Board, that such considerations were~cf lesser significance, espe-cially when the other facters under 10 CFR 2.714(a)(:
weighed heavily against participation.
The Appeal Board noted that FUA's concerns would be addressed either in the OL proceeding or by the NRC Staff because, "in all events," the license cannot issue until the ultimate finding on the adequacy of public protection can be made.
ALAE-642, Slip Op.
i at 25.
The Rules of Practice (10 CFE 2.706) provide fof an oppcrtunity to file a petition for 1
review, and the time for FUA's expected _ petition i
does not expire until June. 22, 1981.
t f
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F a
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5 The standards governing consideration of a stay application are set out in 10 CFR 2.786(c). 1/
The positions of each party and the Appeal Board's decision in ALAE-6h3 are summarized below:
1.
Likelihood of Success on the Merits FUA:
The Appeal Board failed to follow the " abuse of discretion" review standard, and did not sufficiently credit the Licensing Board's ability and experience in evaluating the effect of a new intervention in this case or i
the fact that the Licensing Board had two days of hearings in which to evaluate FUA's abili-ties.
FUA has demonstrated its capacity to contribute to the proceeding by submitting pre-filed testimony and other papers.
NF.C Staff:
FUA must make an " overwhelming" showing that it will succeed on the merits because it cannot establish serious irreparable injury.
It has not made this showing.
The Appeal Board was correct in concluding that denial of the intervention was " mandated."
Applicant:
l FUA points te no specific ways in which the l
Appeal Ecard failed to comport with the abuse cf discretion standard of review, and does not challenge in any meaningful way the Ecard's determination on the factors governing late i
intervention.
Contrary to the implication of FUA, the Appeal Beard is not obligated to accept without critical review any Licensing Board determination.
Nothing in FUA's recent submissions would alter the' result of ALAS-642 had such submission been before the Board.
}/
In determining whether to grant or deny an application f or a stay, the Commission, Atomic Safety and Licensing Appeal Board, or presiding officer will consicer:
(1)
Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2)
Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and (1)
Where the public interest lies.
10 C.F.R. 2.788(e).
)
- s Appeal Board
The Licensing Scard had no latitude to admit a new party on the eve of hearing when (1) the extreme tardiness of the intervention is unjustified: (ii) the likely consequence is prejudice tc other parties and delay of the proceeding; and (iii) the sub-stantiality of the would-be intervenor's contribu-tion to the case is problematic.
The stay applica-tion does not dispute the Appeal Board's finding of-lack of good cause for the late intervention or the Board's conclusion respecting prejudice to other parties and delay.
FUA's recent submittals in the OL proceeding are not properly to be considered and, in any event, are not determinative.
2.
Irrecarable In,'ury.
FUA:
If the hearings proceed without FUA as a party, FUA will be irreparably injured because the Concission, in reality, will be hesitant to grant subsequently de novo hearings given that it is being pressed to speed-up licensing.
NRC Staff:
A Concission decision on review of ALAB-642 can be issued before an OL is likely to be authorized.
A block of time between July 13-24 is already set aside for a second hearing session (if needed), and FUA's contentions could be heard at th.at time if the Conmission allowed the late intervention.
Applicant:
The Licensing Board and the NRC staff are responsible for ensuring adequate considera-i tion of FUA's concerns.
In any event, parti-cipation of FUA may be had at some later date if ALAE-642 is reversed.
The suggestion that inertia or political pressure will make reopen-ing of the hearings less likely is baseless.
There is no irreparable harn and no grounds for stay where what is involved is commence-nent of a proceeding ratner than issuance of a license.
i 4
i Appeal 2sard:
No matter what might te the pcsture of the case when and if the.Cemmission reviews ALAB-6t2, it is assumed tha a petition for' review will receive fair appraisal and that FUA will receive the full remedy to which its entitled.
3 Harn to the Other Parties FUA:
Little harm will result.
The NRC Staff already developed their testim:ny and witnesses.
The applic-ant has offered no evidence on the cost of delay of the proceeding and does not. allege an immediate need for the Summer Nuclear plant.
It is in the position of extreme excess capacity (39' reserve capacity for Summer 19c2).
The only damage, then, would be some indeterminate extension of the hearing itself.
The boards can always disregard FUA's submittals if FUA does not prevail on review of ALAE-642.
URC Staff:
The grant of the stay request would dramatica11;,
disturb hearing plans and adversely affect the schedules of the beard members, parties, counsel, and witnesses.
Scheduling delays would unnecessarily delay any initial decision and license.
Applicant:
If FUA participates as a party, delay is inevitable because extended examination and cross-examinatien would be necessary to develop i
the facts and resolve the matters raised by
)
FUA's contentions.
Hes, ring delays will lead to licensing delays.
Delay is extremely costly to the applicant and its customers.
The deleterious consequences of FUA's partici-pation could not be undone if FUA were unsucces ful on review.
e e
4
8 Appeal Board:
FUA's argument or "little harm" to-the other parties can not be accepted because its parti-cipation would require those parties to devote time and resources at the hearing to the.ew and numercus issues which FUA seeks to raise.
This expenditure would be irretrievable.
4 Public Interest FUA:
The public interest lies in a full and fair adversarial proceeding, and the realization of an adjudication which is not a sham requires capable parties like FUA.
Even it FUA fails ultimately on the merits of ALAB-642, the Licensing Board still will have access to FUA's infernation for assistance in its ques-tions and decision.
FUA goes forward with its case at its own risk.
- ?C Staff:
If FUA is reinstated as a party it will have its " day in court.
Until such time, the public interest is best served by the orderly conduct of NEC licensing proceedings.
A decision granting a stay would seriously disrupt the orderly administration of this proceeding.
Applicant:
The public interest lies in the expeditious resolution of outstanding issues in this case, yet a stay would only result in further delay.
FUA has made no showing that its participatior.
is either essential or desirable for a proper resolution of health and safety-related issues.
Its ability to contribute substantially is
" problematic."
With or without FUA participa-tion, the Summer plant will not be licensed until the Commission has fulfilled-its statu-tory obligation to ensure public health and safety.
FUA has not demonstrated its entitle-ment to claim the benefits of the adversarial process even if its general claim of benefits of that process is true.
9.
i Appeal Board:
The. Board does net accept FUA's premise that its full participation is required in order to assure a fully developed record on health and safety issues.
FUA can contribute to the case i
by assisting the other intervenor in the pro-ceeding.
/
OGC Analysis 6/,.1, I
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/
11 I
Recommendation:
I y-as hitzgerald ames A.
Assistant General Counsel Attachments:
J (1)
Draft Commission Order (2)
ALAB-643 i
(3)
Filings of the Parties before the Appeal Board on the question (4)
ALAB-- 6 4 2
~
j of a stay of ALAS-642
12 Commissioners' comments of consent should be provided directly to the Office of the Secretary by noon, June 18, 1981. (per the request of OGC).
This paper will be scheduled for affirmation at an open meeting at the eerliest practicable date.
- t DISTRIBUTION:
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i ATTACHMENT 2 I
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/ ~~/: 2 Y C
UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Alan S.
Ros e. thal, Chairman Dr. John E.
Buck Christine N. Kohl
)
In the Matter' of
)
)
SOUCE CAROLINA ELECTRIC AND GAS
)
Docket No. 50-395 OL COMP ANY _ET _AL.
)
(Virgil C.
Summer Nuclear Station,
)
Unit 1)
)
}
Dr. John C.
Ruoff, Jenkinsville, South Carolina, for tne movant Fairfield United Action.
Messrs. Joseph 3. Knotts, Jr.,
and Dale I.
- Hollar, Washington, D.
C.,
for the South Carolina Electric and Gas Company et al.
Mr. Steven C.
Goldberg for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER June 15,19 81
( ALAS-6 4 3 )
In ALAS-642, 13 NRC (June 1, 19E1), we reversed the 1981 Licensing Board order 1/ w.4 ch granted the un-April 30, l
timely petition of Fairfield United Action (FUA) for leave to intervene in this operating license proceeding.
FUA now applies i
_1/
LBP-81-ll, 13 NRC.
f s
under 10 CFR 2.788 for a stay of the effectiveness of ALAB-642 pending the filing and disposition of a petition for Conmission review of that decision.
Applying the four criteria set forth in Section 2. 78S (e),U / we deny the application.
Because, how-ever, the evidentiary hearing is due to commence one week from today (June 2 2), as an accommodation to FUA we are transmitting together with the responses filed by other parties,- !
its papers,
__/
That subsection reads:
2 In determining whether to grant or deny an ap-plication for a stay, the Commission, Atomic l
Safety and Licensing Appeal Board, or presiding officer will consider:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interes: lies.
These are the sane f acters which have long governed the grant or denial of stays in the federal courts.
See v.
FPC, 259 F.2d 921, Virginia Petroleum Jobbers Ass ' n.
925 (D.C. Cir. 1958).
--3 /- Both the operating license applicants and the NRC-staff oppose the grant of a stay.
0
\\
e 3
3-I to the Commission for such action, if any, as it may deem appro-i priate. 4 /
1.
In ALA3-642, we noted that the appellate review of li-censing board action on belated intervention petitions is gov-erned by the " abuse of discretion" standard.
13 NRC at (slip opinion, p.
5).
Asserting that it is likely to succeed
[
on the merits of its petition for Commission review, FUA urges that we nevertheless f ailed to apply that standard.
This is
- _4/
We wish to make clear that our ruling on the stay appli-cation is not being referred to the Cor:dssion; i.e.,
we are not af firmatively calling upon the Commission to re-view that ruling.
Rather, we are simply giving recogni-tion to the imminence of the evidentiary hearing.
It would be difficult, if not impossible, for FUA formally to renew its stay application before the Commission in ti.me to enable full consideration and disposition by that body.
In this connection, 10 CFE 2.78S(f) provides that "[a]n application to the Commission for a stay of a decision or action by an
- Appeal Board will be denied if a stay was not, but could have been, sought before the Appeal Board".
It was doubtless this provision which prompted the filing of the stay application with us in the first ins t an ce.
Unfortunately, subsection (f) sheds no illumination on what might constitute circumstances in which a stay need not be sought initially from this Board.
Pres umably, however, the urgency of the perceived need for a stay was not thought by the Con =ission to be such a circumstance; had it been, the subsection likely would have so indicated.
4
?
e
~
4-said to follow from the absence of a finding by us that the Li-censing Board abused its discretion in granting the FUA petition.
Stay application, pp.
2, 5.
True enough, ALAS-642 does not contain an explicit finding to that effect.
But it leaves no room for reasonable doubt re-garding our conclusion that; on the record before it, the Li-censing Board could not allow FUA's eleventh hour intervention as a discretionary matter.
- See, e.g.,
13 NRC at (slip opin-ion, pp.
6, 24).
Put another way, a licensing board simply has no latitude to admit a new party to a proceeding as the hearing date appro. aches in circumstances where (1) the extreme tardiness in seeking intervention is unjustified; (2) the certain or likely consequence would be prejudice to other parties as well as delay in the progress of the proceeding, particularly attributable to the broadening of issues; an d (3) the substantiality of the con-tribution to the development of the record which might be made by that party is problematic.
We need not rehearse the bases assigned in ALAB-642 for our determination that each of, those circumstances is here present.
Suf fice it to note that nothing now of fered by..YUA prompts our reassessment of the matter.
e
I Che stay application is silent with regard to our finding of a lack of good cause for the tard' of the intervention petition.
Nor does it address the considerations which under-lay our conclusions regarding prejudice to other parties and i
delay. 5 /
Rather, FUA focuses almost exclusively (stay appli-cation, pp.
3, 4) upon its claimed ability to contribute to the development of the record.
On tha t score, TUA relies in large measure on events sub-secuent to its admission to the proceeding en April 30 -- most particularly, the submission of the prepared testimony of its two proposed witnesses (Dr. Greenhut and Ms. And'.ews) 6 / and the filing of responses in opposition to motions for summary
_5/
It appears from the stay application (at pp. 3-4) that FUA took our statement (13 NRC at
- slip opinion, p.
- 10) that " delay in the progress of the proceeding [was) a very likely proximate result of the belated interven-tion" as resting solely on the then pending FUA " motion f or continuance" discussed in accompanying footnote 6.
In this connection, we are told that the South Carclina Public Service Commission has now changed the date of its proceeding, with the consecuence that the continu-ance motion has become moot.
In actuality, however, the conclusion respecting delay was founded principally upon other considerations:
th at the FUA intervention would brcaden the issues signifi-cantly and, because of its lateness, would foreclose re-sort to summary disposition procedures on those issues.
See 13 NRC at (slip opinion, pp. 13-16).
The stay application does not dispute that this is so.
_6 /
See ALAB-642, 13 NRC at (slip opinion, p. 21).
.4 a
.:m s
I disposition directed to contentions of intervenor Brett Allen i
Bursey. 7/
But even if it were proper for us to take account 2
l of this new material for present purposes,- / the result reached 9
in ALAS-642 necessarily would remain unchanged.
Although FUA's recent filings may well bear out the observation in the concur-ring opinion regarding the quality of its earlier pleadings, '-./
we are left unpersuaded that ius contribution at the evidentiary 6
hearing would be of such magnitude as to tip the overall balance in favor of permitting it to enter the proceeding at this junc-l ture.
2.
Turning to the second stay criterion, it is plain tha't FUA will not be irreparably injured if a stay is denied.
Were the Commission ultimately tc reverse ALAS-642 and order FUA re-instated as a party, the necessary consequence would be that the evidentiary record (if closed by then) would have to be recpened to enable FCA's participation.
FUA opines (stay application, was admitted to the ' proceeding in 1978.
See i
7/
Mr. B u.
8/
Our appraisal of the correctness of a licensing board's i
determination on the various factors to be considered in I
passing upon a late petition (see ALA3-64 2, 13 NRC at slip opinion, p. 4) perforce must be founded upon what was before that board when the determination was made.
t j9 /
13 NRC at (slip opinion, p. 26).
l 1
i i
k
,n y
7-
- p. 5) that the Commission likely would be loath to grant that relief.
We decline to indulge in any such conjecture.
No mat-ter what might be the posture of the proceeding at the time, we must and do assume that the petition for review will receive a fair appraisal and that, should the Commission disagree with our decision, it will have no hesitancy to provide FUA with tJ1e full remedy to which it would thereupon beceme entitled.
3.
FUA maintains (stay application, pp. 6-7) that the gr ant of a stay would occasion "little" harm to other parties.
We think otherwise.
Among other things, it would require those parties to devote time and resources at the hearing to the new and numerous issues which FUA seeks to inject into the proceed-ing.
Should the Commission not disturb ALAS-642, this expendi-i ture would be irretrievable.
4.
FCA's argument on the final criterion (public interest) is founded on the prerise that its full participation in the proceeding is recuired in order to assure a fully-developed record "on important issues of health and safety".
Stay appli-cation, p.
B.
We have previously noted our ronacceptance of that premise.
13 NRC at (slip opinion, pp. 18-22, 24).
Further, as the concurring opinion points out (id, at 1
L r
slip opinion, p. 27), "FUA can contribute to this proceeding without being afforded party status" by furnishing " financial, technical, legal, or other assistance" to intervenor Bursey.
Although the stay application does not allude to that fact, FUA may yet elect to " grasp this opportunity enthusiastically" (ibi d. ).
Application for a stay of ALAE-642 denied.
It is so OF.DERED.
FOR THE APPEAL BOARD
$.0wh nN_
E C. Jef, Bishop Secretary to the Appeal Board
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ATTACHMENT 3 S
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l
In the Matter of:
)
)
l SOUTH CAROLINA ELECTRIC AND GAS
)
Docket No. 50-395 OL COMPANY, ET AL.
)
)
l (Virgil C. Summer Nuclear Station,
)
June 5, 1981 Unit 1)
)
_)
APPLICATION FOR STAY OF DECISION PENDING REVIEW Pursuant to 10 CFR 52.788, Fairfield United Action (FUA) hereby ap-l plies for a stay pending filing and a decision on review of the effect of the Atomic Safety and Licensing Board's decision reversing the Licensing Board in the above-captioned proceeding and remanding for denial as untimely the Petition to Intervene of FUA. ALAB-642, 13 NRC
, reversino LBP-81-11, 13 NRC FUA will expeditously file with the Commission a Petition for Review under 10 CFR S 2.786(b).
in support of this application, FUA would show that it is likely to pre-vail on tne merits on review, that FUA would suffer irreparable injury unless i
a stay is granted, that minimal harm will be suffered by other parties, and l
that the public interest lies with granting a stay.
t Commencement of the evidentiary hearings in this proceeding is scheduled for June 22, 1981, less than three weeks after the June 3,1981, service of this decision on FUA.
Granting of a stay would preserve the status quo prior to the issuance of that decision pending a decision on the merits on review.
Doeskin Products v. United States Paper Co.
195 F.2d 356, 358 (7th Cir.1952),
cited at National Association of Farm Workers, etc. v. Marshall, 628 F.2d 604, 613 (DC Cir. 1980).
j hD h.?fC
2-s I
In failing to follow the " abuse of discretion" standard for reviewing Licensing Board decisions on late petitions to intervene under 10 CFR 52.714(a) (ALAS-462, at p. 5), the Appeal Board took unprecedented actica t
violative of the Commission policy "... giving the Licensing Board i
broad discretion in the circumstances of individual cases [of late petitions to intervene)." Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),
I CLI-75-4, 1 NRC 273, 275 (1975); and Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8,13 (1977); Project l
Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC
}
3E3, 389, 390 (1976).
In support of its position that the " abuse of dis-f cretion" standard of appellate review "... does not foreclose our close scrutiny of the factual and legal ingredients of the analysis underlying i
the Board's ultimate conclusion," (ALAB-462, at p. 5) the Appeal Board l
cites three cases. Two of those cases (ALA3-420, supra, and ALAS-354, supra) affimed Licensing Board cecisions on untimely petitions to intervene i
and reiterate the " abuse of discretion" standard. The third case presents an appeal from a Licensin5 Board decision to grant an untimely petition to i
intervene where the Licensing Board failed to apply all five of the factors set forth at 10 CFR 52.714 Metropolitan Edison Company (Tr.ree Mile Island 1
Nuclear Station, Unit 2), ALAB-384, 5 HRC 612 (1977). That may certainly j
i be distinguished from the instant proceeding wherein the Licensing Board carefully weighed each of the five factors and decided on that basis to admit FUA. LBP-81-11.
i In its decision, the Appeal Board reaches different conclusions from the Licensing Board on several issues: disadvantage to othe~r parties from
1 FUA's intervention (ALAB-462, at p. 9); the likelihood of delay in the progress of the proceedings (Id.); the broadening of issues to be litigated i
by the admission of FUA's contentions (Ibid., at pp. 13-16); and FUA's ability to assist the Board in developing a record (Ibid., at pp.16-22).
l Although the Appeal Board her ukes " official notice that the two technical members of the Board below have served on the Licensing Board Fanel for nine and eight years respectively, during which period each has j
sat on numerous licensing proceedings" (Ibid., at p. 20), the Appeal Board then fails to credit their ability and experience to evaluate th'e whole record which they have seen developed in this proceeding over the years and to make inforr,ed decisions within their discretion about the effects of a new intervention on this proceeding. Likewise, in addition to the written pleadings which are described by Appeal Board member Kohl in a concurring opinion as " impressive" (Ibid., at p. 26), the Board below had the benefit of nearly two cays of discussion at hearing in which to j
form an opinion of the ability of FUA, and especially of its Authorized Representative, Dr. Jonn C. Ruoff,to assist the Board in developing a record in this case.
LBP-81-11 (slip opinion, at p. 10).
The Appeal Board rejected the request of FUA, in which it was subsequently joined by the Applicants, for oral argument. ALAB-462, at p. 3; Applicants' Response to Fairfield United Action Request for Oral Argument, May' 22,19B1.
- Thus, the Appeal Board deprived itself of the opportunity to evaluate live the ability of FUA to assist the Board below to develop a record.
The Appeal Board describes the possibility of delay in the proceedings resulting from FUA's intervention as "not merely a theoretical possibility l
k 1
i r
but rather a very likely proximate result," because FUA had moved for a continuance of the July 13 recomencement of the hearings when faced with the possibility of being forced to surrender its interests in either f
the licensing proceedings or a coincident rate proceeding. ALAB-462, at
- p. 10 FUA moved to protect its interests in both forums, and tie Licensing t
~
Board credited FUA's fears that collusion between Applicant South Carolina Electric and Gas Company and the South Carolina public Service Comission had produced that coincident scheduling. Order, May 18, 1981..
Upon motion of FUA and John C. Ruoff, pro s_e, joined by SCE&G, the South Carolina public l
e Service Comission has changed the cate of the rate proceeding, so that no i
l proximate. delay to the licensing hearings would obtain from FUA's inter-i vention. See Attachment A.
i In its actions since being admitted as an Intervenor, FUA has demon-i 1
strated its ability to contricute the record in this proceeding.
Rather than resting on the technical posture of waiting for a resolution of its status I
while appeals were pending, FUA has moved forward and made valuable contri-butions to the record.
In addition to the prefiled Direct Testimony of Dr. Janet Greenhut and Arlene Bowers Andrews (see ALAB-462, at p. 21) on i
I emergency planning, FUA has filed substantial responses in opposition to motions for sumary disposition on Intervenor Brett Allen Bursey's contentions on the financial qualifications of the utilities, the seismic monitoring i
program, and the health effects of normal operations of the facility.
In
~
its response in opposition to the Staff's motion for summary disposition of Intervenor Bursey's financial qualifications. contention, FUA submitted a j
detailed affidavit from Dr. John C. Ruoff examining the financial condition
' of the Applicants.
FUA has already made a substantial contribution to the record.
i i
h
~
5 As set forth above (at p. 2, suora), precedent premised on specific Commission policy supports the admission of FUA where the Board below was not abusive of its discretion. The Appeal Board has made no such finding.
Thus, FUA is likely to prevail on the merits of its case.
II Unless a stay is granted, the evidentiary hearings in this proceeding will commence on June 22, 1981, without FUA being able to participate ful-ly as a party. That will result in irreparable injury to FUA. Even with expeditious filing of a Petition for Review and responses, Commission action on the Petition cannot reasonably be expected prior to the beginning of the hearings.
The Appeal Board concedes that that full participation is the only means whereby FUA may fully protect its interest. ALAB-462, at p. 23.
Further, the Appeal Board concedes FUA's standing and interest.
Ibid., at
- p. 3.
On review, de novo hearincs might well be available to FUA as the remedy for erroneous exclusion from the proceeding. However, one must in reality recogni:e that the Commission or a court of law will be chary of granting such relief where hearings are either in process or completed.
Especially under expedited scheduling processes recently adopted by the Commission (Irrediate Effectiveness Rule,10 CFR Part 2, issued May 22,1981),
the Summer station could well be licensed before completion of review.
This especially obtains at a time when political pressure--some of it at behest of Applicants here--is applied to the Commission to speed licensing in this and other proceedings.
Letter, South Carolina Congressional Delegation to Hon. John F. Ahearne ( Attachment B); see also Preb. Conf. Tr.,
at 574.
The role of Applicants in this matter is set forth in the attached
i l
Letter of the Hon. Thomas F. Hartnett to Mr. Michael Lowe of Pr.lmetto Alliance, Incorporated (Attachment C, appended to Affidavit of Mary Ellen R. Westmoreland).
Unless permitted to participate a_b initio in the hearings, the interest l
b ef FUA will be irreparably harmed.
III Little harm will obtain to other parties by FUA's participation in the evidentiary hearings pending review. Had FUA sought to stay the hearings pending review rather tnan to seek the relief requested herein, delay mignt well have been incurred. However, staying the effect of the Appeal Board decision will not delay the beginning of the hearings. Re-gardless, they will corrence on June 22, 1981, as scheduled.
l Further, tne pctential injury alleced by Staff and Applicants from FUA's intervention requiring the generation of additional testimony and l
7 scheduling of additional witnesses has, if it was injury, already occured.
Staff Br., at p. 8; Appl. Br., at p.17.
As the Appeal Board notes, Direct Testimony was scheduled to be filed on May 28, 1981.
ALAS-642, at p. 12n.
All parties filed that testimony ar.J no party sought a continuance of time j
i to file because of inability to prepare its case in time.
Thus, the stay sought here would cause no injury in that regard to other parties.
Although Applicants have asserted injury from delay'as a result of FUA's intervention, challenges to adduce proof from FUA and the Board below i
i have produced no results.
Applicants' Response to Untimely Petition, Ap.
)
l pendix C; Appl. Br., at p.13; Prehear. Conf. Tr., at pp. 529-532, 539-540, l
54E; FUA Br., at 13,14).
Those allegations of damage are based on no re-l j
liable evidence and must be discounted.
i r
r r
7 i
Despite the fact that Summer is one of those plants for which the license might not issue until after completion of construction, Applicants have not alleged an immediate and pressing need for it.
Instead, they have asserted need to have the plant available for the " heavy demands of late f
Spring and Summer of 1952." Applicants' Response, p.15. Moreover,Appli-cant South Carolina Electric and Gas Company already finds itself in a position of extreme excess capacity projecting a 39 % reserve capacity at peak of Surr.er 1982.
Prehear. Conf. Tr., at p. 559.
As discussed above, the possibility of delay resulting from FUA's Motion for Continuance in this proceeding has been, mooted. See p. 4, supra.
Thus, the only damage which can reasonably be alleged by the other parties from the effect of the stay would be some indeterminate extension of tne hearing itself.
The Board below determined that no unprodu:tive delay would ensue from FUA's participation.
LPB-81-11 (s lip opinion, at
- p. 9).
Altnough litigation of FUA's contentions and the contribution of FUA's testimony and cross-examination in the proceeding might well re-suit in license conditions or other results not favorable to the Applicants, improved safety can scarcely be found to be harmful to the Applicants.
If FUA should not prevail on review, then tne contributions of FUA may be disregarded by the Board.
FUA accepts that risk in seeking this stay. Without this stay, however, the other parties will be forced to go forward under the cloud of this review and the possibility of naving to relitigate the issues cgt novo should FUA prevail.
e
. i IV The public interest lies in granting FUA's application for stay pending reyiew and in permitting full participation of FUA in these pro-ceedings pending revicw. The public interest lies in a full and fair adversarial proceeding. The Appeal Board does not dispute the Licensing Board's lack of confidence in the ability of the only other intervenor l
to represent his own interests, FUA's interest, or to assist the Board r
in developing a record on its Question about corporate management. LBP-81-11 (slip opinien, at pp. 10-12); ALAB-642, at p. 23.
i The Connission has a statutory obligation to assure the health and t
safety of the general public. As a matter of public policy, adversarial proceedings have been determined as the best means for parties to protect l
their interests.
In Puget Sound Power and Light Company, et al. (Skagit Nuclear Power Project, Units I and 2), ALAS-559, 10 NRC 162, 172 (1979),
the Appeal Board declared that "the promiscuous grant of intervention i
petitions inexcusably filed long after the prescribed deadline would pose a clear and unacceptable in eat to the adjudicatory process." The mirror of the Skagit decision, however, is that with the preferance for an adver-sarial process it would be a clear and unacceptable threat to the adjudi-l catory process to go forward with a mere sham of an adjudication without r
capable adversary parties and a sound record for decision.
l If FUA is permitted to go forward pending review, then the Board has at its disposal the expertise of FUA on important issues of health and safety.
Even if FUA ultimately does not prevail on the merits, the Licensing Board will have had access to information which will assist it in making important decisions and in pursuing on its own important questions. The 4
-m
g.
other parties will not have substantially been more disadvantaged than i
i they are in any case.
FUA goes forward with the case at its own risk, recognizing that its efforts in the proceeding may be in vain if it fails to prevail on the merits.
j However, until that review has been completed, the public interest is best served by FUA's perticipation under a stay pending review.
CONCLUSION For the reasons set forth above, FUA urges the Appeal Board to stay
)
the effect pending revien of its decision reversing the Licensing Board's order granting FUA's Petition to '
- vene in the Summer operating license i
i proceeding.
Respectfully submitted, (i
c/
" Dr. John C. Ruoff f
Authorized Representative For Fairfield United Action
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Ile: ::: and Oas C: pa.;. and Santee-Occper, serve :cre than 34% of the-c:..su e:s and 364 f.he acad in cc: state.
Ea:n sv. s:. A.r..i. s n netheless re;a::ve'.y small en a natiene.'. scale. and the 6*: regawa,.s.JSu rier wdd.
i a d-l.: :ne 5 I&"; systen and the 20; regawa::s it re; esents,tc. nan, tee.
I cper are per.an; issues.
4 We are told :".a: pcwer f : the 5'= e: Un:, vill be va ally of 19E2 to serve lead, displace oil, and ne:essary by the early s m e:
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- n:.r.:.:e ces-ine: eases.
cf this
.'nn v:.1'. be ::=;1ete and ready to Icad fuel by the -late su ce:
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- .s our understanda; tha-an enens:ve per.ed of testing fel".evs y e e.:.
aben; six =cnt.s v:.'.1 be required := a:hieve cer=er-f.:t1 ca d=; a..d that
- 11 c.: era::.cn.
Een:e, i: v:.1 he ne:esst. y for the 1:, ens:.nq p:: ess ::
a s sur.in g, c f cour s e. -hat no te :: ;'.e:e my the *.a:e f al'. cf th:.s yer.:,your dis:re :. n and" expert:.se ;;eeludes suts:tenve reascn ::::.:::ed.
"nat v:.1". not he available.fer....
su:n a senedule.
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- ..c neavy der.a.d :f t..e s : e: renths.
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-:::ess n 1961.
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that n:s epart: ent rev:.ew the =pa:: of the p c;e::ed delay in ter=s of ces:s, capa::.:y, a.nd energy te the tw: syste:-s and :e the mere than 375,000 i
ces :.mers they serve, and repc : :: Cengress h:.s findings a.nd the positicr.
cf tr.e Ai.:.nas::atter in cases of this kind.
We wan: :: werk w::.*. ye; and cur Cc;;eagues : m:ve ferward with revie. Of :..e Su:.me: Un:.: and we u ;e that our re uest be given fav::ahle Cens:de:Stic..
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ATTA>.. TNT E FS T C F.I THE FUiLIC SERVICE CC :::SSION CT SCUCE CAPCLINA DOCYEC NC. 81-72-E - OF.CER NO.81-40J June 2, 1981 IS FE: Application of South Carclina Electric )
ORCEP and Gas C rpany For a General Increase )
F.ISCMECU;;NG in Fates and Charges for Ele:tric
)
EEAP:NG Serv::e.
)
Cn F.ay E, 1981, this Cor.rission issued its Crder Nc.51-331 whereby the con.m:ss; n ordered the hearing in tne instant docket to e:mmence en M:nday, July 13, 1961, at 11:0 0 A. fl.
In the off::es of the Cor.r.;ssicn.
Therea5ter, on May 13, 1921, the Intervencrs'. Taarf: eld United Action and Jchn C. Euoff, moved the Con.;ssien for a "r deste:ntinuance" cf the correncement of the hearing 1
scheduled in :nas ratter to a date af ter July 24, 1981. It appears that the Atomic Safety and Li:ensing Beard of the l
Un:ted S tates :m: lear Fegulatory Comm;ss en will ce conducting a sec:nd pnase cf hear;ngs regarding the licensing cf the V. C.
Sumrer Nuclear Plant at that tare.
Cn r.ay ::. 19E1, South Car: lina Electra: snd Gas C:mpany (here na f te r "tne Corpany") filed an Ans'.er to the Interven:r's Motion for Cent: nuance. The C;rpany also re uested the Cor.missten to cer.tinee the hear ng in the ins-ant docket given the a: solute need tc maintain the current 11:ensing schedule fer the V. C. Sur.rer Plant.
The Cor.m:ssion believes it is of the utmest importance that the Atomze Safety and Licensing Board (ASLB) hear and dispose cf issues concerning the licensing cf the Virgil C.
S ummer nuclear plant.
g%
t 300 KIT NO. El-12-I - CEIR :U. i;-403 June 2.-1991.
Fs-e Tre i
Tnezefere,- the ccr.miss;:n w:11 cont:nue the et=encement j
1 ef the proceedings in this e.atter until July ~ 2 7, ' 19 31, a t 11:00 A.M.
i The Cormission notes, however, that dates for its hearings t
are set without censulting applicants, petit:eners or anterveners.
The rain criteria used in scheduling-a case 'are:
a) cc:rplexaty. of case; b) estimated' length of time.to hear caser c) n =cer cf cases to be heard:
}
d) time availahle to Corsassion and staff.
Tne present schedde and case lead confronting the,Cors:ssion I
will out of necessity per.it the instant rate case = te heard no longer than throagh August 26, 1981.
j 17 15 THERETCRE CRDEFIO:
1.
That the hearing prev:ously seneduled in this l
4 r.atter be reschedeled te corrence in t5e of fices cf the l
Cer:1ss::n, 111 Dectors Carele, Coli;rtia, Scuth Car: lina, on l
Monday, July 27, 19 81, a t IhCC A.!.
.l t
k 2.
That all other prov:stens of Order No.81-331 i
dated May 8, 1961, assued in this docket remain in full force i
and effe:.
BY OFIER CT THE C0FA355:0::.
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i ATTEST:
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NU' TEAR REGULATORY COMk!55105 t
4 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. Sunmer Nuclear Station, )
June 5, 1981 Unit 1)
)
_)
AFFIDAVli 0F MARY ELLEN R. WESTMORELAND My name is Mary Elleo
. Westmoreland.
I live at Route 2, Box 125, St. Matthews, South Carolina.
I am employed as a secretary by Palmetto Alliance, Incorporated, 21354 Devine Street, Columbia, South Carolina.
On April 10, 1981, I typed and mailed for Mr. Michael Lowe, a staff member of Palmetto Alliance, a letter to the Hon. Thomas F. Hartnett and the same letter to other members of the Congressional delegation from South Carolina inquiring about a letter which the delegation had sent to the Hon. John F. Ahearne of the Nuclear Regulatory Commission on Februa ry 19, 1981.
Among other things, the letter to Representative Hartnett asked for g
"the name and organizational affiliation of the person or persons who pre-pared your request to former Commissioner Ahearne or the underlying infor-t na ti on. "
Shortly thereafter, Mr. Lowe received a letter from Representative Hartnett responding to Mr. Lowe's letter of April 10. That letter indicated that South Carolina Electric and Gas Company and South Carolina Public Service Authority representatives had contacted him concerning the operating license for the Summer facility. A copy of that letter is attached to this affidavit and' marked Attachment C.
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1 nereoy certify tnat the foregoing is true and accurate to the best of my knowledge.
ldh1/Y he$N%ff l
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Mary plen R. Westnoreland SWORN to and subscribed before me this < 1 day of
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- 1981.
T c{
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.t NOTARY PUBLIC FOR SOUTH CAROLINA r
e-w "i l My Commission Expires:
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Iongrc$s of tijt Viniteb htates kouse of Representatibes i
55asf;ington,D.C. 20515 t
April 22, 1981 i
Mr. Michael,Lowe Palmetto Alliance, Incorporated 2135 1/2 Devine Street 4
Columbia, South Carolina 29205 f
Dear Mr. Lowe:
.i Thank you for your letter of recent date.
f I was contacted several weeks ago by officials of South Carolina Electric and Gas, the majority owner, and~the South Carolina Public Service Authority, the minority owner of the V.C.
Summer Nuclear Station concerning the operating license for the aforementioned facility.
As a proponent of nuclear power as an interim form of energy, I am concerned about the l
approximate S20,000,000 per month that it will cost the already overburdened consumers of our state.
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As a member of Congress, one of my priorities will.be l
to see that this great country of ours will be able to meet j
its energy needs for the future.
Sincerely, j
\\f nA p-s--
Thomas F.
Hartnett, M.C.
TH/js/bn I
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i;
WJ6i In the Matter of:
SOUTH CAROLINA ELECTRIC AND GAS
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Docket No. 50-395 OL COMPANY, et al.
)
)
(Virgil C. Sumer Nuclear Station. )
June 5, 1981 Unit 1)
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AFFIDAVIT OF SERVICE PERSONALLY appeared before me John C. Ruoff who affirms that he did on this 5th day of June 1981 serve copies of the attached Application for Stay Pending Review on the below-named persons by placing them in the United States mail, first-class postage prepaid.
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 Comission Ann Arbor, MI 48109 Washington, DC 20555 Mr. Gustave A. Linenberger Dr. John H. Buck, Member Member, Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board Panel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington,'DC 20555 i
Chairman, Atomic Safety and Licensing Christine N. Kohl, Member Board Panel-Atomic Safety and Licensing U.S. Nuclear Regulatory Comission Appeal Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 George Fischer, Esq.
Vice President and Group Executive-Legal Herbert Grossman, Esq.
South Carolina Electric & Gas Co.
Cnaiman, Atomic Safety and Licensing P.O. Box 764 Board Panel Columbia, SC 29218 U.S. Nuclear Regulatory Comission Washington, DC 20555 Steven C. Goldberg, Esq.
Office of the Executive Legal Director Mr. Brett Allen Bursey U.S. Nuclear Regulatory Comission Rt.1, Box 93-C Washington, DC 20555 Little Mountain, SC 29075 i
I
s-d Mr. Chase R. Stephens Richard P. Wilson, Esq.
Docketing and Service Section Assistant Attorney General Office of the Secretary South Carolina Attorney General's Office U.S. Nuclear Regulatory Comission P.O. Box 11549 Washington, DC 20555 Columbia, SC 29211 l
Randolph R. Mahan Joseph B. Knotts, Jr.
South Carolina Electric & Gas Co.
Debevoise & Liberman P.O. Box 764 1200 17th St., NW Columbia, SC 29218 Washington, DC 20036 Samuel J. Chilk Secretary of the Comission U.S. Nuclear Regulatory Commission Washington, DC 20555
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I/
h0HNC.RUOFF
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AFFIRMED and subscribed before me tnis 6 h day of Ja 1981.
biwv_ h_MA (l.5.)
NOTARY PUBLIC FOR SOUTH CAROLINA t'y Comission Expires: 7/ 76 /$7 7 i
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Date: June 12$ 1951
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r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC.MFETY A'!D LICENSING APPEAL BOAFI
[
f In the Matter of:
.)
)
SOUTE CAROLINA ELECTRIC AND
)
i GAS COMPANY, et al.
)
r :.n e : No. 50-395-OL
)
(Virgil C. Sum.mer Nuclear
)
Station, Unit 1)
)
i 1
hPLICANTS' ANSWER IN OPPOSITION TO FAIRFIELD UNITED ACTION'S AFPLICATION FOR STAY OF DECISION PENDING REVIEW I.
INTRODUCTION Fairfield United Action (*FUA"), on June 5, 1981, moved this Appeal Board to stay its decision of June 1, 1981 in the above-captioned proceeding.
ALAS-642, 13 NRC (1981).
The Appeal
{
Board decision reversed an earlier decision by the Atomic Safety and Licensing Board, LBP-81-11, 13 NRC (1981), and remanded i
the cause with instructions to deny FUA's petition to intervene as untimely. 1/
Applicants South Carclina Electric and Gas Company and South Carolina Public Service Authority oppose FUA's Applicatic:'
for Stay.
1/
On June 3, 1981, the Licensing Board rendered its order dismissing FDA as a party in accordance" with ALAB-642.
FUA refers to the preservation of the status cuo.
Application for Stay at 1.
Technically, the status cuo is that FUA is not a party.
They were a party only from l
April 30, 1981 to June 3, 1981.
Their Acelication fo.
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Stay is dated June 5, 1981.
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FUA has failed te meet the re c.uir ement s set forth in 10 C.F.R.
$ 2.78S(e) which the moving party must fulfill in order to i
obtain a stay.
The burden of persuasion to show compliance with j
the regulations is upon the moving party.
Public Service Companv of Indiana (Marble Hill Nuclear Generating Station, Units 1 and r
2), ALAB-493, 8 NRC 253, 270 (1978).
Specifically, FUA has made i
i no strong showing that it is likely to prevail on the merits of l
its petition for review to the Nuclear Regulatory' Commission and has totally failed to show that it will be irreparably injured in the absence of a stay.
In addition, Applicants will show that granting a stay under these circumstances would be prejudicial to i
the interests of the other parties and that consideration of the l
public interest supports denial of the Application for stay.
II.
ARGUMENT 1.
FUA Fails To Make A Stron. Showine_ rnat It Is Likelv_ To Frevail on Tne Merits l
FUA wholly fails in its efforts to meet the first requisite 1
l for obtainine a stav under 10 C.F.E.
{ 2.78S(e)--a strone. showing that it is likely te prevail on the merits.
TUA argues generally that the Appeal Soard's decision fails to comport vii.h the " abuse of discretion" standard for reviewing decisions of a Licensing I
Board.
Yet, FUA points to no specific ways.in which this alleged deficiency is manifest, and fails to come to grips with the
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l Appeal Board's holding:
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[W]e are persuaded that FUA's showing on the controlling factors fell fatally short of what might have provided a sufficient foundation for a discre-tionary allowance of tardy intervention.
Accordingly, the April 30 order cannot stand.
(ALAS-642 at 6).
i FUA correctly notes that the Appeal Board reached conclusions l
3 differing from those of the Licensing Board on a number of crucial issues, including whether FUAs intervention would disadvantage the other parties, cause delay, broaden the issues, and assist the Board in developing a record.
FUA's Application for Stay at 2-3.
FUA does not explain why these conclusions represent a failure of the Appeal Board to adhere to the appro-priate standarc of review.
Indeed, FUA could not possibly make such a showing.
Th e cases FUA relied upon (Application for Stay at 2) clearly contemplate that the " abuse of discretion" standard permits the Appeal Soard to provide the kind of careful scrutiny of the record undertaken by the Appeal Board in the instant proceeding. 2/
FUA in no meaningful way challenges the Appeal Board's determination that FUA had failed to meet the five-factor test permitting late. intervention. 3/
It is the function of the Appeal Board to review the written record to determine whether the Licensing Board has adopted an appropriate factual and legal
-7. /
In Project Management Corp. (Clinch River Ereeder Reactor Plant), ALA5-354, 4 NRC 3E3 (1976), the Appeal Board carefully weighed the facts on the record as they related to th e factors permitting late intervention before affirming licensing board's order denying untimely petitions to a
intervene.
Similarly, the Appeal Board's review of the record in Metropolitan Edison Co. (Three Mile.: Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 12.(1.9.77), ~
convinced the Board that an appropriate appli. cation of the five-factor test for late intervention demanded.. reversal of a licensing board's order permitting such intervention.
FUA's attempts to distinguish these and other. Appeal Board decisions ( Application for_ Stay at '2 ) are immaterial and simply unavailing.
3/ TUA does not even address, in connection with the' likelihood
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of prevailing on the merits, the Appeal Board's assessment of the good cause factor.
(ALAB-642 at pp. 7.-8).
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analysis.
Contrary to the implication of FUA (Application for 4
Stay at 3), the Appeal Board is not obligated to accept without critical review any Licensing Board determination.
FUA apparently argues that the Appeal Board erred in denying requests for oral argament.
Application for Stay at 3.
Whether to grant such a request is within the Board's discretion.
When i
the entire record is before the Appeal Board, including transcripts of oral proceedings during the Prehearing Conference, it can properly evaluate the record without resort to oral argument.
FUA argues generally that the Appeal Board 's determina-tions concerning the likelihood of delay that might result from FUA's motion for continuance have been disproved because the South Carolina Public Service Commission has issued an order changing the date for commencement of its rate hearing, of course, ALAB-642 did not rely on FUA's motion for continuance as more than one illustration of the potential for delay.
Cf.
10 n.6 with the discussion of other delay problems ALAE-642 at p.
at ALAE-642, pp. 11-16. 4/
FUA also asserts that its ability to contribute to the i
record has been borne out by its recent submissions, including prefiled testimony and responses to motions for summary disposition of certain of Mr. Bursey's contentions.
The. Appeal Board dealt with FUA's abilities to contribute'.
AIAB-642 at 16-2 2.
This is 4/
In connection with FUA's discussion of its motion for contin-FUA again refers to " collusion between Applicant South
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- uance, Carolina Electric & Gas Company and the South Carolina Public Service Commission."
Application for Stay at 4.
We would refer the Appeal Board to the Public Service Commission's Order (Attachment B to FUA's instant Application) at page 2.
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5 i
probably not the place for a detailed assessment of the quality, cenpetence, or comprehensiveness of the submissions by FUA.
I Suffice it to that the principal submissions by FUA are in the nature of e.irmative presentations en contentions as to which the Licensing Board denied them intervention.
To assess their participation based upon their contributions in areas other I
than their own contentions would be at least a step toward interlocutory review of the denial of those contentions by the Licensing Board, and should not be permitted.
In anv event, i
there is nothing in the recent submissions by FUA to suggest i
i th a t the Appeal Soard's discussion (A*AE-642 at 16-22) would i
l be in any way altered in result had such submissions been l
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before the Licensing Board er the Appeal Board.
For these reasons, TCA has f ailed to show that it is
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likely to prevail en the merits in regard to the Appeal Board's assessment c, t.ne gooc cause, ce_ay, and record centribution facters.
2.
TUA Will Suffer So Irreparable Harr If A Stay Is Net Granted As emphasized by the Appeal Soard (ALAS-642 at 25),"it does not follow from FUA's exclusion from the proceeding that its concerns perforce will be ignored in the licensing cf this reactor."
The Licensing Board and the NRC: Staff are themsel.ves charged with the responsibility of insuring that adequate consider-ation of these issues is made.
Khatever harm is suffered by FUA as a result cf its exclusion from the proceeding is self-inflicted, particularly relevant.to the instant but in any event, not
_6 Application for Stay.
Tne irreparable harm factor should not consider participation vel non.
The proper measure is to consider participation at this time (with doubtful entitlement) as against participation at some later time (in the unlikely event entitlement is demonstrated on review).
Moreover, What is involved here is not the issuance of a license but commencement of a proceeding without a petitioner for party status.
In this case, there is no irreparable harm and a stay is not appropriate.
See Lone Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAS-4El, 7 NRC 807, 808 (1976).
Thus, the crucial point here, as FUA seems to concede (Application for stay at 5), is that if FUA is successful in a petition for Commission review in this matter and prevails on the merits, one possible remedy is that the evidentiary hearings can be reopened if FUA demonstrates that such action is warranted.
F~JA ' s suggestion that the Commission or courts would be less likely to reopen the proceeding because of inertia or " political pressure" (id.) is baseless. 5/
3 Applicants Will Be Harmed If A Stay Is Granted If a stay of the Appeal Board's decision is granted, FUA vill 5/ We will of course leave it to the Appeal Board to deal with. FUA's astounding implication that the merits of NRC decisions have been, or may in the future be dictated by
" political pressure."
We find this suggestion especially remarkable in light of the February 19, 1981 date of the South Carolina Congressional delegation letter to the Commission (Which.is of course a proper schedule incuiry and specifically disavows expedience at the expense of.
safety or any view of the merits). See letter attached to FUA Application for Stay.
FUA's petition to intervene bears 1
the date March 23, 1981.
i I
be atie :: participate as a "provisionel" party in the evidentiary hearings scheduled to commence on June 22, 1981.
A stay would be disscived if the Petition for Review were filed and denied expeditiously.
But there is no assurance when the Commission will reach a decision regarding whether to grant FUA's yet-to-be-submitted Petition for Review.
FUA urges that since Applicants and the Staff have prefiled testimony on FUA contentions, anv injurv occasioned b.y FUA's l
I participation has already occurred.
Application for Stay at 6.
This is not the case.
As Applicants argued in their Brief opposing intervention and as the Appeal Board properly recognized, "the introduction of FUA and its accepted contentions into the proceeding less than two months before the scheduled trial date has prejudiced other parties. " ALAE-642 at 9-10.
FUA's belated intervention has prevented the use of discovery mechanisms to obtain information concerning the bases for FUA's contentions and cf summary disposition procedures to avoid litigation of some issues.
ALAE-642 at 11-13.
If FUA participates as a party in, the proceeding, delay is inevitable because of the extended examination and cross-examina-tion which would be necessary to develop the facts and resolve the matters raised in FUA's contentions, and by examination on Mr.
r Bursey's contentions and Licensing Board cuestions which the
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Licensing Board Order of May 12, 1981 would have permitted.
Remainder of Order Following Fourth prehearing Conference, para.
12 at pp 9-11.
The" result will be an extended delay in comple-tien of the evidentiary hearings and a corresponding dhlay in
E the licensing of this project.
Depending upon the timing of a ruling on whether 10 C.F.R.
} 2.786 review is granted and, if so, a ruling on the merits, proposed. findings and even the initial decision might have to cover a more complicated and more extensive record.
Delay is extremely costly to the Applicants and their customers. 6/
If FUA is ultimately unsuccessful on review, as is most likely, the deleterious consequences of FUA's participation in the hearings cannot be undone.
Applicants would' prefer to risk the remote possibility that a later delay will be occasioned by a need to reopen the hearings in the unlikely -
event that FUA is successful on review, rather than the certain prospect of delay if a stay is granted.
4.
The Public Interest Does Not Support Grantine A Stay.
The public interest lies in resolving the outstanding issues concerning the licensing of the Virgil C.
Summer Nuclear Station in the most expeditious manner possible
_6/ FUA again refers to installed reserves and the timing of the need for the Summer facility.
An examination of Applicants' response, cited by FUA (Application for Stay at 7), explains that substantial time is required between fuel loading (Which cannot occur without an operating license) and commercial operation.
FUA's discussion of reserve capacity is misleading and patently incomplete in f ailing to address, inter alia,
. Applicant Public Service Authority's reserve deficiencies and
.th e limitations on Applicant Company's energy production capability from hydro-electric (including pumped storage),
oil and combustion turbine resources.
Even if FUA's
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assertions were close to being correct, prior Appeal Board decisions have recognized that the adverse consequences of a potentially Insu,fficient generating capacity greatly outweigh i
the consequences of having a plant on line somewhat before it as absolutely necessary.
Niacara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Untt 2), ALA3-264, 1 NRC.347, 368-69 (1975).
l
9 consistent with the public health and safety.
As discussed supra, granting FJA's request for a stay can only result in further delay in the licensing of the project end consecuent cost to the Applicants and, ultimately, to their ratepayers in South Carolina.
FUA has made no showing that its participation in these proceedings is essential or even desirable for a proper resolution of health and safety-related issues.
Indeed, the Appeal Board properly concluded that FUA's ability to l
contribute to the record on these and other issues is at best problematic.
ALAS-642 at 20-22. As noted in the Appeal Board decision (ALAB-642 at 25) and discussed supra, the Licensing Board's and NRO Staff's participation is designed to ensure that health and safety issues are fully considered. The incantation of "public health and safety" raised by FUA in its Application for Stay does not provide a basis for granting a stay.
With or wi thout the participation of FUA, the Summer plant will not be licensed until the Commission has fulfilled its statutory obliga-tion under Section 103 of the Atomic Energy Act, 42 U.S.C. i 2133, te ensure the public health and safety.
FUA places much reliance on the "adversarial process" to resolve the issues in the this proceeding.
Application for Stay at 8.
It again suggests that a comparison be.made between the relative capabilities of Mr. Bursey and FUA - a position firmly rejected by the Appeal Board.
ALAE-642 at 17.
While FUA's rhetoric about the benefits of an adversary system may be true as a generality, the short answer is that FUA has not demonstrated
10 that it is entitled to claim the benefits of that system in this instance.
C ~.~.r e n c y oh-
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~w In the final analysis, the Application for stay calls upon the Appeal Board to conclude Chat its decision in ALAB-642 is of doubtful correctness and to impose the certainty of prolonged proceedings on the parties without a showing of irre.cerable harm. Ac.clicants are confident of the correctness of ALAE-642; we prefer the potential for some duplication of effort at a later stage (in the unlikely event that FUA obtains partv status u.oon review) to the present certainty of rrolonged Pr oc e ed ine. s.
To c. rant the stav would be'to create a situation in which the' adverse consequences cf extremelv. untimelv. intervention, im revidentiv c. ranted, could not be ef fectively r emedied.
r FUA has failed to make an adequate showing in compliance with 10 C.F.R. $ 2.78S(e) to.iustifv c.rantinc. a stav cf the Appeal Board's decisien.
For all cf the foregoing reasons, Applicants urge that FUA's Application for stay be deniec.
Respectfully submitted,
./
Joseph 3. Knotts,"Jr.
Dale E.
F.ollar Counsel for A.oPlican'ts Date: June 12, 1981
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..: u NUCLEAR REGULATORY COMMISSION
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EEFORE THI ATOMIC SAFr* Y AND LICINSINC-A??IAL SOARD i
In the Matter of:
r SOUTH CAROLINA ELECTRIC AND
)
GAS COMPAh't, et al.
)
Docket No. 50-395-OL
)
T (Virgil C.
Sumer Nuclear
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE i
I hereby certify that copies of " Applicants' Answer in Opposition to Fairfield United Action's Application for l
Stay of Decision Pending Review" in the above captioned matte.,
were served upon the following persens by deposit in the United States mail,. first class postage prepaid or by hand delivery as indicated by an asterisk this 12th day of June, 1981.
- Alan S.
Rosenthal, Chairman Dr. Frank F. Hooper Atomic Safety and LicensinE Schoc1 of Natural Resources Appeal Board Panel University of Michigan U.S. Nuclear Regulatory Ann Arbor, Michigan 48109 Consis sion i
Washington, D.C.
20555 F.r.
Gustave A. Linenberger Member, Atomic Safety and
- Dr.
Cohn E.
Buck Licensing Board Panel Member, Atomic Safety and U.S. Nuclear Regulator,f Licensing Appeal 3 card Panel Co=ission U.S. Nuclear Regulatory Washington, D.C.
20555 Co=ission Washington, D.C.
20555 Chairman, Atomic Safety and Licensine Board Panel.
- Christine N. Kohl U.S.
Nuclear Regulatory l
Member, Atomic Safety and Co=is sion Licensing Appeal Board Panel Washington, D.C.
20555 U.S.
Nuclear Regulatory Co=ission Georce Fischer, Esq.
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Washington, D.C.
20555 vice president and Group Executive - Legal Affairs Herbert Grossman, Esq.
South Carolina Electric and Chairman, Atomic Safety and Gas Company Licensing Board Post Office Box 764 i
U.S. Nuclear Regulatory Columbia, South Carolina 29202 Cornission Washington, D.C.
20555 t
S e
i Steven C. Goldberg, Esq.
r.- Robert Guild, Esq.
Office of the Executive Legal 314 Pall Mall l
Director Columbia, South Carolina 29201 U.S. Nuclear Regulatory Co==ission Washington, D.C.
20555 ll.
Mr. Brett Allen Bursey I
Route 1, Box 93-C Little Mountain, S.C.
29076 Mr. Chase R. Stephens Docketing and Service Section l
Cffice of the Secretary I
U.S. Nuclear Regulatory l
Co==ission Washington, D.C.
20555 i
Richarc P. Wilson, Esq.
Assistant Attorney General l
South Carolina Attorney General's Office Post Office Box 11549 Columbia, South Carolina 29211 John C.
Ruoff Post Office Box 96 Jenkinsville, S.C.
29065
-s..,,.. :
Joseph 3.
Knotus, Jr.
S
UNITED STATES OF A!1 ERICA NUCLEAR REGULATORY C0t1H15510N EEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of 50did CAROLINA ELECTRIC & GAS
)
Docket No. 50-395 COMPA;4Y
)
Virgil C. Summer Nuclear Station
. )
Unit 1
)
[
l NRC STAFF RESPOWSE TO FAIRFIELD UtilTED ACTION APPLICATION FOR STAY OF DECISION PENDING REVIEW t
(
Steven C. Goldber; Counsel for NR; Staff L
i i
June 12, 1981 t
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05/12/81 s
UNITED STATES OF AMERICA NUCLEAR REGULATORY CD4HISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
SOUTH CAROLINA ELECTRIC & GAS Docket No. 50-395 COMPANY i
Virgil C. Summer Nuclear Station Unit 1
)
NRC STAFF RESPONSE TO FAIRFIELD UNITED ACTION ADPLICATION FOR STAY OF DECISION PENDING REVIEW i
INTRODUCTION On June 1,1981, the Appeal Board issued a Decision in the captioned proceeding reversing the Licensing Board's April 30, 1981 order granting t
the late intervention petition of Fairfield United A: tion from which both the Applicant and Staff appealed ( ALAE-542).
On June 5,1981, FUA filed an application for a stay of this Decision pursuant to 10 C.F.R. 92.788 pending the disposition of its eventual petition for Commission review pur-suant to 10 CFR ! 2.785.1# Tne Staff believes that all of the considera-tiens relevant to a stay application under 10 C.F.R. [2.788(e) weigh against the grant of the present application and, accordingly, it is opposed by the Staff.
DISCUSSION In determining whether to grant or deny a recuest for a stay, the I
following considerations prevail:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; r
1/
Sy its literal terms, Section 2.785 does not contemplate filing with
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the Commission a petition for review of Appeal Board decisions on intervention rendered pursuant to 10 CFR i 2.714a.
However, the Commission has entertained appeals in this regard.
See Florida Power
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and Licht Co.- lSt. Lucie, Unit 2), CLI-78-12, 7 NRC 939 (1978).
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i (2) Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the cranting of a stay would harm other parties; and (4)
Where the public interest lies.
10 C.F.R. {2.78S(e).
The Staff will consider each factor aji seriatim below.
1.
Likelihood of Success on the Merits The Appeal Board properly decided that a consideration of the f actors governing nontimely intervention in 10 C.F.R. 62.714
" mandated" denial of the FUA petition and that the Licensing Board ruling to the contr.ary constituted an abuse of the latter's l
discretion in such matters.2 The Staff believes that the Appeal l
Board reached a sound decision that preserves the integrity and orderliness of NRC licensing proceedings and should surely reet with Commissionapproval.S! Where, as here, the movants have not and cannot establish that serious irreparable injury will result in the t
absence of a stay or that the other relevant factors favor its grant (See infra at 5-7), they must make an " overwhelming" showing tnat they will succeed on the merits of their appeal to obtain a stay.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 634 (1977); see also Florida Power and Licht Co. (St. Lucie ' Nuclear Plant Unit No. 2),
ALAB-404, 5 NRC 1185, 1189 (1977).
2/
Slip op at 24.
3/
Slip op. at 5-6.
4/
See slip op. at 6.
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-3 The Appeal Board correctly found that the lateness of the FUA petition (filed within weeks of the scheduled evidentiary hearing) was " manifestly u nj usti fied,"1c/ and that the grant of late intervention significantly j
r expanded the issues in the proceedine (with the addition of 10 contentions) "
f to the prejudice of the other parties.6/
In this latter regard, the extreme i
lateness of the intervention deprived the other parties of distevery and summary disposition on the new issues.7/ The Appeal Board further concluded i
that the Licensing Board had attributed greater ability on FUA's behalf to contribute to the proceedine than was warranted on the basis of the record.
Tne Staff agrees.
Fairfield United Action was initially admitted to litigate corporate management and er.ergency planning contentions.
The group initially represented that it did not intend toB/ (and, in fact, has not), file any t
direct testimony en the ccrporate management contentions.
Instead, it intended to cross-examine Applicant witnesses relying on the familiarity gained tnrough its past participation in state rate proceedings. The Appeal Board correctly found that it was "not im ediately obvious" why this involve-i ment in a state rate proceeding would provide unicue expertise in the area I
C i
of management competence tc cperate a nuclear facility.3/
The Appeal Board could discern no basis for the Licensing Board's firm opinion to the con-l i
tra ry.
This was particula-ly true, in the Appeal Board's estimation, given i
r S/
Slip op, at S.
6/
Slip op. at 9-10.
7/
Slip op. at 12-13.
8/
April 7-8, -1981 Prehearing Conference at Tr. 457 9/
Slip op. at 20.
t 1
_4 the inexcusible lateness of the petition and the collective ability of the exoerienced Board members to insure the development of a sound record on thesematters.2E With regard to the emergency planning contentions, the Appeal Board noted FUA's expressed intention to offer the direct testimony of a Dr. Greenhut and a Ms. Marlene Bowers Andrews but opined that too little information was then provided concerning their qualifications and possible testimony to " permit an informed judgment regarding their likely contri-bution."11 The Staff agrees.
In any event, FUA served the prefiled testimony of these two individuals concerning one aspect of one emergency planning contention on May 2B,1981.
The gravaman of their prefiled-testimony.is that the Applicant's public information literature about emercency procedures and preparedness is too complicated for the less educated residents in the area.
The Staff believes that this may be a valid criticism and would encourage the Applicant to take this into account in the development and expansion of its public information prograw, concerning accident risks and energency preparedness.
FUA did I
not prefile _any other proposed testimony on emergency planning issues.
Quite apart from these considerations, the Appeal Board aptly i
concluded that the introduction of a new party in a proceeding initiated over four years ago for which hearings are imminent compromises the integrity of the adjudicatory process.e12/
This echoes the reasoning 10/ Id. at 20-21.
i 11/ Id. at 22.
_1_2./ Id. at 24 i
t 5
. s applied by the Appeal Board in the North Anna decision on late inter-vention.
As de onstrated above, the Appeal Board reached the proper decision based on the operative las and facts and the Commission should not disturb this result.
Moreover, the delay and uncertainty the readmission of FUA would introduce into the proceeding in the face of recent Co=is-sion efforts to reduce the backlog of near-tem operating licenses and otherwise reduce unnecessary delay in the licensing process,14/ would appear to make it unlikely the Comission would reverse the Appeal Board decision which, as already stated, was correctly decided on the merits.
2.
Irrecarable injury The ouestion of whether irreparable injury will be sustained by a novant unless a stay is granted is a crucial factor for consideration.
See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 632 (1977). However, if, as here, there is ne showing the moving party will prevail on the merits of its i
appeal, there is no right to a stay even if the movant will suffer irrep-
]
arable injury. Toledo Edison Co. (Davis-Sesse Nuclear Power Station, Units 1, 2 and 3), ALAS-385, 5 NRC 621, 631 (1977).
In any event, FUA
]
cannot demonstrate that it will suffer irreparable injury if its present i
application is denied.
The issuance of an operating license cannot l
occur until the Commission so authorizes after its review of a Licensing
-13/ VEPCO (North Anna Nuclear Power Station, Units 1 and 2), ALAB-289, 2 NRC 395 (1975).
See Staff brief in support of initial appeal, dated May 11,1981, at 9-10.
la/ See Comission " Statement of Policy on Conduct of Licensing Proceedings".
46 F.R. 28533 (May 27,1981).
i Board initial decision.E/ A Commission decision on FUA's petition most assured can be issued before an operating license can reasonably be expected.
The movant claims that if the evidentiary hearing scheduled to be held from June 22-July 2,1981 is conducted without it, it will suffer irreparable injury.
Even if, as the movant observes, it is unlikely that Comnission action on tne eventual appeal from ALAB-642 would be completed in this time frame, FUA would not be deprived of a hearing on these issues were the Commission to reverse ALAB-642.
Under such circumstances, a Co=ission decision would be rendered in time to pemit a hearing on FUA's contentions to take place between July 13-24, already set aside by the Board as a second hearing session (if necessary), and for which FUA is available to appear.
The direct testimony on FUA contentions is already on file in the proceeding and all parties concerned presumably ready to proceed to an expeditious hearing thereon.
For these reasons, the Appeal Board decision does not impcse irreparable injury upon the movants.
3.
Ham to other parties The schedule for the June 22 evidentiary hearing was established in February,1951.
All the existing parties have proceeded with case preparation with that in mind.
Prefiled testimony was filed on May 28.
The grant of the present stay request would dramatically disturb the hear-ing plans and adversely effect the schedules of the presiding Board mem-bers, parties and their counsel, and several dozen prospective witnesses.
-~~15/ See recent amencment to Commission review procedures for Licensing l
T5ard decisions granting operating licenses contained in Appendix B to 10 CFR Part 2.
46 F.R. 28527 (May 28, 1981).
B
The parties hope to be able to complete the hearing in a single two-week session.
If the stay is denied and the Appeal Board dec;sion is ultimately affirmed, the case can proceed to decision on an orderly basis.
If a stay is granted and the Appeal Board decision is ultimately affirmed by the Commission, the Board and parties mus+ then reschedule the planned hearings which will result in unnecessary delays.
Such sci zduling delays would have the effect of unnecessarily delaying any eventual initial decision and license.
4 Public Interest As the Appeal Board noted, the public interest is best served by the orderly conduct of NRC licensing proceedings.
The Commission has recently reiterated its cunmitment to this objective in its " Statement of policy on Conduct of Licensing Proceedings." Given the unlikelihood of FUA prevailing on the merits, and the fact that additional hearing time is already set aside in July, if necessary, it does not serve the public interest to stay the Appeal Board decision and thereby postpone the June 22 hearing.
Such a decision would seriously disrupt the orderly administration of this proceeding in the event FUL does not prevail and reintroduce the subst ntial uncertainty which this Appeal Board removed in ALAS-642.
If FUA is reinstated as a party it will get its " day in Court".
---16/ Slip op, at 6; See aise Allied General Nuclear Services (Barnwell Nuclear Fuel Separations Facility), ALAB-296,12'NRC 671, 6B4-85 (1975).
.g.
?
f CONCLUSION-For the above reasons FUA's application for a stay of ALAB-642 should be denied.
Respectfully submitted, '
C.~ Nh/
Steven C. Goldberg Counsel for NRC Staff i
8 Dated at Bethesda, Maryland this 12th cay of June, 1951.
4 s
l 1
I i
l 1
2 D
' UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
SOUTH CAROLINA ELECTRIC & GAS
)
Docket No. 50-395 COMPANY
)
Virgil C. Summer Nuclear Station,
)
Unit 1
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO FAIRFIELD UNITED ACTION APPLICATION FOR STAY OF DECISION PENDING REVIEW in the above-captioned pro-ceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear
' Regulatory Commission's internal mail system, this 12th day of June, 1981.
Alan 5. Rosenthal, Chairman George Fischer, Esq.
Atomic Safety and Licensing Appeal Vice Fresident and General Counsel Board South Carolina Electric & Gas Co.
U.S. Nuclear Regulatory Commission P.O. Box 764 Columbia, South Carolina 29202 Washington, D.C.
20555 Dr. John H. Buck Richard P. Wilson, Esc.
Atomic Safety and Licensing Appeal Assistant Attorney General Board 5.C. Attorney General's Office U.S. Nuclear Regulatory Commission P.O. Box 11549 Columbia, South Carolina 29211 Washington, D.C.
20555 Christine N. Kohl Mr. John Ruoff Atomic Safe:y and Licensing Appeal P.O. Box 95 Board Jenkinsville, S.C.
29065 U.S. Nuclear Regulatory Commission Brett Allen Bursey
- Washington, D.C.
20555 Route 1, Box 93-C Herbert Grossman, Esq., Chairman Little Mountain, S.C.
29076 Atomic Safety and Licensing Board Panel Joseph B. Knotts, Esc.
U.S. Nuclear Regulatory Cornission Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C.
20555 Washington, D.C.
2003E Dr. Frank F. Hooper School of Natural Resources Randolph R. Mahan, Esq.
University of Michigan 5.C. Electric & Gas Company Ann Arbor, Michigan 48109 P.O. Box 764 Columbia, S.C.
29218 Mr. Gustave A. Linenberger Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- b d
t 2-Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Ccamission Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
t Docketing and Service Section Office of the Secretary i
U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555
+
l l
4 i
b t
i i
i v
v Steven C. Goldberg i
Counsel for NRC Staff i
.,y.}lb']
la' e
/'
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.r ATOMIC SAFETY AND LICENSING APPEAL BOARD
- e g
\\',
Administrative Judges:
\\-
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..~_ _'.. ; '
Alan S. Rosenthal, Chairman i
Dr. John H. Buck Sy...,,,,'
'b?!
Christine N. Kohl
,,- c ur,
)
In the Matter of
)
)
SOUTH CAROLINA ELECTRIC AND GAS
)
Docket No. 50-395 OL COMPANY _ET _AL.
)
(Virgil C.
Summer Nuclear Station,
)
Unit 1)
)
)
Mr. Joseph B.
Knotts, Jr., Washington, D.
C.,
for the appellants South Carolina Electric and Gas Company 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 Action.
5 DECISION
~
June 1, 1981
( ALAB-64 2)
J i
This operating license proceeding involves Unit 1 of the Summer nuclear f acility, located in Fairfield County, South Carolina.
It was instituted more than four years ago by the publication of a j
notice of opportunity for hearing.
42 Fed. Reg. 20203 (April 18, p
1977).
In response to that notice, one intervention petition and i
I
_Q964cfiT57fI5 i
l
i t
request for a hearing (that of Brett Allen Bursey) was filed and, in 1978, granted.
LEP-78-6, 7 NRC 209.1/ In addition, the State of South Carolina was given leave to participate in the proceeding under the " interested State" provisions of 10 CFR 2.715 (c).
The prehearing stage has extended over a protracted period of time.
The proceeding is, however, now ready for trial.
On March 9, 19 81, the Licensing Board issued a memorandum in which, acting upon the agreement of the parties, it tentatively set the
)
commencement of the evidentiary hearing for June 22, 1981.
Sub-sequently, that date was confirmed.
i As of March 9, the necessarv contemplation was that the hear-ing would embrace those contentions of Mr. Bursey which had been admitted to the proceeding, together with certain questions which~
the Board itself had raised sua spente.
See 10 CFR 2.760a.
The further expectation was that the participants would be four in number:
the applicants ; Mr. Bursey; South Carolina; and the NRC staff.
But precisely two weeks later, on March 23, a new face appeared on the scene.
Armed with a plethora of proposed conten-tions of its own, an organization comprised of Fairfield County residents -- entitled Fairfield United Action. (hereafter FUA) filed a petition for leave to intervene.
It is the action taken by the Board below on that petition which has now brought the proceeding before us.
Over the objection 1/
The notice required petitions to intervene to be filed within
~~
30 days (i. e., by May 18,1977).
42 Fed'. Reg. at 20204.
of both the applicants and the staf f, 2 / on April 30 the Board granted the FUA petition and accepted 10 of its 27 contentions for litigation.
LSP-81-ll, 13 NRC Dissatisfied with that result, those parties have appealed under 10 CFR 2.714a.
FUA urges af-firmance.3/
I.
No one disputes that, as the Licensing Board determined, FUA has satisfactorily demonstrated the requisite standing to inter-its petition is supported by the affidavits vene.
On that score, of several of its 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 participation in this proceeding.
That is plainly suf ficient to satis fy the interest requirements of 10 CFR j2 /
Neither Mr. Bursey nor South Carolina took a position on the controversy.
3/
No appeal has been, or could be, prosecuted by FUA from the rejection of the remaining 17 contentions.
This is be-
~~
the Commission's Rules of Practice "do not permit a per-cause son to take an interlocutory appeal from an order entered on his intervention petition unless that order has the effect of denying the petition in its entirety".
Houston Lighting-and i
Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
i ALAB-585, 11 NRC 4 6 9, 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 only if at least one rember v,,;es in favor of it.
10 CFR In this'
- 2. 763; Appendix A to 10 CFR Part 2,Section IX (e).
the Board unanimously concluded that the parties' instan ce,
positions on the issues presented by the appeals have been adequately developed in the briefs and that oral argument would not be helpful.
_4 t
- 2. 714 (a).
See Hous ton Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-400 (1979).
The controversy focuses instead upon the Licensing Board's treatment of the question whether FUA nevertheless should be denied intervention because of the extreme belatedness of its petition and the imminence of the evidentiary hearing.
As the Board correctly recognized, in resolving that question it w as required to look to the five f actors which 10 CFR 2. 714 (a) mandates be balanced when a' belated petition is at hand:
(i)
Good cause, if any, for failure to file l
on time.
(ii)
The availability of other means whereby the petitioner's interest will be pro-tected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
i (iv)
The extent to which the petitioner's in-terest will be represented by existing parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
In its decision, the Board discussed each of these f actors in turn.
LBP-81-11, supra, 13 NRC at (slip opinion, pp. 4-12). _Its ultimate concitsion was that, collectively, the f actors justified allowing the eleventh hour introduction of some, but not all, of the FUA contentions and, thus, supported the grant of intervenor
e status to the organization.
Id. at (slip opinion, p. 13).
FUA was cautioned, however, that it must "take the proceeding as it cur-rently stands * * *".
Id. at (slip op, inion, p. 4).
It is well-settled that the appellate review of licensing board application of the five f actors is governed by the " abuse of I
discretion" st andard.
- See, e.g., Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975); Florida Power & Licht Co. (St. Lucie Nuclear Pcuer Plant, Unit No. 2), ALAB-420, 6 NRC 8, 13 (1977); Project Management Corp. (Clinch River Breeder Reactor Plant), ALAE-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 factual and legal in-gredients of the analysis underlying the board's ultimate conclu-sion.
ALA3-420, supra; ALAS-354, supra; Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612 i
t (1977).
And we think that the obligation to underti e such an ex-l amination is particularly apparent in the circumstances of this
)
case.
r I
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 was mani-f festly unjustified.
This being so, the validity of the grant of I
4
l the petition so close to the start of the hearing perforce hinges f
i upon whether a compelling showing has been made by FUA on the other j
i four factors.
Once again, by March 9 when the hearing date was set (if not long before), the applicants and the staff had every right to assume that both the issues to be litigated and the participants had been established with finality.
Simple f airness to them -- to say nothing of the public interest recuirement that NRC licensing proceedings be conducted in an orderly f ashion -- demanded that the Board be very chary in allowing one who had slept on its rights to inject itself and new claims into the case as last-minute trial preparations were underway.
For the reasons which follow, we are persuaded that FUA's showing on the controlling f actors fell f at ally short of what might have provided a sufficient foundation for a discretionary allowance of tardy intervention.
Accordingly, the April 30 order cannot stand.
II.
For the purposes of its analysis, the Licensing Board divided FUA's contentions into two groups.
The first consisted of the ten contentions which were ultimately admitted to the proceeding; they broadly dealt with corporate management (Nos. 1, 2, 27) and emer-gency planning (Nos. 7-13).
The second group embraced the 17 re-jected contentions -- covering such widely diverse subject matter i
as financial qualifications (No s. 3 and 4); seismicity (Nos. 5 and 6); steam generator tube integrity (No. 14); quality control (No.
15); diesel generator reliability (No. 16); class 9 accidents (No.
- 17) ; anticipated transients without scram (No. 18); license condi-tion implementation (No. 19); storage and transportation of spent fuel (Nos 20-22); health effects of radiation releases during normal plant operation and as a result of the uranium fuel cycle 0;o. 2 3) ; systems interactions (No. 24); control room design (No.
25); and hydrogen control 0;o. 26).
A.
In its decision, the Licensing Board summarized the vari-ety of reasons assigned by FUA for the f ailure to have sought in-tervention on any issue at a much earlier date.
LBP-81-11, supra, 13 URC at (slip opinion, pp. 2-3).
In large measure, those reasons were found insubstantial.
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-ment capability contentions".
Id. at (slip opinion, pp. 5-6).
8-t We need not determine here whether the Board was right in that view.
Be that as it may, the post-TMI events cannot possibly serve to justify FUA's election to wait until the end of March 1981 to file its petition.
In this cc:...ection, as the Board itself emphasized, the final rule establishing new and specific standards for on esite and of' site radiological emergency plans was published on August 19, 1980.
And we have been pointed to no more recent developments in the corporate management area which might be taken as having first triggered forward its concerns on that subject.- !
FCA's obligation to put r
4/
It appears from the petition to intervene (at p.
- 4) that FUA had assumed prior to mid-February 1981 that "its inter-
~~
ests were being represented, to sore extent, by" Mr. Bursey.
Only then, when it was given reason to doubt the continuing validity of that assumption, did FUA undertake "an immedi-ate and thorough inquiry into the status of this proceed-ing and its rights and remedies".
As the Board below cor-rectly observed, that excuse is not acceptable.
See Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3),
ALAS-440, 6 NRC 642, 644-45 (1977).
Apart from stressing its udsplaced reliance upon the Bursey intervention, in its appellate brief (at p. 3) FUA reiter-l ated its complaint below respecting the asserted lack "for several years" of a " properly managed" local public docu-Whether or not this assertion has factual sub-ment roor..
stance, it too provides an inadequate explanation for the March filing of the intervention petition.
As FUA acknowl-edges (Br. p. 2), its representatives attended a November 25, 1980 prehearing conference in this proceeding.
At that time, if not before, it had a full opportunity to acquire whatever information may have been necessary to undergird its petition.
Yet it waited another four months -- as it admits (Br. pp. 2-3 ), because of the Bursey intervention.
i j
. The Board below nevertheless found the " good cause" fcetor B.
"to be of almost no weight (or of slight weight against petitioner) in deciding 'spon the intervention with regard to the corpore ce man-13 NRC at (s1.ip opin-agement and eme.gency planning issues".
Central to this finding was the Board's arti:ulated ion, p.
7).
belief that no other party to the proceeding had been disa Svantaged by the filing in March (rather than considerably earlier).ind that Id.
..t the progress of the proceeding would not be delayed.
6-7). E/
(slip opinion, pp.
It seems r'anifest We disagree with the Board on both scores.
to us that the introduction of FUA and its accepted cont'ent ions is not entirely clear from an earlier statement in the
~~5/
It Board's discussion on this point whether the Board mic ht these considerations bear upon the f xist-that have thought ence of good cause for the tardy filing in March, as c p-significance of the absence of s uch posed to the possible We have specifically in mind the observation ttat added d21ay in filing disadvantaged any pa rties cause.
" [h] ad that other than petitioner itself (by circumscribing its pr t-hearing activities), or delayed the proceedings, we mii ht find a lack of good cause".
13 NRC at (slip opinicn, pp. 6-7).
Obviously, whether there is " good cause" for a late fil:ng depends wholly upon the substantiality of the reasons as-having filed at an earlier date.
For the. r signed for not the consequences of the tardiness are to be looked (most1 particular1 r part,in connection with the other factors dealing with delay and the broadening of at the fif th one,We shall assume that the Licensing Board 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.
1
- ~
my. g y o w" 10 -
into the proceeding less than two months before the scheduled trial date has prejudiced other parties.
Further, a delay in the progress of the proceeding is not merely a theoretical pos-sibility but rather a very likely proximate result of the be-lated intervention. 6 /
6/
At the April 7-8 prehearing conference, the Licensing Board announced that, if not completed during the June 22-July 3 period, the evidentiary hearing would resume on July 13 and continue through July 24 (Tr. 666).
This was later confirmed in a May 14 " notice of scheduling of evi-dentiary hearing".
On May 12, FUA filed a " motion for continuance" in which it called attention to the f act that FUA and its repre-sentatives are also parties to a rate proceeding pending before the South Carolina Public Service Commission.
That proceeding (involving cne of the present applicants) is scheduled to commence on July 13.
Asserting that it lacked the resources to appear simultaneously in both pro-ceedings, FUA asked that, unless the state proceeding were rescheduled, the July 13 hearing session in the NRC pro-ceeding be postponed.
On the date of the filing of FUA's brief with us (May 20),
the motion was pending before the Licensing Board (and it still is).
Yet, FUA did not refer to it in that brief.
Particularly because one of the signatories was a member of the Bar (see fn. 12, infra), we find the omission dis-turbing.
Clearly, were the motion to be granted, there might well be a delay in the completion of the evidentiary hearing as a direct consequence of FUA's intervention.
This being so, FUA should have acknowledged the existence of the pending motion in the course of its argument (Br.
pp. 11-12) that the late intervention would cause no "rel-evant" or " unproductive delay".
. 4 i
1.
Had FUA sought and obtained intervention in a more timely
[
fashion, the applicant and the staff could have instituted dis-covery against it without jeopardizing the present commencement date for the evidentiary hearing.
The Licensing Board acknowl-edged that f act but went on to express the opinion that " discovery would 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 offices of its potential witnesses to the extent we are admitting its contentions, for the Board will not allow addi-i tional witnesses".
13 NRC at (slip opinion, pp. B-9).
The principal dif ficulty with that line of reasoning is that it ascribes too limited a role to the discovery process.
Parties i
to a proceeding are entitled to obtain in advance of hearing much more than simply a summary statement of the bases for their ad-versaries'. claims and some identification-of potential witnesses whose testimony might support those claims.
Rather, as we had re-l 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 more expeditious hearing or trial".
Pennsylvania Power and Light Cv.
(Susquehanna Steam Elec-I tric Station, Units 1 and 2), AL AB-613, 12 NRC 317, 322 (1980),
l l
t
~
~ 1.a, x A
. quoting from Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LEP-78-20, 7 NRC 1038, 1040 (1978).
In the same vein, the Supreme Court has noted that, as a result of the availa-bility of discovery, "It]he way is now clear, consistent with recognized privileges, for the parties to obtain the fullest pos-l sible knowledge of the issues and f acts before trial".
Hickman v.
Taylor, 329 U.S.
495, 501 (1947).
The short of the matter is that, because of FUA's inexcusable tardiness, the other parties to the proceeding have been effective-i ly deprived of the opportunity to obtain "the fullest possible knowl-
~
edge" of what FUA proposes to adduce in support of its contentions.
To be sure, the Board directed that "the parties cooperate in in-formal discovery" with respect to the " applicant's and Is)taff's evolving positions on emergency planning".
13 NRC at (slip opinion, p.
9).
But, irrespective of precisely what the Board may have had in mind in that regard, it seems reasonably apparent that the contemplation was not that either the applicants or the staff would undertake to determine the metes and bounds of FUA's case by me ans o f interrogatories, depositions, docunent discovery and re-quests for admissions.
In any event, time would have not permitted such an exploration -- at least so long as the June 22 hearing date J
remained inviolate. 7 /
_7 /
In this connection, it is our understanding that the prefiled testimony was due on May 28.
t 2.
Equally unpersuasive is the Licensing Board's treatment i
of the impact of the tardy intervention upon the ability of the applicants 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 emergency planning issues are now susceptible of summary disposition.
13 NRC at (slip opinion, p.
9).
By that, the Board presumably meant that a trial could not be entirely avoided on those issues.
But it scarcely follows that none of the specific claims set forth in FUA's numerous contentions would be disposable summarily -- in part if not in whole. 8 /
- Thus, by countenancing FCA's intervention at such a late date that pre-trial resort both to discovery and to summary disposition proce-dures became practical impossibilities, the Board has created the substantial danger that hearing time will be unnecessarily expended and, thus, wasted.
3.
The Licensing Board reasoned that, because "the corporate management and emergency planning issues had already been admitted to the proceeding (by Board question or intervenor
[i.e., Bursey]
contention)", the issues would not be broadened by FUA's admission to the proceeding on those subjects.
13 NRC at (slip opinion,
- p. 8).
We cannot agree.
1 Only one of Mr. Bursey's contentions even renotely brings in-to question the applicants' managerial capabilities:
in contention 8/
Some of those specific claims are summarized infra, pp. 14-15.
4
. A2, that intervenor asserted that the applicants lack the financial qualifications to operate and decommission the f acility both safely and in compliance with NRC regulations.
For its part, the Licensing Board manifested at a November 25, 1980 prehearing conference its
" concern" that the proposed addition of the South Carolina Public Service Authority as a co-owner of the facility might " compromise management responsibility for the public health and safety".
See December 30, 1980 memorandum and order (unpublished), at pp.
6-7.
The FUA contentions go well beyond those matters, into appli-cants' competence to operate a nuclear facility.
Contention 1, for example, asserts broadly that the "overall corporate management of the Applicant is sufficiently inexperienced in the operations of a nuclear power f acility and is generally deficient in management abilities essential to the safe operation of a nuclear power plant or properly te respond under accident conditions".
Contention 2 challenges the adequacy of the " hands on" experience of the app 11-
" reactor operator staff". l/
And contention 27 disputes the i
cants' adequacy of the applicants' technical and management resources to fulfill new regulatory requirements imposed as a consequence of the Three Mile Island accident.
9/
At the April 7-8 prehearing conference, the Board below al-luded to a " question" raised by the Advisory Committee on
~~
Reactor Safeguards in the corporate management " area" (Tr.
478-79).
The question was not there identified more pre-cisely.
From the April 30 order, 13 NRC at (slip ooin-ion, pp. 10-11), it appears that the question dealt in part with the applicants' " hands-on operating experience".-
k' hat the Board left unclear was whether it was then raising that question itself.
If not, the ACRS concern necessarily will have to receive sta'ff attention before an operating license is issued.
See p. 25, infra.
4
= n n awas.aw.v l
l Insofar as emergency planning is concerned, Mr. Bursey's single contention in that area (AB) focused upon the applicants' asserted 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 has under-taken on its own to raise additional emergency planning issues.
Yet the FUA contentions manifestly have done precisely that.
- Thus, it is claimed in various subparts of contention 7 that, among other things, the applicants' plan does not meet minimum staffing require-monts; th a t realistic estimates of evacuation times have not been developed; that adequate means have not been provided for the pro-tection of those without access to motor vehicles; that no provi-sions have been made for the distribution and use of "radioprotec-tive" drugs; that on-site emergency first aid capability is inade-i quate; and that the applicants' meteorological monitoring equipment does not satisfy NRC requirements.
The other FUA emergency planning contentions (S 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, I
I
r' that the Board thought that, for the purposes of Section 2.714 (a),
a belated petition can be held to " broaden the issues" only if it introduces an entirely new subject matter.
But such an interpre-tation is at odds with the commonly understood meaning of " broaden",
"to extend the limits of".10/
And there is no reason to as-i.e.,
sume that the Commission had any other meaning in mind.
To the contrary, in assessing this factor in West Valley, CLI-75-4, supra, 1 NRC at 276, the Comrission emphasized the f act that "substantially identical" issues to those presented in the late petition had been raised by other parties.
As has been seen, FUA's contentions are f ar from "substantially identical" to either those of Mr. Bursey or the Board's management responsibility question.
C.
We now turn to the f actor which the Licensing Board thought weighs "most heavily" in TUA's favor with respect to its corporate management and emergency planning contentions.
According to the Board, FUA can be expected to make a substantial contribution to the development of a sound record on those subjects.
Its explanation for this conclusion was contained in one sentence:
"As is apparent from FUA's pleadings and from the general discussion at the prehear-ing conference, petitioner's members have become well versed [on
~
corporate management and emergency planning matters), independently 10/
Webster's Third New International Dictionary (1971), at p.
280.
t
' of any intention of intervening in this proceeding, through their participation in rate-making proceedings and in the ongoing emer-gency 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 Mr. 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 assistance from him in the resolution of the corporate management question that it had raised (although " valuable assistance" on that question was to be expected of the staff).
13 NRC at (slip opinion, pp. 10-11).
As we see it, the Board's perception of Mr. Bursey's abili-ties and his likely contributien to the proceeding could not possi-bly serve as justification for allowing FUA to come into the pro-ceeding at the last moment.
It is of ten the case that one or another of the parties to a proceeding will give the presiding board legitimate cause to question its ability to nake an effec-tive presentation on the issues in controversy.
When confronted 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 own interrogation of the witnesses.11!
11/
See 10 CFR 2.718(g).
See also, Consumers Power Co. (Midland Plant, Units 1 and 2), ALA3-2 83, 2 NRC 11, 20 (1975), where "the Board made a determined effort to insure that the issues were thoroughly explored".
r e
)
This, it seems to us, is the appropriate course to follow -- rather I
than opening the door, as the hearing date approaches, to another would-be party which seeks not merely to participate in the record development on the then-existing matters in controversy, but also to expand the issues to be heard.
i i
In appraising the ruling below on the factor at hand, we accordingly eschew any comparison of FUA's seeming capabilities with those of Mr. Bursey.
Instead, our inquiry is restricted to i
whether the record supports the Licensing Board's conclusion that FUA's likely contribution is of suf ficient magnitude to favor i
e strongly allowing its intervention at this time, i
I 1.
FUA is represented in this proceeding primarily by Dr.
John C. Ruof f.12 /
According to his af fidavit appended to the in-l tervention petition, Dr. Ruoff possesses a PhD in history and is l
a self-employed "research consultant to a variety of nonprofit and community-based organizations".
In recent years (1979-80), he participated as an intervenor on his own behalf in a rate proceed-ing conducted before the South Carolina Public Service Commission, l
1 12/
On the second day of the April 7-8 prehearing conference, l
Robert Guild, Esquire, of the Bar of South Carolina entered a special appearance for the purpose of addressing on FUA's behalf the legal issues raised by the untimeliness of the 1
intervention petition (Tr. 494).
Along with Dr. Ruoff, Mr.
Guild also signed the brief which has been submitted to us on the instant appeals.
It appears from FUA's May 12 motion for a continuance (see fn. 6, supra) that Mr. Guild's par-ticipation at the evidentiary hearing would be restricted to providing FUA with assistance on any legal issues which may arise.
We therefore assume that Dr. Ruoff would be solely responsible for the examination of witnesses and anything else required to develop FUA's position on the substantive issues.
\\
\\
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 l
operation of nuclear power plants and the probable effects of
[ Summer) operation".
2.
At the April 7-8, 1981 prehearing conference which, inter t
alia, addressed the FUA petition, Dr. Ruof f 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-examination of applicant (and possibly staff) witnesses (Tr. 477, 479, 482, 657-58).
And, as previously note'd (p. 11, sup ra), in its April 30 order the Board made it plain that FUA will not be permitted to add witnesses at this point.
l Without far more particularization of his experience and knowledge than is set forth in his affidavit or was provided at I
the April 7-8 conference, we are unable to discern any basis for concluding that Dr. Ruoff's participation as a cross-examiner is imperative to the development of a comprehensive record on the i
[,
% e -u_pa w n w g-as. s
. applicants' management capability.
While his involvement in the state rate proceeding may well have acquainted him with details of the financial structure of the lead applicant, it is not im-mediately obvious why it would have provided unusual insight into that company's competence to operate a large nuclear facility (as raised by FUA's contentions 1, 2 and 27).
Nor was the Board below given reason for confidence that such insight might have been sup-plied by Dr. Ruof f's unspecified role in unspecified FUA programs.
We do not intimate, of course, that Dr. Ruoff would be in-capable of making any contribution through cross-examination of applicant or staff witnesses.
All that we dete:rdne, or need decide, is that FUA's showing on the " record development" factor was not strong enough to warrant, standing alone, the grant of its inexcusably and materially late petition.
In this connection, as noted abcve it is both the right and the responsibility of the Licensing Board to examine witnesses itself, if necessary in the interest of insuring that a proper record is compiled on all mat-ters in controversy (or raised by it sua sponte).
We take official notice that the two technical members of the Board below have served on the Licensing Board Panel for nine and eight years respec-tively, during which period each has sat on numerous licensing proceedings.
That being so, it surely does not demean Dr. Ruoff's credentials to suggest that the Board is at least as well-equipped
f Ruoff on to pursue any relevant lines of inquiry as might be Dr.
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 planning 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. Ruof f informed the Board that, I
because he had not been able to obtain "as yet" an expert on radio-logical health, he might call upon her to testif,y.
He noted that "Dr. Greenhut has done sore research into that area with some i
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 said to have agreed to appear as a FUA witness (ibid. ).
Apart from those named individuals, Dr. Ruoff expressed an l,
interest in calling "the emergency preparedness people from the four county area, the four counties within the plume exposure pathway, emergency planning zone" (Tr. 593).
He conceded, how-ever, that he had not obtained a commitment from any such persons to testify on FUA's behalf (ibid.).
He also reaffirmed the asser-l I
tion in the FUA petition (as part of the basis for contention 7) that FUA has members (including himself) who possess " unique" l
r-
~m i
l
, I a
i knowledge of the demography, roads, traffic patterns and topography of the area surrounding the Summer site (Tr. 596).
It is unclear, however, whether he proposed to produce the testimony of some of those menbers and it is even more doubtful that the Board below would now permit him to add them to the witness list.13/
What appears f rom these disclosures is no more than that FUA may be in a position to assist the development of the record on a few -- but well short of all -- of the numerous assertions made in' its emergency planning contentions.
Just how significant tha t assistance might be is problematic.
It depends, of course, on the state of the knowledge of FUA's proposed witnesses on the subjects they would address.
Dr. Greenhut and Ms. Andrews are the only po-tential witnesses who have been specifically identified.
What the i
Board was told about their qualifications and possible testimony was plainly too sparse to permit an informed judgment regarding their likely contribution.14/
1 J 3/
FUA contention No.13 is concerned with of f-site radiation monitoring.
In a colloquy with the Board, Dr. Ruoff noted that the derivation of that contention was discussions FUA had had with the Union of Concerned Scientists.
He conceded that he had not obtained a witness to support the contention.
He also acknowledged that the contention did not parallel any of Mr. Bursey's contentions.
Tr. 621.
i 14/
At several points both in its petition and during the pre-hearing conference, FUA made mention of various employees
~~
of the lead applicant who assertedly would shed some light on the corporate management and emergency planning questions i
raised by the petition.
In a May 13, 1981 order (at p.
9),
{ FOOTNOTE CONTINUED ON NEXT PAGE)
p.
. l D.
We have no quarrel with the Licensing Board's conclu-sions respecting the remaining two f actors.EE/
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 FDA and Bursey claims dif fer in significant measure.
And while the applicants and the staff point out that FUA menbers might choose to make lim-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
perceive other means which might serve that purpose.
But, as the Licensing Board itself correctly observed, those 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)
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the Licensing Board directed that those employees be made available at the hearing for FUA examination.
We do not deem them to be FUA witnesses and, further, find no basis 1
for conjecture on how fruitful FUA's examination of them night prove to 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. Bursey'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 FUA's exercise of that privilege.
15/
I.e.,
the availability of other reans whereby the petitioner i
can protect its interest and the extent to which other par-ties will represent that interest.
~
l
- to envisage a situation in which they might serve to justify grant-ing intervention, af ter the hearing date was set, to one who (1) is inexcusably late; (2) seeks to expand materially the scope of the proceeding; and (3) offers, at best, a marginal showing with respect to its ability to make a truly significant, substantive contribution.
In the present context, for the very reason that, as FUA puts it (Br. p. 9), " [t]his proceeding represents the best forum for the protection of [its) interest in health and safety matters regarding the Summer Nuclear Station", the organization should have filed its intervention petition at a much earlier date.
By instead remaining on the sidelines while the proceeding moved closer and closer to trial, it voluntarily assumed the precise risk which has now mate-rialized:
that its participation in the proceeding could.no longer be sanctioned without destructive damage to both the rights of other parties and the integrity of the adjudicatory process itself.
For the foregoing reasons, the denial of the FUA petition E.
was mandated.
Although understandably hesitant to deprive FUA of I
the opportunity to ventilate its seemingly genuine concerns at the hearing which is about to commence, in the totality of circumstances the Licensing Board simply had insufficient justification under the Commission's Rules of Practice for allowing this crucially tardy intervention.
f
r 1
~ ~ ~ _ _
_ m,m
.__.s i
v ;
t It does not follow from FUA's exclusion from the proceeding that its concerns perforce will be ignored in the licensing of this reactor.
Insof ar as they overlap either matters placed in 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-quire their adequate evidentiary exploration.
To the extent tha t they go beyond the bounds of.the hearing as fixed prior to the belated FUA 2ntervention attempt, under the 1cng prevailing reg-ulatorv, 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 the health and safety of the public".
As to inimical to *
- those aspects of reactor operation not considered in an adjudica-tory proceeding (if one is conducted 15!), it is the staf f's duty to insure the existence of an adequate basis for each of the reg-uisite Section 50.57 determinations.
Insof ar as it granted the intervention petition of Fairfield United Action, the April 30, 1981 order of the Licensing Board, 16/
On the operating license level, a hearing is required only in response to a successful petition for leave to intervene and request therefor.
Section 189a. of the Atomic Ene-rgy Act of 1954, as amended, 42 U.S.C. 2239 (a).
e a
o V LBP-81-11, 13 NRC is reversed and the cause is remanded with instructions to deny that petition as untimely.
It is so ORDERED.
FOR THE APPEAL BOARD bbM mM C. Jeft Bishop
\\
Secret'hry to the Appeal Board Ms. Kohl, concurring:
I join fully in the Board's opinion.
I take this opportunity only to make two brief additional points.
1.
FDA's papers, particularly those prepared by Dr. Ruoff and filed before the Licensing Board, represent an impressive --
albeit unsuccessful -- effort to participate in and contribute to this important proceeding.
Given the quality of these pleadings and the asserted interest of its members in the Summer f acility, it is especially difficult to understand why FUA, which was incorporated in early September 1980, waited over six months before taking any formal action in furtherance of that interest.- !
1/
Even af ter FUA's representatives attended a November 25, 1980, prehearing conference, the organization took no im-
~~~
mediate action to formalize its involvement.
See fn.
4, i
- suora, i
o
- 4 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 proceeding.
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 enthusiasti-cally. 2/
2/
I note in this connection that FUA's counsel, Mr. Guild (see fn.12, supra), at one time was to have appeared in
~~
this proceeding as a witness for Mr. Bursey on his Con-tention A2 (May 13, 19 81, Order at pp. 3, 11-12).
- Thus, there is an ostensible connection between FUA and the intervenor that would facilitate an offer (and accept-ance) of assistance from the former.
4 e