ML20058A519
| ML20058A519 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 07/17/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AIA, TASK-SE SECY-81-423, NUDOCS 8110290183 | |
| Download: ML20058A519 (12) | |
Text
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a uau July 17, 1981 SECY-81-423 (ha,1
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ADJUDICATORY ISSUE (Affirmation) 4 For:
The Commissioners From:
James A.
Fitzgerald Assistant General Counsel i
Subject:
Petition for Review of ALAB-64 2 -- In the Matter of South Carolina Electric and Gas Co., et al.
Facility:
Virgil C. Summer Nuclear Station, Unit.1 i
Review l
Time Expires:
Extended to July 29, 1981.
Discussion:
The purpose of this paper is two-fold.
It is to inform the Commission of a petition for review of ALAB-642 in which the Appeal Board reversed the Licensing Board's decision to granti, in part, Fairfield United Action's (FUA) late petition to intervene in the Summer OL proceeding.
- Second, it is tof ecommend that (L %
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1.
Background-On March 23, 1981 FUA filed a petition for leave to intervene in the Summer OL proceeding.
The petition was almost four years late.1/
The pre-trial stage of the case was nearly complete and Informah.on m th.!s record was de'eted an evidentiary hearing tentatively set when the in accordance with th rcedam of in!ctmation FUA petition was-received.
Notwithstanding this Act, exemJ ons
- -- tardiness, the Licensing Board granted the petition li f01A. 7A-KJ4 to intervene and admitted 10 of FUA's 27 proposed contentions.
The applicant and NRC staff opposed 8110290183 930412 the petition.
There has been no challenge to b$IN FUA's standing so the only issue is the tardiness l
-436 PDR of the petition.
Contact:
Pat Dav'is, OGC, 43224~
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One intervenor, Brett Bursey, had already been admitted upon filing 'a timely petition in 1977.
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The Appeal Board reversed the Licensing Board decision after concluding that the balance of the factors governing late intervention tipped away from intervention. 2/
The Appeal Board recognized that its scope of review was narrow 3/ but reasoned that the circumstances obligated it to scrutinize closely "the factual and legal ingredients of the t
analysis underlying the [ licensing) board's ultimate conclusion."
ALAB-642, Slip Op. at 5.
The Appeal' i
Board conducted a detailed analysis of FUA's petition and the Board's decision and disagreed with the Licensing Board on most major points of the analysis.
A petition to stay the effectiveness of this Appeal Board decision was denied by the Commission on June 19, 1981, three days before the start of the hearing.
l 2.
Licensing Board vs Appeal Board Analysis Good Cause 2/
A board is required to look to the five factors wh'ich 10 CFR 2.714(a) mandates be balanced when a belated petition is considered:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
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(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's participation l
will broaden the issues or delay the proceeding.
3/
Review of the Licensing Board's decision is governed by the
" abuse of discretion" standard.
-See,'e.g.,
Nuclear Fuel i
Services, Inc. (West Valley Reprocessing Plant) 1 NRC 273, 275 (1975).
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w-The petitioner presented a number of reasons _ for its failure to intervene in a timely fashion.
The Licensing Board found only one convincing.. The Board found that FUA's reliance on post-TMI events did provide good cause for late intervention with regard to emergency planning and corporate manage-ment contentions, citing the licensing board in.
Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), ALAB-80-14, 11-NRC 570, 574 (1980).
The Board stated that requirements in these two areas have undergone vast changes since the TMI accident and. especially during 1980.
These changes justified late interv ntion up to mid or late 1980 However, the Board went on to
.i say:
As it is, petitioner delayed some months longer in apparent reliance upon ' Mr. Bursey's intervention before filing its petition in March of 1981.
As we have - sta'ted before, i
such reliance is legally insufficient to j
constitute good cause for the additional
- delay, Had'that added. delay in filing disadvantaged cny parties other than.
petitioner itself (by circumscribing its prehearing activities), or delayed the proceedings we might find a lack of good However, since it does not delay cause.
the proceeding and there was good.cause for the bulk of the delay in filing these i
contentions, we find that factor to be of-i almost no weight (or of slight weight against petitioner) in deciding upon the intervention with regard to the corporata management and emergency planning issues.
13 NRC Slip op, at pp. 6-7.
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The Appeal Board assumes that the Licensing Board did not mean to say that the absence of delay and disadvantage to other parties bore upon its determi-nation as to the existence of good cause.
ALAB-642, !
Slip op. p.
9, fn. 5.
The Appeal Board stated j
that the text of the Licensing Board's opinion quoted above was intended to mean only that the
" good cause" factor did not weigh heavily against FU A in the overall assessment of the petition.
Ibid.
The Appeal Board concluded that the Licensing Board did not, therefore, find that FUA was justified in waiting until March 1981 before seeking to intervene (ALAB-642, Slip op. p. 5); it found only that the delay was justified until mid j
to late 1980.
The Appeal Board declined to determine whether the Licensing Board was correct
-l because " post-TMI events cannot possibly serve to
_j justify FUA's election to wait until the end of March 1981 to file its petition."
The Appeal Board
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concluded that the Licensing Board.did not give the lack of good cause enough weight when balancing the factors of section 2.714.
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.i Delay The second factor considered by the Licensing Board was the extent to which late intervention wou)d broaden the issues or delay the proceedings.
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The Licensing Board determined that very little unproductive delay would result from granting FUA's I
petition.
The Licensing Board required the
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petitioner to take the case as petitioner found it and limited the petitioner's case to the specifics m
5 set out in its petition and at the.prehearina conference, f l
The Appeal Board disputed each of the Licensing Board's conclusions.
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thaE'k'he Licensing Board's The Appeal Board con-m cluded, therefore, application of the delay factor to the facts of this case was not persuasive, and this factor must be weighed against intervention.
Ability to Contribute to Sound Record The Licensing Board concluded that this factor, -
the ability of FDA to contribute to the development of a sound record, weighed most heavily in favor of intervention.
The Board based this conclusion on (1) the Board's observation of FUA's performance and (2) the lack of an adequate performance by the admitted intervenor, Bursey.
The Appeal Board refused to consider Bursey's capa-bilities, or lack thereof, in determining whether gpA could contribute to development of the record.
/
(EX 5 4
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_] The Appeal Board found the record m
insufficient to provide any basis to conclude that FUA's participation is imperative to the develop-ment of a comprehensive record or that FUA would provide any unusual insight on the issues it raised.
According to the Appeal Board, the ability of FUA to contribute to the development of a sound record is problematical and not sufficient standing alone to warrant the grant of an inexcusably late petition.
Protection of Petitioner's Interest The Appeal Board and the Licensing Board agreed on the application of the final two factors to the circumstances of this case.
The Boards agreed that FUA probably had no other means of protecting its interests.
In addition, given the Licensing Board's appraisal of the manner in which Bursey conducts his own case, both Boards j
concluded that he would not be likely to ad.eguately protect FUA's interest.
Conclusions The Licensing Board concluded that on balance the f actors weighed in favor of intervention.
The Appeal Board concluded that the two factors it found weighing on the side of intervention could not justif :
granting intervention af ter the hearing date was set to one who "(1) is inexcusably late; (2) seeks to l
expand materially the scope of the proceeding; and l
(3) offers, at best, a marginal showing with respect to its ability to make a truly significant, substan-tive contribution.
In addition, the Appeal Board j
determined that the Licensing Board's decision to grant the late intervention petition was based on a misapplication of section 2.714 and should be
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reversed.
3.
Scope of Review The scope of Commission review of a petition for review of Appeal Board action is set out in 10 CFR 2.786:
(4)
The grant or denial of a petition for review is within the discretion of the Commission, except that:
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7 (i) A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an impor-tant matter that could significantly affect the environment, the public health and safety, or the common defense and security, consti-tutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions of public policy; (ii) A petition for review of matters of fact will. not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board; 4.
Issues Presented In its petition for review, FUA claims that ALAB-642 is clearly erroneous with respect to necessary f actual issues and improperly resolves important questions of law, policy and procedure, and urges that the Commission review these issues. 4/
A.
The petitioner first argues that the Commission should review ALAB-642 because it should consider whether post-THI regulatory developnents in the areas of emergency planning and corporate manage-ment can provide good cause for late intervention.
Petitioner then cites several NRC issuances which it says justifies its intervention as late as March, 1981.
These issuances were not mentioned in FDA's brief before the Appeal Doard and were not before the Licensing Board; (____
I, y 10 CFR 2.786; Florida P6 wee T -
' Light Co. (St. Lucie Nuclear Power Plant, Unit No.
2), ALAB-420, 6 NRC 8 (1977).
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The Licensing Board determined only that lh'e post-TMI. developments excused delay through mid to late AI The applicant and staff oppose the petition for review on the grounds that the Appeal Board correctly assessed the relevant f actors in determining that FDA should not be permitted to inter-vene and that there are no significant issues which warrant Commission review.
Intervenors Bursey and South Carolina have taken no position on the petition.
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1980.
The Appeal Board concluded that it need not reach that issue because after finding that the delay was not excused for the period between mid to late 1980 and March 1981 the Licensing Board did not give enough weight to the fact that for approximateJ six months there was no excuse for 1
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the delay;I Closely related to the above contention is FUA's statement that the Appeal Board erred by failing to consider the cumulative effect of each of the circumstances advanced by FUA as justification for
,iplay and by considering each in isolation instead.
B.
The second reason petitioner assigns for granting its petition for review is that the Commission should consider "whether a licensing board has discretion to admit a new party with knowledge and expertise to assist it in deciding important TMI-related health and safety issues which it concludes will not otherwise be adequately presented."
i This issue and FUA's other assignments of error 6/
raise the question of' whether the Appeal Board went E!
On the other hand the Commission may wish to consider this issue to make a policy statement on it since TMI issues are still evolving-and this issue may arise again.
5/
FUA also asserts that the Appeal Board erred in its resolution of the factual issues of FUA's ability to contribute to the development of the record and of the extent to which FUA's participation will broaden.the issues or~ delay the proceedings.
FUA states also that the. Appeal Board erred in that it failed to defer'to the Licensing Board's exercise of its discretion when the Appeal Board disputed the Licensing Board's finding that 'FUA could contribute to the development of a sound record.
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beyond its scope of review in its scrutiny of the
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Licensing Board decision.
The Appeal Board's scope i
of review is limited to determining whether the 1
Licensing Board's decision to grant the late inter- !
vention petition was abusive of the broad discre-tion given the Licensing Board by section 2.714.
Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976). T i
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The Licensing Board found only that post-m TMI eve _n;ts excused delay until mid to late 1980.
No excuse for the delay until late March 1981 was credited by either Board. 7/'P' ll See earlier discussion.
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Conclusion The decision whether to grant FUA's petition is i
within the Commission's discretion.
However, the Commission normally does not grant a
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11 such a petition for review unless there is an important legal or policy question it should i
consider or unless the Appeal Board was clearly erroneous in making a factual determination which was necessary to the final decision. f Recommendation:
i n.-
. James A.
Fitzgerald sistant General Counsel Attachments:
1.
ALAB-642 2.
Licensing Board decision 3.
Petition for Review 4.
Applicant's response to petition for review 5.
Staff's response to petition for review Commissioners' comments or consent should be provided directly to the Otilce of the Secretary by c.o.b.
July 29, 1981.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT July 23, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
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This paper is tentatively scheduled for affirmation at an open meeting during the week of August 3, 1981.
Please refer to the appropriate weekly Commission schedule, when published, for a specific date and time.
DISTRIBUTION:
Commissioners Commission Staff Offices l
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOAPS g
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s Administrative Judges:
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Alan S.
Rosenthal, Chairman
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Dr. John H.
Buck Sph,;..
,,'R' Christine N. Kohl
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In the Matter of
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SOUTH CAROLINA ELECTRIC AND GAS
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Docket No. 50-395 OL COMPANY _ET _AL.
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(Virgil C.
Summer Nuclear Station,
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Unit 1)
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Mr. Joseph B. Knotts, Jr., Washington, D.
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. Ruof f, Jenkinsville, South Carolina, and Mr. Robert Guild, Columbia, South Carolina, for the l
t appellee Fairfield United Action.
DECISION June 1, 1981 (ALA3-642)
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
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notice' of opportunity for hearing.
42 Fed. Reg. 20203 (April 18, 1977).
In response to that notice, one intervention petition and
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- I request for a hearing (that of Brett Allen Bursey) was filed and, i
in 1978, granted.
LBP-78-6, 7 NRC 209.1/ In addition, the State I
of South Carolina was given leave to participate in the proceeding i
under the " interested State" provisions of 10 CFR 2. 715 (c).
i The prehearing stage has extended over a protracted period i
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.
As of March 9, the necessary contemplation was that the hear-I 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 sponte.
See 10 CFR 2 760a.
The f urther expectation was that the participants would be four in l
number:
the applicants ; Mr. Bursey; South Carolina; and the NRC l
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,,(hereaf ter FUA)
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filed a petition for leave to intervene.
It is the action taken by the Board below on that petition I
which has now brought the proceeding before us.
Over the objection i
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The notice required petitions to intervene to be filed'within
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30 days (i. e.,. by May 18, 1977).
42 Fe8J Reg. at 20204.
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3-of both the applicants and the staff,JL/ on April 30 the Board granted the FUA petition and accepted 10 of its 27 contentions for litigation.
LBP-81-11, 13 NRC Dissatisfied with that result, those parties have appealed under 10 CFR 2.714a.
FUA urges af-firmance.j3 /
I.
No one disputes that, as the Licensing Board determined, FUA has satisfactorily demonstrated the requisite standing to inter-vene.
On that score, its petition is supported by the affidavits 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 sufficient to satisfy 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 conte'ntions.
This is be-cause the Commission's Rules of Practice "do not perrdt a per-son to take P.a 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 Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-585, 11 NRC 469, 470 (1980), and author ~ities 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 member votes in favor of it.
10 CFR 2.763; Appendix A to 10 CFR,Part 2,Section IX(e).
In this instance, the Board unanimously concluded that the parties' positions on the issues presented by the appeals have been adegoately developed in the briefs and that ' oral argument would not be helpful.
3
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- 2. 714 (a).
See Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALA3-535, 9 NRC 377, 389-400 (1979).
l The controversy focuses instead upon the Li. censing 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 was required to look to the five factors 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 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.
4 In its decision, the Board discussed each of these f actors in turn.
LBP-81-11, supra, 13 NRC at (slip opinion:,T pp. 4-12)..... I ts 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 i
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i 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 opinion, 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 discretion" s t andard.
- See, e.g., Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975); Florida Power & Light Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), ALA3-420, 6 NRC 8,13 (1977); Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 389, 390 (1976), and cases there cited.
But it is equally clear that this standard
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does not foreclose our close scrutiny of the f actual and legal in-l gredients of the analysis underlying the board's ultimate conclu-f sion.
ALA3-420, supra; ALA3-354, supra; Metropolitan Edison Co.
j (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612 (1977).
And we think that the obligation to undertake 'such an ex-amination is particularly apparent in the circumstances of this Case.
As will be discussed in greater detail infra, the Licensing Board did not find that FUA was warranted in waiting until March
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1981 before seeking to intervene.
As also wi.11, be.seen, our own i
appraisal of the record confirms that FUA's tardiness was mani -
festly unjustified.
This being so, the validity of the grant of.
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the petition so close to the start of the hearing perforce hinges
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upon whether a compelling showing has been made by FUA on the other 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 requirement that NRC licensing proceedings be conducted in an orderly fashion -- demanded that the Board be very chary in allowing one who had slept on its rights to t
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 factors fell fatally short of what might have provided a sufficient foundation for a discretionary a,11owance of tardy intervention.
Accordingly, the April 30 order cannot stand.
h II.
For the purposes of its analysis, the Licensing Board divided FUA's contentions into two groups.
The first consisted of the ten
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j contentions which were ultimately admitted to. the proceeding; they j
b'roadly dealt with corporate management (Nos. ;1, 2, 27) and emer-l gency planning (Nos. 7-13).
The second group embrac'ed the 17 re-1 jected contentions -- covering such widely diverse subject matter
i i as financial qualifications (Nos. 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 2 0-22) ; health effects of radiation releases during normal plant operation and as a result of the uranium fuel cycle i
(No. 23) ; systems interactions (No. 24); control room design (No.
25); and hydrogen control (No. 26).
A.
In its decision, the Licensing Board summarized the vari-ety of reasons assigned by FUA for the failure to have sought in-tervention on any issue at a much earlier date.
L3P-81-ll, supra, 13 NRC 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 ma-* cement capability in the post-TMI era", the Board reached a simitar conclusion with
. gard to "the delay:in filing the manage-ment capability conten.,
- W.
Id. at (slip opinion, pp. 5-6).
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We need not determine here whether the Board was right in that view.
Be that as it mey, 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 connection, as the Board i
itself emphasized, the final rule establishing new and specific standards for on-site and off-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 FUA's obligation to put forward its concerns on that subject. b!
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It appears from the petition to intervene (at p.
- 4) that FUA had assumed prior to mid-Februaq( 1981 that "its inter-ests were being~ represented, to some extent, by" Mr. Bursey.
Only then, when it was given reason to doubt the continuing validity of that assumption, did FUA undertake "an immedi-and thorough inquiry into the status of this proceed-ate ing and its rights and remedies".
As the Board below cor-rectly observed, that excuse is not acceptabic.
See Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3),
ALAS-440, 6 NRC
~42, 644-45 (1977).
Apart from stre-its misplaced reliance upon the Bursey intervention, in : _ s appellate brief (at p. 3) FUA reiter-ated its complaint below respecting the asserted lack "for several years" of a " properly managed" local public docu-ment room.
Whether or not this assertion has f actual sub-stance, it too provides an inadequate explanation for the March filing of the intervention petition.
As FUA acknowl-l 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.
Ye.t it waited another four months -- as it admits (Br. pp. 2-3), because of the Bursey intervention.
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B.
The Board below nevertheless found the " good cause" f actor "to be of almost no weight (or of slight weight against petitioner) in deciding upon the intervention with regar.d to the corporate man-agement and emergency planning issues".
13 NRC at (slip opin-ion, p.
7).
Central to this finding was the Board's articulated belief that no other party to the proceeding had been disadvantaged by the filing in March (rather than considerably earlier) and that the progress of the proceeding would not be delayed.
Id. at (slip opinion, pp. 6-7). E/
We disagree with the Board on both scores.
It seems manifest to us that the introduction of FUA and its accepted contentions jt/
It is not entirely clear from an earlier statement in the Board's discussion on this point whether the Board might have thought that these considerations bear upon the exist-ence of good cause for the tardy filing in March, as op-posed to the possible significance of the absence of such
,cagse. 'We have specifically in mind the observation that'~~) -
" In J2E'that added delay in filing disadvantaged any parties
\\ other than petitioner itself (by circumscribing its pre-f
\\ hearing activities), or delayed the proceedings, we might i
find a lack of good cause".
13 NRO at (slip opinion, pp. 6-7).
- ~Cbviously, whether there is " good cause" for a late filing depends wholly upon the substantiality of the reasons as-signed for not having filed at an earlier date.
For their part, the consequences of the tardiness are to be looked at in connection with the other factors (most, p,articularly the fifth one, dealing with delay and the broadening of I
the issues).
We shall assume that the Licensing _ Board recognized thAc_omideration and that its 11nding quoted in the text was intended to mean only_that the"yotTd~cause" lactoryp_t_w_eigh_ heavily _againsuUA~1n the overall assessment of the delinquent pe_tition.
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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-l sibility but rather a very likely proximate result of the be-lated intervention. 6 /
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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-t sentatives are also parties to a rate proceeding.pending before the South Carolina Public Service Comrdssion.
That proceeding (involving one 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".
p 4
e e
r I
e e
e e
-=
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 i
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-tional witnesses".
13 NRC at (slip opinion, pp. 8-9).
The principal difficulty with that line of reasoning is that t
it ascribes too limited a role to the discovery process.
Parties 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-cent occasion to stress, "[ijn 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 Co. (Susquehanna Steam Elec-tric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322 (1980),
j
quoting from Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LEP-7 8-20, 7 NRC 1038, 1040 (19 7 E).
In che same vein, the Supreme Court has noted that, as a result of the availa-bility of discovery, " [t]he way is now clear, consistent with recognized privileces, for the parties to obtain the fullest pos-sible knowledge of the issues and facts before trial".
Hickman v.
Taylor, 329 U.S.
495, 501 (1947).
The short of the matter is that, because of FUA's inexcusable I
tardiness, the other parties to the proceeding have been effective-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-i formal discovery" with respect to the " applicant's and [s]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 means of interrogatories, depositions, document 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.
remained inviolate. 7 /
7/
In this connection, it is our understanding.that the prefiled testimony was due on May 28.
~~
l
l 2.
Bqually unpersuasive is the Licensing Board's treatment 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 i
none of the specific claims set forth in FUA's numerous contentions would be disposable summarily -- i:1 part if not in whole. 8 /
- Thus, by countenancing FUA's intervention at such a late date that pre-trial resort both to discovery and to summary disposition proce-i dures~became practical impossibilities, the Board has created the substantial danger that hearing time will be unnecessarily expended l
and, thus, wasted.
3.
The Licensing Board reasoned that, because "'the corporate i
management and emergency planning issues had already been admitted i
to the proceeding (by Board question or intervenor (i.e., Bursey) contention)", the issues would not be broadened by FUA's admission to the pro,ceeding on those subjects.
13 NRC at (slip opinion,
- p. 8).
We cannot agree.
Only one of Mr. Bursey's contentions even remotely brings in-f i
to ques' tion the applicants' managerial capabilities:
in contention i
_8 /
Some of those specific claims are summa i ed infra,' pp.14-15.
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 f acility might " compromise management responsibility for the public health and safety".
See December 30, 19 80 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 nucle,ar power plant or properly to respond under accident conditions".
Contention 2 challenges the adequacy of the " hands on" experience o'f the appli-
" reactor operator staff". E/
And contention 27 disputes the 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 opin-ion, pp. 10-11), it appears that the question dealt in part with the applicants' " hands-on operating experience".
What the Board lef t unclear was whether it was then raising that question itself.
If not, the ACRS concern necessarily will have to receive staff attention before an operating license is issued.
See p. 25, infra.
Insofar as emergency planning is concerned, Mr. Bursey's single contention in that area (A8) focused upon the applicants' asserted lack of adequate preparations for "the implementation of
[its] emergency plan in those areas where the assistance and co-operai.cn of state and local agencies are required".
Our exam-inat._.. 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-ments; that 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-quate; and that the applicants' meteorological monitoring equipment does not satisfy NRC requirements.
The other FUA emergency planning i
contentions (8 through 13) likewise contain assertions which broaden significantly what Bursey contention A8 called upon the applicants and the staff to confront in their prefiled testinony and at the hearing.
l The Licensing Board undoubtedly was aware of the expansive reach of the FUA contentions.
It is a fair inference, there fore,
^^
. ~
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".1S!
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 f actor in West Valley, CLI-75-4,
- supra, 1 NRC at 276, the Commission 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 Bo ard's management responsibility question.
C.
We now turn to the f actor which the Licensing Board thought weighs "most heavily" in FUA's f avor with respect to,its corporate management and emergency planning contentions.
According to the Bo ard, FUA can be expected to rake a substantial contribution to the development of a sound record on those sub'jects.
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 becore well versed [on corporate management and emergency planning matters), independently f
10/
Webster's Third New International Dicti nary (1971), at p.
280.,
of - any intentio. 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 staf f).
13 NRC at (slip opinion, pp. 10-11).
As we see it, the Board's perception of Mr. Sursey's abili-ties and his likely contribution 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 pre.ciding board legitimate cause to question its ability to make an effec-tive presentation on the issues in controversy.. When confronted with such a situation, the board nay 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.bb!
11/. See 10 CFR 2.-718 (g).
See also, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-283, 2 NRC 11, 20. (19 75), where
~~
"the Board made a determined effort to insure that the issues were thoroughly explored".
1 1
a
.. i f
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.
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 whether the record supports the Licensing Board's conclusion that FUA's likely contribution is of sufficient magnitude to favor strongly allowing its intervention at this time.
1.
FUA is represented in this proceeding primarily by Dr.
Ruof f.12 /
According to his affidavit appended to the in-John C.
tervention petition, Dr. Ruoff possesses a PhD in history and is 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, 12/
On the second day of the April 7-8 prehearing conference, Robert Guild, Esquire, of the Bar of Sodth Carolina entered
-~
a special appearance for the purpose of addressing on FUA's behalf the legal issues raised by the untimeliness of the 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 l
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, t
his participation in the programs of FUA over the past year has i
enabled him to "become educated on the subject of the design and operation of nuclear power plants and the probable effects of
[ Summer) operation".
2.
At the April 7-8, 1981 prehearing conference which, inter alia, addressed the FUA petition, Dr. Ruoff told the Licensing Board that he did not have an available witness to support the man-agement capability contentions in that petition (Tr. 467).
- Instead, it is his apparent intention to restrict himself to the cross-i examination of applicant (and possibly staff) witnesses (Tr. 477,
~
479, 482, 657-58).
And, as previously noted (p. 11, supra), in its April 30 order the Board made it plain that FUA will not be permitted to add witnesses at this point.
Without f ar more particularization of his experience and knowledge than is set forth in his affidavit or was provided at the April 7-8 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 4
4
20 -
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 2 7).
Nor was the Board below given reason for confidence that such insight ndsht have been sup-plied by Dr. Ruof f's unspecified role in unspecified FUA programs.
i 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 determine, 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 above it is both the right and the responsibility of the Licensing Board to examine witnesses itself, i f 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 f.or 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 4
9 9
y
to pursue any relevant lines of inquiry as might be Dr. Ruoff on the basis of his participation in a single rate proceeding and less than one year's association with a community-based organization.
3.
FUA does propose to present one or more witnesses in sup-t port of its emergency planning contentions.
At the April 7-8 pre-hearing conference, Dr. Ruof f made specific reference to Dr. Janet i
Greenhut and Marlene Bowers Andrews (Tr. 592-9 6).
Dr. Greenhut 3
i is a physician and FUA member.
Dr. Ruoff informed the Board that, because he had not been able to obtain "as yet" an expert on radio-logical health, he might call upon her to testify.
He noted that "Dr. Greenhut has done some research into that area with some medical literature" (Tr.-596).
Ms. Andrews was described by Dr.
Ruof f 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 indi.viduals, Dr. Ruoff expressed an 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-that he had not obtained a commitment from any such persons
- ever, i
to testify on FUA's behalf (ibid.).
He also reaffirmed the asser-tion in the FUA petition (as part of the basis for contention 7) that FUA has members (including himself) who possess " unique" 4
f
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 members and it is even more doubtful that the Board below would now permit him to add them to the witness list.12I What appears from 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 that assistance might be is problematic.
It depends, of course,'on the state of the knowledge of FUA's proposed witnesses on the subjects Greenhut and Ms. Andrews are the only po-they would address.
Dr.
What the tential witnesses who have been specifically identified.
Board was told about their qualifications and possib.le testimony was plainly too sparse to permit an informed judgment regarding their likely contribution.14'/
13 is concerned with off-site radiation 11/
FUA contention No.
In a colloquy with the Board, Dr. Ruoff noted monitoring.
that the derivation of that contention was discussions FUA He conceded had had with the Union of Concerned Scientists.the contention.
that he had not obtained a witness to support He also acknowledged that the contention did not parallel
~
any of Mr. Bursey's contentions.
Tr. 621.
At several points both in its petition and during the pre-14/
hearing conference, FUA made mention of various employees
~~
of the lead applicant who assertedly would shed some light 1
on the corporate management and emergency planning questions f
raised by the petition.
In a May 13, 1981 order.(at p. 9),
(FOOTNOTE CONTINUED ON NEXT PAGE) i i
l
D.
We have no quarrel with the Licensing Board's conclu-sions respecting the remaining two factors.1E!
13 NRC at (slip opinion, pp. 11-12).
Given the Board's appraisal of the manner in which Mr. Bursey is carrying forward his own intervention, there is little reason to suppose that he would adequately rep-resent FUA's interest.
Moreover, once again, the FUA and Bursey claims differ in significant measure.
And while the applicants and the staff point out that FUA members 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 perceive other means which might servt that purpot.e.
But, as the Licensing Board itself correctly observed, those f actors "are given relatively lesser weight than the, other factors".
13 NRC at (slip opinion, p. 11).
Indeed, it is most difficult 14 /
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the Licensing Board directed that those employees be made available at the hearing for FUA examination.
We do not deem them to be FUA witnesses and, further, find no basis for conjecture on how fruitful FUA's examination of them might 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 means whereby the petitioner can protect its interest and the extent to which other par-
~~~
ties will represent that interest.
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 FDA 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-i rialized:
that its participation in the proceeding could no longer be sanctioned without destructive damage to both the rights of i
other parties and the integrity of the adjudicatory process itself.
E.
For the foregoing reasons, the denial of the FUA petition i
was mandated.
Although understandably hesitant to deprive FUA of 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 l
Commission's Rules of Practice for allowing this crucially tardy intervention.
j 1
e
~
25 -
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. 76 0a), it will be the Board's responsibility to re-quire their adequate evidentiary exploration.
To the extent that they go beyond the bounds of the hearing as fixed prior to the belated FUA intervention attempt, under the long-prevailing reg-ulatory scheme these concerns fall within the province of the staff.
In all events, an operating license may not issue unless and until this agency makes the findings specified in 10 CFR 50.57 -- in-cluding the ultimate finding that such issuance "will not be inimical to * *
- the health and safety of the public".
As to those aspects of reac~ tor 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 req-uisite Section 50.57 determinations.
~
Insofar 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 Energy Act of 1954, as amended, 42 U.S.C. 2239 (a).
t m
y 9
4
., i is reversed and the cause is remanded with LBP-81-11, 13 NRC instructions to deny that petition as untimely.
It is so ORDERED.
FOR THE APPEAL BOARD 00d Ad C. Je y Bishop
\\
Secrettn.f 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.
FUA's papers, particularly those prepared by Dr. Ruoff and filed before the Licensing Board, represent an itapressive --
albeit unsuccessful -- effort to participate in and contribute to this important p'roceeding.
Given the quality of these pleadings and the asserted interest of its members in the Summer facility, 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, supra.
t
. ]
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-ute to this proceeding without being afforded party status.
The organization can furnish financial, technical, legal, or other assistance to the sole existing intervenor, Mr. Bursey.
Virginia 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/
i t
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, 1981, Order at pp.
3, 11-12).
- Thus, i
there is an ostensible connection between FDA and the intervenor that would facilitate an offer (and accent-ance) of assistance from the former.
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, DocWED UNITED $TATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION MAY 11981 >
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ATOMIC SAFETY AND LICENSING BOARD
- gg3 Dxletin: A Service
//
Before Administrative Judges:
stanch W
)
Herbert Grossman, Chairman f
4 Gustave A. Linenberger, Jr.
to Dr. Frank F. Hooper gEmygggy l981
)
i In the Matter of:
SOUTH CAROLINA ELECTRIC &
)
Docket No. 50-395 GAS COMPANY, ~ET AL.
)
)
~
(Virgil C. Summer Nuclear
)
Station, Unit 1)_
)
April 30, 1981 PARTI AL ORDER FOLLOWING PREHEARING CONFERENCE
( Admitting FUA on Contentions 1, 2, 7-13 and 27, and Denying FUA's Other Contentions) t t
On March 22, 1981, nearly four years after the notice of oppor-l tunity for hearing in this operating licen'se proceeding was p'ublished (42 Fed. Reg. 20203, April 18, 1977), and three months before the -
hearing had already been scheduled to begin (on June 22,1981),
Fairfielo United Action (FUA) filed a petition to intervene,.together with a supplement thereto setting forth 27 contentions.
For each l
contention, petitioner stated a basis which, in many cases, included 1
names or descriptions of potential witnesses and references to supporting documentation.
By the time FUA's petition was filed, the 4
Licensing Board had issued an order (on March 10,1981) setting a final prehearing conference in the proceeding for April 7,1981, and had requested the existing parties, to file their suggestions by r
4
,~.
.. ~
March 31, 1981 with regard to all actions to be taken by the Board at the conference.
Applicant filed a response on March 30, 1981 and suggested, 1
among other things, that FUA's petition be considered at the conference.
i Applicant served that response on FUA and the Board also arranged for its March 10,1981 order setting the prehearing conference to be served on the petitioner.
Petitioner appeared at the prehearing conference by a non-attorney member, Dr. John Ruoff, to argue in support of the contentions it had raised and by an attorney, Robert Guild, Esq., a member of the bar of the State of South Carolina making a special appearance to argue the merits of the late intervention.
The Staff joined applicant in arguing against allowing intervention at this late date, and later reaffirmed this position j
in a written opposition to the petition, which it filed on April 13, 1981.
The main thrust of the applicant's and Staff's opposition to the petition is the purported lack of cognizable " good cause" for the late filing and the alleged delay that might be caused by allowing an intervention so shortly before the schemed hearing date.
The major reasons given by petitioner for the late filing were that the petitioner was only recently incorporated, on September 5,1980; that its members have i
only recently educated themselves with regard to the Summer Nuclear Station through participation in petitioner's program; that some of petitioner's members have only recently moved to Fairfield County; that the members who have lived for many years in the County have until recently relied upon information from applicant concerning the operations of the plant, which they now believe to be false and misleading; that petitioner's members
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7 who resided in proximity to tue facility at the time of the filing of the application for the-operating license in 1977 lacked knowledge that they
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had interests that might be adversely affected by the granting of the
~ license, of-their rights and remedies available to them, and of the notice of opportunity for hearing published in the Federal Register; that until mid-February 1981 petitioner believed that it had no right to participate as a party in this proceeding since the deadline for intervention had passed in May 1977; that it believed until mid-Februa.*y 1981 that its interests were represented by the existing intervenor Brett Bursey, when it was informed that ::r. Bursey's ability to put on an affirmative case was restricted by the Licensing Board; and that the ability of petitioner to inform itself of developments in the proceeding had been severely hampered by the absence for several years of a properly managed local public document room in Fairfield County.
In addition to alleging a lack of good cause and inevitable delay that would result from admitting petitioner, applicant and Staff applied the other three factors contained in the five-factor test of 10 CFR s2.714(a)(1) against the petition to conclude that it should not be granted. They did not, however, challenge FUA's standing to intervene or the legal sufficiency of its contentions, and it is clear that they could not: the members reside well within the geographical limits required for interventior, and many of the contentions were either encompassed in contentions admitted by the Board on behalf of i tervenor Brett Bursey or would otherwise be ruled admissibie in an operating license proceed?ng.
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The Board rules on the intervention by dividing the contentions into two parts in applying the five-factor test of 10 CFR 2.714(a):
(1) the corporate management contentions (1, ?, 27) and emergency planning contentions (7-13); (2) all other contentions. As specifically discussed
~
below, by applying the five-f actor test to these two categories of 1
contentions in the current posture of the proceeding we admit FUA to the proceeding only on the corporate management and emergency planning contentions.
In doing so, we require that the newly admitted intervenor take the proceeding as it currently stands with formal discovery concluded and only the specifics of FUA's affirmative case m those issues accepted
[
as they were detailed in the supplemental petition and the prehearing P
conference.
t Good Cause for the late Intervention The Board agrees with applicant and Staff that, with respect to the good cause require:7.ent, petitioner has not substantiated its charges of misrepresentation by the applicant in its dissemination of information to the public; petitioner has not demonstrated that it exercised due diligence with regard to its rights, remedies and its potential interest in the proceedings; failure to read the Federal Register does not justify non-timely filing of a petition (New England Power and Light Co. (NEP Units 1 and 2), LBP-78-18, 7 NRC 932, 933-934, (1978)); newly acquired standing or organizational status is not an excuse for delay (Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124(1979)); a petitioner cannot sit back and observe the proceeding, ard then intervene upon deciding that its interest are not being adequately protected by existing parties (Puget Sound Power ~& Light Co. (Skagit i
i l
Nuclear Power Project, Units 1 and 2), ALAB-559,10 tRC 162,172-173
~
(1979), v_acated as moot CLI-S0-34, 12 NRC _ (October 9, 1980); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 tRC 643, 644 (1977); Pacific Gas and Electric Co. (Diablo Canyon Pcwer Plant, Units 1 i
and 2), ALAB-583,11 tRC 447, 448 (1980)); and, the poor riaintenance of a local public document room (which the Board judges to be the fact upon reading the submittals and considering the discussion at the prehearing conference) does not justify the four years of delay and f ailure to raise the matter with NRC or the applicant.
With regard to petitioner's reliance upon post-TMI requirements as
[
I providing good cause for late intervention, however, the Board does not agree with applicant and Staff that they do not provide good cause for the t
late intervention with regard to corporate management and emergency i
planning contentions.
Especially with regard to emergency planning, we r
agree with another licensing board, Cincinnati Gas and Electric Co.
(William H. Zirmer Nuclear Station), ALAB-80-14,11 IRC 570, 574 (1980),
that the criteria for emergency planning have endergone vast chanSes that f
have considerably expanded the scope of relief in operating license proceedings since the TMI-accident and especially during 1980.
Without l
repeating in detail the changes sumarized in _Zimmer, we do note the example cited there (Id.at 573) of the extension of emergency planning from the low population zone (LPZ) to the Emergency Planning Zones (EPZs).
This i
concept was formally adopted in the final rules published on August 19, 1980 (45 Fed. Reg. 55402) which established an EPZ for airborne exposure with a radius of about 10 miles from the fac'lity and an EPZ for contaminated food and water with a radius of about 50 miles. The i
6-E affidavits submitted with the petition to intervene identif.y members of FUA who live within those zones and, consequently, who formally became principals in the Commission's concern over emergency planning.
We note
- further that it was during this period in mid-1980 in which the Commission's policy on EPZs was evolving that the members of FUA began l
their involvement in NRC emergency planning meetings and organizational activities, culminating in FUA's incorporation in September of 1980. Tr.
586.
Had FUA filed this petition in the middle or latter part of 1980, we would have no hesitation in determining that there was good cause for the delay in filing the petition to the extent of the emergency planning issues.
Similarly, although to a lesser extent, because of the Commission's focus on management capability in the post-TMI era we would have found good cause for the delay in filing the management capability contentions.
As it is, petitioner delayed some months longer in apparent reliance upon Mr. Bursey's intervention Nefore filing its petition in March of 1981.
As we have stated before, such reliance is legally insufficient to constitute good cause for the additional delay, although we can' understand a reluctance to file a petition three years after the issuance of a notice of opportunity for hearing in the f ace of a strong possibility of rejection l
when there is an intervenor already participating in the proceeding. Had that added delay in filing disadvantaged any parties other than petitioner
- itself (by circumscribing its prehearing activities), or delayed the e
e
proceedings, we might find a lack of good cause.
However, since it does j
not delay the proceeding and there was good cause for the bulk of the delay in filing these contentions, we find that factor to be of almost no weight i
- (or of slight weight aga:nst petitioner) in deciding upon the intervention i
1 with regard to the corporate management and emergency planning issues.
i With regard to the other contentions, we find an absence of good cause for l
the delay.
The D_e_1ay Factor The Board agrees with applicant (Applicant's Answer to Untimely.
l Petition, p.10) that in cases of very late intervention the fifth factor specified in 10 CFR 2.714(a)(1), the extent to which participation by the l
late petitioner will broaden the issues or delay the proceedings, becomes i
very important.
We further agree with both applicant and Staff as to the contentions other than those concerning corporate management or emergency planning that the admission of petitioner would broaden the proceeding and cause unwarranted delay at this late stage.
We would weigh this factor as heavily against admitting petitioner on these contentions as we would weig'1 the lack of cood cause.
With regard to emergency planning and ~ corporate management, however, we see no delay resulting from petitioner's admission if, as the Board orders, petitioner's admission on these contentions be subject to the same conditions p'revailing with regard to the other parties.
When a petitioner files a late petition he must generally take the l
proceedings as they are, and we see no reason to make any special accommodations for this petitioner that would result in. delaying the proceeding.
At the time the petition was filed, the hearing had been
^
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scheduled to begin on June 22, 1981, and we intend to maintain that schedule.
Furthermore, the parties' affirmative cases should have been disclosed and discovery concluded except on those issues on which the
, Staff's and applicant's positions were still evolving.
We hold petitioner to the specifics disclosed in its supplemental petition or at the prehearing conference on the corporate management and emergency planning issues, except to the extent that the latter area is still evolving or has not been publicly disclosed.
In view of the fact that the corporate management and emergency
~
planning issues had already been admitted to the proceeding (by Board
{
question or intervenor contention), we see no broadening of issues and only l
a desirable particularization of its position in FUA's detailed presentation of these contentions.
The Board expects that no delay will ensue from admitting petitioner on these contentions if the appropriate test of delay is employed, i.e.,
measuring the delay that could be attributed directly to the tardiness of i
the petition.
Long Island Lighting Co. (Jamesport Nuclear Power Station, i
Units I and 2), ALAB-292, 2 tRC 631, 650, fn. 25 (1975).
Had petitioner filed a timely petition, it would have served itself by having before it a i
full discovery period.
While the other parties could have also discovered petitioner's case, discovery would not have benefitted them on the issues we are admitting.
Petitioner 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.
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for the Board will not allow adt'itional witnesses.
Consequently, FUA's late entrance into the case has not >ccasioned a delay in discovery that could prolong the proceeding.
With regard to applicant's and Staff's evolving positions on emergency planning, discovery is presently where it would have been had petitioner been admitted when the notice of opportunity was issued. We direct, in this regard, for the benefit of all of the parties, that the parties cooperate in informal discovery with regard to the evolving plans. While the Board intends to adhere firmly to the hearing starting date of June 22, 1981, notwithstanding any failure in cooperation with regard to informal discovery, the Board intends to exercise its prerogatives in controlling the proceeding to penalize an offending party either by restricting its case or by providing a further hearing at a later time for the benefit of an aggrieved party.
Nor, do we see any way in which petitioner's sooner entrance into this proceeding could have resolved the issues being admitted.
Emergency planning is not yet ripe for resolution, and neither the corporate i
management nor emergency planning issues are susceptible to sumary i
disposition regardless of their state of p.eparedness.
i Even if we consider delay in terms of the time of concluding the proceeding measured with or without petitioner's participation, we cannot foresee unwarranted delay.
To be sure, the hearing may last longer because of petitioner's participation but, in view of petitioner's apparent j
intensive preparation of its pleadings and its demonstrated knowledge of the areas on which it is being admitted, together with the Board's resolve i
to prohibit repetitious examination, the Board anticipates very little i
unproductive delay.
i l
1 Ability to Contribute to a Sound Record It is this factor that the Board weighs most heavily in favor of admitting petitioner to this proceeding on the corporate management and
- emergency planning contentions and which it weighs most heavily against l
petitioner with regard to the other contentions. As is apparent from FUA's pleadings and from the general discussion at the prehearing conference; petitioner's members have become well versed in the former areas, independently of any intention of intervening in this proceeding, through j
their participation in rate-making proceedings and in the ongoing energency planning. We can only contrast petitioner's f amiliarity with the substance of these issues with its lack of prior involvement or expertise in the other issues it raised.
On those other issues, it named few or no f
witnesses coranitted to testifying on its behalf but sought mainly the opportunity to search for such witnesses.
In view of the late date, we see no reason to afford that opportunity.
Moreover, while perhaps not grounds for admitting tnis pe'titioner, we cannot help but consider what the state of the record might be on the issues we admit without its participation.
The existing intervenor, Mr. Bursey, throughout this proceeding has exhibited an inability to i
effectively manage his case, which includes the area of emergency planning.
Moreover, considering the difficulties Mr. Bursey has encountered in l
preparing his own case, we expect little help from him in assisting the l
l Board with regard to the issue raised by the Board regarding corporate management.
(However, in this regard, we wduld expect the Staff to render valuable assistance since it, too, has raised serious questions with regard 4
l
11 to applicant's engineering organization and hands-on operating experience.
See reference to SER in ACRS letter of March 18, 1981, pp. 2-3.) However, j
with petitioner admitted on the corporate management issues it raised itself, we anticipate a much fuller development of the record, in a more r
adverserial manner.
l Other Means to Protect Petitioner's Interest and Extent to Which Petitioner's Interests will be Represented by Existing Parties As is ordinarily the case, this proceeding represents the best forum to consider the admissible contentions and petitioner is best qualified to.
represent its own interests.
For that reas<. i, these factors almost always weigh in a petitioner's favor but are given relatively lesser weight than the other factors.
The Board has, however, taken these f actors into l
account with regard to the specifics of this petition.
We note that, with j
regard to emergency planning, petitioner has had dealings with NRC and other public officials without benefit of this formal proceeding but, on the other hand, has encountered considerable difficulty in gaining full 4
access to the counties' evolving emergency plans.
Tr. 597-603.
t Petitioner's admission into this proceeding on the emergency planning contentions should not only facilitate its being heard on those issues in this forum, but should also serve to open some of the emergency planning to public input and scrutiny as should have been the case from the first.
With regard to petitioner's being adequately represented by the existing parties, we have already expressed our opinion on the manner in which the existing intervention has been handled. We see no reason why petitioner should have any confidence that Mr. Bursey will represent its interests any better than he has, so f ar, represented his own.
I In sumary, we have applied the five-factor test to FOA's proposed 4
intervention on the corporate management and emergency planning issues and l
have concluded that, while the good cause factor weighs slightly against j
- admission, petitioner's ability to contribute to a sound record and the lack of delay or broadening of the proceedings weigh heavily in its favor, j
and the other two f actors weigh slightly in its f avor.
We, therefore, l
conclude that the five f actors weigh in favor of admitting FUA or.- the corporate management and emermcy planning issues.
On applying the five-f actor test to the remainder of the issues raised by FUA, we conclude that the good cause, delay, and ability-to-contribute to-a-sound-record factors weigh heavily against admission, and that only the lesser f actors of availability of other means to protect petitioner's interest and the extent to which petitioner's interest will be represented by existing parties weigh slightly in its f avor. We must, therefore, reject petitioner's intervention on those other issues.
Had we not been i
able to separate its petition into two discrete parts for applying the five ' actor test, we would have denied the petition as a whole, because the f actors of lack of good cause for f ailure to file on time and the extent to which admitting petitioner on those issues would broaden the iss'ues and delay the proceeding would outweigh any benefits from admitting r
petitioner.
ORDER For all of the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 30th day of April 1981 1
i
13 ORDERED That Fairfield United Action is' admitted as an intervenor in this
' proceeding on contentions 1, 2, 7-13, and 27, subject to all of the rights, obligations, and restrictions of the other parties as discussed above and
~
determined in other Board orders; and, That the remainder of the contentions raised in FUA's supplemental petition are not admitted.
FOR THE ATOMIC SAFETY AND LICENSING BOARD h
Herbert Grossman, Chairman ADMINISTRATIVE JUDGE h
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NUCLEAR REGULATORY COMMISSION
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SOUTH CAROLINA ELECTRIC AND GAS )
Docket No. 50-395-OL COMPANY, et al.
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June 15, 1981 (Virgil C. Summer Nuclear Station, Unit 1)
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PETITION FOR REVIEW l
Dr. John C. Ruoff P.O. Box 96 Jenkinsville, South Car 611na 29065 Authorized Representative Robert Guild 314 Pall Mall Columbia, South Carolina 29201 Counsel For Petitioner Fairfield United Action ge/ ease-u~
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TABLE Of[ CONTENTS Page I
SUMMARY
OF DECISION OF WHICH REVIEW IS SOUGHT........... 1 CITATIONS TO THE RECORD BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD..................... 2 STATEMENT OF ERROR BY THE ATOMIC SAFETY AND 4
LICENSING APPEAL BOARD.......................
STATEMENT OF REASONS FOR COMMISSION REVIEW I
THE COMMISSION SHOULD CONSIDER WHETHER REGULATORY DEVELOPMENTS IN THE AREAS OF EMERGENCY PLANNING AND CORPORATE MARAGEMENT CAPABILITY AFTER THE THREE
(
MILE ISLAND (TMI) ACCIDENT CAN PROVIDE GOOD CAUSE FOR LATE INTERVENTION IN PENDING LICENSE CASES..... 7 II THE COMMISSION SHOULD CONSIDER WHETHER A LICENSING BOARD HAS DISCRETION TO ADMIT A NEW PARTY WITH KNOWLEDGE AND EXPERTISE TO ASSIST IT IN DECIDING IMPORTANT TMI-RELATED HEALTH AND SAFETY ISSUES WHICH IT CONCLUDES WILL NOT OTHERWISE BE ADEQUATELY PRESENTED....................... 9 CONCLUSION...........
10
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Fairfield United Action (FUA) hereby petitions the Comission pursuant to 10 CFR S 2.786 to review the decision of the Atomic Safety and Licensing Appeal Board reversing an order of the Licensing Board which granted FUA's Petition to Intervene, in part, and provided that FUA be ad-mitted as a party but take the proceedings as they currently stood.
i fairfield United Action respectfully requests the Comission grant this petition to review important questions of law, fact, procedure and policy
{
affecting the public health and safety decided erroneously by the Appeal Board.
FUA requests the Comission provide for expedited briefing and oral argument and that it enter an order grariting FUA's petition to Inter-vene in these proceedings.
1
SUMMARY
OF DECISION OF WHICH REVIEW IS SOUGHT i
i In South Carolina Electric and Gas Company, et al. (Virgil C. Sumer Nuclear Station, Unit 1), ALAB-642,13 NRC (June 1,1981), the Appeal j
Board reversed the April 30, 1981, Order of the Licensing Board, LBP-81-11, 13 NRC
, insofar as it granted the intervention petition of Fairfield United Action and remanded the cause with instructions to deny the petition as untimely.
The Appeal Board determined that Fairfield United Action's tardiness in seeking to intervene was not excused by revisions in Comission policy concerning emergency planning and corporate management capability following the Three Mile Island accident or by the other circumstances surrounding
'FUA's late filing. The Appeal Board also rejected the Licensing Board's.
l
. Judgement to admit FUA on these post-TM1 related contentions, without for-mal discovery or delay in comencement of the hearing, to assist in the i
development of a sound record in these areas in which FUA members were well-i versed; and the Licensing Board's further determination that FUA should be permitted to cross-examine witnesses on issues raised in the only existing intervenor's contentions because of the Licensing Board's " lack of confi-dence in the other intervenor's ability to effectively prepare his case and
^
because o# the contribution we believe FUA might make on all of the issues."
South Carolina _ pectric and_ Gas _ Company, el al. (Virgil C. Sumer Nuclear Station, Unit 1), Remainder of Order Following Fourth Prehearing Conference, at p. 10 (May 13, 1981).
F.-
CITATIONS TO THE RECORD BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD The Applicants, South Carolina Electric and Gas Company and South Carolina Public Service Authority, and the Nuclear Regulatory Comission Staff each appealed from the Licensing Board's decision which granted FUA's Petition in part on the grounds that FUA's Petition to Intervene should have been wholly denied pursuant to 10 CFR 5 2.714a(c).
The Applicants' appeal presented the question, inter _ alia, of whether the Licensing Board improperly assessed the good cause factor, "partcularly in treating as good cause mid-1980 TM1 requirements on emergency planning and management capability," Applicants' Notice of Appeal, pp.1-2 (May 8,
- 1981), which question they argued extensively, Applicants' Brief, pp. 2-11 The Staff, likewise, challenged "the Board's finding that (May 8, 1981).
under the circumstances of this case, Petitioner's reliance upon post-TMI requirements provided good cause for late intervention with regard to cor-
porate management and emergency planning contentions," NRC Staff Brie Fairfield United Action argued that application of the analysis of
- p. 3.
the Board in Cincinnati Gas _ and_ Electric C_c. (William H. Zirmer l
o tion), LBP-80-14, 11 NRC 570 (1980), to the circumstances of its late filing FUA established good cause with respect to its TMI-related contentions.
Brief, pp. 6-8 (May 20, 1981).
The Appeal Board declined to pass on the Li-censing Board's determination that FUA had good cause to wait until the mid-i die or latter part of 1980 before filing its THI-related contentions, but did conclude that " post-THI events cannot possibly serve to justify FUA's i
ALAB-642 election to wait until the end of March 1981 te file its petition "
1 at pp. 7-8.
Both the Applicants and the Staff challenge the Licensing Board's exer-cise of discretion in admitting FUA to assist it in the development of a Both com-sound record for decision on important health and safety issues.
plain that admission of FUA would convert andssentially default into a more or less contested case:
...the Board's action turns a moderately contested pro-ceeding into a seriously contested one without adequate consideration of the Applicants' rights and obligations 4
to their customers.
( Applicants' Brief, p.18 (May 8,1981))
One genuine effect of the Board's Order is to " shore-up" the existing intervenor, who, as the Board aptly noted has been less than diligent in presenting his case....
the entry of a fresh litigant in opposition to the license is fundamentally ugfair to the other litigants and estab-recedent for future cases.
lishes an undesirmable p(May 11,1981))
(NRC Staff Brief, p. 9 Fairfield United Action argued that such considerations were inappropri-and that the Licensing Board properly ate, FUA Brief, p. 6 (Pay 20, 1981),
I
. admitted FUA to protect the integrity of the adjudicatory process and en-sure that it had available a sound record for decision on vita l
safety issues affecting the public.
_I_d_., p. 14.
The Appeal Board cor. reded the applicability of the " abuse of discre-tion" standard in reviewing Licensing Board decisions on late interventio but understood it to permit "close scrutiny of the factual and legal ingre-dients" of the decision.
ALAS-642, at 5.
It expressed concern for " simple fairness" to the applicants and staff and the need to conduct licensing in The Appeal Board acknowledged the Licensing l
"an orderly fashion," Id. at 6.
Board's " conviction that Mr. Bursey (the existing intervenor) was incapa f
of making a significant contribution to the development of the record,"
at 17, acknowledged the Licensing Board's conclusion that FUA's co 7
would likely be " substantial," I_d. at 16, but rejected both the Licensing l
Board's factual fin ~ dings on FUA's ability to contribute, Id. at 16-22, l
the legal propriety of the Licensing Board's consideration of the existin intervenor's incapacity to contribute:
l As we see it, the Board's perception of Mr. Bursey's abilities and his~ likely contribution to the proceeding
~
could not possibly serve as justification for allowing l
FUA to come into the proceeding at the last moment,.
l (Id.at17)
Instead of admitting FUA to remedy such deficiencies, the Appeal Bo cluded that the Licensing Board was empowered only to "take a more role in the proceeding itself" through interrogation of witnesses "to in-l sure that the issues were thoroughly explored," Id. at 17.
I STATEMENT OF ERROR i
BY THE ATOMIC SAFETY AND LICENSING APPEAL BOA In the view of petitioner Fairfield United Action the decision of th j
l Appeal Board in this matter, ALAB-642, reversing the Orde Board, LBP-81-11, 13 NRC
_ (April 30,1981) which granted FUA's Petition l
l l
l to Intervene in part, is~ clearly erroneous with respect to necessa i
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~
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,. issues and represents improper resolution of important questions of law, policy and procedure affecting the public health and safety,10 CFP S 2.
in the following particulars.
The Appeal Board erroneously applied the five factor test provided for at 10 CFR S 2.714(a)(1) in failing to defer to the proper exercise of broad discretion by the Licensing Board under the circumstances of this case to consider FUA's reasons for tardiness as well as the exte FUA may be expected to assist in developing a sound record, the unavaila-bility of other means or existing parties to protect FUA's interest, and the limited degree by which FUA's participation will broaden the issues or i
delay the proceedings in light of the procedural mes',ures adopted by the Nuclear Fuel Services _, Inc_. (West Valley Reprocessing Licensing Board.
i Plant), CLI-75-4,1 NRC 273 (1975).
to recognize recent develop-l The Appeal Board erroneously failed ments in Comission policy and in Applicant compliance in the areas of emer-gency planning and corporate management capability after the 'Three M land (TMI) accident as representing the basis for the consideration of new or amended contentions on such issues in pending operating license proceed-See, Statement of Policy; Further Comission Guidance for Power Reactor ings.
24,1980):
Operating Licenses, CLI-80-42, 45 FR 85236, at 85238 (December The Comission believes that where the time for filing contentions has expired in a given case no new THI-related.
contentions should De accepted absent a showing of good cause and balancing of the factors in 10 CFR S 2.714(a)(1).
The Appeal Board erroneously failed to consider the cumulative effect of each of the undisputed facts and circumstances advanced by FUA in ex-planation for its late-filing as establishing " good cause" but instead con-In failing to credit FUA with substantial sidered each only in isolation.
good cause for its lateness the Appeal Board erroneously required FUA to
'e shoulder a " considerably greater" burden to justify its intervention on the basis of the other factors.
The Appeal Board was clearly erroneous in resolving the factual issues i
of FUA's ability to assist in developing a sound record and the extent to which FUA's participation will broaden the issues or delay the proceedings in a manner contrary to the resolution of the necessary factual issues by the Licensing Board.
The Appeal Board erroneously failed to defer to the Licensing Board's proper exercise of discretion in admitting FUA to assist it in developing a sound record upon which to decide important TMI-related health and safety issues when it concluded that the assistance it required in reaching such l
decisions would not be available from the existing parties, particularly from the only existing intervenor who "was incapable of making a significant contribution to the development of the record." ALAB-642, at 17.
The Appeal Board improperly credited Applicants' and Staff's reluctance P
to meet Fairfield United Action in what would become a " seriously contested" case, Applicants' Brief, supra _, p.18, as a basis for its decision, ALAB-642 at 6, in the face of the Licensing Board's conclusion that FUA's par-ticipation in the proceeding was necessary for it to make the findings re-.
quired for the issuance of an operating license,10 CFR S 50.57, based on a sound record produced in a truly adversary proceeding.
i
.. STATEMENT OF REASONS FOR COMMISSION REVIEW I
THE COMMISSION SHOULD CONSIDER WHETHER REGULATORY DE-VELOPMENTS IN THE AREAS OF EMERGENCY PLANNING AND CO P0 RATE MANAGEMENT CAPABILITY AFTER THE THREE MILE IS-LAND (TMI) ACCIDENT CAN PROVIDE GOOD CAUSE FOR LATE INTERVENTION IN PENDING LICENSE CASES.
The Commission should grant Fairfield United Action's Petition for Re-view to consider the circumstances where Licensing Boards should be able to admit new parties as in Zimmer, supra, and new TMI-related contentions, Summer LBP-81-11, supra, in pending power reactor operator license cases.
The Conmission clearly has anticipated that evolving regulatory poli-cies in the aftermath of the Three Mile Island accident will impact on Li-I censing Boards in their conduct of pending proceedings and may alter the showing required to be made by applicants for approval of operating licenses:
r In reaching their decision, the Boards should interpret existing regulations and regulatory posicies with due con-I sideration to the implications for those regulations and In this regard, policies of the Three Mile Island Accident.it should be un underway, the Commission may change its present regulations and regulatory policies in important aspects and thus com-pliance with existing regulations may turn out to no longer warrant approval of a license application.
Suspension of 10 CFR 2.764 and Statement of Policy _ on Adjudicatory Pr 1
44 FR 65050 (November 9,1979); quoted in Further Commission Guidance for Power Reactor _ Operating Licen'.es; Statement of Policy, 45 FR 41738 (Jun 1980), and in _ Statement of Policy; Further_ Commission Guidance for Po 24, 1980). '
Reactor _ Operating Licenses _, CLI-80-40, 45 FR 85236 at 85238 (Decembe The Commission has determined that pending operating license applications
~
to be judged against present NRC regulations as supplemented by TMI-rel
. requirements reflected in Requirements _ j@u, _ Operating Li
. (
(June 1980), now superseded by Clarification of TMI __ction P A
NUREG 0737 (October 1980); and that individual adjudicatory hearing the appropriate forum 'for resolving at least some claims with respe I
45 FR at 85238.
these new requirements.
With respect to new requirements regarding emergency plannin' censing Board in this proceeding adopted the analysis of anothe Zinner, supra, that the expanded scope of relief now available in t proceeding, particularly the extension of emergency planning 19,1980),
cy Planning Zone (EPZ) of about 10 miles, 45 FR 55402 (August justified tardiness in filing on this issue at least until the middle This Licensing Board LBP-81-11, slip opinion at 6.
latter part of 1980.
i adopted a similar analysis in finding justification fcc an equal de filing on corporate management capability issues which have of Commission focus in the post-TMI era. Id.
Commission policy and Applicants' compliance in the area of eme in planning remained in a state of development at the time of March 1981, e.g. Functional Criteria for Emergency Response Local county plans related to NUREG 0696, was published in February 1981.
The South the plant were published between December 1980 and April 198 l
17, 1981, 46 FR 22459, and the Ap-Carolina state plan was published April i
SER, Supp. 2, p. 22-2.
plicants' emergency exercise was conducted May 1,1981.
The Applicants' submitted their " Comparison of Manage Resources to Regulatory Guidance," to the NRC Staff by t in response to the Commission's " Draft Report for Inte January 31, 1981, Use and Comment," Guidelines _ for Utility _ Fbnageme Resources _, NUREG 0731, which was published September 1980 l
".}
O-The Commission should consider whether these developments P
f such new information as to establish good cause for the belated I
contentions on these subjects, under the circumstances of the case.
11 THE COMMISSION SHOULD CONSIDER WHETHER HAS DISCRETION TO ADMIT A N HEALTH AND SAFETY ISSUES WHICH IT CONCLU i
OTHERWISE BE ADEQUATELY PRESENTED.
l The Commission has recognized that individual adjudicatory i
are the appropriate forum for the resolution of claims regarding o i
45 FR license applicants' compliance with post-TMI regulatory requirem In its recent Statement of Policy on Conduct of Licensing Prof at 85238.
Mile the Commission recognized the Three ceedings, CLI-81-8 (May 20, 1981),
_ Island accident " required a reexamination of the entire regu' fo-Ic., p.1, and that Commission attention and resources have d
for cuet' on the preparation of an action plan specifying change's n l
f pend-reactors as a result of the accident. M.
In light of the back og o i
l ing license applications resulting from the focus of attention l
d sion emphasized the responsibility of licensing boards to m Id. at 2.
and efficient conduct of all phases of the hearing process."
The licensing boards themselves must resolve the diffic f appli-by the potentially conflicting goals of ensuring a thorough l
d cant compliance with post-TMI regulatory developments in e expeditiously conducted proceedings.
ih The Commission should consider whether a licensing i
" granted this difficult task through the exercise of the " broad discret on i
i i
it under the authority of We_st yalley_, supra,1 NRC 275, b es l
l
10 -
of a new party with knowledge and expertise to assist it in building a record, under appropriate procedural restrictions, where otherwise evide on vital health and safety issues will not be adequately presented.
CONCLUSION For the foregoing reasons, the Petition for Review should be granted and an order entered admitting Fairfield United Action as an Intervenor in these proceedings.
r June 15, 1981 Rdbert Guild
~
- 314 Pall MaNj l
Columbia, South Carolina
(
29201 Counsel Dr. John C. Ruoff P.O. Box 96 Jenkinsville, South Carolina 29065 Authorized Representative' For Petitioner Fairfield United ' Action e
~
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UNITED STATES OF AMERICA f
NUCLEAR REGULATORY COMMISSION
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In the Matter of:
I Docket No. 50-395-OL SOUTH CAROLINA ELECTRIC AND GAS COMPANY, et al.
June 15, 1981 f
(Virgil C. Sumer Nuclear Station, )
)
I Unit 1)
+
i CERTIFICATE OF SERVICE I
upon the following persons by deposit in th l
first class postage prepaid, this 15th day of June 1981.
Alan S. Rosenthal, Chairman Comissioner John F. Ahearne Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission l
Washington, DC 20555 Comissioner Peter A. Bradford
~,
U.S. Nuclear Regulatory Comission Dr. John H. Buck, Member l
Washington, DC 20555 Atomic Safety and Licensing Appeal Board Panel Comissioner Victor Gilinsky U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 l
Christine N. Kohl, Member Comissioner Joseph M. Hendrie Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 l
Samuel J. Chilk Secretary to the Comission Dr. Frank F. Hooper U.S. Nuclear Regulatory Comission School of Natural Resources Washington, DC 20555 University of Michigan j
Ann Arbor, MI 48109 Chase R. Stephens, Chief Docketing and Service Section Member, Atomic Safety and Licensing
~
Gustave A. Linenberger Office of the Secretary U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Herbert Grossman, Esq.
Chairman, Atomic-Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, DC 20555.
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a-x
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2-s Chainman, Atomic Safety and George Fischer, Esq.
Licensing Board Panel Vice President and Group Executive -
U.S. Nuclear Regulatory Commission Legal Washington, DC 20555 South Carolina Electric & Gas Company P.O. Box 764 Steven C. Goldberg, Esq.
Columbia, SC 29218 Office of the Executive Legal Director Mr. Brett Allen Bursey U.S. Nuclear Regulatory Commission Route 1, Box 93-C Washington, DC 20555 Little Mountain, SC 29076
~
I Richard P. Wilson, Esq.
Randolph R. Kahan Assistant Attorney General South Carolina Electric & Gas Company South Carolina Attorney General's P.O. Box 764 l
Office Columbia, SC 29218 i
P.O. Box 11549 Columbia, SC 29211 Joseph B. Knotts, Jr., Esq.
Debevoise & Liberman 1200 17th Street, N.W.
i Washington, DC 20036 l
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Date: June 26, 1981-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
)
)
SOUTH CAROLINA ELECTRIC AND
)
GAS COMPANY, et al.
)
Docket No. 50-395-OL
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f' g a-(Virgil C. Summer Nuclear
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,p-Station, Unit 1)
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D A )'7-APPLICANTS' ANSWER OPPOSING FAIRFIELD
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,0 UNITED ACTION'S PETITION FOR REVIEW I.
BACKGF 79 !.ND
SUMMARY
OF
~
APPEAL BCARD DECISION On March 23, 1981, Fairfield United Action ("F"A") filed a petition to intervene in the above-designated license proceeding I
--almost four years after publication of the public notice of an i
opportunity for hearing.
42 Fed. Rec. 20203 (April 18, 1977).
In support of its petition to intervene, FUA argued, inter alia, that regulatory developments following the Three Mile Island accident provided good cause for the extreme lateness of the peti-tion.
Both Applicants and the NRC Staff opposed admission of FUA within three months of evidentiary hearings scheduled to ecmmence on June 22, 1981.
The Atomic Safety and Licensing Board issued a Partial Order, dated April 30, 1981, admitting FUA as an intervenor with respect to ten of its enumerated contentions relating to emergency planning and corporate management issues.
LB P 11, 13 NRC
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2 appeal by Applicants and the NRC Staff, the Atomic Safety and j
Licensing Appeal Board reversed.
ALAB-642, 13 NRC __
(June 1, 1981).
The Appeal Board held that FUA had failed to.neet the five-factor test for late intervention set forth in the Commission's regulations at 10 C.T.R. I 2.714(a).
ALAB-642 at 24.
The Appeal Board issued i
i a Memorandum and Order denying FUA's application to stay the effec-tiveness of ALAB-642.
ALAB-613 (June 15, 1981).
FUA now petitions the Nuclear Regulatory Commission for review of ALAB-642 pursuant to 10 C.F.R. 5 2.786(b).
Applicants South Carolina Electric and Gas Company and South Carolina Public Service Authority oppose FUA's Petition for Review.
t The Appeal Board decision in ALAB-642 correctly analyzed all the l
relevant factors governing late intervention in NRC licensing pro-ceedings.
The Petition for Review raises no important issues that would justify the Commission exarcising its discretion to review the Appeal Board's decision.
II. ARGUMENT A.
THE APPEAL BOARD CORRECTLY ASSESSED ALL THE RELEVANT FACTORS IN DETERMINING THAT FUA*S PETITION TO INTERVENE WAS UNTIMELY.
The Appeal Board recognized that the decision on whether to admit FUA as an extremely late intervenor is governed by the requirements in 10 C.F.R. 5 2.714(a).
ALAB-642 at 4.
In assess-ing the five factors therein, the Appeal Board properly concluded l
~
that FUA's petition to intervene was fatally deficient in meeting those requirements. 1/
In opposition to FUA's instant petition to 1/,FUA assigns as error the failure of the Appeal Board "to defer to the proper exercise of broad discretion by the Liebnsing ~
3 intervene, Applicants will consider separately the requirements that the Appeal Board weighed against FUA.
- 1. - Good Cause In support of the position that there was good cause for FUA's extreme lateness in petitioning for intervention, FUA argues gener-ally that the regulatory emphasis on corporate management and emer-gency planning issues in the wake of the Three Mile Island accident justifies the lateness of petitions seeking to raise such issues.
FUA relies primarily upon a March 21, 1980 licensing board decision in Cincinnati Gas and Electric Co. (William H.
Zimmer Nuclear Station), LBP-8C-14, 11 NRC 570 (1980) which permitted late intervention on the basis of certain developments in emergency i
pla nning.
Petition for Review at 3, 7-8.
As Applicants argued (Applicants' Brief at 3-4) and as the Appeal Board properly recog-nized, the Zimmer decision provides no basis for accepting a peti-l tion for review filed ovsr a year later.
The Appeal Board found it unnecessary to determine whether the Licensing Board was correct in concluding that regulatory developments provided good cause for et latter part of 1980, because the Appeal delay until the middl.
Board reasoned "the ast IMI events cannot possibly serve to 1 cent./
Board" in evaluating FUA's compliance with the five factors permitting late intervention under 10 C.F.R. $ 2.714 (a)(1).
l petition for Review at 5-6.
Contrary to FUA's implications, the Licensing Board does not have unbounded discretion to determine compliance with the regulations and the Appeal Board is not obliged to accept without critical review such determi-nations.
Indeed, the decisions relied upon by the Appeal Board
( ALAB-642 at 5 ) clearly contemplatethat the Appeal Board will provide the kind of careful scrutiny of the record under-taken. by the Board in the instant proceeding..
See Project Management Corp. (Clinch River Breeder Reactor Plant), ALAS-354, 4 NRC 383 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 20, ALAB-384, 5 NRC 612 (1977).
m-i justify FUA's election to wait until the end of March 1981 to file its petition."
ALAB-642 at 8.
This conclusion has ample factual support in the record.
As discussed in Applicants' Brief before the Appeal Board (at 3-5),
the significant developments with regard to emergency planning irsues were identified in 1979, evolved during the early part of 198{,
and culminated in publication of the final rule on emergency planning on August 19, 1980.
Similarly, corporate management developments were finalized well before the March 23, 1981 date on which FUA filed its petition to intervene.
(Applicants' Brief at 5-8).
FUA's reliance upon a number of documents published in late 1980 and early 1981 relating to emergency planning and corporate management (Petition for Review at 5, 8-9) is misplaced.
In its arguments before the Appeal Board, FUA nowhere sugge,sted that such developments provide good cause for its belated petition te inter-vene.
The Commission's regulations, 10 C.F.R.
$ 2.786(b)(4)(iii),
i explicitly state:
"A petition for review will not be granted to the extent that it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Board."
FUA 1
does not suggest tha t it could not have raised these =atters before the Appeal Board, and they should not be considered by the Commis-sion for the first time on review.
Furthermore, the documents do i
~
not challenge dhe Appeal Board's basi: conclusion that eme rgency planning and corporate management requirements were established much earlier.
Ongoing correspondence of the type cited by FUA is part snd parcel of the licensing and regulatory process.
None of e
5 i
these documents established any new regulatory requirements concern-ing which FUA might be justified in raising late contentions. 2/
2.
Broadening of the Issues and Delay of the Proceeding The record clearly supports the Appeal Board's conclusion that admission of FUA at this time will broaden the issues i:n the pro-ceeding considerably and almost inevitably result in delay.
FUA's assignment of error in this regard (Petition for Review at 6) is without support.
As emphasized by the Appeal Board (ALAB-642 at 15), FUA's contentions concerning emergency planning are much broader than the single emergency planning contention raised by the existing intervenor, Mr. Brett Bursey.
Similarly, FUA's management capa-bility contentions go far beyond the contentions previously raised by the existing intervenor and the Licensing Board itself.
As the Appeal Board emphasized, delay in the evidentiary hear-ings is almost inevitable because of the broadening of the issues and because the lateness of FUA's intervention makes impossible the use of procedural mechanisms designed to prevent unnecessary delay (e.g.,
discovery and sammary disposition).
ALAB-642 at 11-13.
In accordance with the holding in Virginia Electric & Power Company (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395 (1975),
Applicants should not be forced to forego such important procedural 2/ FUA's quotation from and reliance upon Further Commission
~
Guidance For Power Reactor Operating Licenses-Revised Statement of
~
Policy, 45 Fed. Reg. 85236, 85238 (Dec. 24, 1980), is curious indeed.
The excerpt quoted by FUA (Petition for Review at 5) clearly contemplates that contentions may not be raised under ciretastances like the. instant one, where the proposed intervenor has shown no good cause for the tardiness of its petition.
FUA also suggests that the Appeal Board erred in not considering the " cumulative effect" of its various explanations for the
(
6 rights in order to prevent postponement of the hearings. 3/
3.
Contribution to a Sound Record The Appeal Board properly concluded that FUA's showing of its ability to contribute to development of the record in this proceed-ing is "not strong enough to warrant, standing alone, the grant of its inexcusably and materially late petition."
ALAB-642 at 20.
In view of the limited number of witnesses which FUA proposes to introduce, and the vague qualifications of the witnesses and of FUA's Authorized Representative, the ability of FUA to contribute any. indispensable perspectives on the issues in this proceeding is at best problematic.
This is particularly so when, as emphasized by the Appeal B.iard, the Licensing Board has the option of conducting its own examination of the witnesses to elucidate the same information.
ALAB-642 at 17.
In view of FUA's utter inability to show good cause for the lateness of its petition and the considerable delay which is likely to flow from FUA's admission at this time, FUA's proposed contributions to the record are not such as to warrant its admission to this proceeding.
B.
THE PETITION RAISES NO IMPORTANT ISSUES F.4ICF. WOULD WARRANT CONSIDERATION BY THE COMMISSION Section 2.786 of the Commission's Rules, 10 C.F.R. 5 2.786, 2 cont./
lateness of the petition to intervene.
Petition for Review at 5 3
Whatever this is intended to mean, the Appeal Board clearly con-sidered the entire record and totality 'of circumstances in reach-ing its decision in ALAB-642.
3/ FUA misrepresents the positions of the Appeal Board, Applicants and NRC Staff when it asserts that the Appeal Board erred in crediting " Applicants ' and staff's reluctance to meet Fairfield
_c 7
provides for discretionary review of Atomic Safety and Licensing Appeal Board decisions by the Nuclear Regulatory Commission.
Section 2.786(b)'(1) provides that a party to the proceeding may petition the Commission on the ground that the decision is " erroneous with respect to an important issue of fact, law, or policy."
10 C.F.R.
l
{ 2.786(b)(1).
Whether to grant or deny a petition for review is within the discretion of the Commission, except that Section 2.786 (b)(4) enumerates a number of conditions in which denial of the petition is appropriate.
As relevant herein, the regulations state:
(i)
A petition for review of matters of law or i
policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly a f fect the environment, the public health and safety, or the common defense and security, consti-tutes an important anti-trust question, involves an important procedural issue, or f
otherwise raises important questions of-public policy.
10 C.F.R. 5 2.786(b)(4)(i).
Thus, the regulations clearly contem-i plate that the Ccmmission will grant a petition for review only when it raises "important matters."
The instant petition raises no such important matters.
i 3 cont./
United Action in what would become a ' seriously contested' case..." (Petition for Review at 6).
As is apparent from the material quoted by FUA (Petition for Review at 3), the Applicants and NRC Staff only raised the issue of unfairness to the exist-ing litigants should FUA be admitted shortly before commencement of the evidentiary hearings.
The Appeal Board's consideration of that issue is, of course, entirely appropriate under 10 C.F.R. 5 2.714(a)(1).
~
E.
Contrary to FUA's assertions (Petition for Review at 9-10), the record is wholly devoid of any suggestion that all matters relating to public health and safety will not be adequately addressed even if FUA fails to obtain party status.
As the Appeal Board properly recognized ( ALAB-642 at 25), the Licensing Board, Staff and the Commission itse:
- re charged with exploration of matters raised in FUA's emergency planning and corporate management contentions, particularly as they relat,e to the public health and safety.
No novel or unsettled questions are presented by FUA.
The Appeal Board's decision is wholly consistent with precedent denying party status to would-be intervenors that have shown no good cause for the extreme lateness of their petitions to intervene.
See North Anna, supra, and Puget Sound Power & Light Co. (Skagit Nuclear Power Projects, Units 1 and 2), ALAS-559, 10 NRC 162 (1979), vacated as moot, CLI-80-34, 12 NRC (1980).
Further, the situation is
, distinguishable from that in Skacit in which the Commission issued I
l an order denying the petitions for review, but exercised its discre-f tion under 10 C.F.R.
i 2.786(a) to consider one issue sua sponte.
The novel issue which the Commission did decide to review was whether i
the status of petitioners there as American Indian Tribes provided l
sufficient cause for the lateness in filing a petition to intervene.
Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), [19803 Nuclear Regulation Reports T 30, 439 (January 16, 1980).
The instant petition presents no issue of comparable l
r I
novelty to warrant the Ccmmission's consideration.
E.
III. CONCLUSION J
In ALAB-642, the Atomic Safety and Licensing Appeal Board properly concluded that Fairfield United Action failed to comply with regulatory requirements, 10 C.F.R. $ 2.714 (a), governing late
[
intervention.
This conclusion is thoroughly supported by the record and by prior Appeal Board decisions.
TUA has presented no i
question which would warrant the Commission exercising its discre-tion to review the denial of FUA's petition to intervene.
For all the foregoing reasons, Applicants urge that the Petition for Review be denied.
f L
Respectfully submitted, Joseph B. Knotts, Jr.
l
/,~
Dale E.
Hollar Counsel for Applicants I
Date: June 26, 1981 i
l l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION 1
EETORE THE CONMISSION
]
In the Mitter of:
SOUTH CAROLINA ELECTRIC AND
)
GAS COMPANY, et al.
)
Docket No. 50-395-OL CVirgil C. Summer Nuclear
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer Opposing Fairfield United Action's Petition for Review" in the above captioned matter, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 26th day of June,1981.
Chairman Joseph M. Hendrie Samuel J. Chilk Office of the Commission Secretary to the Commission r
U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Herbert Grossman, Esq.
Commissioner John F. Ahearne Chairman, Atomic Safety an(
Office of the Commission Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Co= mission Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Peter A. Bradford Dr. Frank F. Hooper Office of the Commission School of Natural Resources U.S.
Nuclear Regulatory University of Michigan Commission Ann Arbor, Michigan 48109 Washington, D.C.
20555 Mr. Gustave A. Linenberger Commissioner victor Gilinsky Member, Atomic Safety and Of fice of the Commission Licens'ing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Leonard Bickwit, Esq.
Alan S. Rosenthal, Chairman General Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S.
Nuclear Re'ulatory Commission g
Washington, D.C.
2C555 Washington, D.C.
20555
Dr. John H. Buck, Member Dr. John C. Ruoff Atomic Safety and Licensing P.O. Box 96 Appeal Board Jenkinsville, South Carolina U.S. Nuclear Regulatory 29065 Commission Washington, D.C.
20555 Mr. Brett Allen Bursey Route 1, Box 93-C Christine N. Kohl, Member Little Mount'ain, Atomic Safety and Licensing South Carolina 29076 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Chase R.
Stephens, Chief Docketing and Service Section office of the Secretary U. S. Nuclear Regulatory
/
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Commission M
Washington, D.C.
20555 Dale E.
Hollar Chairman Atomic Safety and Counsel to Applicants Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Steven C.
Goldberg, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory I
Commission Washington, D.C.
20555 Richard P. Wilson, Esq.
Assistant Attorney General South Carolina Attorney General's Office i
P.O. Box 11549 Columbia, South Carolina 29211 George Fischer, Esq.
Vice President and Group Executive - Legal South Carolina Electric &
j Gas Company P.O. Box 764 Columbia, South Carolina 29218 Robert Guild, Esq.
314 Pall Mall Columbia, South Carolina 29201
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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COMPANY
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Counsel for NRC Staff June 26,1981 i
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P UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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SOUTH CAROLINA ELECTRIC & GAS
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Docket No. 50-395 COMPANY
)
)
Virgil C. Summer Nuclear Station,
)
i Unit 1
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i NRC STAFF BRIEF IN OPPOSITION TO PETITION FOR REVIEW OF ALAB-642 Steven C. Goldberg Counsel for NRC Staff June 26,1981 5
a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
SOUTH CAROLINA ELECTRIC & GAS
)
Docket No. 50-395 COMPANY Virgil C. Summer Nuclear Station.
)
Unit 1
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NRC STAFF BRIEF IN OPPOSITION TO PETITION FOR REVIEW OF ALAB-642 1.
INTRODUCTION On June 15, 1981, Fairfield United Action (FUA) filed a petition, pursuant to 10 C.F.R. I 2.785, for Commission review of the June 1, 1981 Decision of the Appeal Board in the captioned proceeding (ALAB-642). '
The Appeal Board decision reversed the Licensing Board's grant of the late FUA petition for leave to intervene in that Board's prehear,ing conference order of April 30, 1981.
Petitioner seeks review of ALAB-642 on the grounds that the Appeal Board erred in failing to accord the Licensing Board a proper measure of discretion in ruling on late intervention and in otherwise reversing the grant of late intervention to FUA.
The Appeal Board properly held that a consideration of the factors relevent to late intervention c.andated the denial of intervention and that the Licensing Board's ruling to the con-trary constituted an abuse of the latter's discretion in such matters.
Petitioner has not made a satisfactory showing to warrant Commissien review under the applicable provisions of 10 C.F.R. 9 2.786(b) and thus
~
the Staff opposes the present petition.
.i
II.
DISCUSSION Assuming the applicability of the review standards in 10 C.F.R. 5 2.786(b), Commission review is unwarranted in the present matter.1/
The decision does not involve an "important question of fact, law or policy" let alone an " erroneous" one.
Commission review of the Appeal Board decision on its own motion would seem to be even less appropriate given the provisions of 10 C.F.R. 5 2.786(a) which confines such review to cases of " exceptional legal or policy importance."
A.
_ Summary of Discussion This proceeding was initiated almost four years ago upon publication of a notice of opportunity for hearing in the Federal Register on April 17, 1977.2/ One intervention petition was received and granted as a result of this notice.
Pursuant to a February 21, 1981 conference call, the evidentiary hearing was scheduled to be held from June 22-July 2,1981.
As relevant to this petition, FUA filed an untimely petition to intervene containing 27 proposed contentions on March 23, 1981. Both P
i 1/
By its literal term,10 C.F.R. I 2.786(b) does not cantemplate filing with the Commission a petition for review of an Appeal Board decision on intervention rendered pursuant to 10 C.F.R.12.71da.
However, the Commission has entertained at least one such appeal.
See Florida Power and Light Co. (St. Lucie, Unit 2), CLI-78-12, 7 ERC 939 (1978).
On another ocassion, it rejected such a petition yet exercised review of a decision on its own motion pursuant to 10 C.F.R. I 2.786(a).
Puget Sound and Light Co. (Skagit Nuclear Power project, Units 1 and 2), Commission order (unpublished) i (January 16,1980).
2/
O e
,. ~
3 the Applicant / and Staff / opposed the late petition on the grounds 3
that it was not justified upon balancing the factors governing nontimely petitions set forth in 10 C.F.R. 5 2.714(a).E# On April 30, 1981, the Board issued an Order granting the late intervention petition along with ten of its contentions.5 The Applicant and Staff separately appealed the Licensing Board's April 30, 1981 decision. The Appeal Board Decision of June 1,1981 reversed tne Licensing Board's grant of late intervention.
ALAB-642.
On June 5,1981, FUA filed an application for a stay of ALAB-642 pending Commission review of this petition.
The Applicant and Staff opposed this application in separate responses, dated June 1,2, 1981.
On June 15, 1981, the Appeal Board issued a Memorandun and Order denying the stay application ( ALAB-643). On June 19, the Comission took the same action.
Accordingly, the eviden*iary hearing connenced on June 22 and is currently in progress.
3/
See Applicant response, dated March 30, 1981.
. of See Staff response, dated April 13, 1981.
,5f These factors are:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) - The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
6/
See Attachment A to Staff appeal brief,' dated Pay 11, 1981, for Statement of admitted contentions.
~
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4 4
B.
Statement of Issue Prevented Below The issue before the Appeal Board was whether the Licensing Board correctly decided that the late intervention petition of FUA was justified upon consideration of the relevant factors in 10 C.F.R. I 2.714(a).
C.
Correctness of Apoeal Board Decision The Appeal Board reversed the Licensing Board's grant of late intervention on tha grounds that a consideration of the relevant factors in 10 C.F.R. 52.714 candated denial of the FUA petition and that the Licensing Board's ruling to the contrary constituted an abuse of discretion in such matters.2/
, 1) that the lateness
(
The Appeal Board concluded in material part:
of the FUA petition (filed shortly before the scheduled evidentiary hearing) was " manifestly unjustified"0/ (factor one); (2) that the grant of late intervention significantly expanded the issues in the proceeding with a concomitant delay in the progress of the proceeding!/ (factor five);
]/
Slip op at 2-6.
8/
Id. at 5.
In arriving at this opinion, the Appeal Board explicitly rejected the argument pressed by FUA in its current petition (Petition at 7-9) that post-THI regulatory action provided good cause for FUA's lats petition. The Appeal Board observed that, since whatever post.
TMI events were germane to the contentions in FUA's petition were known by mid-1980, they could not possibly " serve to justify FUA's election to wait until the end of March 1981" to file its petition."
Id. at 9.
The Staff agrees. While there may have been continuous developments during the course of the Staff review of utility manage-ment and emergency planning as FUA notes, if FUA had an earnest interest in participating in the consideration of such natters, it should (and could) have done so when the issues first assumed added post-THI importance in 1979 and 1980 not on the eve of the scheduled hearings.
9l Id. a t 9-10.
p.
and (3) that the licensing Board had attributed a greater ability on FUA's behalf to contribute to the proceedirig than was warranted on the basis of f
the recor d (factor three). The Appeal Board agreed with the Licensing Board that the remaining factors (factors two and four) tended to favor the grant of late intervention but were of no consequence given the counter-vailing weight of the other factors.IE The Staff agrees.
The Appeal Board further observed that by remaining on the sidelines while the proceeding moved ever closer to trial, FUA voluntarily assumed the inevitable risk that its participation would not be allowed without
" detrimental danage" to both the rights of the other parties (including denial of discovery and sunmary disposition) and the integrity of the litigative process itself.EI The clear language of the Appeal Board decision underscores its decision that the merits of the FUA petition
" fell fatally short" of warranting the " discretionary allowance" of
[
lateintervention.E#
Petitioner argues that the Apptal Board failed to
- defer to the
[
proper exercise of broad discretion" by the Licensing Board in ruling on late intervention.
(Detition at 5). This is not accurate.
The j
Appeal Board recognized the discretion accorded a Licensing Board under l
l such circumstances and applied the " abuse of discretion" standard for '
J.0/ Id. at 20-22.
0
.J 1,/ Slip op, at 24 1
J2/ Id. at 24; See also Id. at 11-13.
J3/ Id. at 6; See al'so'Id. at 24.
~
n-.
. a appellate review of such decisions.E/ Accordingly, based on its "close scrutiny" of the Licensing Board decision, the Appeal Board found absolutely no justification for the Boarc's exercise of discretion in admittingFUA.El The entire opinion of the Appeal Board can lead to no other logical conclusion.
The Appeal Board Memorandum and Order denying FUA's stay application (ALAB-543) reinforces this assessment.
The Staff believes that the Appeal Board reached the only decision proper under the circumstt
's.
Whatever legitimate interest FUA may have had in the proceeding, such interest was waived by FUA's failure to seek ' intervention en anything resembling a timely basis.
RJA's claim that its participation as a party is necessary to the development of a sound record is unavailing.
Adjudicatory consideration of the subject areas presented in the FUA contentions (though admittedly not every detail) is assured by virtue of either a Board question (management competence) or Intervenor contention (emergency planning).
petitioner did not file any direct testimony on its management competence contentions.
Instead, it intended to cross-examine Applicant witnesses relying on the fami'firity gained through its past participation in state rate proceedings. The Appeal Board correctly found that it was "not irnmediately obvious" why this involvement in a state rate proceeding would provide unique exper-tise in the area of management competence to operate a nuclear facility. E I J4/ Slip op, at 5.
15/ Id. at 6.
This kind of independent analysis of the underlying record
~
is appropriate in such circumstances.
See Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 2), ALAB-354, 5 NRC 12 (1977); project Manacement Corporation (Clinch River Breeder Reactor plant), ALAB-354, 4 NRC 383 (1976).
M/ Slip op. at 20.
~
The Appeal Board could discern no basis for the Licensing Board's firm opinion to the contrary.
This was particularly true, in the Appeal Board's estimation, given the inexcusible lateness of the petition and the collective ability of the experienced Board members to insure the development of a sound record on these matters.E The only direct testimony filed by FUA consists of the testimony of two individuals concerning one aspect (public infortnation) of one emergency planning contention.
The gravamen of their prefiled testimony is that the Applicant's public information literature about emergency procedures and preparedness is too complicated for the less educated residents in the area. The Staff believes that thjs may be a valid criticism and would encourage the Applicant to take this into account in the development and expansion of its public information program con-cerning accident risks and energency preparedness.
FUA did not prefile any other proposed testimony.
Finally, as the Appeal Board aptly noted, the introduction of a new party and new issues in a proceeding initiated over four years ago for which hearings are imminent compromises the integrity of the adjudicatory process.E This mirrors the reasoning applied by the Appeal Board in the North Anna decision on late intervention. VEpCO (North Anna Nuclear power Station, Units 1 and 2), ALAS-289, 2 NRC 395 (1978). As the Appeal Board stated therefn, even if, as here, a petitioner is required to take the proceeding as it finds it " experience teaches that the admission 2 /
Id. at 20-21.
g/ Slip op, at 24.
1 E
~
)
of a new party just before a hearing starts, is bound to confuse or complicate matters."
Id. at 400. The Appeal Board further stated that:
can otherwise be avoided only if the parties adverse
[0]elay[ petitioner) forego important procedural rights.
to the including the right to discovery.....It is scarcely equitable to give the [ petitioner] credit for not causing delay when that result could be achieved only because the circumstances would coerce other parties into waiving substantial rights.
Id. Here, as in North Anna, an appeal was inevitable whichever way the Board ruled.
Therefore, like North' Anna, Fetitioner's procrastination "made it inevitable that its entitlement to intervene could not be finally resolved until just before the hearing began, if then.
Simple fairness to all parties in these proceedings mandates that such practices not be condoned."
Id.
O.
Comission Review Should Not Be Exercised The decision below properly determined that there was insufficient justification for the Licensing Board to grant petitioner's " crucially tardy"E ntervention under the circumstances.of this case. The Appeal i
Board Decision is amply supported by the operative law and facts.
It does not entail an "important question of fact, law or policy "let alone an " erroneous" one so as to merit Comission review.
Reinstitution of the Licensing Board decision would operate as a hardship on the othee parties and disrupt the orderly conduct of the proceeding.
It would establish an undesirable precedent for future cases.
t p/ Slip op. at 24 0
9 b
^
0 0
III.
CONCLUSION l
In light of the foregoing, the petition for review of ALAB-642 should be denied.
Respectfully submitted, i
Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda,iiaryland this 26th day of June,1981, j
O i
i
.. f f
4 F
1 i
1
m a,
UNITED STATES O'F AMERICA NUCLEAR REGULATORY COMMISSION s
BEFORE THE C0fiMISSION_
In the Matter of 1
I SOUTH CAROLINA ELECTRIC & GAS h
Docket No. 50-395 COMPANY h
Virgil C. Summer Nuclear Station, h)
Unit 1 ~
CERTIFICATE OF SERVICE _
i hereby certify that copies of NRC STAFF BRIEF IN OPPOSITION TO PETITION FOR REVIEW OF ALAS-642 in the above-captioned proceeding 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 raail system, this 26th day of June,1981.
Alan S. Rosenthal, Chairman George Fischer, Esq.
Atomic Safety and Licensing Appeal Vice President and General Counsel-Board South Carolina Electric & Gas Co.
U.S. Nuclear Regulatory Commission P.O. Box 764 Colu.bia, South Carolina P9202 Washington, D.C.
20555
- Dr. John H. Buck Richard P. Wilson, Esq.
Atomic Safety and Licensing Appeal Assistant Atterney General Board S.C. Attorney General's Office U.S. Nuclear Regulatory Commission P.O. Box 11549 Colu.bia, South Carolina 29211 Washington, D.C.
20555
- Christine N. Kohl Mr. John Ruoff Atomic Safety and Licensing Appeal P.O. Box 95 Board Jenkinsville,' S.C.
29065 U.S. Nuclear Regulatory Corraission Brett Allen Bursey Wa'shington, 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, Esq.
U.S. Nuclear Regulatory Comission Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C.
20555 washington, D.C.
20036 Dr. Frank F. Hooper School of Natural Resources Randolph R. Mahan, Esq.
University of Michigan S.C. Electric & Gas Company Ann Arbor, Michigan 48109 P.O. Box 764 Colu.bia, S.C.
29218 Mr. Gustave A.- Linenberger Atomic Safety and Licensing Board Panei
.U.S. Nuclear Regulatory Cocaission Washington, D.C.
20555
- y 4
e e
Atomic Safety and Licensing oard
- Mr. Samuel J. Chilk Secretary of the Comission Panel U.S. Nuclear Regulatory Connission U.S. Nuclear Regulatory Counission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Appeal
- Leonard Bickwit, Esq.
General Counse)
Panei U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D. C.
20555 Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- t (w.- -
hSteven C. Goldberg Counsel for NRC Staff m
l 5
t