ML20063P880

Brief Supporting State of La Jul 1982 Petition to Participate as Interested State.Good Cause Shown for Untimely Petition.Certificate of Svc Encl

ML20063P880
Person / Time
Site:	Grand Gulf
Issue date:	10/11/1982
From:	Lindsey I LOUISIANA, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8210150462
Download: ML20063P880 (31)

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00CMETED' USNRC 52 OCT 14 Eli57 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS.SION ~

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF MISSISSIPPI POWER & LIGHT COM-PANY DOCKET NOS.60-416 MIDDLE SOUTH ENERGY, INC. 50-417 AND SOUTH MISSISSIPPI ELECTRIC POWER ASSN.

(GRAND GULF NUCLEAR STATION, UNITS 1& 2)

PETITIONER'S RRIEF IN SUPPORT OF IT9 PETTTION TD PARTICIPATE IN FACILITY OPERATING LICENSING PROCFRDTNC9 OPENING STATEMENT In July, 1982, the State of Louisiana i (hereinaf ter " Louisiana" or "Pe t i t i one r") filed a " Peti tion to Participate as en Interested State in Facility Operating License Proceeding and to Reopen Such Proceedinq to Precipitate Commission Rulings Consistant With Recent Court of Appeals Decision and to Request the Nuclear Regulatory Commission to Cease Issuing Licensing l Consistant With the Court of Appeals Decision (si c)" in the above captioned proceeding, I seeking 'to intervene 1

The petition was received by the Docketing and Service Branch, Office of the Secretary, Nuclear Regulatory Commission, on July 26, 1982.

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e .a in the operating licenso phase of these nrocondinns in order to assure that the issue of the economic i m pact of long term radioactive waste disposal is nrono rl y considered- with reference to the Grand Giii f Nuciaar Station, Units l' & 2.- Louisiana bases i ts recuests on the April 27, 1982 decision in NRDC v. NRP (Ct. of Anp. For the D.C. Ci r.) No. 47-1586 (1982) which held that the Tabla C ~1 Rule is invalid because it falls to allo.w for nronar consideration of the uncertaintins concerninn rho lonn-Parm isolation of high-level and transuranic wastes, and hacausa it fails to allow for proper consideration of the health, socioeconomic and cumulativo effacts of fuel-cycle activities.2 Thus, "...in the absenco o r a ualia generic [ Table S-31 Rule, the environnental impact n#

fuel-cycle activities must he considered in individual licensing proceed ing s."'3 '

2 S-3 Rule, The Table " Table of tir a n i u m Pue1 cvele Environmental Da ta ," instructs all licensinq hoard s, whan analyzing the environmental impact of a-particular n1 ant, to conclusively assume that such wastes will amit no radiological affluents into the environmont pfror final r burial.

3 i NRDC v. NRC, (Ct. of App., D. C. Cir.) (April ", 1099),

slip opinion at p. 17.

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O e Louisiana is mindful of the fact that thn Moclaar Regulatory Commi ssion has appeal ed the Court of Apopalg decision in NRDC v. NRC to the Supreme Fourt, and that the Order by the Court of Appeals staying the mandare will continue to be in effect until final disposition of tho matter by the Supreme Court. However, Louisiana respectfully suggests that in the interest o f indicial economy, common sense dictates that all further proceedings in the instant matter cease until the issue is rosolved by the Supreme Court. As the Court of Appeals points out,

"{a]1though the original and interim TTable G ~41 Rules have been superceded by the final Rule, their validity is still at issue. Individual licenses th&r were oranrod under those Rules have been challenged in separate actions, many of which are being held i n abeyance pendinq *ba resolution of the broader' issues presented in this case."^

Louisiana is also mindful of the fact, as uninrod out by both the Applicant and the NRC Staff in their briefs, that its petition is untimely. Potitioner respectfully points out to the Licensing Roard that it acted with all due speed upon learning of the nonc v. unc decision, and studying the opinion with reoard to its effect on the instant proceedings and petitioners decision to seek intervention therein.

4 Id., footnote 7, slip opinion at p. 9 E _ _ _ .

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Prior to the decision, Loui siana -was bound to assume, as

-was the NRC, that the Table S Rule was valid and that, with respect to the environmental effects of the f uel-cycle, "no further discussion of such environmentp1 nFFects shall be required."5 Louisiana has no wish to unreasonable delay the instant proceeding. Ilow eve r , considering the lanquaqe of the Court of Appeals in NRDC v. NRC,and rho potentially far-reaching impact of the Court's holding, abeyance of tbn instant proceeding would appear to be in the best intarost of all parties. To continue now, in the Face'o# a c o ti r t challenge to the permit and license procoeding For not having considered "the uncertainties conce rn i r:q rhe 1onq term isolation of high-level and transuranic wastan and

...the health, socioeconomic and cumulative eFFacts o r fuel-cycle activities"6 runs the risk of wastinq timo and money now, and the likelihood of an even greater delay in litigating the issue.

S Ld, slip opinion at p. 17, citing 39 Fed. Req. laino (1974) at 14191.

6 Id.,

slip opinion at p. 11-12.

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a e ARGUMENT I. Meeting ~the Burden of Non-timely Filing of a Pet'ition

.to Intervene Under 10 CFR 2. 71 a (a) (1 ) .

. The NRC Staff has conceded that the 9tato of Louisiana likely possesses the requisite interest to

! intervene as a_ party,7 as required by 10 CFR ?.71 A (a) (?) .

but opposes the petition as un ti mel y,. as does the Applicant. As pointed out by both the Applicant and the NRC Staff, non-timely petitions will not he qranted absent a determination based upon a balancing of the following i factors set out in 10 CFR 2.714 (a) (1) :

( .1 ) Good cause, if any, for failure to file on time.

(2) The availability of other means whereby the pe t i t i one r 's interest will be protected. =

(3) The extent to which thn p e t i t .'. o n e r 's participation may reasonably be expected to assist in developing a sound record.

(4) The extent to which the petitioner's interest will ba represented by existing parties.

(5) The extent to which the peti t ione r 's participation wil' broaden the issues or delay the -

proceeding.

7"NRC Staff Opposition to Untimely Peti tion to intervene of State", p. 7, footnote 2.

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It is worth digressing briefly to point out that the original statement of the factors required to ho met to carry the burden of untimely filing under section

2. 714 (a) (1) was worded slightly different than the existina rule. As it original appeared, section ?.'1/ f ai tli raad in pertinent part "Non-t i mel y filinqs will not be entertained absent a determination...

that the petitioner has made a substantial showing of qood cause for failure to file on tima, and with particular reference to the followino factors:

(1) The availability of othnr means whereby peti tioner's interest will be protected.

(2) The extent to which tha petitioner's participation may reasonably be expected to a s s i s t. in developing a sound record.

(3) The extent to which petitioner's interest will bo represented by existing parties.

(4) The extent to which the pe t i t ioner's participation will broaden the issues or delay the proceeding."

In a Nucl. ear Regulatory Commission decision i reversing an Appeal Board decision denving an untimoly petition where no good cause was shown, and adonting an interpretation of 10 CFR 2. 714 (a ) contrary to that reachod by a majority of the Appeals Roard, the Commision nointed out that the quoted language from Section ?.'1 A f ai "Ts not a model of clari ty." The Commision goes on to say:

" Focusing on the policies underlying the rule, however, and seniantics aside, we do not construe Section 2.714 (a ) as automatically barring inquiry into the purposes which may be served, or hindered, by accepting an untime]y petition where, as here, the petitioner has not shown good cause for his tardiness. Rather, the purpose of Section 2.714 (a ) is to establish appropriate tests for disposition of untimely petitions in which the reasons for the tardiness as wel] as the four listed factors should be considered, thus giving the Licensing Boards broad discretion in the circunstances of individual cases."8 The Rule was subsequently amended to its present form. Commenting ora the new rule the Commission stated:

"The Comnission believes that Section 2.14 should be amended in the interest of clarifying the requirements in regard to . . . late filings of petitions . . . . Section 2.714 is amended to outline clearly the factors which need to he considered and balanced before the presiding officer passes upon the admissibility of late filings. In essence, the amendment codifies the Commision's decision In the Matter of Nuclear Fuel Services, Inc., and New York State AtomlC and Space Development Authori{y (1 NRC 273), which makes clear that the teason for the untimely filing is one factor to be balanced along with the others in determining whether a late filing will be admitted."9 O

Nuclear Fuel Services, Inc., (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).

9 43 Fed. Reg. 17798 (Apr. 26, 1978) at 17799.

The Co m m i s s i o n 's decision in West Valley continues to be the leading case on the issue of untimely petitions to intervene. It is noteworthy that in the West Valley case, the Commission, as did the Appeal Board and the Licensing Board, found that the petitioner, Erie County, had no good excuse for their failure to file on time, but nevertheless allowed the interventions, finding at least 3 of the 4 factors in the original Section 2.714 weighed in the Co un ty's favor. Thus, it appears on the basis of West Valley that a petitioner with no good excuse may still be permitted to intervene, based on a balancing of the ' remaining factors. The Commission in West Valley further stated, on p. 275, that "the burden of iustifying intervention on the basis of the other Factors in the rule in considerably greater where the latecomer has no good excuse." The correllary to this rule is that a petitioner with a good excuse has a considerably lesser burden with respect to the remaining factors. Indeed, one Licensing Board, when considering an untimely petition of an individual, "found that [ petitioner 1 has a marginably qood excuse for the late fi]Ing. Therefore, we assign a

substantial but not great burden to fpetitionerl in evaluating his petition on the basis of the four other factors of Section 2. 714 (a ) ."10 Similarly, a different Licensing Board stated that:

"A satisfactory explanation for failure to file on time does not automatically warrant the acceptance of a late file intervention petition. We must.also consider the four factors specified under 10 CPR Section 2. 714 ( a ) .. .. But where the lateness has been satisfactorily explained, a much smaller demonstration of these factors if necessary."Il In the instant case, Loulslana respectfully suggests, as shown above, that it has a good excuse for its late petition, namely the April 27, 1982 d.ecision ir, NRDC

v. NRC, and that it acted with all due speed with respect ,

i to that decision, and thus a "not great" or "much smaller" showing on the remaining four factors is necessary.

It is also quite evident from a reading of the decisions that the " balancing" required by section 2. '14 (a) has been interpreted to mean " balance" in the sense of a scale - putting the " pros" on one side and the " cons" on the 4

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10 South Carolina Electric and Gas Company (Virgi) C.

j Summer Nuclear Station, Unit 1), LBP-78-6, 7 NRC 209, 217

(1978).

II Wisconsin Public Service Corporation (Kewaunee Nucl ea r i Power Plant) LBP-78-24, 8 NRC 78, 83 (1978).

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other. It has not been interpreted to mean that a positive finding must occur on all factors inl order to find in favor of an unt'imely petitioner.

For example, in the previously cited Summer case, supra, where the Licensing Board found the late petitioner had a " marginally good excuse," the Roard granted the petition, finding that of the remaining factors, two factors weighed in peti t ione'r 's favor, one factor weighed against him, and one wa s neu tral.

Similarly, in the previously cited Kewauanee case, nuora, the Licensing Board states its findings on page R4 that:

"In summary, the- petitioners have made a strong showl,g of good cause for the late filing, and we have found that two of the four factor 7 weigh in their favor and two have no significant weight. We conclude that [ petitioners 1 have satisfactorily passed the test ror untimely petitions set forth in section 2.714(a)."

It is also note wc rthy, and relevant to the instant case, that a petitioner's status as a governmental entity may be taken into account, and that such status weighr. in favor of the petitioner, as shown by several Appeal Board decisions. In one of the Marble Hill decisions, the Appeal Board states that:

"[T]he decisions interpreting Section 2.714(a) as we read them allow the

covernmental nature of the petitioner to be taken into account in considerinq I [t]he extent to which Ithe petitioners'1 t

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, interest will be represented by existing parties' (the ' third f acto r'). It was one of the basic tenets of the dissent

. fro'm the Appeal Board's majority i decision in West Valley that a local government' might well view the demands of the public interest in a markedly different light than... private in te rveno r s,' and that accordingly, l' .because it is governments, not private r . parties, who are charged with the responsibility of identifying and protecting the public interest, a I privat 2 party-even though it may be advanciig. contentions identical to'those proposeo by the petitioning government-could not be said to represent adequately the petitioning government's I interest. In reversing the maiority's decision in that case the Commission indicated agreement with this analycis, stating in its own - West _ Valley decision I

that (1 NRC at 275):

We share the view of the dissenting member of the Appeal Boatd that the private intervenors herein advancing contentions substant ially identical to

, those of the County r: a y a not effectively represent the Coun ty's presumably broader interert."

(footnotes omitted)12 12Public Service Company of Indiana, Inc. (Marble Hill Nucl ar Generating Station, Units 1 and 2), ALAB-319, A NRC 20, 24-(1976).

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Similarly, the Appeal Board in Jamesport denied an untimely petition of a private party, distinguishina a private party's right fcom the broader right of a governmental entity, again citing West-Valley:

"The West Valley petition was that of a County, seeking to advance its asserted (clearly cognizable) interest in the protection of the health and safety of the citizens of the County. To have excluded it from the proceeding would have the effect o f -- leaving those citizens without representation by their own local government on matters at the very heart of the Atomic Ene rgy Act."

(footnote omitted)l3 Thus, not only does Louisiana have a iustifiably good cause for its untimely petitien, but its nature as a

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governmental entit'y, charged with the responsibility to protect the health and safety of its citizens, must weigh in favor of granting Petitioner's request for intervention.

II. The "Five Factors" of 10 CPR 2.714 (a) .

As previously indicated, Section 2.'14 requires that untimely petitions will be weighed with reference to the 5 factors contained therein. Each factor was addressed separately by both the Applicant and the NRC Staff, and 13Lono Island Company (Ja mespo r t Nuclear Power Station, Units 1 Li andqh 2U t i ng_KCAB-29 2, 2 NRC 631, 646 (1975).

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will be likewise discussed saparately below.

A. Factor 1 " Good Cause" Citing West Valley, Applicant states "that late petitions may not be' admitted without a strong showing of good cause." 14 In fact, the correct holding of West Vallev is exactly the opposite, as discussed earlier; late petitions may still be admitted without any showing of good cause and, indeed, the Commission found' that petitioner,

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Erie County, had no good cause in that case. In granting Erie Co un ty's petition, the Commision merely stated that "The burden of justifying intervention on the basis of the other factors in the rule is considerably greater where the latecomer has no good excuse."15 Both the Applicant and the Staff cite the Duke Power (Perkins) case in support of their argument on factor 1, relying on the statement that "fwlhere no good i

excuse is tendered for the tardiness of the petition, a petitioner's demonstration on the other factors must he I pa rticularly strong. " 16 i

14 Applicant's brief at p. 8.

I 15 We s t __ Va l l_ey , supra, 1 NCR at 275.

16 NRC Staff brief at p. 4.

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I The case is inapplicable for two reasons: First, Louisiana has a good excuse, as previously stated. Second, the case is easily distinguishable from the instant proceeding. Tn Duke, the Petitioner was a private party' raising a relatively narrow issue (withdrawal of make-up water) which concerned him personally as a riparian landowner. Tt is hardly similar to the instant case where the petitioner, a State, raises the much broader issue of the economic impact of the disposal of high-level radioactive wastes as it affects the citizens of this State.

The previous paragraph notwithstanding, the Duke case is analogous in one important respect. There, in an effort to show good cause, petitioner cites a federal court of Appeals decision in support of his petition, as did petitioner herein. In that case, the petitioner waited nine (9) months after the rendition of the decision, and the Appeal Board found that "the reason was not a lack of an early awareness".17 The case is thus further inapplicable to the instant proceeding inasmuch as Louisiana has, in this case, acted quickly upon learning of the NRDC decision, as was previously explained above.

17Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-431, 6 NRC 460, 462(1977).

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Further asserting Lo u i s i ana 's alleged failure to show " good c a u s e ," applicant and staff attacked Louisiana's reliance on the NRDC case and the issues raised by the Table S-3 Rule. The applicant states that " aspects of ultimate waste disposal other than those relating to Table S-3 which petitioner wishes to litigate, e.o., the methodology of waste burial, have likewise been within the public domain for years and ye a r s. "18 That may be so.

However, applicant fails to point out, as has been previously stated, that "no further discussions of such environmental effects (of the fuel cyclul shall be required" beyond those set forth in Table S-3. Si m il a ril y, the NRC Staff "does not believe the existence of the fuel cycle rule constitutes good cause for Lo u i s i a n a 's standing silent in failing to express its. concerns until the NRDC i

d e c i s i o n. " 19 As previ'ously stated, the rule does I constitute good cause. In Louisiana, and presumably elsewhere, a law or regulation is presumed to be constitutional, analogous to the broader " presumption of l innocence," unless shown to be otherwise. Louisiana thus presumed that the Table S-3 Rule was valid, until the Court of Appeals held otherwise.

18 Applicant's brief at p. 10.

19NRC Staff brief at p. 5.

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B. Factor 2 - Availability of Other Means Applicant basically makes two points here: the availability of the NRC S t.a f f to protect pet i t i one r's interest, and the opportunity for the petitioner to participate in rulemaking.

As to the applicant's statement that "The NRC staff with adequately protect pe t i t i o ne r 's interest,"20 Louisiana dismisses this argument completely with the comment that if this were carried to its logical conclusion, there would be no necessity or nurpose in having any parties at all beyond the Applicant and the NRr Staff.

Applicant's second argument, the opportunity to participate in rulemaking, is likewise without merit.

Applicant makes the statement that "the ultimate disposition of reactor waste is a generic issue to be determined by the Commission by rulemaking and is therefore not a matter for consideration by individual licensing bo a r d s." 21 This is the very heart of the NRDC decision, and was the precise reason that the rule was challenged.

20 Applicant's brief, p. 12.

21 Applicant's brief, p. 34.

Indeed, as the National Resources Defense Council arqued, and as the Court of Appeals held, the Nuclear Regulatory Commission may not treat reactor waste generically, and such an issue M a matter for consideration by individual  ;

Licensing Boards.

Further, in a recent Licensing Board decision in a case where this precise issue - that of the existence of rulemaking as "other means" available - was raised,the Board stated: While we agree that these provisions Ito inititate and participate in rulemakingl are ava i l abl e to j Petitioners, we do not think they are as efficacious as a prior hearing. Therefore we weigh this factor sl i g h t.l y in Petitioners' f avo r."22 ,

Finally, the Staff itself concedes that "there may be no means other than participation in a proceeding .n the Grand Gulf licensing which would af ford the same degree of protection for the State's interests with respect to the Grand Gulf f acili ty.a23 Such concessions are apparently persuasive, for in the Summer case, supra, the Licensinq ,

Board stated: "We need not dwell upon this point because the staff itself concedes that the... factor is welched in Petitioner's favor...."24 l 22 Consolidated F.dision Company (Indian Point Station, Unit No. 2), LBP-82-1, 15 NRC 37, 41(1982).

23 NRC Staff brief, pp. 6-7.

24Summer, supra , 7 NRC at, 213.

i (Staf f's assertion that this factor, as well as factor 4, are " accorded relatively'less weight than the I other three" will be addressed in the discussion on factor 4).

C. Factor 3- Development of a Found Record i

Applicant states on page 15 of its brief that

"[T]here is no evidence that petitioner's representatives

are by training, education or ' experi ence technically qualified and competent to assist the Licensing Board in j

addressing environmental issues related to the disposal of high-level wastes." Suffice it to say that the State of Louisiana has, or has the means to get, all the expertise necessary to fully address the issue in point.

Applicant also quotes from two opinions in support of its position on this factor. Neither case is appropriate.

The first case, Pebble Sprinqs,25 is inappifcable in that it deals neither with the broad issue of unti mel y intervention, nor with the narrower issue of the ability to develop the record. Rather, the case is an opinion on a certified question to the Commission on the issue of 2

intervention as a matter of discretion where there is no intervention as a matter of right.

1 25P ortland General Electric Company (Pebbl e Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC A10 (l o78;) .

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Neither is Applicant's second case, Allens creek ?6 on point. In that case, an Appeal Board decision affirmed the Licensing Board's denial of an untimely pe t i. t i on for leave to intervene. The Appeal Board found that factor 3 weighed against the Petitioner, a "l a w - ab i d i ng teacher,"

4 who made the bare assertion that "I am expert at expressina myself on paper and orally."27 It hardly seems appropriate i

to use the example of the resources available to a "l a w-abiding teacher" compared to the resources available to the State of Louisiana with reference to the ability to develop a sound record.

The Staff devotes only one paragraph to factor 3, citing the Zimmer case.28 In that case, al though finding this factor weighed against the petitioners, the Licensina Board found the weight to be "not strongly" aoainst admission 29 and granted th'e untimely petition to intervene.

i D. Factor 4 - Representation by Existing Parties Here again, the Staff concedes that "because there are no other parties in this uncontested proceedina, there is no one who might directly represent the interest 26 Houston Lighting and Power Co npany (Allens Creek Nuclear

-Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980).

27Id., 11 NRC at 241.

28 Cincinnati Gas and Electric Company (William H.

Zimmer Nuclear Station), LBP-80-14, 11 NRC 570 (19RO) .

29 Id., 11 NRC at 576

. i of the -State."30 Again, such concessions are presuasive, as previously pointed out from the statement in the Summer proceeding on this same exact factor, that "fwle need not dwell upon this point because the Staff itself concedes that the...f acto r is weighted in Pe t i t i o ne r 's f avo r...." 31 i

The Staff has relied on a later opinion in the Summe_r_ proceeding for the proposition that factors 2 and 4 are " accorded relatively less weight than the other three."

But the "less weight" language is confined to the narrow circumstances of that case, in which the Appeal Board also found 1) inexcusable lateness, 2) a material expansion, and l

3) a marginal showing on petitioners ability to make a truly significant, substantive cont r i.hu t i o n. Petitioner respectfully suggests that none of these f actors. are applicable in the instant case.

. The Applicant makes the same two points hera that it did in its argument on factor 2, namely 1) the presence of the NRC Staff, and 2) the rulemaking power of the i

Commission. Neither argument is persuasive, as explained l above in the discussion of factor 2. Also, recall that the Indian Point case, quoted in support of its argument here on factor 4, was the same opinion which held that rulemaking is "not...as efficacious as a prior h ea r i ng."

30 Staff brief, p.7.

i 31S ummer, supra, 7 NRC at 213.

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One final point needs to made with reference to factor 4. Two Licensing Boards, in opinions already cited, have indicated that this factor may be inapplicable to the circumstances of the instant case. The opinion in the Summer proceeding supra, states that:

"It is not clear to the Board that this factor is applicable in a situation where, -as here, no hearing whatever would be held wer "

Petitioner'srequest."3d And again, in the Indian Point proceeding, nunra, the Board states that this factor " weighs in Petitioners' f avor...to the extent that, if Petitioners' request is denied, there will be no proceeding and hence no parties.13 E. Factor 5 - Broading of the Issues and Delay Finally, Section 2. 714 (a ) (v) requires the Licensing Board to balance "the extent to which the pe ti tione r's participation w i l.1 broaden the issue or delay the proceedings."

Applicant quotes from the Licensing Board opinion in the Indian Point proceeding:

" Absent some showing that a public benefit will accrue from their participation, it must be assumed that starting a proceeding at this late date will have the effect of, at a minimun, inconveniencing the applicant and 32 Summer, supra, 7 NRC at 213.

33 I ndian Point, supra, 15 NRC at 4].

diverting Commission resour other tasks." (emphasis added) 3Y lie r e , the test set forth by the Board in weighing this factor is whether.there is some showing that a public

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benefit will accrue. The State of Louisiana respectfully suggests that a public benefit will accrue from an inquiry into the environmental impact of the storage and disposal of high-level nuclear wastes generated by the Grand Gul f facility.

It is noteworthy that in the Summer proceedinq, supra, - the Licensing Board felt that this factor might be inapplicable in a case such as the instant one where, if there is no intervention, there is no hearing at all. The Board stated:

"Nor is it clear to the Board that factor number [5] is applicable in a situation wher'e the granting of the petition is the ordering of the hearing.

If the petition is not granted there will be no issues to broaden nor a proceeding to delay."35 The Board then went on to find that, if this factor was applicable, it is nevertheless neutral, weighing neither in favor of nor against the Petitioner, and grant i the petition.

1. ndian I Point, supra, 15 NRC at 41.

t 35 Summer, supra, 7 NRC at 213.

Finally, petitioner notes that both the Applicant and the Staff cite and discuss the opinion of Detroit Edison Company (Enrico Fermi Atomic Power P.l a n t , Unit No.

2), . ALAB-475, 7 NRC 752, 762 (1982) (See Staff brief at p.

8 and Ap pl i c a n t 's brief at p. 17) to support the proposition that "the later the petition, the greater the liklihood that petitioner's request to participate will result in delay." The Fermi opinion cited does not deal with the issue of untimely petitions. Apparently, the Applicant and Staff meant to cite the case of Detroit Edison Company (Greenwood Energy Center, Units ? and 3)

ALAB-476, 7 NRC 759 (1978) which appears in the reporter immediately following the Formi opinion and which does

' address the issue of untimely petitions to intervene. In spite of the language cited, however, the case does not support the Staf f's posi tilon inasmuch as the l ariguage on which they relied was dictum, as the Appeal Board found 1

that there was in fact no delay. It is also sioniticiant that despite a finding of " inexcusable lateness" in that case, the Appeal Board nevertheless granted the untimely petition to intervene.

II. Other Matters A. Jurisdiction of the Licensing Board Applicant suggests in his brief that the Licensing Board lacks jurisdiction to consider Louisiana's petititon to intervene, claiming that "when the Director, Nuclear Reactor Regulation, issued an operating license on June 16, 1982, the proceeding with regard to Unit I was at an end and the Licensing Board no longer possessed jurisdiction to entertain a petition for intervention or a request for any relief."36 In support of this position, Apt licant quotes from two opinions, ,one Commission opinion (South Texas)37 and one Appeal Board opinion (Ma rbl e H111).38 Neither case is on point inasmuch as they both deal with unrelated matters and/or final decisions of the '

NRC, and no such final decision exists in the instant proceeding.

36" Applicant's Answer to State of Louisiana's Petition to Participate . . . . " p.4 37 11ouston Lighting and Power Company (South Texas Project Units 1 and 2), CLI-77-13, 5 NRC 1303 (1977).

38 Public Service' Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530, 9 NRC 261 (1979).

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The first case cited by Applicant, the South-Texas opinion, deals with the narrow issue of whether to reopen a closed construction permit hearing in order to -

obtain an antitrust hearing under Section 305 of the Atomic Energy Act. Not only is this case not on point, inasmuch as the instant case does not result from a request to  !

consider the narrow unrelated antitrust issue decided there, it is further inapplicable because of the finality of the hearings in that case. A careful reading of the portion of the opinion which Applicant quotes shows that this was a final, unreviewable Commission decisi.on. In reviewing the circumstances o'f the case in which a untimely antitrust petition had been routinely referred to the Licensing Board, the Commission stated that "the construction permit proceeding had formally come to an end with the expiration of time to seek judicial review, and

. . .the licensing board s lacked delegated authority to reopen such proceedings."39 Similarly, the opinion of the Appeal Board in Marble Hill is not on point inasmuch as it, too, involves a final Commission- decision, as a careful reading 39 South Texas, supra,5 NRC at p. 3307.

of the quoted portion of the decision cited by the Applicant will show. There, 6 months had elapsed since the Appeal Board's final decision and, since the Commission elected not to review this decision under the authority of 10 CFR 2.786 (a ) , as they had the right to do, it thereafter became the Commission's final action.

Jurisdiction of the Licensing Board is set out in 10 CFR 2.717 (a) which provides in pertinent part that:

"[T]he jurisdiction of the presiding officer designated to conduct the hearing over the proceeding . . .

commences when the proceeding commences.

The presiding officer's jurisdiction in each proceeding will terminate upon the expiration of the period within which the Commission may direct that the record be certified to it for final decision, or whe'n the Commission renders a final decision, or when the presiding officer shall have withdrawn himself from the case upon considering himself disqualified, which ever is ea rliest."

Notwithstanding the language in the quoted sec tion 2.17 (a) , the power of the Commission to render a final decision has been delegated to the Atomic Safety and Licensing Appeal Board, which "will also exercise the l

authority and perform the functions which would otherwise have been exercised and performed by the commission under

.. . 2.717 (a) . . . ."40 Even after the decision of the Atomic Safety and Licensing Appeal Board, such decision does not represent the final action of the entire Commission until after the expiration of time limits set forth in 10 CFR 2. 7 8 6 (a ) and (b) (1) , whichever is applicable.

In the instant case, there has been not the slightest suggestion that the decision of the Licensing Board to grant an operational license for 5% power represents the final, unreviewable action of the entire Commission. Thus, inasmuch as none of the prerequisites for the termination of Licensing Board jurisdiction set forth in 2.717 (a) have occurred, the Licensing Board in the instant case still retains the jurisdiction to entertain Louisiana's petition to intervene.

B. Supplement to Applicant's Answer Applicant cites the July 30, 1980 opinion of the Commission in the Boston Edison Company (Pilgrin Nuclear Power Station) proceeding for the proposition "that the NRC Rules regarding entitlement to a hearing are not to be applied more liberally with respect to the State than any 40 10 CFR 2. 785 (b) (1) .

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. . o other' potential i n t e r v e no r." 41 Petitioner respectfully disagrees that this statement is " implicit in Ithe Commission's] holding, as it claims.

Applicant also cites the July 12, 199?

" Memorandum and Order" of the Licensing Board in the Cleveland Electric Illumininating Company (Perry Power Plant, Unit 1& 2) proceeding, suggesting, based on the quoted language,that "the waste disposal contentions . . .

. challenging Table S-3 may not be considered . . . but rather are appropriate for generic consideration in rulemaking. . .

" 42 The opinion is not a blanket denial, nor does it state, as applicant suggests, that the proper forum for such a contention is generic rulemaking. Indeed, as the quoted language suggests (". . . the Court of Appeals decision does not g yet provide a ground for resubmission of this contention (emphasis added)"), Judae Bloch hints that he would let the contention be resubmitted at the appropriate time.

Conclusion Louisiana has shown that it has good cause to justify its untimely petition. When good cause is shown, a "much smaller" showing on the remaining 4 factors is 41" Supplement to Applicants Answer to State of Lo u i s i a na 's Petition to Participate," at p. 2 42Id. at p. 3

.o necessary. Of the remaining 4 factors, the NRC staff has l

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conceded that factors 2 and a favor the petitioner. It is also probable that where, as here, the granting of a petition results in the ordering of a hearing, factor 5 may not apply. In addition, Louisiana feels it has, or has the means to obtain, expertise to assist in developing a sound record. Louisiana feels ^it has clearly met the balancing test required by 10 CFR 2. 714 (a ) , and that the Licensing Board has the jurisdiction to entert'ain its petition for leave to intervene.

i Respectfully submitted, WILLIAM J. GUSTE, JR.

Attorney General s

j/

IKN DOUGLAS Lf DSEYV Assistant Attorney General y

Louisiana Department of ,

Justice i

7434 Perkins Road Suite C Baton Rouge, LA 70808 (504) 766-8610 I

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<( * '

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF MISSISSIPPI POWER & LIGHT COMPAN'l MIDDLE SOUTH ENERGY, INC. DOCKET NOS. 50-416 AND 50-417 SOUTH MISSISSIPPI ELECTRIC POWER ASSN.

(GRAND GULF NUCLEAR STATION, UNITS 1 AND 2)

CERTIFICATE OF SERVICE I hereby certify that a copy of the Petitioner's Brief in Support of Its Petition to Participate in Facility Operating Licens-ing Proceedings Opening Statement, dated October 11, 1982 in the above-captioned proceedings, has been served on the following by deposit in the United States Mail, first class, this lith day of October, 1982.

James A. Laurenson, Chairman Mark J. Wetterhahn Atomic Safety and Licensing CONNER AND WETTERHAHN, P.C.

Board 1747 Pennsylvania Avenue U.S. Nuclear Regulatory Com- Washington, D.C. 20006 mission Washington, D.C. 20555 Glen O. Bright Mary E. Wagner Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission Office of the Executive Legal U.S. Nuclear Regulatory Commission Division Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour Richard J. Rawson Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission Office of the Executive Legal U.S. Nuclear Regulatory Commission Division Washington, D.C. 20555 Washington, D.C. 20555

• A'.

Atomic Safety ar.d Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Secretary to the Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: DOCKETING AND SERVICE SECTION

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I hh T/M. DOUGLAS $INDS$X j Assistant Attorney GeneralV