ML20064F619

Motion by Pub Advocate of St of Nj on Behalf of Intervenors Alfred & Eleanor Coleman,To Convene ASLB to Receive Pub Testimony.Motion Based on Principles Reflected in 10CFR2.715.Cert of Svc Encl

ML20064F619
Person / Time
Site:	Salem
Issue date:	11/09/1978
From:	Potter R NEW JERSEY, STATE OF
To:
References
NUDOCS 7812010259
Download: ML20064F619 (8)

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. h -$ yN.I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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PUBLIC SERVICE ELECTRIC & ) .

GAS COMPANY ) Docket No. 50-272 j

) Proposed Issuance of Amend =ent (Salem Nuclear Generating ) to Facility Operating License i Statica, Unit No. 1) ) No. DPR-70

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l{ Q MOTION TO CONVENE THE BOARD TO RECEI\E PUBLIC TESTIMONY Alfred and Eleanor Coleman ("the Colemans"), admitted as intervenors by the Atomic Safety and Licensing Board (" Board") by Order of May 24, 1978, and represented by the Public Advocate of the State of New Jersey ("Public Advocate"), hereby move the Board to:

1. Convene a special session of the Board and parties for the purpose of receiving testimony and written statements from all interested members of the public; - -

1 2. Provide written notice of the special session to all who request the opportunity to appear and make statements;

3. Schedule the time and location of the hearings so as to assure maximum public convenience and participation (preferably combining a day and evening session at the Cape May County Court House during the first week of December or January); and

4. Direct the parties within thirty (30) days of receipt of the transcript of the special session, or other reasonable time, to inform the Board of any issues or concerns raised at the session which should be admitted as issues in controversy for the presentation of evidence or legal argument. -

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In a separate matter, included with this motion for the sole purpose of economy, the intervenor also moves the Board to direct the Secretary and the. parties to serve the intervenors' technical consultants with all documents or pleadings filed in this proceedings. Service lists would add the following:

Dale Bridenbaugh . I-Gregory Minor M.H.B. Technical Associates 366 California Avenue, Suite 6 Palo Alto, California 95306 The reasons for the intervenors' motions are as fo lows:

I. The rules of practice.of the Nuclear Regulatory Commission (" Commission" or "NRC") provide for the participation of concerned members of the public in all licensing prochaings. 10 C.F.R. 2.715(a) provides that:

A person who is not a party may, in the discretion of the presiding officer, be permitted to make a limited appearance by making oral or written statement of his position on these issues at any session of the hearing or any prehearing conference within such limits and on such conditions as any be fixed by the presiding officer, but he may ,

not otherwise participate in the proceeding.

(emphasis added)

This provision of the regulations was recently amended by the Commission with the addition of the underscored phrase, proposed at 42 F.R. 32168 (May 2, 1977), 1 CCH/ Nuclear Regulation Reporter 5101, et seq. , and adopted on April 26, 1978, effective May 26, 1978, 43 F.R. 17801. Considered in the light of other amendments adopted at the same time, it is evident that the ,

Commission's purpose was to enhance public participation in a pragmatic, no-nonsence manner, likely to prod more informed decision-making and greater public confidence withor .udi'ce to parties. For example, 10 C.F.R. 2.715 was further am to welcome participation by an interested

. "=unicipality, and/or ageni- "' in addition to interested states -- ,

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all of whom may now participate as fully as parties without the need to comply with the more rigorous tests of for=al intervention. See 10 C.F.R. 2.714, generally, as amended. ,

There are other, equall'y significant examples of the Commission's program to streamline the complex and often frustrating proc'ess of inter- .

vention in order to facilitate improved public participation.1 These include dispensing with the old, requirement that petitions to intervene be accompanied by an ' affidavit under oath attesting to the facts of the petitioner's interest and the basis for the contentions. 10 C.F.R. 2.714(a) as amended ,

43 F.R. 17801, supra. Additionally, petitioners may intervene as " discretionary intervenors" where, inter alia, they would make a " valuable contribution,"

In re Portland Gen. El. (Pebble Spring 1 and 2), CLI-76-24, 4 NRC 610, 614-17 (1976), even when they do not meet all applicable requirements of intervention. Now, they may also participate as amicus curiae to advise the Board on all matters at. issue. 10 C.F.R. 2.715(d), as amended, supra. ,

Taken as a whole, it is obvious that th,ese reforms demonstrate a commitment by the Commission to strip the process of costly formalism, remove unjustified barriers to public participation, and thereby, to enhance both the appearance and the reality of accountability. This motion is based upon these principles. It will do so in the following ways:

1 See, e.g. , H.P. Green, "Public Participation in Nuclear Power Plant Licensing: The Great Delusion," 15 Will. and Mary L. Rev. 503 (1974).

2 On October 24, 1978, the Commission announced still further initiatives to' improve the licensing process. 4 U.S. NRC News Releases 42 (Oct. 24, 1978).

In addition to requiring the staff to begin working with applicants.several months before formal applications are filed, the Commission "has directed the staff to i=plement, on all current and future license application reviews, procedures to provide increased opportunity for the public to observe and participate in the licensing process in a meaningful way . . . ." -

i First, it provides for citizen participation b e fore the Board while the parties are still at the prehearing stage.

10 C.F.R. 2.715(a), supra.

This means.that concerned members of the public will'Enve sobe assurance that their efforts cca be taken seriously. Once evidentiary hearings have begun -- when issues are hard, discovery complete and consultants wait to testify -- limited appearances are customarily viewed as a futile

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exercise, full of sound and fury signifying ' little or nothing. This can be corrected -- to everyone's credit -- by opening the doors to the public at a time when the parties and the Board are still able to respond.

Second, by requiring or permitting parties to' respond to limited appear-ances, it will be clear to all that responsible, well-researched efforts can make a contribution. If no new matter is presented or if arguments beyond the scope of jurisdiction of the proceeding are made, there would be no oppor-tunity for modification of the Board's orders. If, however, new matter is Presented then it should be considered for possible motions to add new con-tentions, subject to all existing criteria, or to add issues on the Board,'s own motion. The latter, while infrequent, has happened as a result of limited appearances. For example, a former senior engineer from Westinghouse gave limited testimony at the start of hearing on the floating nuclear plants

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which prompted the board on its own motion to direct staff study and testimony on the matter. In the matter of Offshore Power Svstem, (Floating Nuclear Power Plant), Docket No. STN S0-437, (Tr. 999, June 15, 1976).

By receiving such testimony prior to the start of evidentiary hearings; however, meritorious new matter can be incorporated into the proceeding 4

with no disruption in scheduling. .

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Moreover, as 'the Board is 'well aware, this p'roceedisg" ha's provoked an unusually high degree of public interest. Three state executive depart-ments from two neighboring states, Delaware and New Jersey, have intervened.

More importantly, requests for limited appearances have already been received. l from scores of concerned individuals,. political leaders and groups. Clearly, the "public interest" will best be served by providing a convenient forum for their brief participation.

II. With respect to our motion to serve Messrs. Minor and Bridenbaugh, the

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Public Advocate has been left no choice but to seek the Board's aid. The licensee and the staff have signaled their refusal to cooperate. For no printable reason in the case of PSE&G and for no reason at all from the staff, they refuse to "ce" the intervenor's consultants. (See letters of July 28 from counsel to PSE&G and August 25 from counsel to the staff denying our request.) The Public Advocate is not demanding the production of rare or classified documents, nor do we seek to impose additional burdens of any kind. But failure to cooperate in this simple matter can put the intervenors at a disadvantage. All documents and pleadings must be received by us, screened for relevance to technical matter, photocopied at no little cost, and then mailed to California. At minimum, this costa the intervenors the loss of several days -- a potentially crippling handicap once matters resume in earnest. Consequently, if the instant motion is not granted, the -

Board should expand the intervenor's time for response to all pleadings, motions and orders by at least an additional ten (10) days. Clearly, the latter is the inferior remedy, which this party does not prefer, but some relief must be granted in the face of the rigidity of the staff and licensee.

CONCLUSION For the foregoing ~ reasons the Public Advocate of New Jersey, counsel to the Colemans, respectfully requests that the Board order t.ne convening of a public hearing to receive'limite'd appearances, direct the parties to respond to the public testimony, and that the Colemans.' consultant be served' with pleadings and documents along with all parties to the proceeding.

Respectfully Submitted, STANLEY C. VAN NESS, PUBLIC ADVOCATE

. h Ev N P R. WILLIAM POTlT.R, Deputy Director Division of Public Interest Advocacy Date: Novem' o er 9,1978 D

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UNITED STATES or AMERICA NUCLEAR' REGULATORY C0K11SSION k- hs/s d.

SEFORE THE ATOMIC SAFET't* A:!D LICENSINC

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PUBLIC SERVICE. ELECTRIC and ) Docket No. 50-272 CAS COMPANT )

Proposed Issuance of Amendment -

) to Facility Operating License -

(Salen Nuclear Generating ) No. DPR-70 -

Station, Unit No.1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " MOTION TO CONVENE "uiE BOARD TO RECEIVE PUBLIC TESTIMDNY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 9th day of Noveeber, 1978.

Cary L. Milhollin, Esquire Chairman, Atomic Safety and Chairman, Atomic Saf ety and Licensing Board Licensing Board U.S. Nuclear Regulatory Cc=sission

• 1815 Jefferson Street Washington, D.C. 20555 Madison, Wisconsin 53711 Troy B. Conner, Jr., Esq.

Mr. Glenn O. Bright Suite 1050 Member, Atomic Saf ety and Pennsylvania Avenue, N.W.

Licensing Boar.1 Panel Washington, D.C. 20006 U.S. Nuclear Regulatory Cocsission Washington,, D.C. 20555 Ruth Fisher The Sun People - Alternative Energy Advocates Dr. James C. Lamb, III South Dennis, New Jersey 08245 .,

Member, Atomic Saf ety and Licensing Ecard Panel Barry Smith, Esq.

313 Woodhaven Road Of fice of the Executive Legal Chapel Hill, North Carolina 25714 Director U.S. Nuclear Regulatory Cc:: J.ssion

' Washington, D.C. 20555 Chalrnan, Atcmic Safety and '

Licensing Appeal Board U.S. Nuclear Regulatory Coc=ission Washington, D.C. 20555

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. . . l Richard Hluchan, Esq. Carl "aiore, Esq ,

Deputy Attorney C,eneral 535 Tilton Road Department of Law and Northfield, New Jersey 08225 Public Safety 36 West State Street . _ Dale Bridenbaugh Trenton, New Jersey, 08625 Gregory Minor M.E.B. Technical Associates Richard Fryling, Jr., Esq. 366 California Avenue, Suite 6 Assistan't General Soliciter Palo Alto, California -95306 Public Service Electric and Cas - Conpany --- - - .

. 80 Park Place Newark, New Jersey 07101 .

Eleanor e Coleman Alfred C. iolenan 35 "K" Drive Pennsville, New Jersey 08070 Office,of the Secretary .

Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 R. WILLIAM POuc.x, DEPUTT DIRECTOR DIVISION OF PUBLIC INTEREST ADVOCACY e

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