ML20080B587
| ML20080B587 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek  |
| Issue date: | 02/03/1984 |
| From: | Baxter T KANSAS GAS & ELECTRIC CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20080B583 | List: |
| References | |
| NUDOCS 8402070201 | |
| Download: ML20080B587 (22) | |
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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION ,
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
KANSAS GAS AND ELECTRIC ) Docket No. STN 50-482 COMPANY, ET AL. )
)
(Wolf Creek Generating )
Station, Unit No. 1) )
APPLICANTS' RESPONSE TO NUCLEAR AWARENESS NETWORK, INC. PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING t
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Thomas A. Baxter, P.C.
( David R. Lewis i
SHAW, PITTMAN, POTTS & TROWBRIDGE l Counsel for Applicants February 3, 1984 1
i 8402070201 840203 l DR ADOCK 05000 8 l
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9 TABLE OF CONTENTS Page I. Introduction............................................ 1 II. Standards Governing Late-Filed
. Intervention Petitions.................................. 3 III. Application of the Standards........................... 10 A. P etitione r ' s Inte re st . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Contentions -- Basis with Specificity....................................... 10 C. The Lateness Factors...........,................... 14 Factor (1): Good Cause for Failure to File on Time...................................... 15 Factors (ii) and (iv): The Availability of Other Means Whereby Petitioner's Interest Will Be Protected; and the Extent to Which Petitioner's Interest Will Be -
Represented By Existing Parties................... 17 Factor (iii): The Extent to Which the Petitioner's Participation May Reasonably Be Expected to Assist in Developing a Sound Record...................................... 18 Factor (v): The Extent to Which the Petitioner's Participation Will
- Broaden the Issues or Delay the l Proceeding........................................ 19 IV. Conclusion............................................. 20 Attachment 1
- Affidavit of William J. Rudolph II and Owen L. Therc Attachment 2: Statement of Sam Goucher Attachment 3: Statement of Kenny Rowell Attachment 4: Statement of Vince Ley Attachment 5: Statement of Tony Shores
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February 3, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC' SAFETY AND LICENSING BOARD In the Matter of )
) :
KANSAS GA3 AND ELECTRIC COMPANY, ) Docket No. STN 50-482 ET AL. )
)
(Wolf Creek Generating Station, )
Unit No. 1) )
APPLICANTS' RESPONSE TO NUCLEAR AWARENESS NETWORK, INC. PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING l
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I. Introduction On January 19, 1984, Nuclear Awareness Network, Inc.
l (hereinafter the Petitioner) filed a " Petition for Leave to In-tervene and Request for Hearing." The petition, untimely by Petitioner's own admission,1/ requests that Petitioner be i granted party status. Petitioner asserts that if it is permit-l l ted to intervene, it will then file quality assuranco/ quality I
control (QA/QC) contentions. The petition, however, fails to t
1/ The notice of opportunity for hearing was published in December, 1980. 45 Fed. Reg. 83360 (1980). Petitions to in-tervene were due no later than January 19, 1981. The special prehearing conference was subsequently scheduled for and held on April 15, 1981, making contentions due no later than March 31, 1981. Memorandum and Order (Ruling on Requests for Hear-ing, Petitions for Intervention, and Order of Special Prehearing Conference) (March 16, 1981).
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state the precise contentions that Petitioner wishes to raise.
In support of the petition (and the unspecified contentions),
Petitioner refers to statements supposedly made to Petitioner's ,
director by six former employees of Daniel International Corpo-ration (DIC -- the constructor at Wolf Creek), but Petitioner )
artfully avoids stating that it intends to offer these individ-uals as witnesses in the event further hearings are ordered. I i
Applicants strenuously oppose this petition. Petitioner !
l has failed to plead its contentions, and one admissible conten- i tion is a prerequisite to party status.2/ Moreover, even if one assumes that Petitioner's contentions comprise the allega-tions in paragraphs 2 a), b), and c) of the petition (Petition l at 3-4),3/ the petition should still be denied. Those 2/ The opportunity to file a supplement to an intervention petition to provide an identification of the contentions some-time after the petition itself is filed only applies to timely-filed petitions prior to the section 2.751a special prehearing conference. Even then, the petition for party status cannot be
! granted until an acceptable contention is pleaded and admitted.
See 10 C.F.R. 5 2.714(b). The supplementation procedure does l
not apply to a late-filed petition. j 3/ The allegations are:
a) That the deliberate policies practiced and per-mitted by Daniels Construction Co. as general con-
, tractor at Wolf Creek are contrary to and make l
mockery of quality assurance / quality control re-quirements putatively imposed on this project; b) That construction workers were directed by Daniels' foremen to perform work in safety'*related areas at variance with established procedures creating doubt as to the physical. soundness of the structure; i
c) That Daniels' foremen directed construction workers to mislead quality control personnel and at (Continued Next Page)
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" contentions" are based on inaccurate, incomplete, .and misrep-resented statements. Furthermore, a balancing of the five lateness factors strongly militates against admitting these late-filed contentions. Accordingly, the petition should be denied in toto.
II. Standards Governing Late-Filed Intervention Petitions In order to be granted party sta'tus in an NRC licensing proceeding, a petitioner must 1) demonstrate a sufficient in-terest that may be affected, and 2) plead one admissible con-tention. 10 C.F.R. 5 2.714. With respect to a petitioner's
" interest," contemporary concepts of judicial standing are to be used in allowing or disallowing intervention. Portland
- General Electric Company (Pebble Springs Nuclear Plant, Units 1
& 2), CLI-76-27, 4 N.R.C. 610, 614 (1976). Generally, an indi-vidual has the requisite interest if he resides within 50 miles of the plant. See Tennessee Valley Authority (Watts Bar Nucle-ar Plant, Units 1 & 2), ALAB-413, 5 N.R.C. 1418, 1421 n.4 (1977). Furthermore, an organization may derive standing from a member who has the requisite interest and who authorizes rep-resentation. In cases where authorized representation cannot (Continued) least one Daniels' foreman forged and falsified work documenta for safety related matters.
he inferred (as in those instances where it is not clear that the sole or primary purpose of an organization is to oppose nu-clear power in general or the plant at bar), a specific repre-sentational authorization must be provided. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 N.R.C. 377, 396-97 (1979).
With respect to contentions, the Commission's Rules of Practice, at 10 C.F.R. 5 2.714, require that a petitioner set forth the basis for each contention with reasonable specif-icity. This standard requires that a contention state a cogni-zable issue with particularity, Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 216-17 (1974), and that a petitioner provide a " reason" for its concern. Houston Lighting and Power Company (allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C.
542, 548 (1980).
As a general proposition, a Licensing Board should not ad-dress the merits of a contention in determining admissibility.
Id. However, a contention and its basis may be scrutinized to determine if a litigable issue has been pleaded. Two purposes of the basis with specificity requirement are "to help assure at the pleading stage that the hearing process is not improp-erly invoked," and "to assure that the proposed issues are proper for adjudication in that particular proceeding."
Philadelphia Electric Company (Peach Bottom Atomic Power
Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 20-21 (1974).
In this regard, a contention must be material to those findings which precede licensing, as set forth in 10 C.F.R. 9 50.57.
See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1654-55 (1982).4/
In the same vein, error-free construction is not a precondition i
for an operating license under either the Atomic Energy Act or l the Commission's regulations. What is required instead is sim-ply a finding of reasonabl assurance that the plant, as built, can and will be operated without endangering the public health and safety. 42 U.S.C. .55 2133(d), 2232(a); 10 C.F.R.
S 50.57(a)(3)(1); Pacific Gas and Electric Company (Diablo Can-yon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 N.R.C.
, slip op. at 7 (Dec. 19, 1983); Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 16 N.R.C. , slip op. at 2 (Sept. 14, 1983), reconsideration denied, ALAB-750, 18 N.R.C.
4/ Not only must the contention be relevant to the Board's l ultimate findings, but it must provide a foundation sufficient l to warrant further exploration. Philadelphia Electric Company (Peach Bottom Atomic Station, Units 2 & 3), 8 A.F.C. 13, 21 (1974); Duquesne Light Company (Beaver Valley Power Station, i Unit No. 1), ALAB-109, 6 A.E.C. 243, 246 (1973). See also Public Service Company of New Hampshire (Seabrook Station, l units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1655 (1982), citing Consumers Power Company (Midland Plant, Units 1 nnd 2),
CLI-74-5, 7 A.E.C. 19, 32 n.27 (1974), rev'd sub nom.,
Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976), rev'd sub nom., Vermont Yankee Nuclear Corp. v. NRDC, 435 U.S. 519, 553-54 (1978), for the proposition that a contention must be
- sufficient to require reasonable minds to inquire further.
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(Nov. 29, 1983), as modified, ALAB-750A, 18 N.R.C.
(Dec. 9, 1983). Accordingly, a QA/QC contention is not litigable unless it casts doubt on this finding.
Contentions may also be scrutinized to eliminate those that are based on factual inaccuracies or misrepresentations.
This scrutiny is readily distinguishable from the proscription in Allens Creek, ALAB-590, supra. Allens Creek prohibited Li-
! censing Boards from rebutting a source or reference proffered in support of a contention; but it did not prohibit rejecting a contention when such source material is ficticious or misrepre-sented. See Philadelphia Electric Company (Limerick Generating Station, Units 1 & 2), LBP-82-43A, 15 N.R.C. 1423, 1504-05 (1982), in which the Licensing Board rejected a contention be-cause of factual inaccuracies in the allegations; Duke Power Company (Catawba Nuclear Station, Units 1 & 2), LBP-82-lO7A, 16 N.R.C. 1791, 1804 (1982), in which the Licensing Board rejected a contention because it seriously mischaracterized the draft environmental statement; Carolina Power & Light Company, et al.
{- (Shearon Harris Nuclear Power Plant, Units 1 & 2), LBP-82-119A, i
16 N.R.C. 2069, 2076 (1982), in which a Licensing Board re-jected contenticns which inaccurately described the applicants' proposals. Here, where the asserted basis is a second-hand re-port of oral statements, Applicants submit that inquiry into the veracity of the petition is akin to determining if a refer-
! ence cited even exists, and not into whether it is right or wrong.
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In addition to the normal pleading requirements, 10 C.F.R. ;
5 2.714 sets out five factors that snust be balanced in admit- i ting a late-filed contention; and a contention is untimely if 4
it is filed later *han fifteen days prior to the 10 C.F.R. 5.2.751a special prehearing conference. 10 C.F.R. 5 2.714(b); t Duke Power Company (Catawba Nuclear Station,. Units 1 and 2),
t CLI-83-39, 17 N.R.C. 1041, 1043 n.2 (1983). The five factors cre:
)
i) Good cause, if any, for failure to file on time.
-11) The availability of other means whereby the petitioner's interest will be protected.
iii) The extent to which the petitioner's par-ticipation may reasonably be expected to assist in developing a sound record.
iv) The extent to which the petitioner's inter-est will be represented by existing par-
' ties.
v)- The extent to which the petitioner's par-i ticipation will broaden the issues or delay the proceedings.
10 C.F.R. 5 2.714(a)(1)(i)-(v).
These factors were recently addressed in Catawba, supra, CLI-83-19, 17 N.R.C. 1041 (1983). In that c ase, the Commission I
enunciated two fundamental principles underlying the five-factor analysis: First, a petitioner has the obligation of 1
! uncovering information in publicly available documentary mate-rial; and second, there is a substantial public interest in ef-ficient and expeditious administrative proceedings. Id. at i
1048, citing WSTE-TV, Inc. v. FCC, 566 F.2d 333, 337 (D.C. Cir.
1977). The Commission also adopted a three-part test for de-termining whether good cause exists. Good cause exists if a contention:
- 1. is wholly dependent upon the content of a particular document;
- 2. could not be advanced with any degree of specificity (if at all) in advance of the public availability of that document; and
- 3. is tendered with the requisite degree of promptness once the document comes into ex-istence and is accessible for public exami-nation.
Id. at 1043-44. Although this test addresses documentary mate-rial, it should apply equally to.any other source allegedly providing new information.
Unlike the assessment of basis in determining the admissi-bility of a contention, assesstent of the five lateness factors entails a determination of the merits of the claims made.
Florida Power & Light Company (St. Lucie Plant, Unit No. 2),
CL1-78-12, 7 N.R.C. 939, 948-49 (1978). In St. Lucie, the Com-mission stated:
In considering untimely petitions licensing boards are required to assess . . . whether the petitioner has "made a substantial showing of good cause for failure to file on time." In doing so, Boards must neces-sarily consider the merits of claims going to that issue.
, Id. The Commission therefore upheld the consideration of affi-davits.5/
l 5/ This ruling parallels the customary practice of consid-i ering affidavits for and against motions to reopen a record.
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Similarly, in Long Island Lighting Company (Shoreham Nu-clear Power Station, Unit 1), LBP-83-30, 17 N.R.C. 1132, 1141-42 (1983), a Licensing Board considered affidavits and held an on-the-record conference in assessing the lateness fac-tors. With respect to factor (iii), the Board held: "the ex-tent to which petitioner's participation may reasonably be ex-pected t'o assist in developing a sound record is only meaningful when the proposed participation is on a significant, triable issue;" ari with respect to factor (v), the Board held, "the extent to which petitioner's participation will broaden the issues or delay a proceeding is properly balanced against the significance of the issue."s/ Id. at 1143.7/
(Continued) ,
See, e.g., Pacific Gas & Electric Company (Diablo Canyon Nucle-ar Power Plant, Units 1 and 2), ALAB-756, 18 N.R.C. (Dec.
19, 1983), in which the Appeal Board considered affidsvits on a motion to reopen the record on quality assurance. Furthermore, because of the importance of QA, the Appeal Board held a hear-i ing on the motion and permitted cross examination of the affi-ants. Slip op. at 4. The hearing revealed that intervenors were misrepresenting an employv's statement about a contrac-l tor's QA program. Slip op. at 11-13.
g/ "If significance and triability of the issue were not in-i herently part of the overall balancing test for late-filed con-tentions, the illcgical result would be that the significance of an issue could not weigh the balance in favor of admitting a late-filed contention before the close of the record, but could weigh in favor of admitting the same contention filed even l later, after the cloce of the record." LBP-83-30, 17 N.R.C. at 1143-44.
7/ See also Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2, LBP-82-96, 16 N.R.C. 1408, 1429-35, aff'd, i ALAB-707, 16 N.R.C. 1760, 1766 n.5 (1982). In this case, the l (Continued Next Page) l i
F III. Application of the Standards A. Petitioner's Interest The petition indicates that two members of Nuclear Aware-ness Network reside within 20 miles of the plant, and it seeks to invoke representational standing. However, the petition l fails to show that the primary or sole purpose of Nuclear Awareness Network is to oppose nuclear power or the Wolf Creek Generating Station.g/ Accordingly, documented representational j authorizations, which have not been provided, are required.
While Applicants assume that this defect could readily be cured, nevertheless Petitioner has failed to demonstrate the l
l requisite interest.
B. Contentions -- Basis with Specificity ~
As previously stated, error free construction is not a li-cense prerequisite. In order for allegations of QA/QC deficiencies to amount to an adequate basis in support of a i
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Licensing Board recolved an untimely petition by making find-t inge of fact with reference to a transcript of a public hear-ing. The transcript had been attached to applicants' answer to l the petition. The Board criticized the petitioner for failing to offer factual support for its assertions and based its re-l jection of the petition in part on the " clear evidence" sub-l mitted by applicants. Id. at 34.
! g/ The petition merely states that Petitioner is established for the " purpose providing . . . testimony on issues relating ,
l to nuclear power . . . . Petition at 1.
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contention, those allegations must cast doubt on the reasonable assurance that the plant, as built, can be safely operated.
Petitioner attempts to satisfy this requirement by recounting statements supposedly made by six former DIC empicy-ees. However, as demonstrated by the attached affidavit and statements which document Applicants' thorough evaluation of the petition, Petitioner materially misrepresents those state-ments. Some of the inaccuracy might be excused as hyperbole --
for example, Petitioner's failure to reveal that all the alle-gations addressed only the Heating Ventilation and Air Condi-tioning (HVAC) systems and that none of the allegations raised any programmatic QA/QC issue. But rany of the statements, as recounted, are simply ficticious.9/
Sam Goucher was in reality only concerned with one travel-er in one area of the diesel generator building. When docu-ments were prepared for welds discovered to be missing documen-tation, they were improperly signed and,back-dated. Sam Goucher has no present safety concerns at Wolf Creek. See At-tachment 2; Attachment 1 at 1 10, 11.
Earnest Larrick, who worked at Wolf Creek in 1980 and 1981, did not hear a DIC foreman tell a co-worker not to tell quality control'about any mistakes he discovered. He never saw 9/ It may be noteworthy that Petitioner's counsel did not sign the petition.
an installed washer flattened, and he did not state that it was common knowledge that supervisors at Wolf' Creek painted regular bolts green so that they would pass as Q bolts. See Attachment 1 at 11 16-20.
. Neil Campbell did not state that he was " repeatedly" or-dered to stamp false D numbers on welde, and he did not state that he " regularly" saw his supervisors forge names on docu-ments. Rather, he recounted two separate and isolated inci-dents. These incidents occurred in 1981, and each was fully investigated by the NRC in late 1981/early 1982. All correc-tive actions were completed by January 1983, and the inspec-tions were closed out in April. Among the corrective actions taken was a 100% reinspection of safety-related HVAC hanger /
support welds. See Attachment 1 at 1 21-25.
Vince Ley did not state that for a year and a half he had kept a list of QC problems, but that he had prepared a list of concerns approximately a year and a half ago; and he did not state that the list was thrown in the trash by DIC supervisors.
Furthermore, Petitioner fails to reveal that Vince Ley was aware that the concerns identified in his list were being ad-dressed at Wolf Creek, and that his allegation that a worker was threatened has been resolved.10/
10/ Attachment 4; Attachment 1 at 11 26-29 and Ex. J (I&E Report 83-25 at 5). The allegation that a worker was threatened was reported to the NRC by that worker. The employ-ment of the foreman who threatened the worker was terminated last year because of the incident.
Tony Shores did not say that he had be9n " repeatedly" or-dered to perform safety related work without QC approval, but rather referred to one incident in.1982. This incident was in-
- vestigated by DIC and was resolved to Shores' satisfaction.
Also, Shores did not state that DIC supervisors threw Vince Ley's list of QC problems in the trash. See Attachment 5; At-tachment 1 at 11 30-32.
Finally, Petitioner fails to reveal that Kenny Rowell's
! allegations were made to.KG&E QA and the NRC resident inspector in October 1983. Kenny Rowell's allegation with respect to welds performed "out of procedure" has already been resolved.
On November 22, 1983, the NRC issued a notice of violation --
severity level V (of minor safety or environmental concern);
and Applicants responded on December 22, 1983, detailing the corrective steps taken. Mr. Rowell is satisfied with these ac-tions and has no present safety concerns. See Attachment 3; i Attachment 1 at 11 13-15.
In addition, Petitioner states that its director (Mary l
Stephens) was first contacted by a representative of the I
workers.11/ Petition at 7. The innuendo is that these workers were attempting to bring to public attention Lerious safety 4
i I
11/ This reference to an undisclosed " representative of the However, workers" obfuscates who initiated the communication.
4 later in the petition, Petitioner asserts that the workers de-cided to come forward. Petition at 8.
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r concerns.' However, the truth of the matter is that the workers did not initiate communications; instead, Mary Stephens con-tacted each.under the pretext of discussing "<,ost overrun" is-sues. ~ Attachment 1 at 1 7; Attachments 2-5. Furthermore, the attached affidavit and statements indicate that the six former employees no longer have unresolved safety concerns with re-spect to the issues raised in the petition.
In conclusion, the basis for Petitioner's contention sim-ply does not exist. For the most part, Petitioner refers to statements that were never made; and what little truth remains indicates only a few isolated incidents that were or are being expeditiously and responsibly resolved. The statements fail to cast any doubt on the reasonable assurance that the plant, as built, can be safely operated; and they do not support Peti-tioner's broad, generalized contentions (to the extent one as-sumes that the Petitioner will plead as its contentions the al-
. legations in paragraph 2a), b), and c) of its petition).
Accordingly, Petitioner's contentions should be denied as lacking basis. ,
C. The Lateness Factors When an untimely motion to admit new contentions is filed on the eve of the closing of the record, " petitioner's burden on the section 2.714(a) factors is a heavy one." Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 N.R.C. 508, 511 (1982). Such is l
)
the case at hand, since the Wolf Creek hearings are scheduled for completion this month.
Factor-(i):
Good Cause for Failure to File on Time The petition is late by three years. Petitioner Etates,
" Petitioner was unaware of the existence of'the serious allega-tions made by the referenced construction' workers till mid-tiecember of 1993, when she was contacted by a representa-itive of the workers." Petition at 7. However, as previously discusced'and as the attached affidavit and statements demon-strate,' Petitioner initiated contact with the workers (and L could have done so long ago), and the allegations which Peti-tioner recounts are,_in large part, gross misrepresentations.
Since:many of the statements attributed to the six former em-ployees were not in fact made, they do not provide good cause for the untimely contentions. Furthermore, the few relatively accurate statements which Petitioner recounts do not reveal new information. Most notably, the allegations made by Neil i
Campbell were the subject of I & E' Reports 81-10 and 81-12 (Ex-i hibits C and D to Attachment 1). These reports were published more than eighteen months ago and were the subject of newspaper
!' accounts in the area. See Exhibit L to Attachment 1. Peti-
'tioner does not explain why it did not seek out workers or
. .other sources of QA/QC information years ago on the basis of available information. Inspection and Enforcement reports, most of which are relevant to QA/QC implementation, are in the t
. I l
l
l NRC public docun.ent room and have been available for some time ,
l to stimulate whatever issues or concerns Petitioner genuinely might hold. It is obvious, therefore, that Petiticner's con-tentions are not " wholly dependent" on Petitioner's conversa-tions with the DIC employees, and accordingly they fail the tripartite test for good cause prescribed by the Commission in Catawba. CLI-83-19, 17 N.R.C. at 1043-44.
Petitioner also asserts, rather baldly, " Petitioner cannot be charged with prior knowledge of [the] allegations. . . ."
Petition at 8. But with respect to those allegations previous-ly reported in NRC I & E reports, Petitioner's statement is in-correct. A petitioner has an affirmative duty to apprise itself of publicly available information, and knowledge of such information is imputed. Duke Power Company (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 N.R.C. 1041, 1048 (1983);
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 N.R.C. 1760, 1764-65 (1982). Accordingly, Pe-
, titioner knew or should . tve known of the allegations in I & E .
l . ,
y Reports 81-10 and 81-12, and could then have pursued other /j' sources of information on QA/QC issues. In the instant case, ,
l Petitioner has delayed until the hearings are about to con-clude. There is no justification for its eleventh-hour peti-
/
tion; and when a petitioner fails to show good cause, it must make a " compelling showing" on the other factors. South Carolina Electric & Gas Company (Virgil C. Summer Nuclear -
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,,-d_ -- ---
Station, Unit 1), ALAB-642, 13 N.R.C. 881, 886 (1981), aff'd sub nom., Fairchild United Action v. NRC, 679 F.2d 261 (D.C.
Cir. 1982).
Factors (ii) and (iv): The Availability of Other Means Whereby Petitioner's Interest Will Be Protected; and the Extent to Which Petitioner's Interest Will Be Represented By Existing Parties Petitioner argues that absent existing admitted conten-tions coincidental with Petitioner's allegations, both factors (ii) and (iv) weigh in its_ favor / Petition at 9-10. Accepting such an argument would permane'ntlyl resolve factors (ii) and (iv) in favor of late petitions. Furthermore, the argument is e +
circular dnd, seeks to avoid the affirmative showing'that Peti-tioner)is requireh to make. #
Petitioner is correct that the Licensing Board should not
, ^$a sume tif the' Staff will represent Petitioner's inte,rost.
. . Wdsh' inn;tes Public Power ~ Supply System (WPPSS Nuclear Project
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No .' 3 ) , 1. LAB-747; 18 N .'R . C .
, slip ey. at 10-13 (Nov. 15, 7' ,/
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.7- 1983).1 But in this case, the NRC has investigated or is ac-
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+
tively investigating allegations recounted in the petition. In
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light of this activity, it is reasonable to conclude that the r, , ,
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NRC Staff will represent P,etitioner's interest.M / .
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l Y e 1_2/ Factors (ii) and (iv) are given less weight than the other factors. South Carolina Electric & Gas Company (VirgM, C. Sum-
. mer Nuclear Station, Unit 1), ALAB-642, 13 N.R.C. 881, 805 (1981).
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.. - s',3 ._ T t-- Factor (iii): The Extent to Which the Petitioner's
!(' Patticipation May-Reasonably Be Expectad te? s
. Assist in Developing a Sound Record -' -
- With respect to this, factor, Petitioner merely states that y .m ,
\ it:iMWrepresented.by experienced counsel. Petition at 10.
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b 'l \Thii'?iiatement J totally fails to. satisfy Petiticner's burden of
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s ?yersusasiori.!l 1. The Appeal Boc.rd 1 has stresaed the importance of 3_ s .s .. , p gs '
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,thi,s factor,. stating: ',
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'* , ,' [ \ Qhen'a petitione Ad dess s.sthis criterion
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__i it should set out 'with 8 s mt.ht ,particulari N
,tAas possible the p-ecise irisues it' plans s' 'N m Mo\ cover, Tidentify its, protipective witness -
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ed, and summarize tHajr proposed testimony.
ss t
, slip op. at 18, citing Nissi_ssippi g
4.kLAB 747 -
, iEi' N. R. C.' ' at 3 ( Power & Gight Company (GrandIGulf Nuclear Station, Units 1 and 3s , s Nw '
- ' 24, *. ALAB-704, 16 N . R'. C'.~ 172 5, 1730 (1982); South Carolina Q 4 T_lec tr>ic & Gan> Comifa,ny n (Virgil C. Summer Nuclear Station, Unit
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, 1) , AD E-642, 13111;R' C . 881, 886'(1981); Detroit Edison Company
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['- (GUddrao6d Energy Chithr, Units 2 and 3), ALAB-476, 7 N.R.C.
t ,
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-759, 7 64 (1978.) ;] Long Island Lighting Company (Shoreham Nuclear
- 3 i 1 Fx ermStation, Unis'1.),.ALAB-743',.18s,N.R.C., , s_1_ip op. at Nf - ,.
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22 (Sept. 29, 1983)t" Ir.A' LAB-)47,thekpetitionerhadde' scribed
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- . its experience in NRC proceedings and ider.tified a witness, but S
3 .the Appeal Board found such nYatement "n.'anifest y inadequate. "
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( A.c s t. Petitioner never stdte's that the six former ertployees will as 'N ,
testify as its witnesses, but m6 rely offers their supposed oral 3
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s statement's in supporh'of the contentions. See Petition at 4.
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o3 N And 'as already-demonstrated, many of these statements are grcss .
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misrepresentations. The remainder address isolated incidents which are being or have been investigated. None of the employ-ees have present safety concerns. Accordingly, their state-ments do not raise a significant issue necessary to the sound development of the record.
One further point must be made. Petitioner's distortion of statements and facts demonstrates a lack of credibility and candor, both of which are necessary to advocacy and the devel-opment of a sound record. Petitioner's abuse of process is in-consistent with its assertion that it would contribute to a sound and complete record.
For these reasons, factor (iv) weighs strongly against ad-mitting the late-filed contentions.
Factor (v): The Extent to Which the Petitioner's Participation Will Broaden the Issues or Delay the Proceeding Petitioner admits that its intervention will delay the conclusion of this operating license proceeding.13/ The record of this proceeding will be closed within a month. At this late 13/ Petitioner corr ~ctly recognizes that 10 C.F.R. $ 2.714(a) refers to delay of the proceeding, not to delay of the op-eration of the facility. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 N.R.C. 1760, 1766 (1982). In Fermi, the Board rejected an argument that there was no delay because fuel loading was not scheduled for a year.
In the instant case, however, the distinction drawn in Fermi is somewhat academic. Admission of new contentions in the Wolf Creek proceeding would not only substantially extend the pro-ceeding, but it would also seriously threaten the plant's fuel loading this year.
date, the introduction and litigation of new contentions threatens a substantial and unreasonable delay.
Accordingly, all five factors militate against admitting Petitioner's late-filed contention. The petition is untimely, unjustified, and must be rejected.
IV. Conclusion For all the reasons stated above, the Nuclear Awareness Network, Inc. Petition for Leave to Intervene and Request for Hearing should be denied in its entirety.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Thomas A. Baxter, P.C.
David R. Lewis Counsel for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202j 822-1000 Dated: February 3, 1984