ML20081J862
| ML20081J862 | |
| Person / Time | |
|---|---|
| Site: | Satsop |
| Issue date: | 10/27/1983 |
| From: | Bell N NORTHWEST ENVIRONMENTAL ADVOCATES (FORMERLY COALITION |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8311090144 | |
| Download: ML20081J862 (12) | |
Text
. _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ . . _ . - . _ . _ _ . . _ . _ _ _ _ , _
i j C' ,
0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THD ATOMIC SAFETY AND LICENSING APPEAL B b In the Matter of '" :"'~
)
i a.
y . .
WASHINGTON PUBLIC POWER SUPPLY SYSTEM, ) Docket No. 50-508 OL
! et. al. )
)
j (WPPSS Nuclear Project No. 3) )
1 INTERVENOR'S ANSWER TO APPLICANT'S APPEAL
, The Cualitivn Ivr Safe Power (hereinafter " Coalition"),
having been made a party to the above-captioned proceeding (Licenhihg Board Orders ~ dated April 21, 1983 and September 27, 1983), hereby answers an appeal by the Washington Public power Supply System (WPPSS) (hereinafter " Applicant") of those orders filed pursuant to 10 CFR 2.714a(c). The Applicant asserts that the hicensing Board abused its discretion when, after balancing E
the five factors as required by 10.CFR 2.714(a)(1), it granted the late-filed' petition. For the reasons set forth.below,;the Appeals Board should affirm the Licensing Board decision.
Factor One - Good Cause Applicant argues that the Coalition's actions show a " total disregard" for the Commission's Rules of Practice and because these j ~ rules are. entitled to respect, the petition should be denied for
" policy alone." Applicant's Brief in Support of Its Notice of Appeal, October 12, 1983 at 14 (hereinafter "Brief"). Clearly, the Coalition would have liked nothing better than to have filed its Request for Hearing and Petition for Leave to Intervene by the date set out in the Federal Register notice. The Intervenor has, as stated in the Petition, participated in numerous proceedings before this agency, as well aus before agencies of the State of 8311090144 831027 PDR ADDCK 05000508 0 PDR
l Oregon, and adheres to the rules and regulations established b; ,
law. This exception is in no way an attempt to ignore NRC proce-dures. For " good cause" or not, the Coalition became a victim of circumstances which it sought to rectify with the filing of its !
l Petition. It is well known" policy" that late filings must over- !
come the "five factor test"; it appears the Applicant would hace the Commission establish a policy in this case to reject all out-of-time filings. The Intei 'or has shown itself to be a reasonable party, as evidenced by the negotiations which led to a stipulation entered in by all parties prior to the prehearing conference in this case and thus cannot be said to have exhibited a ' bad attitude'.
In fact, in an ongoing proceding involving this Applicant, a Li-censing Board commented that Intervenor has diligently and con-scientiously pursued the prosecution of its case = * =" Washington Public Power Supply System (WPPSS Nuclear project No. 1), Memoran-dum and Order dated September 30, 1983 at 2.
Notwithstanding the Licensing Board's determination that the Coalition had not shown " good cause" for the out-of-time filing, the Intervenor did show in its Petition that it was under the impression that it had a method of discovering when the application for the WNP-3 Operating License would be noticed. As stated therein, the Coalition regularly reviews the Federal Register or relies on others for this function. In this instance, failure to see the notice was an oversight. The Applicant argues that the Coalition's present involvement with two of its other facilities and its fami-liarity with WPPSS in general, should have made the Coalition cog-nizant of the licensing of WNP-3. However, substantive knowledge has little to do With one's ability to spot a one-time printing of
- ,- --n,-->m , a v -m -- -, ,
a notice. Moreover, in the Coalition's experience, the date of docketing an application is not necessarily linked to a particular time frame for the Federal Register notice.
The Appliant places great weight on the fact that approximately eight weeks passed between when the Coalition became aware of the Notice and the filing of its Petition. It calls this separate period of time a " willful failure", although it also refers to the failure to see the Federal Register notice as " willful".
However, it seemed perfectly natural to believe that a late-filing (given that it was already late) on a plant where construction was halted would be perceived in a different light than one where construction and NRC Staff review were proceeding apace. This is borne out in Houston Lighting and Power Co. et al. (South Texas
^
Nuclear Projects, Units 1 and 2) ALAB-549, 9 NRC 644, 649 (1979).
Certainly, the .4pplicant takes an untenable position to argue that it is the Coalition which is prejudicing the project 's f ate rather than the lack of financing which has caused construction to be terminated. In fact the approach wh th questions the significance and harm incured '.by a delay was addressed in
, LBP-78-24, 8 NRC 78, 84 (1978).
In that case, denial of intervention would have resulted in no hearing, yet the Licensing Board determined that there was no rea-son to believe a " delay would cause the Licensee's great harm" because "information about the nature and extent of injury" was absent. Applicant in this case has not shown a proceeding held on its application for an operating license comes even close to the degree of injury suffered from its lack of funds with which to build the plant.
_4_
The Applicant also quarrels with the statement of the Licensing Board that "Lt/he fact that the lateness in making the filing is measured in months rather than years reduced the level of the weight of showing Petitioner had to meet." Board Order April 21, 1983 at 16. This approach however, has been taken by the Commis-sion and it is important to note that the vast majority of the cases cited by Applicant include petitions filed two to four years after the deadline had passed. In other instances, a lesser showing is required: in Nuclear Fuel Services (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975), the Commission established that the key policy consideration'for barring late intervenors is one of fairness viz. "the public interest in the timely and orderly conduct of our proceedings." The Licensing Board itself cited
^
Puget Sound Power & Light Co., et. al. (Skagit Nuclear Project, Units 1 and 2), ALAB-559, 10 NRC 162, 172 (1979) in support of its proposition. This is also clearly a common sense approach.
Thus, the Licensing Board did not abuse its discretion in finding that, while " good cause" had not been shown, some new policy of penalizing petitioners for " willful" behavior was not in order.
Factor Two - Availability of Other Means The Applicant's primary assertion regarding the availability of other means to protect the Coalition's interests lies in the provisions of 10 CFR 2.2.06. The Coalition's past utilization of this procedure is irrelevant to this proceeding. The scope of the issues which the Coalition sought to raise at WNP-3, now embodied in nine contentions accepted by the Licensing Board, makes an operating license proceeding emminently more suitable than a "show cause" petition. In Detroit Edison Co. (Enrico Fermi
Atomic Power Plant, Unit 2) ALAB-707, 16 NRC 1760 (1982), cited by Applicant is support of its claim, the Appeals Board forwarded an untimely petition (which sought to litigate only one area) to the Director of Nuclear Reactor Regulation as a show cause petition.
In this case the petition was filed four years late and thus would have had an entirely different effect on the proceeding in question. The Applicant also quotes at length from Washington Public Power Supply System (WPPSS Nuclear Projects Nos. 1 and 2)
CLI-82-20, 16 NRC 1221 (1982). Again, the case must be put in context. Ignoring what the Commission said about the effectiveness of 2.206 petitions, and looking at why they made the statement,
'it becomes clear that the issue was raised by way of showing that wholly inappropriate issues raised in a proceeding could be raised through the 2.206 provision. The Commission was in no way suggesting that its use is ,a substitute for another adjudicatory forum. In fact, it held to the contrary in Consolidated Edison of New York, et. al. (Indian Point, Units 1,2, and 3) CLI-75-8, 2 NRC 173, 177 (1975) where it was established that " parties must be prevented from using 10 CFR 2.206 procedures as a vehicle for * *
- avoiding an existing forum in which they more logically should be presented."
The Staff also agrees that this factor weighs in favor of the petition.
Factor Three - Assist in Devloping the Record Applicant asserts in its appeal that the Coalition does not possess the ability to make a significant contribution to the record and thus the Licensing Board abused their discretion in granting the petition to intervene. In establishing that it has an understanding of the subj ect matter and the NRC process, the
Coalition explained in its Petition that it had intervened in a number of cases before the NRC. The Applicant, while denying that this has resulted in an ability to contribute, states that '
this is also a reason to believe that the Coalition could have lined up all its witnesses to this case prior to filing of the Petition. This, of course, is not true. The issues which an ,
intervenor is entitled to raise in the course of an operating license amendment or construction permit (the types of proceedings in which the Coalition had previously been party to) are different from those in anapplication for an operating license. (The other operating license proceeding in which the Coalition is a party has been held in abeyance since the grant of the petition.)
Furthermore, the Coalition cannot have been expected to retain witnesses on all of its contentions prior to a Board ruling _ad-mitting the Petitioner to the hearing. While the Coalition is far from resourceles's it is also not interested in spending sub-stantial amounts of money for no reason. In the last year the organization has intervened in two proceedings which have been essentially terminated after the admission of contentions (Skagit/
Hanford Nuclear Project construction permit and WPPSS Nuclear Proj ect No. 1 operating license). Becoming a party to those proceedings was predicated on such efforts as filing contentions whith can now be viewed as a waste of time and money, and pre-judicial to the ability of the Coalition to participate in meaning-ful decibibns by the federal government. Given the fact that the plant in qutestion here appeared to be on the verge of a construction halt (whith subsequently came to pass) it hardly seems appropriate to have expected the Coalition to have retained expert witnesses in advance of a ruling on its petition.
-re - - --=w ,r y ,
Nevertheless, at this stage, the Coalition has utilized and/or identified certain experts who would or might participate in evi-dentiary hearings should they be held. This is in keeping with the assertions made in the Petition that experts were being iden-tified at that time. The first of these is Stuart Sandler, a welding engineer (refered to in the Petition as a quality assurance worker), educated at Ohio State University and certified by the American Welding Society in SMAW and GMAW processes. Mr. Sandler worked in the nuclear liidustry from 1977 to 1979, including one year at WPPSS Nuclear Proj ect No. 2 in the employ of Burns and Roe.
While Mr. Sandler was unable to aid the Coalition in the pre-a paration of its contentions in this case due to other committments, he subsequently assisted the organization with a "show cause" pe-tition on WPPSS Nuclear Project No. 2 which included an affidavit from him. Mr. Sandler's expertise in welding engineering and ex-perience in the use of welding codes, quality assurance measures and procedures will contribute substantially to this proceeding.
The Coalition also utilized the services of Dr. Jack D. Smith, an aquatic toxicologist, upon whose work portions of Coalition's contention No. 16 was based, as stated therein.
In addition, the Coalition consulted w th Karen Steingart, M.D.,
and Robert Pollard, Nuclear Safety Engineer with the Union of Con-cerned Scientists. The Coalition discussed the case with Dr.
Eric Cheney of Cambria Associates in Seattle who expressed a de-sire to participate but the Coalition refrained from retaining him for a preliminary review of the geology / seismology issues because while limited, it would have required copying many volumes of the Final Safety Analysis Report and paying appro::imately $70 per hour
for professibnal services. This reluctance to embark on the more expensive aspects of the intervention for a plant on whith construction was halted in May has no bearing on the Coalition's willingness to do so if the proceeding goes forward.
Additionally, representatives of the Coalition have both personal and working relationships with Drs. Rosalie Bertell and John Gofman, upon whose work Coalitions contention No. 2 relies, and with Lon Topaz, who has served as a witness for the Coalition
- prevoiously, who is now the Manager of the Emerald public Utility District anc former Director of the Oregon Department of Energy, 4
and an-expert on utility management. There are numerous other experts with whom the Coalition has discussed involvement in this proceeding (e.g. Dr. Ruth Weiner (chemistry), Dr. E.J. Bell (sta-tisician), Norm Buske'(risk analysis) and MHB Associates (nuclear safety)) as well as,others whom the Coalition has merely identified.
For example, the Coalition has, knowledge of a handful of experts l on the issue of the impact on fisheries of the WNP-3 plant as a result o'f the process refered to in the Petition. The Coalition chose, at this stage, to utilize only one -- Dr. Smith.
The Coalition cited its participation in other NRC proceedings for two reasons. First, its involvement s ince 1976 in NRC cases has resulted in.an understanding of NRC regulations and nuclear power in general. Both the Director, Mr. Rosolie, and the Staff Intervenor, Ms. Bell,.have participated in these proceedings and 4
conducted research into various aspects of nuclear power operation.
- These individuals bring a level of personal knowledge to the process.
There are also the resources of the organization and a history of willingness to expend these resources to pursue the organization's r # = e- ---,3 e -,sv. A-- v--e-=---+--w-*-y-n-..w-w.c.-ww w ,,oc-,, ,-t .---.-m,y-----y----w ny , - - * , - 3m:-- --
-m- m < r , - - , - , - -
goals. In addition to NRC proceedings, the Coalition is an in-t'ervenor in three rate tariff proceedings before the Oregon Public Utility Commissioner (represented by counsel) and a plaintiff in two lawsuits in Multnomah County Circuit Court.=For these pro-ceedings, it has several experts on economics and power forecasting.
Thus, the Licensing Board did not abuse its discretion in finding that there was a basis to believe that the Coalition would contri-bute to the proceeding. In particular, the participation of Mr. Sandler and Dr. Smith bear out the statements in the Petition and thus justify the findings of the Licensing Board.
Applicant also raises the specious issue of who represented the Coalition in the other proceedings, whether or not those re-presentatives were the same as at present, and whether the Coalition's representative Ms. Susan Garrett, in the Trojan Spent Fuel Pool case actually represented herself, pro se, rather than the Coali-tion. The fact that Ms. Garrett also intervened pro se is ir-relevant; representatives of the Coalition at the time did this as standard practice. There was no time during the proceeding when Ms. Garrett did not represent the Coalition. It is entirely inap-propriate for the Applicant to suggest that her representation should be considered moot and thus deny the fact that the organi-zation itself contributed to the intervention through her. Lastly, the assertion that the fact that all of the contentions in that case were ultimately rejected is entirely irrelevant to any party's ability to contribute to the instant case.
Factor Four - Representation By Other Parties The Applicant asserts in its Appeal that the Licensing Board wrongly weighed this factor in favor of the grant of intervention.
1 The only other party to the proceeding is the NRC Staff which ,
concluded in its Answer to the Petition that this factor weighed in the petitioner's favor. The Staff itself, therefore, concluded '
that it would not represent the interests of the Coalition. This is particularly true since the Coalition fully intends to present I
witnesses other than the Staff.
Factor Five - Broadening the Issues & Delaying the Proceeding i
Insofar as there will be no hearing Without the intervention, the granting of the petition will have an effect. However, this
, fact cannot be' weighed against the petition because:
Anytime an intervention petition is granted
- whether that petition was timely or belatedly 1
filed - there is the consequential possibility that the evidentiary hearing w ill take longer
- to complete.
Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 650 ff25 (1975). The Licensihg Board correctly concluded that it was the four months which it was required to examine, not the entire proceeding, as stated in Jamesport, supra:
/5he delay is only that7 which could be attri-
. buted directly to the tardiness of the petition.
. Clearly, the closer to the date on which a final determination must be rendered, the more prejudicial is the grant of a late-filed petition to the Applicant. As is made clear in the dis-cussion below, the four months under consideration will have no impact whatsoever.
Other Factors Notsiihstanding the provision of 10 CFR 2.714(a)(1)(v), the
- extent to which the proceeding will be c'elayed, the NRC can and should~ examine the possible delay caused to operation of the faci-e
. _ , . . , . , , , . . . + , - -
g ,y,--- ,,9.,, m-,,,y, ,7 . . . .yme,,, g, , , , ,,,y-w-.- # , _,%.ge, y 9 ..w
,yy-3,.-,-.w3..-_--p- y_-..-rw.--.-----
1 lity by the granting of a late-filed petition. See South Texas, supra. The application of this wisdom to the case at bar is par- '
ticularly appropriate. Construction of WNP-3 was halted in May, 1983, three months after the petition was filed. According to news sources, the Bonneville Power Adminstration released a report on October 27 (today) which states that operation of the plant kiil not occur before 1990. At a meeting held on October 25, 1983, the Applicant represented to the NRC Staff that the construction and licensing milestones for WNP-3 have been altered and that it will provide the Staff w th a new schedule including optomistic and worst case predictions, in November. Personal conversation with Annette Vietti, NRC Proj ect Manager, October 25,. 1983. The Staff in turn has informed the Applicant, as it did in the case of Applicants other " mothballed" project, that absent a showing of available construction funds, it will proceed en a man-power available basis with its review. Id. Moreover, it is clear that more delay in operation will be incured as a direct result of the Applicant's own actions than by the tardiness in the Coalition's filings. The Appeals Board specifically addressed the question of plant completion in relation to the possibility that a public hearing would delay operation:
Moreover, this proceeding was notice early.
The South Texas facility is not on the verge of completion; no suggestion is put forward that the conduct of a public hearing would delay licensiig the plant for operation * *
- South Texas at 649.
In summary, there was good reason for the Licensing Board to have granted the petition to intervene. The petition was only four months late; construction has been halted at the plant
and the licensing schedule has been altered. Applicant has not shown that the intervention will result in injury because of the belated filing and certainly not in comparison with the actual injury due to Applicant's own work stoppage. The circumstances are nearly identical to a proceeding where "early notice" had occured. THe Intervenor and its representatives have been shown to have experience with nuclear issues and NRC proceedings, to have retained expert witnesses and advisors and to have initiated preliminary negotiations with others to a degree suitable to this stage in the proceeding, particularly given the circumstances surrounding construction of this plant. The Licensing Board did not abuse their discretion in determining (Board Order of April 21, 1983) that: -
If there are outstanding questions involving public health and safety relating to operation of'the plant, the necessary action to resolve them should be taken rather than attempting to quiet the matter by invoking the doctrine of estoppel by laches.
The Coalition urges affirmance of the Licensing Board Orders granting the Request for Hearing and petition for Leave to Intervene.
Respectfully submitted, A [.
,' .* )
( w // /
Dated this day, the ' Nina Bell '
27th of October, 1983. Coalition for Safe power
-- - - -