ML20087H802
| ML20087H802 | |
| Person / Time | |
|---|---|
| Site: | Satsop |
| Issue date: | 03/20/1984 |
| From: | Hartman S BISHOP, COOK, PURCELL & REYNOLDS, WASHINGTON PUBLIC POWER SUPPLY SYSTEM |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-DSB-1 NUDOCS 8403210189 | |
| Download: ML20087H802 (23) | |
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'$5c UNITED STATES OF AMERICA' '9 NUCLEAR REGULATORY COMMISSION ..
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,
In the Matter of )
)
WASHINGTON PUBLIC POWER )
SUPPLY SYSTEM ) Docket No. 50-508-OL
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(WPPSS Nuclear Project No. 3) )
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1 APPLICANT'S MOTION FOR RECONSIDERATION OF MEMORANDUM AND ORDER GRANTING PETITIONER j
INTERVENOR STATUS AND/OR FOR REFERRAL OR CERTIFICATION OF THE QUESTION OF WHETHER A LIMITATION SHOULD BE PLACED ON THE SCOPE OF PETITIONER'S PARTICIPATION IN THIS PROCEEDING INTRODUCTION i
I.
on April 21, 1983, the Licensing Board issued a 3
i Memorandum and Order in which it granted an untimely request for hearing and a. petition to intervene filed by ,
the coalition for Safe Power.1 That Order was vacated by the Appeal Board on November -15, 1983, and the Appeal l Board remanded the proceeding to the Licensing Board with instructions to require the Petitioner to make a further-showing as to its ability to assist in developing a sound l
1 Washington'Public Power Supply System (WPPSS, Nuclear Project
- 50. 3), Docket No. 50-508-OL, April 21, 1983, Memorandum and ;p --
Order (Ruling on Petition for' Leave to Intervene) (" April 21',
- 1983, Memorandum and Order")~.
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10189 840320 ADOCK 05000508 N
!- 9 _ : PDR_ :n
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record in the proceeding, one of the five factors considered pursuant to 10 C.F.R. $ 2.714(a) when passing on untimely intervention petitions.2 On December 6, 1983, the Licensing Board issued an Order requiring Petitioner to make such a showing.3 After considering the pleadings filed by the Staff, Applicant and Petitioner, the Licensing Board issued its March 2, 1984, Memorandum and Order holding that Petitioner had demonstrated its ability to assist in developing a sound record and reinstating its previous order admitting Petitioner as a party intervenor to this proceeding.4 Applicant hereby requests that the Licensing Board reconsider its March 2, 1984, Memorandum and Order and place a limitation on the scope of Petitioner's participation in this operating license proceeding commensurate with its ability to 2
Washington Public Power Supply System, et al. (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC , Nov. 15, 1983, slip opinion.
3 Washington Public Power Supply System, et al.-(WPPSS Nuclear
' Project No. 3), Docket No. 50-508-OL, OFler-(Requiring Further Showing by Petitioner), December 6, 1983.
4 Washington Public Power Supply System, et al. (WPPSS Nuclear Project No. 3), Docket No. 5 0-5 08-OL, Memorandum and Order (Ruling on Further Supplement to Petition for Leave to Intervene), March 2, 1984 (" March 2, 1984, Memorandum and l Order"). Applicant is separately appealing the March 2, 1984 l Memorandum and Order.
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d contribute to the development of a sound record. Alter-natively, Applicant requests that the Licensing Board refer pursuant to 10 C.F.R. $ 2.730( f) its denial of this motion for reconsideration or certify pursuant to 10 C . P. R. $2.718(i) the question of whether such a limitation should be placed on the scope of Petitioner's 4
participation in this proceeding.
II. ARGUMENT A. The Licensing Board Should Have Placed a Limitation on the Scope of Petitioner's Participation in This Operating License Proceeding Commensurate With its Ability to Contribute to the Development of a Sound Record The Licensing Board ruling in its March 2, 1984, Memorandum and Order that Petitioner could contribute to the development of a sound record was limited to contention sixteen. Based on this finding the Board reinstated its prior Order granting Petitioner full intervenor status, thereby allowing Petitioner to litigate all nine contentions admitted in this proceeding. The Board did so even though it found, as to two of those contentions, that Petitioner failed to demonstrate an ability to contribute to the development of a sound record and even though no findings were made on the ability.of i
j Petitioner to contribute to the development of a sound
-record as to its remaining'six contentions.
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The precise issue raised by this motion has to the best of Applicant's knowledge not been addressed squarely by any NRC tribunal. That issue is whether an untimely petitioner for intervention should be admitted to an operating license proceeding, which would not otherwise occur, based on its ability to contribute to the development of a sound record as to one issue and then be permitted to litigate other issues it seeks to raise, including issues as to which the Licensing Board found that it could not make a contribution to the development of a sound record. Applicant submits that while NRC case law could be construed to support the holding of the Licensing Board in its March 2, 1984 Memorandum and Order, that Memorandum and Order reached such an anomalous result that reconsideration is warranted. Applicant submits that the Licensing Board should have linked the admitted contentions to Petitioner's ability to contribute to the development of a sound record and limited Petitioner's participation in this operating license proceeding to
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l those contentions as to Which Petitioner could contribute, viz., contention sixteen. It clearly should not have permitted Petitioner to litigata contentions eleven and I
twelve, as to Which Petitioner failed to demonstrate its ability to contribute to the development of a sound record.
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i In Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2),5 an untimely petitioner for intervention announced that it intended to litigate issues already raised by other intervenors in addition to those i as to which the Licensing and Appeal Boards found that it
! would contribute to the development of a sound record.
The NRC Staff urged the Appeal Board to limit the participation of the intervenor to the issues it sought to raise. On the basis of Northern States Power Co.-(Prairie Island Nuclear Generating Plant)6 the Appeal Board declined to do so in its decision deferring action on the l'
untimely petition. Ultimately, the petitioner in North
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Anna, ALAB-342, supra, was granted discretionary intervention. The Appeal Board left it up to the Licensing Board to determine the scope of the petitioner's perticipation, although it implied that it would be i
5 ALAB-342, 4 NRC 98, 111 n. 19 (1976).
6 ALAB-244, 8 AEC 857,-864-71 (1974), reconsideration denied, ALAB-252, 8 AEC 1175, 1178-81, af f'd . , CLI-75-1,-1 NRC.1-(1975). In Prairie Island the Appeal Board held that an intervenor -was entTtled to cross-examine witnesses produced by another party, even if the issue on which the intervenor desired cross-exer.ination was raised by another. party. -It -
also held that as to such issues, the intervenor may not adduce affirmative evidence. Id. at 869, n. 17.
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appropriate to limit such participation to the issues on which the Petitioner had the ability to contribute to the development of a sound record.7 For several reasons North Anna, ALAB-342 and ALAB-363, supra, does not govern this case. First, the intervenor in that case was granted only discretionary intervention, and not intervention as a matter of right.
Therefore, while the Appeal Board may have discussed possible limitations on the participation by untimely intervenors as a matter of right, that discussion was obiter dicta and had no binding, legal significance.8 Second, in North Anna, ALAB-342 and ALAB-363, supra, a hearing was already underway in which at least one other intervenor was litigating its own contentions. As a result, it was possible for the untimely intervenor to participate as to those issues through cross-examination.9 In fact, the presence of another party litigating its own contentions was a necessary predicate for the Prairie Island rule to attach in North Anna. In this case, no other intervenor has been admitted to the proceeding. As 7
Virginia Electric and Power Co. (North Anna Power Station,
- Units 1 and 2), ALAB-363, 4 NRC 631, 634 n. 5 (1976).
l 8 The Petitioner in this case has not requested and the Licensing Board has not granted discretionary intervention.
April 21, 1983 Memorandum and Order at.17. Rather, Petitioner is seeking intervention as a matter of right, albeit on an untimely basis.
9 Prairie-Island, ALAB-244, supra.
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a result, there is no other party to call any witnesses for Petitioner to cross-examine. Accordingly, in this case the Prairie Island rule and therefore the North Anna decision which was based on that rule are not squarely applicable.
In Detroit Edison Co. (Gre6nwood Energy Center, Units 2 and 3), the Appeal Board affirmed the grant of an inexcusably late petition to intervene without linking the grant of intervention to the issues the petitioners sought to raise.lO A similar result was reached in Houston Lighting and Power Co. (South Texas Project) .11 Again, neither of these cases support the decision of the Licensing Board permitting Petitioner to litigate all admitted contentions regardless of its ability to contribute to the development of a sound record on its contentions. In those cases the ability to contribute was not dispositive of the intervention question. To the contrary, in Greenwood, ALAB-476, supra, the Appeal Board actually agreed that the ability to contribute to the development of a sound record did not weigh in favor of intervention.12 s
10 ALAB-476, 7 NRC 759 (1978).
11 ALAB-549, 9 NRC 644 (1979).
12 Greenwoqd, ALAB-476, anar.a, 7 NRC at 764.
_g-In this proceeding, the ability of Petitioner to contribute is the disponitive factor on which a final decision will be made as to whether an operating license hearing will be held. Accordingly, unlike the situations in Greenwood, ALAB-476, supra, and South Texas, ALAB-644, supra, here it would be illogical to hinge intervention on Petitioner's ability to contribute but then not to consider this ability When addressing the scope of such intervention.
Lastly, Applicant recognizes that under 10 C.F.R.
$2.714a(c), a crant of intervention can be appealed only on the ground that it should have been Wholly denied and that appellate review of the admission of contentions is proscribed after one admissible contention is identified.13 This dcctrine of appellate review should not be viewed as an impediment to the Licensing Board limiting the scope of Petitioner's participation in this proceeding. Whether review of a particular ruling is proscribed manifestly has no bearing on Whether-the Licensing Board should have issued such ruling.14 13 See, e.g., Mississippi Power & Light (Grand Gulf Nuclear i
Station,, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1975). .;
14 See in this regard 10 C.F.R. $2.714(e) and ( f) .
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Accordingly, Applicant urges the Licensing Board to examine the overall results in this case and to consider whether they are sound. It should do so because of the unique facts of this case and because of the anomalous results reached in the March 2, 1984 Memorandum and Order.
The most that can be said is that Petitioner has identified a single witness who can testify on a relatively narrow contention, contention sixteen. Based on this narrow showing, Petitioner is now free under the March 2, 1984 Memorandum and Order to litigato much broader and wholly unrelated matters. For example, if the decision of the Licensing Board remains unchanged, Peti-tioner will be permitted to litigate quality assurance issues, even though the Licensing Board expressly found that Petitioner failed to demonstrate its ability to con-tribute to the development of a sound record on QA.
Applicant submits that where, as here, the third factor in 10 C.F.R. $2.714(a) is the pivotal consideration in the decision of whether to grant or deny intervention, the NRC should limit any intervention so granted to those issues as to which the Petitioner has demonstrated an ability to contribute, even When an untimely petitioner seeks inter-vention as a matter .of right. No: basis exists to treat an untimely petitioner in the same manner as one which has sought intervention promptly, especially when the effect
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j ; of such treatment is to allow the invocation of the hearing process on issues as to which the untimely inter- ;
venor may be unable to contribute to the development of a
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sound record.
The anomalous result in this case is illustrated by
- considering the underlying facts of recent cases in which 1
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l the ability to contribute to the record was a significant factor in a decision weighing the five factors set out in
{2.714(a)(1).
10 C.F.R. Those cases, discussed below, demonstrate that when untimely intervention was sought as i
to particular issues, the parties and tribunals have focused on the ability of the petitioner to contribute to
- the development of a sound record only as to the issues on
! which the untimely petitioners sought to intervene. Thus, untimely petitioners to intervene have for the most part attempted to link their ability to contribute to all of the issues they seek to raise. '
If the March 2, 1984, Memorandum and Order is not j
modified to limit intervention to those issues as to which l Petitioner is able to contribute to the development of a i
l sound record, then there will no longer be eny need for an l untimely petitioner for intervention to establish-this linkage. A petitioner for untimely intervention could show its ability to contribute on one narrow issue and then seek to litigate entirely unrelated and much broader
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issues. Perforce, the potential for abuse and the likelihood that the hearing process could be invoked for l
issues as to which those seeking a hearing cannot !
I meaningfully contribute is materially increased. ;
In Mississippi Power & Light Co. (Grand Gulf Nuclear 4
l Station, Units 1 and 2)l5 an untimely petitioner for intervention sought to raise issues involving exclusively the disposal and possible release of high-level
, transuranic radioactive waste. When addressing its ability to contribute to the development of a sound record, the Licensing Board and Appeal Board focused only-on whether the petitioner had special expertise on the j general subject it sought to raise.
i 1 Similarly, in South Carolina Electric and Gas (Virgil f C. Summer Nuclear Station, Unit 1)l6 the Appeal Board I
i focused only on the ability of an untimely petitioner for l
intervention to contribute to the development of a sound i
record as to the issues it sought to. raise. In Summer, l
i ALAB-642, supra, these issues involved corporate i
). management and emergency planning.17 l
i 15 ALAB-704, 16 NRC 1725, 1730 (1982).
l 16 ALAB-642, 13 NRC 881, 891-947 (1981).
17 The Licensing Board' in Summer allowed untimely int.orvention as i
a matter of right but limited:such intervention to the issues as to.which the intervenor.could contribute to the development of a. sound record. - See South Carolina Electric & Gas Co'
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'(Virgil C. Summer Nuclear Station, Unit 1),.LBP-81-11, 13 NRC!
-(footnote continued)
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t Finally, in Long Island Lightina Co. (Shcroham Nuclear Power Station, Unit 1)18 an untimely petitioner for intervention sought to participate in the operating license proceeding to support the Applicant's emergency plan. Again, whether the petitioner demonstrated its ability to contribute to the development of a sound record was evaluated only in terms of its ability to litigate the issue of concern to it, emergency planning.19 In Grand Gulf, ALAB-704, supra; Summer, ALAB-642 supra; and Shoreham, ALAB-743, supra; untimely petitions for intervention were denied in part because the petitioners failed to demonstrate their ability to contribute to the development of a sound record. Two Licensing Board decisions illustrate the converse proposition.
In Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3)20 the Licensing Board admitted an untimely intervenor which proposed to (footnote continued from previous page) 420, 422 and 426-27 (1981), reversed, Summer, ALAB-642, supra.
The Appeal Board did not reverse on the grounds that the Licensing Board erroneously limited the scope of intervention.
It reversed because intervention should have been denied entirely. Therefore, such reversal has no bearing on the question of whether intervention should be limited in this case.
18 ALAB-743, 18 NRC , Sept. 29, 1983, Slip op.
19 Id. at 22-27.
20 LBP-82-ll7B, 16 NRC 2024 (1982).
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- litigate whether salt drift from the cooling towers spray l I
ponds and evcporation ponds at Palo Verde would cause damage to the surrounding cropland. When evaluating the ability of intervenor to contribute to the development of a sound record in the proceeding, the Licensing Board l related intervenor's proposed testimony to the issue intervenor sought to raise. Moreover, when admitting intervenor to that proceeding, its participation was limited to the issue of salt drift, the only issue i
apparently of concern to the intervenor.
Similarly, in New England Power & Light Co. (NEP, Units 1 and 2),21 an untimely petitioner for intervention sought to participate in a licensing proceeding in order I '
i to litigate contentions already raised by others involving transmission lines, financial qualifications, need for power, radiological emissions, and LPZ evacuation. The Licensing Board granted the untimely petition to intervene only as to the transmission line contention because the petitioner's " principal concern and chief contribution in developing a sound record revolve around the transmission line issue."22 a
21 LBP-78-18, 7 NRC'932,.934 (1978).
22 Lt. at 934.. The Licensing' Board noted that1other intervenors-wKose interests were identical to those of-petitioner were-litigating issues other than the transmission linel issue which .
the petitioner sought to raise. See also Duke Power Co.
. (Catawba Nuclear Station) , Docket Nos. 50-413 and 50-414, y (footnote continued)
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' 'At bottom, the Licer sing Board result is anomalous because it holds as to two contentions'that Petitioner is unable to contribute to the development of a sound record but nevertheless allows Petitioner to litigate those issues.. It also allows Petitioner to lit ' gate issues as to which no f,indings were made on its ability to contr ibute . Accordingly, the March 2, 1984, Memorandum and order extends beyond all logic the existing case law addressing the question whethor untimely intervention is appropriate' based on the ability of a petitioner to contribute to the development of a sound record.
one last point is significant. "Intervenor's Further Supplement to Petition for Leave to Intervene Dated January 10, 1984" indicates that Pettti ner was endeavoring to demonstrate its ability to contribute.to s
the development of a sound record through means other than
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providing two identified witnessesi Those means went beyond addressing its ability to contribute with respect 3 -
to contentions eleven, twelve and sixteen and appear 6d to address most if not all of the issues petitioner sought to
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raise. Petitione'r referenced discussions and u, -
i (footnote continued from previous page)p.J.
. Memorandum and Order (Referring Certain Diesel Generator Issues to the Appeal Board), February 23, 1984, slip opinion.
In Catawba the Licensing Board admitted,and denied untimely contentions filed by an intervenor basedlin part. on its ability to contribute to the record asq contentions. t to each 'of those
consultations with numerous experts, many of whom were not linked to specific contentions but whose professional interests appeared to encompass a number of its proposed contentions.23 The Licensing Board did not give any consideration to Petitioner's showing in this regard because it was so general and lacking in materiality.24 Accordingly, Applicant submits that a further opportunity should not be afforded Petition to amend its Supplement to Petition for Leave to Intervene and to thereby demonstrate its ability to contribute to the development of the record as to issues it would like to raise beyond contention sixteen.
B. Referral or Certification to the Appeal Board is Warranted ,
Should the Licensing Board decide not to reconsider its March 2, 1984 Memorandum and Order and limit the scope of Petitioner's intervention .o those issues as to which petitioner was found to be able to contribute to the development of a sound record, Applicant requests that the matter be referred or certified to the Appeal Board. The issue for review would be whether a grant of intervention should be limited to the issues on which an untimely 23 See Applicant's Response to "Intervenor's 7urther Supplement to Petition for Leave to Intervene Dated January 10, 1984,"
February 6, 1984 at 3-4, 10-17. For this reason Applicant analyzed and responded to that pleading in terms of whether intervention should be entirely granted or entirely denied.
l 24 March 2, 1984 Memorandum'and Order at 10.
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/ v petitioneg for' littervention as found to be able to I contribute to the. development of a , sound record, when the dispositive factor in the g[a[it of ir.tervention was the s -
petitioner's ability to contribute and when, but' for .'that petitioner, an operating licence/ tiaring e ,- -
wouldinot be held. . .
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,- The issue presented by this mdtionjis appropriate for ,
referral under 10 C.F.R. $ $2.730( f) And 2.718(i) . As .
explained by the Appeal Board, interlocutory-review is appropriate when the challenged licensing board ruling either (1} threatens the party adversely affected by ,
- irreparable impact which, as a practica'. matter, could not ~
be alleviated by a later appeal or (2) affects the basic >
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structure of the proceeding in a pervasive or. serious manner.25 y
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Applying this st&ndard or similar standards from which it.was.Jerived26 die Appeal Board has undertaken 7
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2.5 Public Service Co. of New Hampshire (Seabrook Station, Units l ~
J (and2), ALAB-762, 19 NRC , March 16, 1983, slip op. at 5.
26 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-634, 13
, NRC 96, 99 (1981) { footnotes omitted). See'also Duke'Powe_r Co. (Catawba Nuclear Station, Units 1 &.2), ALAB-687, 16 NRC
,460, 464 (1982). These same standards are applied whether:the.
rev.s cw is pursuant to $2.730( f)', (referral) or $2.718(1)~ ,
(certification). Midland, ALAB-634,' supra, 13'NRC at 99; Duke Power Co. (Ca.tawba Nuclear' Station, Units 1-& 2),:LDP-82-50, _
- 6 o
", 35 NRC 1746,/1754 n.,7 (1982); see Arizona Public Service Co. 'M
, -(Palo Verde' Nuclear Generating-Station, Units 1, 2 & 3), LBP- *
I
- 82-62,'16 NRC 565,'567 (1992) ($2.718(i) certification) .-
Cases.inTolving $2.718(Q applying this idtjr.tical standard are ,
.,"<ci,t'ed in support of this1 Motion in addition"to' cases a '6 4
interpret ing $2.730( f) . W '. ,
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. discretionary review in a variety of circumstances: when a licensing board conditionally admitted contentions even though they did not meet the specificity requirements of the regulations,27 when an applicant was denied permission to begin offsite construction 28 when proprietary information was ordered disclosed,29 where attorney disqualificacion was at issue,30 and where a licensing board ordered sequestration of all witnesses.31 Although i _erlocutory appeals are not favored in NRC practice,32 an application of the two factors identified in Seabrook, ALAB-762, supra, for considering referral or certification demonstrates that such action is appropriate in this case. First, Applicant is threatened with
'mmediate i and serious irreparable impact which, as a practical matter could not be alleviated by a later appeal. Were it not for this Petitioner, an operating 27 See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
ALAB-687, .16 NRC 460 (1982) , reversed on other grounds, CLI-83-19, 17 NRC 1041 (1963).
28 See Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293 (1976).
29 See Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408 (1976).
30 See Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2& 3), ALAB-332, 3 NRC 785 (1976).
31 See Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-77'7, 5 NRC 565 (1977).
32 1i11 Catawba, ALAB-687, 16 NRC at 464.
license hearing would not be held. Similarly, unless Petitioner raises an issue in these proceedings, there is a strong likelihood that such issue will not be raised within the hearing context. There fore, to the extent Petitioner is permitted to raise issues as to which it has not demonstrated an ability to contribute to the development of a sound record, Applicant will be required to incur expenses and NRC will be required to utilize its resources without any basis for concluding that the hearing process will contribute to a sound decision-making process.
Applicant does not mean to denigrate the usefulness of public hearings. However, a public hearing will not contribute to a sound decision-making process unless at least one party seeking to raise and litigate an issue is able to do so effectively. Here there is only one party seeking a public hearing and its ability to contribute to the development of a sound record has been found to be limited to one narrow issue. If allowed to stand, the March 2, 1984 Memorandum and order would allow the l
l Petitioner to raise and litigate issues as to which the Licensing Board found it was unable to contribute to the
development of a sound record. Invoking the public hearing process as to such issues is not an effective utilization of resources.33 This leads to the second reason why referral or certification is appropriate in this instance: failure to address this issue will affect the structure of the proceeding in a pervasive manner, and there is little or no likelihood that it will be subject to appellate review.
Potential unreviewability was an important factor in the Appeal Board's decision to accept a referral in Catawba:
"as we have been told without contradiction, [the questions referred by the Licensing Board] have immediate recurring importance but, for practical reasons, will escape appellate scratiny once the initial decision has been issued."34 33 Compare this case with South Texas, ALAB-644, supra, 9 NRC at 650-51 ("[A]nother party has properly been allowed to intervene. An operating license hearing is thus necessary in any event; Applicants are not prejudiced by one additional intervenor in the proceeding . . . . "). Because Petitioner in this case is the only one seeking a hearing, and because of the large number and broad scope of contentions admitted by.
the Licensing Board without regard to Petitioner's ability to contribute to the development of the record as to those issues, the need for interlocutory review here is much greater than in cases where untimely contentions are admitted in an ongoing proceeding. See Cleveland Electric Illuminating Co.
(Perry Nuclear Plant, Units 1 and 2), ALAB-706, 16 NRC 1754 (1982). Thus, expenses incurred by Applicant litigating contentions other than contention. sixteen are more than the usual expenses which accompany the licensing process.
1 34 Catawba, ALAB-687, 16 NRC at 465.
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The March 2, 1984 Memorandum and Order would permit an untimely petitioner for intervention to raise contentions notwithstanding a finding that it is anable to contribute to the development of a sound record as to those contentions, even when their intervention was premised on their a'o ility to contribute. Clearly, permitting such a ruling to stand will have a pervasive effect on this proceedings. Unlesc review is granted on this issue, all but one contention could be litigated absent any basis for concluding that such litigation will-lead to meaningful results.
Further, unless interlocutory review is granted, this issue is likely to escape appellate review. 10 C.F.R.
$2.714a(c) permits appeals from a grant of intervention only on the ground that it should have been wholly deni'ed.
The issue of whether the Licensing Board should have I
limited the scope of Petitioner's intervention by allowing it to litigate only contention sixteen does not appear-to fall within Section 2.714a(c).35 As a result, if Applicant prevails and-is issued'its operating license, the issue presented in this case regarding1the need to
- limit Petitioner's intervention based on its . ability _ to contribute will_ escape review, even though it.is capable 4
of repetition in other proceedings. Accordingly, if the i
35 E-Je note 13, supra, and. accompanying text.
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Licensing Board denies reconsideration, it should refer or certify to the Appeal Board the question of whether limits should be placed on Petitioner's intervention commensurate with its ability to contribute to the development of a sound record in this proceeding.
III. CONCLUSION In light of the foregoing, Applicant requests the Licensing Board to reconsider its March 2, 1984, Memorandum and Order and lbuit Petitioner's grant of intervention only to contention sixteen, as to which it was found able to contribute to the development of a sound record. Alternatively, Applicant requests the Licensing Board to refer or certify to the Appeal Board the question of whether such a limit should have been placed on Petitioner's grant of intervention.
Respectfully submitted, NicH61as S. Reynolds Sanford L. Hartman BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth St., N.W.
Washington, D. C. 20036 (202) 857-9817 Counsel for Applicant March 20, 1984
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{ UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i In the Matter of )
i
)
WASHINGTON PUBLIC POWER ) Docket No. 50-508-OL l
SUPPLY SYSTEM )
f
)
j (WPPSS Nuclear Project No. 3) )
- CERTIFICATE OF SERVICE i
i I hereby certify that copies of the foregoing " Applicant's Motion For Reconsideration Of Memorandum And - Order Granting Petitioner Intervenor Status And/Or For Referral Or Certification Of The Question Of Whether A Limitation Should Be
+
- Placed On The Scope Of Petitioner's Participation In This j
Proceeding" in the captioned matter were served upon the following persons by deposit in the United States mail, first-class, postage prepaid this 20th day of March, 1984:
j~ Mortcn Margulies, Esq. Chairman, Atomic Safety and l Chairman, Atomic Safety and Licensing Board Panel j Licensing Board U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission
- Commission Washington, D. C. 20555 i Washington, D. C. 20555 1
i Adm. Judge Frederick J. Shon .Qiairman, Atomic Safety and j Atomic Scfety and Licensing Licensing Appeal Board l Board U. S. Nuclear Regulatory
- U. S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 l
Washington, D. C. 20555 Adm. Judge Richard F. Foster Stuart A. .Treby, Esq.
) Atomic Safety and Licensing Office of the Executive
) Board Legal Director P. O. Box 4264 U. S. Nuclear Regulatory
- Sunriver, Oregon 97702 Commission 4
Washington,- D. C. 20555 1
4
.__r- ., y ,
e a
Mr. Scott W. Stucky Mr. Nicholas D. Lewis Docketing & Service Branch EFSEC Chairman U.S. Nuclear Regulatory Mail Stop: PY-ll Commission Olympia, Washington 98504 Washington, D.C. 20555' Mr. Gerald C. Sorensen Mr. Kevin M. Ryan Washington Public Power Attorney General's Office Supply System Mail Stop: AQ-04 3000 George' Washington Way Temple of Justice Richland, Washington 99352 Olympia, Washington 98504 Mr. Douglas W. Coleman Mr. Eugene Rosolie Licensing Project Manager Coalition for Safe Power i Washington Public Power Suite 527 Supply System 408 South West 2nd P. O. Box 1223 Portland, Oregon 97204 Elma, Washington 98541 Ms. Nina Bell Nuclear Informc'. ion and Resource Service 1346 Connecticut Avenue, N.W.
Washington, D. C. 20036 Shnford L. Hartman I
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