ML20134C867

Brief in Support of Appeal of ASLB 850719 Order Dismissing 850629 Petition for Leave to Intervene & Request for Hearing

ML20134C867
Person / Time
Site:	Pilgrim
Issue date:	08/13/1985
From:	Doherty J DOHERTY, J.F.
To:	Edles G, Johnson W, Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel
Shared Package
ML20134C863	List: ML20134C860 ML20134C867
References
OLA, NUDOCS 8508160458
Download: ML20134C867 (7)

Text

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August 13, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TE ATOMIC SAFETY AND LICENSING A,PPEAL BOARD

. : .dC Administrative Judges:

Alan S. Rosenthal, Chairman '85 NW 16 A!0:51 Dr. W. Reed Johnson y.,., .;

Gary J. Edles b6CEi iv '

In the Matter of:

BOSTON EDISON CO.

Docket No. 50-293-OLA (Pilgria Nuclear Power Station, Unit 1) .

JOHN F. DOHERTY'S BRIEF IN SUPPORT OF HIS APPEAL OF TE JULY 19, 1985 ASLB ORDER DISMISSING HIS PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING.

Introduction John F. Doherty, of 318 Summit Ave. , Apt. #3, of Brighton, Massachusetts 02135, (617) 232-3853, now files this Brief in Sup ort of his Appeal (toEether with a Notice of Appeal) of an Atomic S' afety and Licensing Board (hereafter: ASLB) Memorandum and Order (hereaf ter: Order) of July 19, 1935, (and designated ASLBP. No. 85-510-01 LA) which dismissed his Petition for Leave to Intervene of June 29, 1985.1/

On May 21, 1985, a notice appeared in the Federal Register announcing an amendment to the o ditions for the subject nuclear plant.S! perating On Junecon- 29, 1985, John F. Doherty (hereaf ter: Petitioner) filed with proper service a " Request for Hearing and Petition for Leave to Intervene *,(hereaf ter: Petition) in this ooerating license amendment proceeding. On July 9,1935 an Atomic Safety 1/ This is the correct date. The Order in two olaces (p. 1 and pTE) ives June 21, 1935, which curiously would have obviated the timeliness issue. (infrs.)

3/ 50 Fed. Ree. 20969 8508160450 B50813 PDR ADOCK 05000293 O PDR

and Licensing Board gas established. On July- 12, 1985, the Boston Edison Comoany filed an objecting answer (here-l after: Licensee Answer). The NRC Staff filed an objec-ting "resconse" (hereafter: Staff Answer)on July 19, 1985 Dated July 19, 1985, the Order subject of this Apoeal, emerEed. Subse~uent, ouw less relevant to this Appeal, Petitioner filed an exception on July 27, 1985 On July 31, 1985, Chairman Rosenthal corrected Petitioner for

! filing an exception, and directed a filing under 10 CFR 2.714a.

The Amendment to the Operating License The sub. ject amendment of the May 21, 1935 Federal Register announcement would raise the limit for the K,ff to 0.95 from 0.90 for normal operation of the spent fuel pool. The limit for K,ff for the spent fuel pool would

! remain 0.95 for " abnormal conditions". If approved, a l sifety margin would be substantially reduce 4 for the vir- L ttal entire time of plant operation since abnormal condi-t: ons seldom occur and are of short duration.

The use of 10 CFR 2.714a in this Acceal 10 CFR 2.714a(b) permits Aopeals when an ASLB wholly denies a petition for leave to intervene as uith this Petition, on the question whether the petition chould have been granted. However, in this case, only that cart of the order which dismissed the Petition fer lack of stan-l ding would appear appealable under 10 CFR 2.714a. Here the question in part is should the Petition have been denied as early.as it was, a procedural defect based com-plaint. In view of Chairman Rosenthal's July 31, 1935 Order, and the obvious need for a aechanism of appeal un-der this set of facts, the Petition is filed pursuant to 10 0FR 2 714a.

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I Denial of the Petition was based on two reasons The Petition was dismissed for untimeliness and lack .

of standing, (Order, p. 4).- Petitioner urges that denial  ;

for untimeliness was an abuse of power by the ASLB, being

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procedurally defective due to the fact Petitioner was not permitted time to reply to the Staff Answer and Licensee Answer. In addition, dismissal for lack of standing was procedurally defective for the same reason and the ASLB was further in error on the standing dismissal because it stated it used facts not judicially noticed or a part of the record in reaching its conclusion, (Order, p.2, and p.4). -

1 Diemissal of the Petition based on lack of ticoliness I without an onoortunity of reoly was procedural error reouiring a remedy i

The ASLB predicated its denial of the Petition on the basis of untimeliness in part on the Federal Register notice of intervention. That notice states: "Non-timely filings of netitions for leave to intervene, amended pe-titions. . . will not be entertained absent a determination by the . . . Atomic Safety and Licensing Board designated to rule on the petition and/or request that the petitioner has made a substantial showing of good cause for..the eran-ting of a late cetition and/or request."E!

The ASLB treated this as saying unequivocally that if the first filing of an intervention petition does not '

treat the issue of lateness, it must deny it and not give the petitioner an opportunity to explain the reason for the late filing. By lo61 cal extension, the ASLB appears to be saying (Order, p.2) that it would have had to dis-miss the Petition even if the Licensee or Staff did not .

mention the lateness. This is tantamount to a civil court rule saying defendant employed counsel need not raise the 2/ 50 Fed. 32g. 20970.

de'fense of statute of limitations, the Court will take care of that. However, besides the arguments made below, the Staff (Staff Answer,, p.1) indicates the ASLB had discretion in the matter of dismissal for timeliness. It is unclear if the Staff expected the ASLB to give Petition-3r a time for reply.

The ASLB's interpretation of the NRC regulatiens as demonstrated by its interpretation of its Federal Register notice is one overtly restrictive to the rights of members of the general public such as Petitioner. While there is no statutory or common law requirement that reply be per-mitted at the pleading stage as here, there is considerable pfactice which shows in civil suits or administrative pro-cc3 dings that a reply where it answers new matters raised in a defendant's answer is, appropriately permitted. In Vonolla vs. Northern Assurance Co. et al., 160 A 2nd 672, (1960) the New Jersey Court of Appeals held the plaintiff had the right to file a reply aEsinst new affirmative defen-i ses of the defendant prior to a dismissal.

l In administrative practice, the Appeal Board of this i agency, in Houston Lighting & Power Co., (Allens Creek Nuclear Generating Station. Unit 1, ALAB-565,10 NRC 521

(1979), (a memorandum) stated that an ASLB should allow I cetitioners for leave to intervene an opportunity to reply to staff and applicant answers which were in some cases

lack of standing. In Allons Creek the Board had set a pre-hearing conference date and expected a large number of contentions from a large number of Petitioners. The Appeal Board stated (Slip op. p. 6), "But if in fact it (the Board) intends to rule on the admissibility of con-tentions withoit allowing the prospective intervenors to present argument, we see serious problems on the horizon."

It concluded (Slip op. p. 8) "Thus when a defendant moves to dismiss a complaint (see, e2 gt, Rule 12(b), F. R. Civ.

P.), a claintiff is -- and must be-- allowed the oppor-

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to resoond to the motion.1E/ " . Footnote 14 is relevant here because it pertains to the procedural rules as does f  ??titioner's Appeal._ The footnote states, "In other words,

! to use just one examole, a complaid in federal court must

! contain a jurisdictional allegation. But if the defendant argues that jurisdiction is lacking for some reason, the plaintiff is allowed to respond with arguments supporting his statement of jurisdiction." In the instant case, Peti-tioner believed the lateness was dg minimum and would possi-bly be unnoticed, and thus hurried on discovering the notice 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> prior, to file the Petition.

The notice stated a determinati:n would be made of the admissibility of a late filing carty under a "substan- _

ial showing of good cauce", but did not say only a single' filing opnortunity would be afforded the late filers to state the good cause. The Petition did not state justifi-cation for an untimely filing and this was raised as a de-4 fence by the Licensee. Yet, nothing empowers the ASLB (or a civil court federal judge) to blow the whistle and end the contest there. The notice cannot with certainty be read to say this would result if a Petitioner did not oresent his justification at once. The notice was inter-oreted by this ?stitioner to say a filing objected to as untimely will have to have been judged late for good cause before the concerns of the cetitioner about the changes in the nuclear clant will be entertained. And, certainly i there would be o"portunity for the petitioner to consider Staff and Licensee filings and THEN reply.

In a more recent ?roceeding, an ASLB denied an aoplicant notion that intervenors not be permitted to respond in writing to motions condorning late filed contontions. Cleveland 21ec-tric Illuminating Co. (Ferry Uuelear Power Finnt. Unita 1  ;

and_2, L3? S2-S9, 16 NRC 1}55, 1356, 1982'. , Relying on Allens Creek, that Boari hold even lato filed contontions l

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had to be heard in reoly to objecting answers prior to adjudication as to admissibility. In both Allens Creek and Perrv time was a serious consideration in an ongoing construction license and operating permit proceeding re-soectively. Here, unlike those two proceedings, time is I

not, since the Commission Mas yet to make its final de-termination that the Amendment involves no significant j

hazards.

Dismissal of the Petition based on lack of standine without an occortunity to reniv was nrocedural error The ASLB (Order, p.4) also dismissed the Petition for lack of standing of Petitioner. Petititioner, of course, was given no occortunity to reoly to the Licensee's Answer which contested his assertion of standing. The ASLB evidently f accooted the Licensee's argument (Licensee's Answer, p. 2) that at 43 miles distaace from the plant, this Petitioner should not have standing because he, "

. . . resides at the

' outer edge' of ' proximity standing' in every sense of the word." In the Staff's Answer (p.13) Staff supports Petition-l er's standing.

Further, in supoorting its finding of lack of standing, the 1521 stated, "In making this ruling we note that we know of no scenario under which radiation attributable to the j fuel pool would affect a residence 43 miles distant from the

! fuel pool; and Petitioner has not informed us of any such scenario." (Order, n. 4) Petitioner believes by its finding there were no scenarios in the Petition that met the ASLB's requirements,the ASLB violated the Administrative Procedures Act, (60 Stat. 237,(1946), 5 U.S.C., in particular 8 557(c)(A)

(Section Bb of the 1946 Act) since it is a finding outside the record and based on information not judicially noticed.

That Petitioner had not informed the AEL] of any scenario (or indeed if' Petitioner could) is in the realm of contentions.

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The Staff Answer, (p. 15, f.n. 2) ooints out contentions are not required in a petition for leave to intervene.

See: Consumers Power Co. (Midland Plant. Units 1 and 2, LBF-78-27, 8 NRC 275,277 (1978).

In summary, Petitioner urges dismissal for lack of standing of his Petition without allowing a reply was error requiring reversal by the Appeal Board.

The untimeliness of the Petition was de minimus Finally, the fact the Petition was received after the June 21, 1985 deadline was not cited by the Licensee or Staff as harming any interest of their own. One reason -

for this may be simply that the amendment proposal had not been approved by the NRC as of July 17, 1985, according to a letter from D. Vassallo, Chief, Operating Reactors Branch #2,DivisionofLicensingM! A hearing on any license amendment proposed as containing no significant hazards cannot be scheduled until this is done.

Conclusion For the reasons above, Petitioner urges that the Appeal Board direct the ASLB to permit Petitioner to reply to the Licensee's Answer of July 12, 1985, and the Staff's Answer of July 19, 1985, and that they consider its contents in a fresh determination of this Petitioner's status in the croceeding.

l Respectfully John F. Doherty Appearing pf2 g l (NOTE: Service of Process for thin Brief appears with the enclosed Notice of Appeal.)

O!Letter to Fetitioner, enclosing cooy of the proooned amendment.

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