ML20134N701
| ML20134N701 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 08/29/1985 |
| From: | Berry G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#385-416 OLA, NUDOCS 8509050282 | |
| Download: ML20134N701 (13) | |
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'. ECLKETED USHRC UNITED STATES OF AMERICA '85 SEf5 -3 ;#i 38 NUCLEAR REGULATORY COMMISSION
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BEFORETHEAT0jtCSAFETYANDLICENSINGAPPEALBOARD ((,If7l 9.((,I Q7^ ' '
In the Matter of +
BOSTON EDIS0N COMPANY Docket No. 50-293 OLA (Pilgrim Nuclecr Power Station, )
Unit 1)
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NRC STAFF BRIEF IN OPPOSITION TO JOHN F. DOHERTY'S NOTICE OF APPEAL
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UNITED STATES OF AMERICA :
- NUCLEAR REGULATORY COMMISSION cericg er secs,' ? f l , r,3tnim3
- SEP" BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD W'C" In.the Matter of
, BOSTON EDISON COMPANY Docket No. 50-293 OLA (Pilgrim Nuclear Power Station, Unit 1) )
NRC STAFF BRIEF IN OPPOSITION TO , .
I JOHN F. DOHERTY'S NOTICE Of APPEAL ,
Gregory Alan Berry Counsel for NRC Staff August 29, 1985 e
TABLE OF CONTENTS PAGE Table of Authorities......................................... 1 I. INTRODUCTION............................................ 1 II. BACKGR0VNU.............................................. 2 III. DISCUSSION.............................................. 4 IV. CONCLUSION.............................................. 8 f
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Table of Authorities PAGE
, Administrative Decisions:
Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1)
(Unpublished Memorandum Order) (July 19, 1985)............... 1, 3 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-89, 16 NRC 1355 (1982)......... 7 Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3),
ALAB-615, 12 NRC 350 (1982).................................. 3,4,5,6 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Units 1, 2 and 3), ALAB-565, 10 NRC 521 (1979)............................................ 4, 7 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-609, 12 NRC 37 (1980)...... 5 Mississippi Power & Light Co. (Grand Gulf Nuc, lear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982)................. 4 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975)........................... 4 South Carolina Electric & Gas Co. (Virgil C. Summer
! Nuclear Plant, Unit 1), ALAB-742, 13 NRC 881 (1981)pr .......... 4 Regulations:
10 C.F.R.9 2.714(a)(1)....................................... 4, 5 10 C.F.R. 9 2.714(c)......................................... 5 Miscellaneous:
l Statement of Policy on Conduct of Licensing Proceedings,
- 10 C.F.R. Part, App. A E III(a)(1)........................... 5 Notice of Opportunity for Hearing, 50 Fed. Reg. 20969 (May 21, 1985)............................................... 2, 3
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UNITED STATES OF AMERICA .
NUCLEAR REGULATORY COMMISSION '85 SEP -3 All ;58 -
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD "r C" w '
MClfT756 E5Nr .
- M A N :n In the Matter of BOSTON EDISON COMPANY ) Docket No. 50-293 OLA
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(Pilgrim Nuclear Power Station, )
Unit 1) )
NRC STAFF BRIEF IN OPPOSITION TO JOHN F. DOHERTY'S NOTICE OF APPEAL I. INTRODUCTION On August 14, 1985, John F. Doherty filed a Notice of Appeal of an order issued by the Atomic Safety Licensing Board on July 19, 1985. The order which Mr. Doherty appeals denied his pe,tition for leave to intervene and request for a hearing in the above-captioned operating license amend-ment proceeding. See Memorandum (Petition to Intervene), slip op. at 4 (July 19, 1985). Mr. Doherty's petition was denied by the Licensing Board because it was neither filed within the 30-day time period specified in the Notice of Opportunity for Hearing (50 Fed. Reg. 20969 (May 21, 1985)),
nor demonstrated that a balancing of the factors listed in 10 C.F.R. 5 2.714(a)(1)(1-iv), which govern admission of untimely petitions, warranted its consideration. M. The Licensing Board ruled also that Mr..Doherty's petition should be denied for the a'dditional reason that he lacked standing to intervene in the proceeding. M.at2-4. In this regard, the Licensing Board agreed with Applicant that the fact Mr. Doherty resides 43 miles from the Pilgrim Nuclear Power Station is insufficient grounds to establish his standing to intervene in this operating license i
i mondment proceeding. Compare M. at 3-4, with Licensee's Answer To John F. Doherty's Request For A Hearing and Petition For Leave to Intervene at 6-8 (July 12, 1985 (hereafter " Applicant's Answer").
Mr. Doherty relies upon a single claim in challenging the Licensing Board's order: That the Licensing Board erred in not affording him the opportunity to (1) show that there existed good cause for filing his petition out of time and (ii) to reply to Applicant's argument that he lacked standing to intervene in the proceeding because he does not reside in sufficient proximity to the Pilgrim Nuclear Power Station. See Petitioner's Notice of Appeal at 3, 6. As explained below, the Staff is of the view that the Licensing Board did not err in dismissing Mr. Doherty's untimely petition to intervene. Accordingly, the Appeal Board should deny the instant appeal.
II. BACKGROUND On May 21, 1985, the Commission published in the Federal Register a
" Notice of Consideration of Issuance of Amendment To Facility Operating License And Proposed No Significant Hazards Consideration Determination And Opportunity For Hearing." 50 Fed. Reg. 20969 (1985). In that Notice, the Commission proposed to determine, inter alia, that the proposed amendment increasing the K-effective limit of the fuel storage pool at the Pilgrim Nuclear Power Station from 0.90 to 0.95 for normal condition would result in a change that is " clearly within all acceptable criteria with respect to the system or component specified in the Standard Review Plan." 50 Fed. Reg. at 20971. The Coninission directed that all comments on this proposed determination and any petition for
leave to intervene be received within 30 days of the publication of the Notice, i.e., June 21, 1985. 50 Fed. Reg. at 20969. In the Notice, the Commission indicated that untimely petitions would be evaluated in accordance with the standards set forth in 10 C.F.R. 6Q 2.714(a)(1)(1)-(v) and 2.714(d). 50 Fed. Reg. 20970. Mr. Doherty's petition was filed on June 29, 1985, eight days after the deadline established by the Commis-sfon had passed. In his petition, Mr. Doherty did not even attempt to explain why his untimely petition should be entertained.
The NRC Staff opposed Mr. Doherty's petition. In particular the Staff noted that because Mr. Doherty's petition was not timely filed, it "shculd not be considered in the absence of a determination that the balance of the equitable factors listed in 10 C.F.R. @ 2.714(a)(1)(1-v)
' favor [ petitioner'sj tardy admission into th'e proceeding.'" NRC Staff Response To John F. Doherty's Petition For Leave To Intervene at 4 (July 19, 1985), quoting Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-615, 12 NRC 350, 352 (1980). The Staff observed also that by not even addressing the factors governing untimely petitions, Mr. Doherty failed to carry his burden of demonstrating that the balance of the equities lies in favor of granting the petition to intervene.
See Id. at 9, 15. Applicant raised similar objections to Mr. Doherty's petition. See Applicant's Answer at 2-3.
On July 19, 1985, without affording Mr. Doherty an opportunity .
to reply to the Staff's and Applicant's filing, the Licensing Board dismissed Mr. Doherty's untimely petition. Memorandum Order at 4.
III. DISCUSSION As the Commission has observed, 10 C.F.R. 6 2.714(a)(1), the regula-tion governing late-filed intervention petitions, gives "the Licensing
, Boards broad discretion in the circumstances of individual cases."
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). Consequently, a licensing board's disposition of an untimely intervention petition will not be disturbed on appeal unless that discretion has been abused. See, e.g., Mississippi Power & Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Plant, Unit 1), ALAB-742, 13 NRC 881, 885 (1981). As the Appeal Board stated in Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980), in determining whether a licensing board has abused its discretion, appellate " review of licensing board action on an intervention petition has to be based upon what had been presented to (and therefore taken into consideration by) that board." Id., quoting Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 241-42 (1980). As explained below, the Licensing Board's denial of Mr. Doherty's petition did not constitute an abuse of discretion.
Mr. Doherty's appeal rests entirely upon an erroneous assumption:
that he was entitled to file a reply to the Applicant's and Staff's responses to his intervention petition. This assumption, however, has no support in the Commission's regulations. Section 2.714 of those regulations contains no provision affording the person filing ,
an intervention p,etition the right to reply to the Applicant's or Staff's l
respense to this petition. See 10 C.F.R. Q 2.714(a)(1) and (c). In fact, the Licensing Board's action was consistent with the Commission's stated policy: "After consideration of any answers to the petition [for i
- leave to intervenej, the board will rule on the petition." Statement of Policy on Conduct of Licensing Proceedings, 10 C.F.R. Part 2, Appendix A, 5 III(a)(1). Consequently, the Licensing Board acted properly in issuing a ruling on Mr. Doherty's petition promptly after receipt of the Appli-cant'sandStaff'sresponses.1/
Additionally, it should be remembered that Mr. Doherty made no effort to address any of the factors which must be considered before a late-filed intervention petition can be granted. Consequently, Mr. Doherty's petition was " patently deficient and, as such, a fit candidate for denial." Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980). In Perkins, supra, as in this case, petitioner filed an untimely petition to intervene but 1/ Dismissal of the petition occasions no unfairness to Mr. Doherty.
The Appeal Board has stressed on several occasions "the imperative necessity that all participants -- whether lawyers or laymen repre-senting themselves or the organizations to which they belong --
familiarize themselves at the outset with the Commissions' Rules of Practice." Duke Power Co. (Perkins Nuclear Power Station, Units 1, 2 6od 3), ALAB-615, 12 NRC 350, 352 (1980) (emphasis in original);
accord Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-609, 12 NRC 37, 38 n.1 (1980). Familiarity
! with the Rules of Practice enhances " participants' ability to protect adequately the rights of those they represent" and " avoid the waste of time and resources which inevitably accompanies the taking of action forbidden by the Rules." Perkins, supra, 12 NRC at 352.
Mr. Doherty hardly can be considered a stranger to NRC licensing proceedings or the rules governing them since he has in the past participated in such proceedings (e. ., In re University of Lowell, Docket No. 50-223; In re Houston L1g ting & Power Co., Docket l No. 50-466). ;
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neglected to explain in his petition why, on balance, the factors listed in 10 C.F.R 9 2.714(a)(1) favored his tardy admission into the proceeding. The Appeal Board upheld the Licensing Board's denial of the petition stating:
[T]he late petitioner must address each of those five factors and affirmatively demonstrate that, on balance, they favor permitting his tardy admis-sion to the proceeding. Yet, as the Licensing Board noted, Mr. Springer made no endeavor to shoulder that burden. Indeed, his petition was devoid of the slightest hint of a recognition that its fate hinged upon the SectTon 2.714(a) factors.
Rather, what the Board was told in the petition and its supporting documents was (1) that the February 22 decision had been influenced by an allegedly deliberate misrepresentation by the NRC staff with regard to the position of the State of North Carolina on a crucial aspect of the alter-facts material nate to thesite inquiry; inquiry and had not (2) presente been that all,d to the Licensing Board. It thus would appear that Mr. Springer was under the misapprehension that it is open to anyone to obtain entry into a proceeding after the issues have been decided by the trier of fact if that person believes the decision rested upon an incomplete or inaccurate record. But, had he consulted the Commission's intervention rule, it would (or should) have become immediately obvious that, in order to press his complaints respecting the merits of the Licensing Board's decision and the underlying record, it was first necessary for him to acquire ) arty status under ti.e terms of the rule.
In short, t1e intervention petition was patently deficient and, as such, a fit candidate for denial.
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. M. at 352 (citations and footnotes omitted) (emphasis added).
The Appeal Board's decision in Perkins is dispositive of the instant appeal. E Since Mr. Doherty's petition was filed late, the burden of establishing entitlement to intervene in the proceeding rested upon his shoulders.
It was his responsibility in the first instance to address each of the factors listed in 10 C.F.R. % 2.714(a)(1) and " affirmatively demonstrate that, on balance, they favor permitting his tardy admission into the proceeding." 12 NRC at 352. Mr. Doherty made no effort to shoulder that burden. In these circumstances, the Licensing Board acted properly in concluding that Mr. Doherty had not made the requisite showing to warrant 2/ Mr. Doherty's reliance on Houston Lighting & Power Co. (Allens
. Creek Nuclear Generating Station, Units 1, 2 and 3), ALAB-565, 10 NRC 521 (1979) and Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-89, 16 NRC 1355 (1982) for the proposition that a ifcensing board must afford the opportunity to reply to any pleading opposing a petition to intervene is misplaced.
Neither of those cases involved consideration of an untimely petition to intervene. In Allens Creek and Perry, it was held that simple fairness required that an intervenor be aftorded the opportunity to respond before a contention could be dismissed. The opportunity to respond must be afforded in such cases because, as the Appeal Board explained in Allens Creek, supra, intervenors "cannot be required to have anticipated M the contentions themselves the possible arguments their opponents might raise as ground for dismissing them." 10 NRC at 525 (emphasis in original). That ioliunale uoes not apply in the case of an untimely petition to intervene since the Commission's Rules of Practice provide expressly that such a petition will be entertained only if a balance of the applicable factors militates in favor of its consideration.
See 10 C.F.R. % 2.714(a)(1). Consequently, persons filing untimely petitions to intervene hardly can be said to be unable to anticipate "the possible arguments their opponents might raise as grounds for dismissing them." Since it was foreseeable that Applicants and the Staff would raise the untimeliness of Mr. Doherty's petition as a ground for dismissing it, Mr. Doherty's petition should have addressed tnat subject. He elected not to do so at his peril.
consideration of his untimely petition. Accordingly, the Licensing Board's denial of Mr. Doherty's petition should be affirmed.
c IV. CONCLUSION For the reasons stated in this brief, the Licensing Board's denial of Mr. Doherty's intervention petition should be affirmed.
Resppctfully submitted, t
regory Counsel .r Staff (
Dated at Bethesda, Maryland this 29th day of August, 1985
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of )
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BOSTON EDIS0N COMPANY ) Docket No. 50-293
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(Pilgrim Nuclear Power Station, )
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO JOHN F. DOHERTY'S NOTICE OF APPEAL" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 20th day of August, 1985:
Peter B. Bloch, Chairman
- John F. Doherty Administrative Judge 318 Summit Avenue, Apt. 3 Atomic Safety and Licensing Board Brighton, MA 02135 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board
- U.S. Nuclear Regulatory Commission Mr. Gustave A. Linenberger, Jr.* Washington, DC 20555 Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Jerry Harbour
- Administrative Judge Docketing and Service Section*
Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washinglun, DC 20555 Washington, DC 20555 R. K. Gad III, Esq.
Ropes & Gray 225 Franklin Street Boston, MA 02110 f
dMM Gregory Ala Ber W% /
Counsel for LRC aff