ML20202J830
| ML20202J830 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 02/12/1998 |
| From: | Belille J AFFILIATION NOT ASSIGNED |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#198-18801 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9802230230 | |
| Download: ML20202J830 (11) | |
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/g801 00CKETED USNRC UNITED STATES OF AMERICA
'96 FEB' 17 P3 :43 BEFORE THE NUCLEAR REGULATORY COMMISSION OFFICE Or. W fARY RULB.%C AD ADJUD'CMON9 JTAFF Private Fuel Storage, a Limited Liability Compan; Docket No. 72 22 ISFSI ASLBP No. 97-732-02 (Independent Spent Fuel Storage ISFSI Installation).
February 17,1998 OGD'S RESPONSE TO WILSON /ALF AMENDED PETITION AND ORDER DATED 2/2/98 ALLOWING PARTICIPANT RESPONSES TO SAID PETITION Pursuant to the order of the Licensing Board dated February 2,1998 petitioner Ohngo Gaudadeh Devia (OGD), by and through their counsel, Jean Belille,2260 Baseline Road, Suite 200, Boulder CO 80302, responds to the Amended Petition of Richard' Wilson (Wilson), Scientists for Secure Waste Storage (SSWS) and the Atlantic Legal Foundation (ALF) which was filed on February 2,1998. For the reasons set forth below, the Petition to Intervene filed by Wi: on, SSWS and ALF should be deilled.
BACKGROUND
' Notice of a proposed 10 CFR Part 72 licensing action by the Nuclear Regulatory Commission (NRC), _was published in the Federal Register en July 31,1997, and afforded interested parties the opportunity to request a hearing and to file a petition to intervene. 62 Fed Reg 41,099 (1977); 10 CFR 92.105. The notice provided, as does the regulations, that, "within thirty (30) days from the date of publication of the notice in the Federal Register,... Any person whose interest may be affected by the proceeding may file a request for a hearing or a petition for leave to intervene."
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regulation,10 CFR 2.105 (e) (2) specifies that only "if a request for a hearing or a petition for leave to intervene h filed within the time prescribed in the notice, (will) the presiding officer... rule on the request and/or petition...and Jssue a notice of hearing or an appropriate order." Thirty (30) days from the date of publication in this instance is September 15,1997. Petitioner's late filed petition for leave to intervene was filed on February 2,1998 more then five (5) months late.
l DISCUSSION A. NRC LACKS REGULATORY AUTHORITY TO ENTERTAIN LATE FILED PETITION l
TO INTERVENE OGD asserts that the presiding officer in this situation does not have regulatory-authority to even entertain the late filed petition to intervene.
i The applicable regulation,10 CFR 2.105 (e) (2) specifies that only "if a request for a hearing or a petition foi leave to intervene is filed within the time prescribed in f
the notice, (will) the presiding officer... rule on the request and/or petition...and issue a -
l notice of hearing or an appropriate order."(Empnasis Added).
B. STANDARDS FOR INTERVENTION BY PROPONENTS There are two means by which a prospective intervenor may be granted the right to intervene in a Nuclear Regulatory Commission (NRC) licensing application proceeding:
(A) Intervention as matter of right; and (B) Intervention as a matter of discretion. Both of these will be discussed below.
- 1. Intervention as a matter of right Standing to intervene in an NRC licensing application proceeding does not depend
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on whether the " litigating posture of the petitioner" is in support of or in opposition to the.
iposition'of the license' applicant. Sea, in the Matter of Nuclear Enaineerina Co.. Inc. 7 NRC 737,743 (1978) [nereinafter Nuclear Engineering]. -Interyention in NRC licerising proceedings le governed by 10 CFR $2.714, which establishes a " test of standing." Sag, T 51 FR 27,158,- 27,160 (1986).L in order to intervene as a' matter of right, a petition'toL H
-intervene must satisfy the traditional _ judicial elements of standing;-(1) the Article-Ill' constitutional requirement of injury in fact, and (2) the prudential requirement of being
- arguably within the zone of interests which the statute ic designed to protect or regulate. -
! Sag, Nuclear Enaineerina. 7 NRC at 740; see also, Portland General Electric Co.c et al.
t
- (Pebble Springs Nuclear Plant,- Units 1 and 2), 4 NRC 610, 613 (1976) [hereinatter
! Pebble Springs). -
Generally,x"when a petitioner can show that is possesses'a substantial interest -
in the outcort.e_ of the proceedings it has a right to intervene." Office of Communication' of United Church of Christ v. Federal Communications Commission,. 359 F.2d 994,1006 l
'(DC Cir.1966). For example,-a party can demonstrate standing "by a showing of its
-right under-the Atomic Energy Act to be made a party, the na+"re and extent of its
- property, financial, or other interest in the proceedings,'and the possible effect of any-order which may be entered in the proceeding on its interest." 51 FR at 27,160.
- However, "a mere academic interest in a matter, without any rea'l impact on the person L
l asserting it," is insufficient to satisfy injt'ry '. fact for purposes of standing to intervene.
Pebble Sorinas. 4 NRC at 613.- Petit!oners make it clear that "none of the petitioners have personal financial or property interests in the proceeding." Their interest is based
. solely _ on s an; assertion of."a desire to ensure th~at the public good be properly 6-g
e considered.".OGD-asserts that this interest is clearly not enough basis to give the petitioners standing of right to intervene.-
2, intervantion as a Matter of Discretion
.The NRC possesses broad discretion to. grant intervention to a petitioner, notwithstanding the requirements of intervention as a matter of right to confer party-status. Factors weighing in favor of discretionary intervention are: (1) the extent to which '
petitioner's contribution will assist in developing a sound record; (2) the _ nature of petitioner's interes't in the proceeding (e.g.,_ property, financial, or other significant interest);-(emphasis added), and (3) the possible adverse effect of any order on petitioner's interest (s). Pebble Sorinas. 4 NRC at 616.
The test for discretionary intervention seems to rest on petitioners interest. Again in this situation it seems that petitioners interest is so tenuous as to not even meet'the factors considered'in discretionary intervention ~ Further, the factors weighing against the grant of discretionary intervention are: (1) the availability of other means to vindicate petitioner's interest; (2) the extent to which retitioner's interest will be adequately represented by existing parties; and (3) the extent to which petitioner's intervention will cause undue broadening of the
' issues or otherwise significantly delay the proceeding. M. Pctitioner has not made a showing that other interested intervenors to this proceeding would not represent petitioner's interests, especially in light of the fact that most of the other petitioner's to intervene have specific local interests that will be significantly effected by this proposed action.' Further, because of the specific interests represented by the all of the other proposed intervenors it is fairly clear that "the public good (will) be properly considered."
- There is also a good possibility that the proposed petitioners will significantly broaden
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the issues primarily because of the fact that steps have already been taken by all
- proposed intervenorn to identify specific issue through the pre hearing conference procedures already held.
C. UNTIMELY INTERVENTION The NRC may exercise its discretion to grant a late filed petition to intervene where it is satisfied that the five-factored balancing test of 10 CFR 62.714(a) has been sustained by the petitioner in favor of intervention.
Sea Citizens for Fair Utili.ty Reaulation v. United State Nuclear Reaulatorv Commission. 898 F.2d 51,54 (5th Cir.
1900) (hereinafter C:3zens).
Petitioner bears the burden of demonstrating that a balancing of these factors militates in favor of the NRC granting the tardy petition to Interveno. See id. It is irrelevant, for rurposes of this determination, "whether the l
petitioner favors, or instcod, opposes the licensing of the facility in question." In the Matter of Lone 'aland Liahtina Co, (Shoreham Nuclear Power Station, Unit 1),18 NRC 387, 396 (1983) [ hereinafter L 1a lstandl,(noting that the "five section 2.714 (a) factors are to be applied in the same manner i.
.e evaluation of all tardy petitions") [ hereinafter Lona Island 1.
Where petitioner cannot demonstrate the first element of " good cause" for failure to file on time, it must "make a compellina showina of the remaining four factors before intes tention is proper." L4 (Emphasis added). While it has been noted that "recent event may be a key factor" bearing upon good cause for late intervention, however, a petitioner is not relieved of.the duty to address the other four factors. See in the Matter of Metrooolitan Edison Co., et al. (Three mile Island Nuclear Station, Unit No.1),18 NRC 327,331 (1983). These other four factors are, in turn, dependent upon whether petitioner 1
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has a " cognizable interest in the proceeding" sufficient to justify untimelyintervention.
M. For instance, generalized assertions of interest in "(a) regulatory matters, (b) the admInistrativo process, anci (c) the development of economicpl energy resources" are insufficient to satisfy the concrete, " particularized interest nccessary for participation."
M. That is, a mere " generalized grievance" does not satisfy the need to " particularize a specific injury" which will result from the " outcome of the proceeding" in order to possess standing to intervene in the administrative process. M. at 332-33.
It has been held that good cause is not demonstrated by the failure of the license applicant or other proponent of the licensee to adequately represent those of the petitioner wishing to intervene in the licensing process. See Citizens,898 F.2d at 55
("NRC precedent consistently and clearly indicates that a potential intervenor cannot rely on another intervenor to present a certain view or represent certain interests without assuming the risk that the Intervenor will not do so"). At the same time, the second and fourth factors "(li) [t]he availability of other means whereby the petitioner's interest will be protected" and (iv) [t]he extent to which the petitioner's interest will be represented by existing parties" - may be considered simultaneously and a prospective intervenor in favor of the license applicant may be denied the right to late intervention where petitioriers intervention woulci not " supplement the applicant's presentation...to any-significant extent." Lona Island.18 NRC at 399. it is also reasonable to assume that an applicant "will present the strongest possible case" for its position in the licensing proceeding M.
Thus, license propor u svho wish to intervene face the difficult burden of establishing that they will substantially coniribute to the proceeding in a non-duplicative
n manner. This bears upon the " third lateness factor"- whether " petitioner's ~ participation might reasonably be expected to assist in developing a sound record." M. Satisfaction of this element requires that petitioner " set out with as much particularity as'possible" the specific issues it wishes to call upon, and the cor..ent of the testimony to be expected from these witnesses. M. This element is of significant weight in the balancing test of section 2.714(a). Where a proponent petitioner falls to show a " capability to supplement slanificantiv the applicant's presentation" and a make a substantial contribution to the administrative record "beyond that to be expected of existing parties [,)" a petition for late intervention may be denied. M. at 400. Here, again it is to be presumed that the applicant itself "would be more then willing to sponsor any expert testimony" bearing upon the license application. M. at 401 Thus, a license proponent bears a stiff burden in establishing that it will substantially contribute to the record in terms of expert testimony.
Finally, the fifth factor, " potential for delay [,]" is of "irnmense importance in the overall balancing process." M. at 402. Although the granting of late intervenor status dictates that petitioner must "take the proceeding as it finds it[,)" this v-
'hted factor at 4
the same time entitles the existing parties to demand that " lateness of u.e intervention not work to their detriment." M. In this case, the technical complexity of prospective petitioner's position is likely to both substantially contribute to the potential for delay in this licensing proceeding and work to the detriment of license opponents like OGD.
CONCLUSION Considering all of the factors mentioned above it seem unlikely that the prospective late petitioners to intervene will are should be able to meet the various tests that must be met
and therefore OGD asks that their late filed petition be denied.-
Dated this 13th day of February,1998.
4 Respectfully Submitted, i
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e n Belille, Attorney for OGD-L nd and Water Fund of the Rockies 260 Baseline Road, Suite 200-Boulder, CO 80302 r
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- Before-the; Atomic. Safety and Licensing Board N FEB 1 7 p y ;4 3 OFFl E Or < > kI$ WlY
' Private: Fuel Storage, a
[y tej//l}p"( $Y D -
Limited' Liability Company;
. Docket No'.:72-22_.ISFS ASLBP. No.' 97-732-02
_ T!;ja *fN '
1 L(Independent. Spent Fuel _
-ISFSI
-_ Storage Installation).
December 15,-1997-CERTIFICATE OF-SERVICE' l-I hereby certify - that copies '. of: the foregoing Response ~ to
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Wilson ALF Amended Petition, were served. on the persons listed below -(unless otherwise noted) by facsimile with conforming copies by US-mail, first class, postage prepaid, this 13th day of-February 4
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1998.
.G. Paul Bollwerk, III, Chairman; Loveless-Administrative Judge les S.' State Street, Suite 1300 Atomic Safety and Licensing Bd.
P.O. Box 11019 U.S. NRC Salt Lake City, UT 84147-0019 i
Washington,'D.C. 20555-0001 Jay E. Silberg,-Esq.
Dr. Peter-S. Lam
- Shaw, Pittman, Potts Administrativ Tudge Trowbridge Atomic Safety and Licensing 2300 N. Street, N.W.
Board Washington, D.C. 20037-8007
, U.S. NRC Washington, DC 20555-0001
- Adjudicatory File Atomic Safety and Licensing Dr. Jerry R. Kline Board Panel Administrative Judge U.S. NRC Atomic Safety and Licensing Bd.
Washington l D.C.
20555
.U.S. NRC Washington, D.C. 20555-0001 Danny Quintana, Esq, Danny Quintana & Associates Skull Valley Band of Goshutes 50 West Broadway, 4th Floor Office of the Secretary Salt Lake City, UT 84101
-Attn:
Ru1emakings Adjudications Staff Catherine L. Marco, Esq.
U.S. NRC Sherwin E. Turk, Esq.
-Washington, D.C. 20555-0001 Office of the General Counsel (Original and two copies)
Mail Stop 0-15 B18 U.S. NRC
- Charles J. Haughney Washington, D.C.
20555 Acting
- Director, Spent Fuel Project Office Richard Wilson, Department of Office of Nuclear Material Physics Safety and Safeguards Harvard University U.S. NRC Cambridge, MA 02138 Washington, DC 20555 John Paul Kennedy, Sr., Esq.
- Sent by US mail only.
Confederated Tribes of Goshute.
and David Pete 1385 Yale Avenue Salt Lake. City, UT 84105 Denise Chancellor, Esq.
Assistant Attorney General 1 Utah Attorney General Office 160 East 300 South, 5th Floor-P.O. Box 140873 Salt Lake City, UT 84114-0873'
-Clayton'J.-Parr, Esq.
Parr, Waddoups, Brown, Gee &
0-f Dated this 13th day of February
- 1998, e
d
~Jedn M.-Belille G
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