ML20203L587
| ML20203L587 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 04/28/1986 |
| From: | Conner T, Nichols N, Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20203L563 | List: |
| References | |
| OLA-OLA-2, NUDOCS 8605010307 | |
| Download: ML20203L587 (16) | |
Text
4 44 NUCLEAR REGUIATORY CCPNISSIQlg Before the Atmic Safety and Licensirgt 1 'N y'./ -
In the Matter of )
) Docket No. 50-352-efA Philadelphia Electric Ccmpany ) (Check Valve) 01 /4 O O.
f
) Docket No. 50-352-GEA-t (Limerick Generating Station, ) (Contalment Isolation)
Unit 1) ) March 19, 1986 LICENSEE'S MNICN FOR DIRECTTD CERTIFICATION OF THE "MENORANDtM AND ORDER RULING CN ROBERP L. ANIHONY'S PETITICN EOR LEAVE TO INIERVENE" '
Troy B. Conner Jr.
Robert M. Rader Nils N. Nichols Conner & Wetterhahn, P.C.
Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 Counsel for the Licensee Philadelphia Electric Ccmpany Of Counsel:
Edward G. Bauer, Jr.
Eugene J. Bradley 2301 Market Street Philadelphia, PA 19101 8605010307 86042832 PDR ADOCK 050 G
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Arctunent I. The Board Erred in Permitting Late Intervention Because Petitioner Wholly Failed to Address the Five Mandatorv Lateness Criteria.
Boards have discretion in weighing the five lateress factors, but under 10 C.F.R. 52.714 (a) (1) (i)-(v) , the principles governing admission of late-filed petitions are theselves well-defined and understood.15/
In this case, a licensing board has not sinply abused its discretion in weighing the five lateness criteria. Rather, it has ignored the unambiguous mandate of the regulations. Because Mr. Anthony's petition is wholly devoid of g discussion of the five factors, the Board was obliged by regulation and precedent to dismiss it out of hand. Instead, the Board engaged in an improper sua sponte develognent of argtunents on 15/ Section 2.714(a) (1) provides in relevant part:
Nontimely filings will not be entertained absent a determination . . . that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in Paragraph (d) of this section:
(i) Good cause, if any, for failure to file on time.
(ii) me availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be presented by existing parties.
(v) he extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Mr. Anthony's behalf based on its own perceptions. Such action was ccmpletely unjustified, especially here, inaeuch as "Mr. Anthony was a long-time intervenor in the Limerick operating license proceeding."16/
Mr. Anthony was therefore fully conversant with the requirenent under the regulations to address the five lateness factors.
Virtually the same situation recently arose in the Pilgrim license amendment pr W ing. Like Mr. Anthony, the petitioner in that case was a veteran intervenor in h% proceedines. Nonetheless, he did not discuss the lateness factors in his petition, which was filed several days beyond the deadline noticed in the Federal Register, again, like Mr. Anthony. The Appeal Board affirmed denial of the petition. It held: "[G]iven [ petitioner's] failure even to address the section 2.714 (a) lateness factors, his intervention petition was correctly denied because it was untimely."El The Appeal Board rejected petition-er's claim that he had no duty to address lateness until it was raised as a defense by the NRC Staff and licensee.
'Ihe ruling in the instant case is so patently contrary to the Pilcrim ruling as to warrant sumary reversal:
'Ihere is no conceivable writ to (petitioner's]
claim that his duty to confront the five lateness factors did not materialize until after the appli-cant and the staff had respeuded to the intervention petition and raised the matter of its untimeliness. . . . In short, it is of no conse-quence whether, in an opposition to the late peti-tion, one of the other litigants points to the 1_6/ " Memorandum and Order Ruling on Anthony Petition" at 6.
E/ Boston Edison Ccrpany (Pilgrim Nuclear Power Station), AIAB-816, 22 NRC 461, 465-66 (1985), aff'q, LBP-85-24, 22 NPC 97 (1985)
(emphasis added) .
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unH n=11 ness. Even if all of .the parties are inclined to waive the tardiness, the board neverthe-less is duty-bound to deny the petition on its own initiative unless it is persuaded that, on balance, the lateness factors point in the opposite direc-tion.
It is equally clear that the burden of persuasion on the lateness factors is on the tardy petitioner and that, in order to discharge that burden, _the petitioner nust come to grips with those factors in the petition itself. The underlying reason for this requirement is particularly apparent in the context of the first factor. A licensing board hardly could determine whether there was justification for the untimely filing without knowing why the petition was not sutrtitted by the prescribed deadline - informa-tion peculiarly within the possession of the peti-tiener. Likewise, in nest instances at least the board will not be able to assess confidently the third factor (the extent to which the petitioner's participation may reasonably be expected to assist in developing a scund record) without having before it the petitioner's reasons for believing that the factor weighs in his or her favor.18,/
In sum, the Appeal Board reaffirmed that petitioner's " obligation is to establish affirmatively at the threshold (i.e., in the late petition itself) that a balancing of the five lateness factors warrants overlook-ing the tardiness." E
'Ihis is nothing new. 'Ihe Appeal Board erphasized years ago in Perkins that "the late petitioner nust address each of those five factors ard affirmatively demonstrate that, on balance, they favor l 18/ Pilgrim, supra, AIAB-816, 22 hTC at 466 (enphasis added) (footnotes cr:titted) .
19/ Id. at 467 n.22 (enphasis added) . _S_ee generally 10 C.F.R. 52.732; Metropolitan Edison Ccrnpany ('Ihree Mile Island Nuclear Station, Unit No.1), CLI-83-25,18 NPC 327, 331 (1983) .
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permitting his tardy admission to the pr* Lng."2_0/ Moreover, Mr.
Anthony is no stranger to NBC procedures and requiranents under the Rules of Practice. He actively participated as an inten*enor in the Limerick operating license proceeding2 1/ and has previously had to deal with the lateness facters, for exanple, in two requests in 1985 to reopen the record in the operating license proceeding for Limerick. E Therefore, Mr. Anthony, by personal knowledge and experience, was well versed in the rules, specifically the requirement that he must address the five lateness factors. Mr. Anthony's status is indistinguishable frm that of the petitioner in Pilgrim, also "by no means a newcaner to NBC licensing prmaadings" who nonetheless " paid no heed to [the] admonition" in the Federal Pegister notice that the five lateness factors cust be addressed.23/ Mr. Anthony's petition should have been denied on this ground alone.
-20/ Duke Power Capany (Perkins Nuclear Station, Units 1, 2 and 3) ,
ALAB-615,12 h% 350, 352 (1980) (enphasis added) .
-21/ Limerick, supra, LBP-82-43A,15 NBC 1423,1440 (1982) . In addition
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to his participation in licensing proceedings since 1981, Mr.
Anthony has filed several motions for stays and to reopen proceedings (discussed infra), at least five petitions under 10 C.F.R. 52.206 (see note 38,_ infra) , and two notions for stays in the United States Court of Appeals for the Third Circuit (Anthony
- v. hTC, No. 85-3606 (3d Cir. Novenber 26, 1985); Anthony v. NBC, No. 84-3409 (3d Cir. Decernber 21, 1984)), all of which have been denied.
E/ See Limerick, supra, ALAB-828, 23 NBC _ (January 16, 1986) (slip op. at 10); L_imerick, supra, AIAB-823, 22 NBC 773 (1985) .
2J/ PJlgrim, i supra, AIAB-816, 22 NBC at 467.
II. The Licensing Board Ignored the Federal Register Act and Erred in Finding " Good Cause" for Lateness.
By excusing Mr. Anthony frczn his affirmative obligation, the Licensing Board necessarily inferred reasons and arguments Mr. Anthony never made on his own behalf, even finding in his favor where it acknowledged that the record is blank. This inpermissively reversed the burden of proof. On the first factor, good cause for lateness, it is difficult to discern what actually constitutes the " good cause" found to justify Mr. Anthony's untimeliness.
Initially, the Board erred in considering Pr. Anthony's letter of January 30, 1986 as a petition in response to the published notice in determining timeliness.24/ As the Board accurately stated, that letter was rejected by the Office of the Secretary and the General Counsel for nonccupliance with specific requirernents for accepting docketed mat-ters.E# k1hile the Board disclaimed any intent to overrule that action,26/ that is precisely what it did by relying on the undocketed letter.EI It is irrelevant whether the Board regarded the January 30th letter as functional, ccmprehensible or otherwise informative of Mr.
2_4/ See "Memorandun and Order Ruling on Anthony Petition" at 4.
25,/ Id,. at 2. See, note 11, supra.
26/ Id. at 5 n.3.
2_7/ Id. at 3. The Office of the Secretary is the Ccmnission's delegate Tdr maintaining its official docket. 10 C.F.R. 51.33. The Office of the General Counsel has been delegated responsibility to provide legal advice and assistance to the Ccanission's offices. 10 C.F.R. 51.32. As such, the Secretary, as guided by the General Counsel, had every right and responsibility to reject Mr. Anthony's January 30, 1986 letter as in violation of docketing requirsents.
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Anthony's " intervention intentions."28/ Inaanuch as it was never docketed, the letter failed to toll the tine for filing a petition to intervene.E/ For the Board's purposes, it was a legal nullity. 0,/
As the Board accurately stated, Mr. Anthony did not even acknowl-edge that his January 30th letter was late. It nust be etphasi::ed that nowhere in either his January 30th letter or his February 5th petition did Mr. Anthony address lateness or any of the five factors for admit-ting late-filed petitions. Nonetheless, the Board credited Mr. Anthony with prevailing on the " good cause" factor because he " alludes to a possible good cause justification by explaining that he could not have l
responded any earlier" since the ncnthly NBC notice did not reach him t
until January 29, 1986.31/ The Board therefore illegally acted sua sponte to relieve Mr. Anthony of his affirmative obligation to justify his lateness.
28/ "Menorandum and Order Ruling on Anthony Petition" at 4-5.
H / See 10 C.F.R. 52.709.
30/ Even if the Board could have legally considered the January 30th 1986 letter as an attetpted filing in order to judge " good cause" for lateness, it erred in not taking the further step of determining whether the letter constituted a good faith, bora fide effort to file a valid petition. As the Board noted, Mr. Anthony is a veteran of NBC proceedings and is by now fully conversant with the Camission's pleading requirenents. He has been repeatedly admonished on the importance of cmplying with the Camission's procedural rules for filing documents, including a specific warning that future filings not in conformance with the Rules of Practice "will be subject to sunrnary rejection." Limerick, supra, ALAB
" Order" (August 5,1985) (slip op at 3) . Therefore, objectively speaking, Mr. Anthony had no reason to believe that his January 30th letter met filing requirements.
31/ "Memorandun and Order Ruling on Anthony Petition" at 5 (enphasis aMarl) .
Even so, the Board's analysis was predicated upon clear legal error. Although acknowledging that publication in the Federal Register gives legal notice of hE actions, the Board reached the startling cocclusion that Mr. Anthony should be excused frm the binding effect of the license ie di=it notice because Mr. Anthony was a long-time intervenor in the Limerick operating license pr W ing. In fairness, Mr. Anthony should not have had to monitor the Federal Register to learn about his opportunity to participate in this amendment proceeding, especially when the notice was published so soon after the application.3/
This constitutes clear error. To state that Mr. Anthony was at liberty to ignore legal notices on Limerick in the Federal Begister because he participated in earlier NBC proceedirgs makes a mockery of the Federal Register Act and is highly prejudicial to the rights of Licensee. If the Licensing Board's decision were allowed to stand, no Comnission licensing action would be safe frm late attacks by individuals who had intervened in previous proceedings.
The Federal Register Act explicitly provides that publication constitutes notice to "all persens residirs within the States of the Union."E Years ago, the United States Supreme Court held in Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-85 (1947), that publication in the Federal Begister gives legal notice to all citizens.
I As aptly stated in the Seabronk proceeding, publication in the Federal Begister to parties wishing to intervene in hearings before the h% "is 32/ Id. at 6-7.
3 3_3/ 44 U.S.C. 51508.
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a notice to all the world."34/ The Licensing Board's contrary ntling violates an unbroken line of Camission precedents by which filing daadlines are those noticed in the Federal Register. N
'Ihe Board's error arcse frm its reliance in part upon the Staff practice of mailing out monthly cmpilations of previously published notices, above and beyond the 30-day Federal Pegister notice required by the Ccmission's regulations. It also based its decision upon the fact I
that the NBC technical Staff acted on the application with cmpetent, timely approval.E# No basis exists under the Federal Register Act or the ccmmission's regulations fer the Board to have given Mr. Anthony additional time to file his petition because of the Staff's voluntarily initiated practice of sending notices to intervenors in the operating license proceeding. No legal nexus between the operating license proceeding and the subsequent zuwdre_nt proceedings exists.
Mditionally, the Board incorrectly failed to charge Mr. Anthony with actual notice of the anendment application when served upon him on December 18, 1985 by Licensee. It noted that " notice of the application 34/ Seabrock, supra, LEP-82-76,16 hK 1029,1085 (1982) .
M/ See, e.E, Maine Yankee Atmic Power Ccrpany (Maine Yankee Atmic Power Station) , LBP-82-4,15 NPC 199, 201 (1982); Florida Power and
_ Light Ccmpany (Turkey Point Nuclear Generating Station, Units 3 and
- 4) , IEP-79-21, 10 NBC 183, 192 (1979); New England Power & Light Ccmpany (NEP, Units 1 and 2), LEP-78-18, 7 NFC 932, 933-34 (1978) .
H/ "Memorandm and Order Ruling on Anthony Petition" at 6-7. 'Ihe Board erroneously stated that the Staff "inplies that Mr. Anthony was entitled to receive a copy of the Federal Register notice when it was published." Id. at 7 'Ihe Staff took no such position. It merely noted that iFinadvertently reglected to send Mr. Anthony the monthly ccmpilation of notices under the practice the Staff recently elected to institute.
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for the amendment is not notice of the opportunity for a hearing on the amenchant."E The Board's reasoning overlooked the obvious: Mr.
Anthony had the application in hand and was well aware of intervention rights fra previous experience. If the application truly concerned him, Mr. Anthony was duly alerted to check the Federal Register or at least contact the hK.E The Board's extraordinary leniency to Mr.
Anthony on notice and lateness far exceeds its discretion.
'Ihe Board's astounding conclusion that Mr. Anthony was entitled to greater notice privileges because he was a "long-time intervenor in the Limerick operating license proceeding"39/ defies explanation. To the contrary, boards have repeatedly ruled that veteran intervenors are charoed with areater, not lesser, knowledge of the rules. The Appeal Board recently reiterated this very point in the Pilgrim case, discussed above, where a long-time intervenor in NPC prrv'aadtngs ignored the amaline for timely intervention given in a Federal Register notice.
The petitioner did not contest the finding that his petition, filed eight days late, was untimely.E In affirming the denial of the late petition, the Appeal Board did not state that it was " unfair" to hold 37/ "Mernorandm and Order Ruling on Anthony Petition" at 6.
, 38/
8 Licensee notes that Mr. Anthony has routinely contacted the hT Staff, both formally and informally, on numerous occasions. Fecent decisions by the Director of the Office of Nuclear Reactor Pagulation discuss only a fraction of illustrative cczmunications.
Lirierick, supra, DD-86-01, 23 NPC (January 21, 1986);
Limerick, supra, DD-8 5-1,' . 22 hr 876- TI985) Limerick, supra, DD-85-ll, 22 NT 149 (1985) .
3_9/ "Munorandtzn and Order Ruling on Anthony Petition" at 6.
4_0/ See generally Pilgrim, supra, LBP-85-24, 22 NPC 97 (1985) .
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a petitioner to the riaariline noticed in the Federal Register even though he was "only" eight days late, like Mr. Anthony, who filed ten days late.b On the contrary, both Mr. Anthony and petitioner in Pilgrim
" fully apprehended the reach of the affirmative obligation inposed upon the petitioner who appears on the scene after the prescribed deadline has passed."i2/
In ruling that "Mr. Anthony has demonstrated good cause for the slightly late filing," SI the Board erred in confusing " good cause" for lateness with degree- of lateness. Mr. Anthony stated no justification for missing the Federal Pegister deadline. In Sumer, the Appeal Board stressed that "whether there is ' good cause' for a late filing depends wholly upon the substantiality of the reasons assigned for not having filed at an earlier date."E# As the Appeal Board found in Pilgrifn, lateness of "enly" a few days does not equal good cause for the late-ness.
If the rule were otherwise, the Federal Pegister Act and the Ccrrtission's regulations gcverning notice would be crfectively abolished.
I 41/ Pilgrim, supra, AIAB-816, 22 NPC at 466-68. Mr. Anthony did not file a time:.y petition until February 5,1986.
42/ Id. at 468.
g/ "Mancrandian and Order Ruling cn Anthony Petition" at 7.
M/ South Carolina Electric and Gas Ccmpany (Virgil C. Sumer Nuclear
, Station, Unit 1) , AIAB-642,13 NBC 881, 887 n.5 (1981) (enphasis in original), aff'd sub ncn. Fairfield United Action v. NRC, 679 F.2d i 261 (D.C. Cir.1982) . The Appeal Board repeated this admonition in Perry, supra, AIAB-675,15 NBC at 1113 n.9.
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III. The Board Erred in Evaluating the Ibunaining Four Lateness Factors.
Inamuch as Mr. Anthony did not address any of the lateness fac-tors, the Licensing Board's evaluation was necessarily conclusory and unsubstantiated. In reality, the record developed by petitioner was totally silent and all five factors therefore weighed against him as a matter of law. Preliminarily, however, the Board ruled that "[wlith good cause shown for late filing, Mr. Anthony has a light burden on the other four factors to be balanced for late-filed petitions."E The Board cited no authority for this novel proposition. 'Ihe Board's i++r standard thereby violated the regulations by excusing Mr.
Anthony frca the requisite showing on all of the lateness factors.46/
As the Ccrnission expressly stated in %ree Mile Island: "While recent events may be a key factor in establishing ' good cause' for late inter-vention, they do not relieve (petitioner) of the obligation to address the other factors."El On the second factor, the Licensing Eoard stated in conclusory fashion that there are no other means by which Mr. Anthony's interest may be protected. The Board apparently did not consider the recent decision of the Appeal Beard in Liverick that reliance upon the NRC i
45/ "Mesnorandtn and Order Ruling on Anthony Petition" at 7.
46/ In S_eabrook, for instance, the Ccmedssion reaffirmed its interpretation "that the admissibility of a late-filed contention nust be determined by a balancing of all five of the late intervention factors in 10 C.F.R. 52.714 (a) . " Seabrook, supra, CLI-83-23,18 57C 311, 312 (1983) (ertphasis in original) .
47/ Three Mile Island, supra, CLI-83-25, 18 NPC at 331.
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a Staff may constitute sufficient "other means," depending upon the issues sought to be raised, the relief requested and the stage of the proceed-ing.48/ As the Appeal Board observed in Fermi, a party unable to gain admittance to a proceeding may request the Director of Nuclear Regu-lation under 10 C.F.R. 52.206 to institute a proceeding to address its concerns. 'Ihis alternative remedy "is a real one."b In this instance, Mr. Anthony has, in fact, sought relief fran the Ccurission related to the subject amendment, which the Ccmmission has referred to the Director under 10 C.F.R. 52.206.E Inasrtuch as the Staff has already prepared a detailed, written safety evaluation on Amendment No. 1, it is clear that it has acted and will continue to act in protection of any interest asserted by Mr. Anthony. In Pilgrim, the Appeal Board, while not directly addressing the second factor, stated a relevant consideration.
Among other things, it does not appear that = M 14ng (petitioner] with the consequences of his own dereliction might result in a possibly serious safety problan escaping proper scrutiny. While the merits of the proposed license amendment are not 4_8/ Limerick, supra, AIAB-828, 23 NBC (January 16, 1986) (slip op.
at 12).
-49/ Detroit Edison Ccrpany (Enrico Fermi Atcnic Power Plant, Unit 2) ,
AIAB-707,16 NPC 1760,1767 (1982) . Mr. Anthony has filed at least five such requests known to Licensee, including three which resulted in formal decisions. See note 38, supra.
50f0 On February 12, 1986, Mr. Anthony filed a petition with the Ccmnission seeking review and revocation of Amendrrent No. 1 and petitioning for an unediately effective stay. On February 27, 1986, Mr. Anthony filed a petition to suspend the operating license for Limerick pursuant to 10 C.F.R. 550.100 alleging, inter alia, that the NPC acted illegally in issuing Amendment Nos. 1 and 2. We have been advised by the NPC Staff that the Ccmnission has referred both matters to the Director for disposition.
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a before us, it can be said at this juncture that we neither have been provided with nor know of any technical basis for questioning the staff's judgment that if approved by it, the (proposed amendment]
will furnish an adequate margin of safety.5_1,/
1 Likewise here, the operating license amendment granting a brief exten-sion of time to conduct routine surveillance tests is a routine action with no significant safety implications. The Staff will continue, to protect the interests of the psblic, including Mr. Anthony, even in the absence of an adjudication.
On the third factor, the Board flatly stated that it "has no information about whether Mr. Anthony's participation would assist in developingasoundrecord."E Here again, the Boarti violated the regu-lations by relieving Mr. Anthony of his burden of proof. As the Appeal Board stated in Pilgrim, "the board will not be able to assess confi-dently the third factor . . . without having before it the petitioner's reasons for believing that the factor weighs in his or her favor."E#
In the Catawba proceeding, the Appeal Board rejected intervenors' argtment that their past effectiveness in participating on other issues in the proceeding provided a basis for concluding that they could assist in developing a sound record on a late contention. Tre Appeal Board stated:
Such a bare assertion, unsupported by specific information frcm which a Board could draw an in-formed inference that the intervenors can and will H/ Pilgrim, supra, AIAB-816, 22 NPC at 468.
H/ " Memorandum and Order Ruling on Anthony Petition" at 7.
5_3/ Pilgrim, supra, AIAB-816, 22 NPC at 466.
make a valuable contribution on a particular issue in this prmaaiing, will not suffice.54/
Mr. Anthony does not even fare that well. He did not cite his prior participation as evidence of an ability to enhance the record. He made no personal claim of expertise in analyzing the potential for significant safety hazards associated with the subject operating license amendment. Nor did he provide the names of any prospective expert witnesses and a sumary of their proposed testimony, as required by the Appeal Board in Grand Gulf.5 On the fourth criterion, the Board similarly found in conclusory fashion that there is no other party which will represent Mr. Anthony's interests. For the reasons discussed abcnte, the NRC Staff, which thorcughly evaluated safety and environmental considerations of the subject wwA.=nt as required under 10 C.F.R. 5550.91 and 50.92, would adequately represent Mr. Anthony's interest if there were a hearing on the challenged amendment. In any event, the second and fourth lateness factors are entitled to substantially less weight. N#
On the fifth factor, the Board correctly noted that if it denied the petition there would be no hearina and, therefore, that Mr.
54/ Duke Power Ccmpany (Catawba Nuclear Station, Units 1 and 2) ,
AIAB-813, 22 NRC 59, 85 (1985) (enphasis added) .
5_5/ Mississippi Power & Light Ccmpany (Grand Gulf Nuclear Station, Units 1 and 2) , AIAB-704, 16 hPC 1725, 1730 (1982). See also Washington Public Power Supply Systsu (WPPSS Nuclear Pro]ect No.
- 3) , ALAB-747, 18 NBC 1167, 1177 (1983); Iong Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit 1), AIAB-743,18 NRC 387, 399 (1983).
5_6/
6 Sumer, supra, AIAB-642,13 NBC at 894-95.
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Anthony's " participation necessarily will broaden the issues."57/ h Board ruled, however, that "since the amendment is already in force, his participation will not delay the proceeding."58/ The Board thereby violated the clear adttonition of the Appeal Board in several cases that it is delay of the proceedine, not delay in licensing, which is control-ling.E Also, by considering whether any other " harm" would result by permitting a hearing, the Board ing=missibly introduced an extraneous factor into the lateness test. h regulation deems delay in the
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proceeding harm enough without proof of other adverse consequences.
Even so, the Board totally ignored the expenditure of hearing time and expense on the part cf Licensee in defending against the challenge. The extraordinary prejudice of defending its case at a hearing when none is r
truly required obviously constitutes palpable harm to Licensee.
IV. The Appeal Board Should Direct Certification of the Licensing Board's Manifestly Erroneous "Mercrandum and Order" for Review Now.
Ordinarily, a party seeks review of a licensing board's order granting or denying intervention after the board has determined that petitioner has pleaded at least one valid contention.60/ In this instance, the normal appellate route under 10 C.F.R. 52.714a will not
, 5_7/ "Mmorandum and Order Rui:I: on Anthony Petition" at 7.
58/ Id.
5_9/ E.g., Limerick, supra, ALAB-828, 23 NBC (January 16, 1986)
(slip op. at 15) .
60/ See e.g. , WPPSS, supra, AIAB-747, 18 NPC at 1170 n.5, Sunner,
_ supra, ALAB-642, 13 NPC at 884.
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