ML20206H201
| ML20206H201 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek, 05000000 |
| Issue date: | 02/22/1984 |
| From: | Johnson W NRC |
| To: | Westerman T NRC |
| Shared Package | |
| ML20206G744 | List:
|
| References | |
| FOIA-85-594 NUDOCS 8606250557 | |
| Download: ML20206H201 (1) | |
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- ~_ ATOMIC SAFETY AND LICENSING B0840 MAR 27 P2
- 12 Before Administrative Judges:
Sheldon J. Wolfe, Chairman.__., __ ,,,
Dr. George C. Anderson d~e '
. Dr. Hugh C. Paxton 3 pl,' C :' ? ~; M In the Matter of )
) ASLBP Docket No. 81-453-03 OL KANSAS GAS & ELECTRIC CO. , ET AL. )
) (NRC Docket No. 50-482)
(Wolf Creek Generating Station, ;
Unit No.1) March 26, 1984 MEMORANDUM AND ORDER (Denying NAN's Petition For Leave To Intervene)
MEMORANDUM I Background On December 18, 1980, the Nuclear Regulatory Commission published a Notice of Opportunity for Hearing with respect to Applicants' application for the issuance of an operating license (45 Fed. Reg. 83360). This Notice provided that, by January 19, 1981, "any person whose interest may be affected by this proceeding may file a petition for leave to intervene." The i 2.751a special prehearing conference was held on April 15, 1981. Ultimately, after the completion of discovery, hearings were held January 17-21, January 23-26, and February 14-16, 1984. During these hearings evidence was adduced upon the Intervenors' (Ms. Christy and Ms. Salavas) emergency planning _ contentions. There were no other contested matters. ,
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Meantime, in a letter to the Board of January 5,1984, Ms. Mary Stephens, director of an organization known as Nuclear Awareness Network of Lawrence, Kansas, advised that they intended to submit a late-filed petition to intervene as quickly as possible with respect to quality control /qualit.y assurance. On January 19, 1984, Ms. Stephens, asserting that she had been authorized to represent the members of Nuclear Awareness Network, Inc. (NAN), filed an admittedly untimely Petition For Leave To Intervene And Request For Hearing.
On the last day of the hearing, February 16th, the Board formally I closed the record and directed the parties, including the Federal Emergency Management Agency, to submit proposed findings of fact,
. conclusions 'of law, briefs and a proposed form of order or decision.
However, the Board stated that the closing was conditional and that the record might be reopened because of two recent events. First, the Board noted that, in New England Coalition On Nuclear Pollution, et al. v.
N.R.C. , No. 82-1581 (D.C. Cir. February 7,1984), the Court of Appeals had granted the petition which challenged the Commission's rule to eliminate the need for applicants, which are electric utilities, to establish their financial qualifications. The Board observed that a former party-intervenor in the instant case, Kansans for Sensible Energy, had appealed its dismissal as a party by this Licensing Board, but that the Commission's Appeal Board had held its decision in abeyance pending the result of 'the District of Columbia Court of Appeal's l
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decision.1 Second, the Board noted that to date it had not acted upon NAN's untimely petition for leave to intervene.
On February 3 and February 8, 1984, Applicants and the Staff respectively filed responses opposing the granting of NAN's petition for
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leave to intervene. Pursuant to an unpublished Order of February 9, 1984, NAN, represented by its attorney, filed a response on March 6,
-1984. Applicants' and Staff's counsel advised that they did not wish to 4
respond to NAN's response of March 6th and rested upon their submissions t respectively submitted on February 3rd and February 8th (see unpublished Memorandum, dated March 13,1984).
II Discussion 2 As it must, having filed its petition for leave to intervene exactly three years after the opportunity for timely intervention had expired, NAN admits that the petition is untimely. (Pet., p. 1). NAN 1
In a recent policy statement, the Comission directed its adjudicatory bodies to continue to treat the rule as valid and stated that it expected to complete an adequate response to the D.C. Circuit's decision before- the Court issues its mandate.
. 49 Fed. Reg. 7981 (March 5, 1984). Because of this directive, in a Memorandum and Order of February 28, 1984, the Appeal Board stated that XASE's appeal would continue to be held in a deferred status.
2 In light of our ultimate conclusion that the petitioner should not i -~
be allowed to enter the proceeding at this late date, it is unnecessary for us to reach and decide whether NAN has standing to
! intervene as a matter of right or, lacking standing, whether it ,
meets the criteria established for allowing intervention as a matter of discretion.
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asserts that it is a non-profit Kansas corporation established in 1983 "for the express purpose of providing education, research, lobbying, and testimony on issues relating to nuclear power, waste, and related matters," that two identified members live within twenty miles of the Wolf Creek construction site,3 and that other members live, work and recreate within the Wolf Creek geographic area and have interests that may be affected by the outcome of the proceeding. (Pet., pp. 1-2).
Petitioner further alleges that within the last thirty days (prior to January 19, 1984) six former Wolf Creek workers voluntarily made statements to its director, Ms. Mary Stephens, which "strongly suggest" that 'the Applicants' general contractor has encouraged or permitted procedures and practices contrary to the conditions in the Safety Evaluation Report and applicable federal regulations. Should the Board pennit intervention, it asserts that, based upon these statements, it would timely file contentions alleging:
a) That the deliberate policies practiced and permitted by Daniels Construction Co. as general contractor at Wolf Creek
.are contrary to and make mockery of quality assurance / quality control requirements putatively imposed on this project; b) That construction workers were directed by Daniels' foremen to perform work in safety related areas at variance with established procedures creating doubt as to the physical soundness of the structure; 3 Petitioner attached to its Response of March 6,1984, affidavits of these two members attesting that they had authorized NAN's director
' to file the petition on their behalves. It also attached its director's affidavit which states, inter alia, that she travels and '
recreates within twenty to twenty-five miles of the nuclear facility.
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4 5 c) That Daniels' foremen directed construction workers to mislead quality control personnel and at least one Daniels' foreman forged and falsified work documents for safety related matters.
NAN states that, in support of its contentions relating to the breakdown
_ of quality assurance / quality control, it proffers the testimony of these six former employees of the general contractor. It then procee'ds to identify these six individuals and sumarizes their statements alleging incidences of improper and/or defective quality assurance / quality control. (Pet., pp. 3-7). .
In order to determine whether this untimely petition for leave to I intervene should be allowed, we must balance the five factors set forth in 10 C.F.R. f 2.714(a)(1). In pertinent part, this section provides
'that:
l Any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene . . . . The petition and/or request shall
! be filed not later than the time specified in the notice of hearing
.... 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 . . . :
l (i) Good cause, if any, for failure to file on time.
(ii) The 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 i
record.
l (iv) The extent to which the petitioner's interest will be ,
represented by existing parties. l (v) The extent to which the petitioner's participation will .
broaden the issues or delay the proceeding.
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i - (i) good cause, if any, for failure to file on time Much argument was occasioned by NAN's assertion at page 7 of the
- petition that it was unaware of the existence of these serious 1
allegations until mid-December 1983, when its director was contacted by a representative of the workers, who was not identified by NAN. At page 8 of the petition, however, NAN avers that the construction workers first approached its director in December of 1983. Since these allegations of safety-related violations were not available until these individuals decided to make public this evidence, NAN urges that these i
allegations constituted newly arising information and good cause has been established for its failure to file on time.
! Applicants, however, attached to their Response of February 3, l 1984, a joint affidavit of their QA manager and of their QA management l
j consultant who attest that they had interviewed the six former workers 4
identified by NAN, and that each worker had stated, among other things, that NAN's director had contacted them and that they had not initiated the communication with Ms. Stephens. Applicants' two QA . personnel also attest that (1) each of the- six former workers were sheet metal craftsmen who had worked on heating, ventilating and air conditioning systems and that each had indicated his first-hand knowledge of quality problems at Wolf Creek was limited to HVAC systems, and that (2) each worker had either denied some of the allegations attributed to them by NAN, corrected or revised allegations attributed to them by NAN, and/or i advised that most, if not all, corrective actions had been taken and i
- that they have no present~ safety concerns.- Signed but unsworn
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> statements of four of these fomer workers, as witnessed by the Applicants' QA manager, were also attached to the Response. (Attachs.
2-5). .Accordingly, Applicants argue that since NAN's recounts of allegations are in large part gross misrepresentations and _ since NAN
- initiated contact with the workers (and thus could have done so long ago), good cause has not been established to excuse the belated filing of the petition.4 (Appls.' Response, p. 15). Unaccountably, Applicants did not secure and attach affidavits of the six former workers. Four of
- these- individuals signed unsworn statements; apparently the two remaining individuals declined. Equally inexplicable is the fact that,
! ignoring its assertion at page 8 of its petition, NAN urges that "Nowhere does Petitioner state or imply that the workers contacted" its director. (NAN's Response, p. 3). Moreover, we note that while NAN asserts that "It is certainly true that NAN Director Stephens contacted the referenced six workers but only after and in response to her being cor tacted by their official representative," (Response p. 7),
i Ms. Stephens' affidavit neither addressed nor supported this factual
- allegation. Finally, we note that, again without any explanation -for not doing so, NAN did not reinterview any of the six former workers after receiving Applicants' Response of February 3, 1984, did not append 4
. Relying upon this information received from the Applicants that
. NAN's director had initiated the contacts with the six fomer
, workers and thus could have made these inquiries earlier, the Staff .
was. unwilling to rely upon NAN's primary . justification for its i untimely filing. (Staff's Responsa, p. 10).
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- to its Response counter-statements or affidavits of four of these six individuals if indeed their statements appended to A'pplicants' Response
- were faulty, and/or did not append counter-statements or affidavits of
! all six individuals, if the joint affidavit. of Applicants' QA manager
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and QA management consultant misstated infonnation or drew erroneous Instead, conclusions from the interviews with the s'ix former workers.
{ at page 4. of its Response, NAN attacks the credibility of Applicants' QA ;
' manager and QA management consultant in that it is their . . . QA/0C program [which] is directly challenged by Petitioner." !
l Amidst this swirl of arguments, however, there are undisputed ) '
l facts. First, at page 17 of the joint affidavit, Applicants' QA l manager and QA management consultant attest that Mr. Neil Campbell's allegation of forgery of weld control records by a Daniels Construction Company sheet metal foreman had been the subject of an IE Report 81-10.5 i
Exhibit C, attached to Applicants' Response, contains a Notice of Violation dated' April 21, 1982, and Investigation Report 81-10, the t latter of which, as signed on September 22, 1981, reflects that (a) the investigation of this allegation involved 66 hours by two NRC i
investigators and two NRC inspectors in May, June and August of 1981, 5
Mr. Campbell is one of the six former workers at Wolf Creek identified in NAN's Petition and is alleged to -have made these i
statements to NAN's director. (Pet., p. 5). We have given no
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weight to hearsay statements in the joint affidavit attributed to i have- been made ey him since Applicants failed to submit Mr. '
Campbell's affidavit, and did not even furnish his signed but unsworn statement.
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9 (b) the investigation identified one Weld Control Record Supplement l^_
Sheet which contained nine QC inspector signatures suspected to be forgeries, ( :. , an FBI laboratory analysis confirmed that these
! signatures were forgerias, and (d) that efforts to identify the person responsible for these forged signatures were unproductive. Exhibit E, reflects that Applicants advised that corrective actions were completed on April 16, 1982, and Exhibit I, dated April 12, 1983, reflects that the Commission closed out the violation in IE Report 83-0'J. Second, at page 11 of the joint affidavit, Applicants' two QA personnel attest that Mr. Campbell's allegation that he had been repeatedly ordered to stamp false' D numbers on welds had been the subject of an IE Report 81-12.
Exhibit D, attached to Applicants' Response, contains a Notice of Violation dated April 21, 1982, and Investigation Report 81-12, the latter of which, as signed on September 22, 1981, reflects that' the investigation of this allegation, among others, by two NRC investigators and one NRC inspector took place in June, July and August 1981, and that
! interviews regarding changing of welder identification numbers on HVAC
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hangars confirmed that this had occurred and that no justification for i these actions could be provided. Exhibit F, dated May 21, 1982, reflected that Applicants advised NRC that corrective action would be taken. Exhibit I, dated April 12, 1983, reflects that the NRC inspector reported that, as a result of the number of discrepancies disclosed on 4
120 HVAC hangars / supports, all safety-related hangar supports were 100
- l percent reinspected and that necessary rework had been completed on -
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Third, said -QA personnel attested at page 13 of the
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_ January 20, 1983.
joint affidavit that IE Reports 81-10 and 81-12 had 'been placed in the local NRC Public Document Room in May,1982, and that, as reflected in attached Exhibit L, newspaper articles of April 23, 1981, of April 30, l 1982, and of May 3 and May 5,1982 had addressed these violations and investigations.
Relying on these facts, not disputed M W ?? ith ivosequent response, Applicants argue that NAM has failed to show good cause
, because " Petitioner does not explain why it did not seek out workers or other sources of QA/QC information years ago on the basis of available l information." (Appis.' Response, p. 15). NAN's rejoinder at page 4 of 4 its Responsa is that:
. . . Applicant, having at this point abandoned cocinon sense, would have this Board craft an impossible standard. Applicant's argument would, if adopted, require prospective intervenors to not only scour newspaper accounts and voluminous NRC-reouired filings, but to conduct daily exit-interviews at the construction site. Only in
,t that way could Petitioner have learned of the complained-of work on safety-related plant . . .
i We are-guided by the Appeal Board which has held 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.0 i
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South Carolina Electric and Gas Company (Virgil C. Sumer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 887 n.5 (1981).
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- However, here not only are the controlling facts uncontroverted by NAN's affidavits and thus ones which we must take as true,7 but NAN concedes that it could have learned of QA/QC problems by looking at newspaper accounts and the submissions required by the NRC. At least as early as April 1981, via the newspaper account, and by no later than May 1982, via placements of the Inspection and Enforcement Reports in the local public document room, NAN knew or should have known of these problems.
Instead of acting promptly, NAN waited until January 19, 1984 before-filing its petition for leave to intervene out-of-time. Intervenors are required to diligently uncover and apply all publicly available information.8 Moreover, if it is NAN's position that its newly acquired organizational existence in 1983 was sufficient to justify belated intervention, such an explanation for the tardy filing cannot carry the day because the necessary consequence would be that the parties to the proceeding would never be determined with certainty until the final 7
Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit -
No. 2), ALAB-420, 6 NRC 8, 13 (1977), aff'd, CLI-78-12, 7 NRC 939 (1978).
8 Duke Power Comoany (Catawba Nuclear Station, Units 1 and 2),
CLI-83-19, 17 NRC 1041,1048 (1983). While this and other cases are addressed to non-timely filing of contentions, these ' decisions of the Commission and the Appeal Board have equal application to nontimely petitions to intervene. Long Island Lighting Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 117, aff'd, ALAB-743,18 NRC 387 (1983).
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curtain fell . Assuredly, no adjudicatory process could be conducted in an orderly and expeditious manner if subjected to such a handicap.9 We conclude that NAN's tardiness was unjustified, and, in these circumstances where no good excuse is tendered, the petitioner's demonstration on the four other factors must be particularly strong.10 (ii) (iv) the availability of other means whereby the petitioner's interest will be protected, and the.
extent to which the petitioner's interest will be represented by existing parties.
It is clear that these two factors must be weighed in NAN's favor.
There is no issue other than the matter of emergency planning which has been litigated in this proceeding. However, these two factors are of relatively minor importance.11
. (iii) the extent to which petitioner's participation may reasonably be expected to assist in developing a sound record.
The Petition does not tell us clearly whether NAN intends to present as witnesses the six former workers and, as indicated above, we are concerned that, without explanation, NAN's Response of March 6th did ,
I not even advert to the written statements appended to Applicants' 9 Carolina Power and Light Comoany (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9-NRC 122, 124 (1979).
10 Mississipoi Power & Light Comoany (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC-1725, 1730 (158,".); . Duke Power Com)any (Perkins Nuclear Station, Units 1, 2 and - 3) , ALAB-431,
~ 6 NRC 460,'462 (1977). ,
l 11 Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit- 2), -
ALAB-707, 16 NRC 1750, 1767 (1982).
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Response of February 3, 1984. Moreover, while NAN' asserts that its members possess technical expertise in relevant -areas . and that its counsel is experienced as a former Deputy General Counsel to the Kansas Corporation Commission and that he would be assisted by four co-counsel whose experience includes, inter alia, active participation in the earlier Wolf Creek construction hearings, (Pet. , p.10; Response, p. 7),
we weigh this factor against the Petitioner. We have before us only NAN's conclusional assertions and thus, NAN did not sustain its burden with respect to this factor. It is the ability to contribute sound evidence - rather than asserted legal skills - that is of significance in considering a late-filed petition to intervene.12 Moreover, the QA/QC issue' that NAN would litigate here bears no resemblance to any contested issue that confronted the Licensing Board in the construction I permit proceeding.13 Finally, we are not told that NAN's members are experts in QA/QC matters.
(v) the extent to which the petitioner's participe ion will broaden the issues or delay the proceeding, t
NAN admits that, if its petition for leave to intervene is granted and its contentions are thereafter admitted, the issues before the Board 1
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will necessarily be broadened, the parties will require time to prepare 12
. Houston Lighting and Power comoany (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671,15 NRC 508, 513 n.14 (1982).
13 Long Island Lighting Comoany (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 401 (1983).
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for the hearing and the hearing will likely be extended for a period of months. (Pet., p. 11).
This factor must be weighed against NAN.
III Conclusion Because of the lack of availability of other means to protect its interest and because its interest will not be represented b
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y existing parties, factors (11) and (iv) weigh in NAN's favor.
However, these two factors are of relatively minor importance.
The important other factors (i, iii and v) must be weighed against NAN and decisively ti balance against permitting intervention at this late date .
ORDER Nuclear Awareness Network Inc. 's Petition For Leave To Intervene And Request For Hearing is denied.
Pursuant to 10 C.F.R. 5 2.714a, within ten (10) days after the service of this Memorandum r er, NAN and O may appeal to the Atomic Safety and Licensing Appeal Board .
Judges Anderson and Paxton join but werenunavailable issuance. this to
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FOR THE ATOMIC SAFETY AND LICENSING BOARD NMb C4 Sheldon J. K l fe , ChKi nnari ADMINISTRAT WI JUDGE Dated at Bethesda, Maryland this 26th day of March,1984.
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