ML20245D543
| ML20245D543 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/27/1988 |
| From: | Charemagne Grimes NRC OFFICE OF SPECIAL PROJECTS |
| To: | Counsil W TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| Shared Package | |
| ML20244D911 | List: |
| References | |
| FOIA-89-52 NUDOCS 8808050191 | |
| Download: ML20245D543 (3) | |
Text
{{#Wiki_filter:_ _ --_ _ - _- __-_ f V%q%*j p. l UNITED $TATES !' >,,{; NUCLEAR REGULATORY COMMISSION wAsmuotou. o. c. rosss / July 27, 1958 Docket Nos. 50-445 and 50-446 Mr. W. G. Counsil Executive Vice President TU Electric 400 North Olive Street, Lock Box 81 Dallas, Texas 75201
Dear Mr. Counsil:
On July 22, 1988, a meeting was held in Region IV to discuss the NRC obliga-tions under the Joint Stipulation signed by the NRC, CASE, and TV Electric. The meeting was attended by R. F. Warnick and H. H. Livermore of the Office of Special Projects; L. J. Callan, R. L. Bangart, J. P. Jaudon, V. L. Miller, and I. Barnes of Region IV; 8. P. Garde of CASE; and R. D. Walker, R. P. Baker, D. k. Woodlan. S. S. Palmer, and J. S. Marshall of TV Electric. The meeting focused on paracraph A.9 of the Joint Stipulation which states, in part, that "TU Electric shall provide CASE with prior notice of an opportunity to attend all monthly exit meetings related to NRC Staff inspections of CPSES until at least 1993, all exit meetings for hRC Staff inspections related to the CAP, and all formally noticed meetings between NRC and TU Electric until at least 1993." It was explained and agreed that the phrases about exit meetings were meant to include all hRC Exits except security and safeguards and that the phrase regarding all formally noticed meetings excludes enforcement conferences. TU Electric requested, and the NRC agreed, that NRC notices of meetings with TU Electric will be faxed to TU Electric Licensing in Dallas so that TU Electric can notify CASE as provided in the joint stipulation. In addition, the NRC onsite inspection staff will notify TV Electric licensing (R. P. Baker) when inspection exits are scheduled so that TV Electric can notify CASE. Sincerely. C.1. Grimes, Director Comanche Peak Project Division Office of Special Projects cc: See next page ~ N l$) ~ -1# g/
I W. G. Counsil Comanche Peak Steam Electric Station Texas Utilities Electric Company Units 1 and 2 CC* Jack R. Newman, Esq. Asst. Director for Inspec. Programs Newman & Holtzinger, P.C. Comanche Peak Project Division Suite 1000 U.S. Nuclear Regulatory Commission 1615 L Street, N.W. P. O. Bax 1029 Washington, D.C. 20036 Granbury, Texas 76048 Robert A. Wooldridge, Esq. Regional Administrator, Region IV Worsham, forsythe, Sampels & U.S. Nuclear Regulatory Commission Wooldridge 611 Ryan Plaza Drive, Suite 1000 2001 Bryan Tower Suite 2500 Arlington, Texas 76011 Dallas, Texas 75201 Lanny A. Sinkin Mr. Homer C. Schmidt Christic Institute Director of Nuclear Services 1324 North Capitol Street Texas Utilitiss Electric Company Washington, D.C. 20002 Skyway Tower 400 North Olive Street, L.B. 81 Ms. Billie Pirner Garde. Esq. Dallas, Texas 75201 Government Accountability Project Midwest Office Mr. R. W. Ackley 104 East Wisconsin Avenue Stone & Webster Appleton, Wisconsin 54911 Comanche Peak Steam Electric Station P. O. Box 1002 David R. Pigott, Esq. Glen Rose. Texas 76043 Orrick, Herrington & Sutcliffe 600 Montgomery Street Mr. J. L. Vota San Francisco, California 94111 Westinghouse Electric Corporation P. O. Box 355 Anthony Z. Roisman, Esq. Pittsburgh, Pennsylvania 15230 Suite 600 1401 New York Avenue, NW Susan M. Theisen Washington, D.C. 20005 Assistant Attorney General Environmental Protection Division Robert Jablon P. O. Box 12548, Capitol Station Bonnie S. Blair Austin, Texas 78711-1548 Spiegel & McDiarmid 1350 New York Avenue, NW t Mrs. Juanita Ellis, President Washington, D.C. 20005-4798 Citizens Association for Sound Energy 1426 South Polk George A. Parker, Chairman Dallas, Texas 75224 Public Utility Comnittee Senior Citizens Alliance Of Ms. Noney H. Williams Tarrant County, Inc. CYGNA Energy Services 6048 Wonder Drive 2121 N. California Blvd., Suite 390 Fort Worth, Texas 76133 Walnut Creek, CA 94596
W. G. Counsil Comanche Peak Electric Station Texas Utilities Electric Company Units 1 and 2 J CC: I Joseph F. Fulbright Fulbright & Jaworski 1301 McKinney Street Houston, Texas 77010 Roger D. Walker Manager, Nuclear Licensing Texas Utilities Electric Company Skyway Tower 400 North Olive Street, L.B. 81 Dallas, Texas 75201 Mr. Jack Redding c/o Bethesda Licensing g Texas Utilities Electric Company 3 Metro Center, Suite 610 Bethesda, Maryland 20814 William A. Burchette, Esq. Counsel for Tex-La Electric Cooperative of Texas I Heron, Burchette, Ruckert & Rothwell Suite 700 1025 Thomas Jefferson Street, NW Washington, D.C. 20007 GDS ASSOCIATES, INC. Suite 720 1850 Parkway Place Marietta, Georgia 30067-8237 l
a [ *>, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 Alf 31 P2 :45 BEFORE THE COMMISSION In the Matter o' ) ) TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-OL ) (Comanche Peak Steam Electric )' Docket No. 50-445-CPA Station, Units 1 and 2) ) 1, NRC STAFF'S RESPONSE IN OPPOSITION TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE BY CITIZENS FOR FAIR UTILITY REGULATION Janice E. Moore Counsel for NRC Staf f August 31. 1988 1 Q V1 G r1 -hh Y "thi':- , 3, pso ,9//f '
}"r -..um. - ". ~, - ,.,,.. ser, l l I l UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION l BEFORE THE COMMISSION In the Matter of ) ) TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, _ET _AL. ) 50-446-OL ) (Comanche Peak Steam Electric ) Docket No. 50-445-CPA Station, Units 1 and 2) ) i NRC STAFF'S RESPONSE IN OPPOSITION TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE BY CITIZENS FOR FAIR UTILITY REGULATION Janice E. Moore Counsel for NRC Staff August 31, 1988 1
_TAULE OF CONTENTS Pagg 1.[ TABLE OF. AUTHORITIES............................................... -11 l. INTR 000CT!0N.................................................. 1 II. BACKGROUND.................................................... 2 I!!. ARGUMENT....................................................... 4 A. Standards for Intervention................................ 4 B. Interest and Standing.................................... 6 C. Good Cause. if any, for Failure to File on Time.................................................. 8 D. Availability of Other Means to Protect Petitioner's Interests and the Extent to Which That Interest Will be Represented by Existing Parties...................................... 12 E. Ability to Contribute to the Development o f a Sou n d Reco rd........................................ 14 F. Whether Petitioner's Participation Would Broaden the issues or Delay the Proceeding............... 23 G. Intervention in the CPA Proceeding Should Also be 0enied........................................... 25 IV. CONCLUS!0N.................................................... 26 L i l l l l \\ L
E " it.BLE OF AUTHORITIES P_ ale COURT CASES: Easton Utilities Commission v. Atomic Energy Comission, 424 F.2d 847, 852 (D.C. Cir. 1970)............................... 9 ADMINISTRATIVE DECISIONS: Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241 (1986)............. 10, 11, 12 ~Co.,amers Power Company (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897 (1982).............................. 11 Detroit Edison Company (Enrico femi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760 (1982)..................... 13 Detroit Edison Com)any (Enrico Femi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575 (1978).............. 6 Gulf States Utilities Company (River Bend Station, Units I and 2), ALAB-444, 6 NRC 760 (1977)....................... 9, 10 Houston Lighting and Power Company (South Texas Project, Units I and 2), ALAB-5'.9, 9 NRC 644 (1979)....................... 6 Long Island Lighting Company (Shoreham Nuclear Pnwer Station Unit 1), ALAB-743, 18 NRC 387 (1983).................... 16 Metropolitan Edison Co. (Three Mile island Nuclear Station Unit 1), CLI-83-25, 18 NRC 327 (1983).................. 5, 6 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982)............ 8, 16 Niagara Mohawk Power Company (Nine Mile Point Nuclear Power Station, Unit 2), LBP-83-45, 18 NRC 213, 215 (1983)........ 6 Project Management Corporation (Clinch River Breeder Reactor Pl ant, Uni ts I and 2), AL AB-761, 19 NRC 487 (1984)............... 11 South Carolina Electric and Gas Co. (Virgil C. Sumer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981)............ 1' Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station Units I and 2), Memorandum and Order (Dismissing Proceedings), (unpublished) (Jely 13, 1988).................................... 4
- 111 - Page Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), Memorandum and Order (Tenninating Proceedings Subject to Condition). (unpublished) (July 5, 1988)................................................... 3 Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units I and 2), Order (Following Conference Call), (unpublished) (April 2, 1982).................................................. 2 Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), Order, (unpublished) (January 12,1982).......................... 2 Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units I and 2), Memorandum and Order (unpublished) (July 24,1981).............. 2 Texas Utilitigs Electric Company, et al. (Comanche Peak Steam Slectric Station, Units I and 2). Order Relative to Standing of Petitioners to Intervene, (unpublished) (June 27,1979)......................... ? Washington Power Su) ply System, et al. (WPPSS Nuclear Projec t No. 3 ), A.AB-747, 18 NRC 1167 ( 1983)..................... 8, 13, 15, 16, 23 REGULATIONS: l 10 C.F.R. K 2.206.................................................. 13, 14 10 C.F.R. K 2.714.................................................. 2,4,8 10 C.F.R. K 2.714(a)............................................... 8, 12, 25 10 C.F.R. K 2.714(a)(1)(1-v)....................................... 5 l l 10 C.F.R. K 2.714(a)(1)(iii)....................................... 19 10 C.F.R. I 2.714(a)(2)............................................ 5 10 C.F.R. I 2.714(b)............................................... 5 10 C.F.R. I 2.714(d)............................................... 5 4
- iv - Page MISCELLANEOUS: " Availability. of Applicant's Environmental Report, Consideration of Issuance of Facility Operating Licenses, and Opportunity for Hearing," 44 Fed. Reg. 6995 (February 5, 1979)..................................... 2 IE Information Notice 87-08, " Degraded Motor Leads in Limi torque DC Motor Opera tors," ( Februa ry 4, 1987)............ 19 NRC Staff Inspection Report 50-445/88 24 and 50-446/88-21.......... 20 NRC Staff inspection Report 50-445/88-49 and 50-446/88-45.......... 10 NRC Staff Inspection Report 50-445/88-50 and 50-446/88-46.......... 10 [ NRC Staff Inspection Report 50-445/88-51 and 50-446/88-47.......... 10 t NRC Staf f Inspection Report 50-445/88-52 and 50-446/88-48.......... 10, 19-l Results Report, Issue Specific Action Plan, VII.c, l " Construction Reinspection / Documentation Review Plan, Rev. 1 (December 17,1987), Appendix 24. " Fuel Pool Liner"....... 21 Results Report, Issue Specific Action Plan, Vll.a.8, " Fuel Pool L iner Documenta tion," Rev. 1 (November 4,1986)....... 21 " Safety Evaluation Report Related to the Operation of Comanche Peak Steam Electric Station, Units 1 and 2." NUREG-0797, Supp. No. 10 (April 1985)........................... 21 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION le the Matter of ) ) TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ~ET AL. ) 50-446-OL ~ ) (Comanche Peak Steam Electric ) Docket No. 50-445-CPA Station Units 1 and 2) ) NRC STAFF'S RESPONSE IN OPPOSITION TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE BY CITIZENS FOR FAIR UTILITY REGULATION 1 1. INTRODUCTION On August !!, 1988, Petitioner, Citizens for Fair Utility Regulation (CFUR) filed a request for a hearing and a petition for leave to intervene with the Atomic Safety and Licensing Board Panel. II " Request for Hearing and Petition for Leave to intervene by Citizens for Fair Utility Regula-tion" ( August II,1988) [hereinaf ter Petition). U The Staf f of the Nuclear Regulatory Commission, (Staff) opposes CFUR's request on the 1/ The Staff was not served with CFUR's filing. The Staff has obtaineit a copy of the filing from the Secretary of the Comission and is responding to it as though it had been properly served upon Staff 4 counsel. I -?/ Although the Petition is captioned with the docket numbers for both the Operating License (OL) and the Construct ton Pertnit Ainendment (CPA) proceedings, the Petition makes no attempt to address the Construction Permit Amendment proceeding in any way. It is unclear whether Petitioner is even aware that two separato proceedings were In progress with respect to Comanche Peal. For purposes of this respnnte, the Staff will treat the Petttton as havino been filed in both proceedings. l
y l l _2 ground that the balancing of the factors governing late. intervention set forth. in 10 C.F.R. 6 2.714 of the Comission's regulations weighs heavily in favor of denial of the petition. U II. BACKGROUND The notice of hearing with respect to the issuance of the Comanche Peak operating license was published in 1979. " Availability of Appli-cant's Environmental Report, Consideration of Issuance of Facility Operating Licenses, and Opportunity for Hearing," 44 Fed. Reg. 6995 (February S. 1979). The Licensing Board designated to preside over the proceeding granted the petitions for leave to intervene of Citizens Association for Sound Energy (CASE), CFUR, and the Texas Association of Community Organizations for Reform Now (ACORN). " Order Relative to Standing of Petitioners to intervene," (June 27,1979). In 1981, ACORN withdrew from the proceeding. "Memorandun and Order," (July 24, 1981): j " Order," (January 12,1982). In 1982. CFUR also withdrew from the proceeding leaving CASE as the sole intervenor. " Order (Following Conferer.ce Call)." (April 2, 1982). CASE has actively participated in the Operating License proceeding. In 1986, CASE, along wIth Meddie Gregory, f fled pettt1ons to intervene with respect to an amendment estending the Construct ton permit 3/ The Atomic Safety and Licensing Board (Licensing Board) designated to preside over the above capt toned proceedings has dismissed both of ~ the Comanche Peak proceedings pending before it, thus making it appropriate for the Petition to have been filed before the Comission rather than bef ore the Licensing Board, therefore, the Staff is directing this response to the Cnmission.
l l l l for Comanche Peak Unit 1. " Petition to Intervene of Citizens Association i for Sound Energy," ( April 7,1926); " Petition to Intervene of Meddie Gregory," (April 7, 1986). Meddie Gregory's participation ended with her death. See, " Notice of Withdrawal of Intervention," (September 14,1987). CASE has continued its active participation in the CPA proceeding. On vuly 1,1988, CASE, Texas Utilities Electric Company (TU or Applicants), and the NRC Staff filed a motion to dismiss both the OL and CPA proceedings as a result of a joint stipulation agreed to by the pa r t i es. " Joint Notion for Dismissal of Proceedings," (July 1, 1988). See also, " Joint Stipulation," (July 1,1988). On July 5, 1988, the Licensing Board issued an order appreving the stipulation and scheduling a prehearing conference for July 13, 1988. " Memorandum and Order (Temi-nating Proceedings Subject to Condition) " (July 5, 1988). The purpose of the prehearing conference was to facilitate the admission of certain documents into the record as required by the Joint Stipulation. M.at2. On the morning of the prehearing conference, CFUR and the Forth Worth Chapter of the Sierra Club, through CFUR's current counsel, filed a peti-titn for leave to intervene in t.oth procccdings, and a request that the Licensing Board stay its actions. " Request to Continue Proceedings and Petition to Intervene by Citizens for fair Utility Regulation and the Greater Fort Worth Group of the Lone Star Chapter of the Sierra Club,* (July 13, 1988). During CFUP's oral Jrgument in suppnet of its petition, the Licensing Board Chntrman gave CrVR's counsel guidance concernino what the showing should be in order for the Licensing Board to consider grant. Ing the petttIon. "PrehearIng Conference " (July 13, 1988), fr. 75,198-
- 708, The Roard (b.it man ni ted t hat the Pet t t inners must show familiarity
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with the corrective action programs currently being pursued at Comanche f Peak and why these programs are not adequate to resolve Petitioners' issues. B.at25,202,25,205,25,207. The Licensing Board Chairman gave CFUR and the Sierra Club the opportunity either to attempt to make this showing at the prehearing conference, or to withdraw their petition without prejudice. M.at25,202,25,207. CFUR's counsel requested that the petition be withdrawn, and the Licensing Board gra'ited the request without prejudice. M.at25,208. The Licensing Board Chairman clearly indicated that should CFUR wish to file a petition after the dismissal of the proceeding, CFUR would do so with the Connission, and it would be for the Connission to decide whether another Licensing Board should be appointed to rule on the petition. M.at25,203. At the end of the prehearing conference, the Licensing Board signed an order dismissing both the OL and CPA proceedings. " Memorandum and Order (Dismissing Proceed-ings)," (Jul/ 13, 1938). On August II,1988 CFUR filed its Petition. The Sierra Club has not file d a petition. For the reasons set forth below, the Staff submits that the Petition should b? denied, 111. ARGUMENT A. 5_tandards for Intervention. A p arty seeking intervention in a Cornission proceeding trust sat %fy the requirements of 10 C.F.R. 4 2.714 Any petition for leave to intervene must set forth with particularity petitioner's interest in the prnceeding, how that interest may be affected by the results of the pro-t ceding, intluding the reasons the petitinner should be al'nwed in inter. vene,.ind the specific aspec t s of the tub.lc( t mat ter of the prnreeding as
.~ 1 l ! to which petitioner wishes to intervere. 10'C.F.R. 6 2.714(a)(2). The 1 burden is on the petitioner to satisfy these requirements. Metropolitan Edison Co. (Three Mile island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983). The petition must address the criteria of 10 C.F.R. l 2.714(d). These criteria are: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding. (2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding. (3) The possible effect of any order which may be entered in the proceeding on the retitioner's interest. In addition, petitioner must set forth at least one valid contention. 10 C.F.R. I 2.714(b).. While this requirement does not have to be satisfied by the petition itself, it must be satisfied before a petition will be granted. Since the Petition in question here is a late petition for leave to intervene, the Petitioner must satisfy the late filing requirements of 10 C.F.R. I 2.?!4(a)(1) in addition to showing that the organization has standing to intervene, and setting forth.the aspects of the proceeding abot,t which the organization seeks to intervene. For the petitioner to be successful, the factors of 10 C.F.R. 5 2.714(a)(1) must weigh in peti-t ioner's f avor. These factors are:
- 1) Good cause, if any, for failure to file on time; 11) the extent to which Petitioner's interests can be repre-sented elsewhere; 111) the entent to which Petitioner's participation will contritsute to the development of a sound record; iv) the entent to which Petitioner's interests are represented by those of another party; and v) whether Petitioner's participation will broaden the issues or delay the proceeding. 10 C.F.R. % 2.114(a)(1)(1-i),
there is a large body of
Comission case law interpreting the various intervention requirements. The precedents which apply to the circumstances presented by the Petition in question here are discussed below, d B. Interest and Standing. The Comission has previously held that judicial concepts of standing will be used to determine whether a petitioner has standing to intervene in Conraission proceedings. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 612 (1976). Judicial concepts of standing require a showing that the action sought in the proceeding will cause injury in fact, and that injury is arguably within the zone of interest protected by the statutes governing the pro-ceeding. CLI-83-25, supra, 18 NRC at 332. In Comission proceedings the injury must be arguably within the zone of interest protected by the Atomic Energy Act of 1954 or the National Environmental Policy Act. Niagara Mohawk Power Company (Nine Mile Point Nuclear Station Unit 2), L8P-83-45, 18 NRC 213, 215 (1983). For an organization to gain standing in a proceeding the organization must show eithcr that there is an injury in fact which affects the organi-zation, or Laere is injury in fact to a member or members of the organiza-tion. Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 646 (1979). In order to establisa standina through its members, an organization must provide the name and address of at least one affected member who wishes to be represented by the organiza-l tion. Detroit (dison Company (Cnrico Fermi Atomic Power Plant, tinit 2), LRP 78-37, 8 NRC 575, 583 (1978).
) .7 -- b Petitioner'~has established its standing to' intervene through its - members. Petitioner.has provided the. affidavits of' three of'its members, one of whom is an official'of the organization. See, Petition, Att'chments'A, B and C. One of the members' states that he and his wife ' live within three miles of the Comanche Peak site, grow their own food. - and have farm' animals which would be affected by releases of radiation. from the ~ Comanche Peak facility, ld., Attachment A McCook Affidavit at ' I. The other members of the organization state that they.use the area within 50 miles of the Comanche Peak site for recreational purposes. They-claim that they visit areas within close proximity to the site, such as Dinosaur Park, and Granbury, Texas. Id.. Attachments B and C, Resnikof Affidavit at 1; Brink Affidavit at 1. The statements of the affiants have' alleged injury in fact, and have demonstrated that the members of the organization have interests which could be affected by the outcome of the proceeding,'which are arguably within the zone 'of interests protected by the Atomic Energy Act. Therefore, Petitioner has established the . requisite standing to intervene in thi', proceeding, had the petition'been timely. N Petitioner has also identified an aspect of the proceeding upon which it wishes to intervene. Petitioner has proposed the adoption of Contention 5 from the previously dismissed Operating License pruce 11ng. Petition at 6. Petitioner has also enumerated certain concerns about quality assurance at the Comanche,'eak site. The Staff believes that the 4/ The Staff did not oppose CFUR's original standing to intervene and does not do so r.cw. See, "NRC Staff Answer to Petition for leave tn Intervene by CFUR," (March 23. 1979).
3 1 I d Petition satisfies the aspect requirements of 10 C.F.R. 9 2.714 While j Petitioner has met 'the. interest and standing requirements of 10 C.F.R. 6 2.714(a), Petitioner must still show that a balancing of the 5 factors, which must.be. addressed in the case of late-filed petitions, weighs in favor of. the granting of this Petition and must submit a valid contention. C. Good Cause, if any, for Failure to File on Time. The first, and most important of the factors governirg late inter-vention is the showing of good cause, if any, for Petitioner's. failure to file on time. If Petitioner fails to demonstrate good cause'for the late filing, then Petitioner must make a compelling showing with respect to the remaining four factors. Washington Power Supply System, et al. (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1173 (1983); Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704.-16'NRC 1725 (1982). The weight of the burden with respect to the remaining factors will depend, as well, on the posture of the pro-ceeding at the time of the filing of the petition. ALAB-747, supra,.at 1173, ' The Staff submits that where, as here, there would be no further proceedings without this late-filed petition, the burden should be a very-heavy one if Petitioner cannot demonstrate good cause for its late filing. Petitioner alleges as good cause that it withdrew from the Operating License proceeding originally due to a lack of resources, and because the interveners in the proceeding were competing for the same resources. Petit ion a t 9-10. Petitioner also alleges that it has good cause for this i late filing because the settle'nent agreement under which CASE withdrew from the proceedings just recently came to its attention. .!,d. a t 7.Q. p
.) i j 1 Petitioner alleges that it relied on CASE to continue the proceeding. M. Finally, Petitioner alleges that doubts as to CASE's willingness to j implement the Joint Stipulation somehow constitute good cause for its late -{ filing. M. These allegations are insufficient to establish good cause for Petitioner's attempt to regain admission to this proceeding some six years after Petitioner's withdrawal. Petitioner is actually attempting to substitute itself for CASE. Petitioner's proposed contention is nothing more than a reiteration of . Contention 5, which CASE was pursuing in the Operating License proceeding. Petitioner argues that all of the issues it raises in the Petition-fall under Contention 5. Petition at 5-6. Commission precedent holds that one party may not demonstrate good cause for late filing by attempting to substitute for a party who has withdrawn from the proceeding. Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 795-798 (1977). The Appeal Board in River Bend adopted the language _of the Court of Appeals for the District of Columbia Circuit in stating: We do not find in statute or case law any ground for accepting the premise that proceedings before administrative agencies are to be constituted as endurance contests modeled after relay races in which the baton is passed on successively from one legally exhausted contestant to a newly arriving legal stranger. M.at797; citing,EastonUtilities Commission v. Atomic Energy Comission, 424 F.2d 847, 852 (D.C. Cir. 1970). That is exactly what Petitioner is attempting to do here. Petitioner finds that it is dissatisfied by actinns taken by the sole intervenor in the proceeding and now wishes to reenter the proceeding and pick up where that Intervennr has left off. Pettttoner tries to justify 1ts actinns by saying that it will take the proceeding as it finds it. This statenmnt
l i i I was not sufficient to provide the Petitioner in River Bend with the necessary good cause, and it should not do so here. Sg, ALAB-444, supra, ) I 6 NRC at 796. Petitioner is also similar to the petitioner in the River Bend l proceeding in that it claims that it relied on CASE to pursue the pro-ceeding. See, Petition at 9. Even assuming that it relied upon CASE to pursue this matter, Petitioner points to no inforination on this record, however, which shows that CASE specifically undertook to act' as CFUR's representative in this proceeding to represent the interests of the interveners who withdrew from the Operating License proceeding in 1981 and 1982. Thus, as was the case in River Bend, Petitioner assumed the risk that the sole intervenor's involvement in the Operating License proceeding would not live up to Petitioner's expectations. The Appeal i Board in River Bend did not find that such a situation constituted good cause for the late petition for leave to intervene. ALAB-444, supra, 6 NRC at 797. El Petitioner made a deliber te choice to withdraw from this proceeding for whatever reason. As the Comission has held before, parties to NRC proceedings must live with the choices they make, i Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 l 5/ In support of its claim that the Petitioner has good cause for late intervention, Petitioner points to some disagreement among CASE board members which Petitioner alleges casts doubt on CASE's willingness to implement the settlement agreement. Petition at 8-9. These allegations bear no relevance to a good cause showing. In additton, they are factually incorrect. An examination of the inspection reports issued by the Staff for the July-August inspection perind demonstrates that CASE, as was set forth in the agreement, attended the exit meetings for that inspection period. See, e,5L,, inspec t ion Reports 50-445/88-49 and 50-446/88-45; 50 445/8EP30 and 50-446/88 46; 50-445/88-51 and 50-446/88-47; 50-445/88-5? and 50-446/88-48. 1
_____- - _ and 2), CLI-86-8, 23 NRC 241, 245 (1986). While Braidwood relates to the admission of a late-filed contention, the principle is the same. When parties make deliberate choices in a proceeding, they assume the risks that gc along with those choices. Therefore, as stated above, when Petitioner withdrew from this proceeding, it assumed the risk that CASE would not conduct the proceeding as Petitioner would have liked. Finally, previous Consnission cases have pointed out that Interveners may not dart in and out of proceedings on their own tenns and at their own convenience. Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-761, 19 NRC 487 (1984); Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 907 (1982). These cases also stand for the proposition that a party assumes the risk that certain of its rights may be waived upon its choice to withdraw. M. The Appeal Board specifically stated in Midland that a party may not expect to enjoy-the benefits of participation in Commission proceedings without the responsibilities. ALAB-691, supra, 16 NRC at 907. That is precisely what Petitioner is attempting to do here. This proceeding has continued for six years since Petitioner originally withdrew. There is no indication, beyond a mere allegation, that Petitioner is familiar enough with the events which have occurred in those six years to be able to walk in and start what would be tantamount to a new proceeding with all the knowledge to effectively pursue its issues. Petitioner claims that one of its members gave engineering support to CASE. Petition at 18. It must be noted, however, that the person who apparently provided this support is no longer living. M. Therefore, as will be discussed in more detail in relation to Factor 3 below, there is no indication that even if Petitioner I
},r were allowed to intervene at this extremely late date, it would have the ability to meet its responsibilities. in sum, Petitioner has shown no reasons why this extremely late petition to intervene should be entertained..The Petitioner has given no good reasons for sitting on' the sidelines for six years. It has given no good reasons why it should be allowed to jump in and commence another proceeding at this late date. Therefore, Petitioner has failed to show any good cause for. late filing, and this factor should weigh heavily against the granting of the petition for leave to intervene with respect to either the Operating License or the Construction Permit Amendment proceedings. D. Availability of Other Means to Protect Petitioner's Interests and the Extent to Which That Interest Will be Represented by Existing Parties. Factor (ii) concerns whether there is another forum for a party to have its interests represented. Factor (iv) concerns whether there is another party to represent petitioner's interests. 10 C.F.R. 6 2.714(a). These factors are generally given less weight than the others. See, CLI-86-8, supra, 23 NRC at 245; citing, South Carolina Electric and Ga,5, Ca (Virgil C. SumrNr Nuclear Station, Unit 1) ALAB-542,13 NRC 881', 895 (1981). In light of previous precedents, the Staf f believes that these two factors weigh in favor of the Petitioner. However, in the circum-i stances of this case, thele factors do not tip the overall balance in Petitioner's favor. Petitioner argues there is no other means by which its interest may I be protected. Petition at 11-12. It claims that the right to corcent nn
1 l ! I the Staff's safety evaluations does not give it' the right to cross-examination. M.at11. The Staf f agrees. Petitioner also claims that a 6 2.206 petition would not protect its interest, apparently because such petitions relate to enforcement and not licensing matters. Id. at 12.- While the Staff is aware that the Appeal Board has expressed its doubts as to whether a 6 2.206 petition is an adequate substitute for participationinanadjudicatoryproceeding,bl and thus does not put forward a i 2.206 petition as a means of satisfying this factor, Peti-tioner has expressed a misconception which the Staff must correct. Petitioner argues that i 2.206 petitions relate solely to enforcement matters. This is incorrect. As the Appeal Board has pointed out, such a petition can be used to address health, safety and environmental issues. In fact, in at least one instance an Appeal Board has referred issues raised-in a late petition to Intervene to the Staff as a i 2.206 petition. Detroit Edison Company, et al. (Enrico Fenni Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1768 (1982). As the Appeal Board pointed out, while this remedy did not guarantee the petitioner a hearing, it did insure that the issues would be addressed. !_d. at 1768. Thus, while this factor weighs in favor of Petitioner, this factor should not weigh heavily in the overall balancing of the factors. If in fact Petitioner has issues of significance which the Consnission believes should be addressed, the i 6/ See, washington Public Power Supply System (WPPS Nuclear Project E 37-AUB-747, la NRc 1167,1175 76 TTM3). 1
_ _ _ issues could be referred to the Staff pursuant to 10 C.F.R. I 2.206. II Such an action would be particularly appropriate in this case, since the issues raised in the Petition either have been or are already being considered by the Staff. With respect to the fourth factor Petitioner argues that there is no other party to represent its interest. Petition at 19. While the Staff agrees with this statement, once again the Staff submits that this factor should not weigh heavily in balancing all the factors. It should be noted that a number of the issues raised by Petitioner have been gleaned from inspection reports issued by the Staff. Petition at 14-15. Petitioner has not indicated that it has any witnesses with respect to these issues. Therefore, it is unclear what position different from the Staff's position would be taken by the Petitioner were it allowed to intervene. Therefore, this factor should not weigh heavily in favor of Petitioner in the overall balancing. E. Ability to Contribute to the Development of a Sound Record. The third factor set forth in 10 C.F.P.. 5 2.714(a)(1) concerns the ability of Petitioner to contribute to the development of a sound record. I Petitioner argues that it has the ability because it has experience participating before this and other administrative agencies, and it has 1 spoken with people who have pointed Petitioner to issues to be raised. 1 \\ l ~7/ In its argument on this factor Petitioner refers to a license I a mendme nt. See, Petition at 11. The Staff is unclear what Peti-l tiener is reTerring to. The reference leads the Staff to believe that Petitioner does not understand the posture of either the OL or LPA proceedings. 1 i l
"- Petition at 12-18. For.the' reasons discussed below,'this factor weighs heavily against Petitioner. Petitioner uses its participation before this agency as a basis for .saying it could contribute to the development of a sound record. Petition at 17-18. Petitioner points out that it participated in all of the early prehearing conferences and in the first round of hearings in 1982. B. at -17. Such allegations of previous participation are not sufficient to demonstrate that Petitioner can contribute to a sound record at this time. Previous cases have held that Boards will not attach weight to previous participation where the issues were not the same, and there was no indication that Petitioner had contributed to the development of a sound record in the earlier proceeding. AL AB-747, supra,18 NRC at 1178. Petitioner alleges it participated in conferences on Contention 5, which is the contention it now seeks to adopt from the previously dismissed proceeding. However, it does not explain exactly what type of conferences it participated in nor what its role was at these conferences as far as Contention 5 is concerned. Petition at 17. Petitioner.also claims to have made a contribution to the record with respect to batch releases of radiation and ground water. M.at17-18. No details are provided as to what.that contribution might have been. With respect to Contention 5, Petitioner did not, to the Staff's knowledge, participate in the hearings on the subject of Contention 5 which took place in 1983. To the Staff's knowledge, Petitioner has not actively participated in any of the meetings or other discussions which have taken place since 1983 with i 1
1 L l l respect to the Applicants' Comanche Peak Response Team (CPRT) or Correc-tive Action programs. Therefore, there is no demonstration in this . petition that Petitioner would be able to contribute to the development of 7 a sound record on either quality assurance or ' corrective action adequacy issues. With respect to the other issues on which Petitioner claims to have contributed-to the record, they do not appear similar to the issues Petitioner is attempting to raise at this time. Therefore, Petitioner's participation with respect to those issues should be given no weight in determining whether Petitioner cen contribute to the development of a ' sound record at this time. In determining whether a given petitioner will be able to contribute-to the development of a sound record, it must be determined whether a petitioner has any special expertise on the subject it wishes to raise. See, ALA6-704, supra,16 NRC a t 1730. It was incumbent upon Petitioner to set out with as much particularity as possible the precise issues it wishes to cover, to identify its proposed witnesses and to summarize their testimony. Id.; Long Island Lighting Company (Shoreham ?Nclear Power Station, Unit 1), ALAB-743, IP LRC 387, 399-400 (1983). Petitioner should have provided the names of the witnesses it intends to call and prnvided sufficient detail regarding its witness's testimony so that the Commission-could reach a rensnned conclusion as to the worth of the testimony on the contention covered by that testimnny. AL AB-74 7, supr,a.,10 NRC a t 1181. Petitioner has f ailed to meet any of these requirements. Petitioner alleges that it is raising only one contention and that is Contention 5, which was the snle remaining inntentinn in the OL proceeding when the
_-_ g 1.icensing Board dismissed that proceeding. 0/ Apparently as basis for this contention, Petitioner alleges that there are still QA/QC deficiencies at Comanche Peak, as shown by various NRC inspection reports. Petition at t I. 5-6. 4' Petitioner's first attempt to show that it could contribute to the 4 development of a sound reccrd on Contention 5 centers _around a person that Petitioner calls John Doe. Mr. Doe's resume was not presented by Petitioner. Petitioner merely alleges that this witness has experience in the nuclear industry and that he was formerly employed at the Comanche Peak site. Petition at 13. Petitioner gives no tine frame for that employment. Petitioner then goes on to state that John Doe has made allegations of perjury on the part of Applicants' employees, that Appli-cent has falsified some unspecified documents and engineering calcula-1 -1 tions, ano that there are "lif e-threatening safety flaws" at the Comanche Peak site. M.at12. While Petitioner is very free with allegations, it provides no substantiation at all for such allegations. Petitioner merely states it will produce some sort of affidavit in 30 to 60 days with I 8/ Contention 5 states: The applicant's failure to adhere to the quality assurance / i quality control provisions required by the construction permits for Comanche Peak, Units I and.', and the requirements of f.ppendis D of 10 CFR part 50, and the construction practices employed, specifically in regard to concrete work, mortar blocks, steel, fracture toughr.ess testing, materials used, craft lobos qualifications and working conditions (as they may af fect 0A/00) and training and orgar.1:ation of CA/QC personnel, have ratwd substantial questions as to the adequacy of the construction of the facility. As a result, the Cimnission cannot make the findings required by 10 CFR l 50.57(a) necessary for the tuvance of an operating license for Comanche Peak.
- Mr. Doe's allegations. If Petitioner is willing to make allegations at this time, it should be willing to provide the support for these allega-tions now rather than at some future date. This Petition should be -decided on the pleadings filed, and not on promises of filings to come. The Petitioner has not provided enough of a summary of Mr. Doe's testimony to make any sort of conclusion, let alone a reasoned conclusion, about the worth of Mr. Doe's testimony..EI Petitioner alleges that this unidentified person was to have been used as a CASE witness at the hearings which were to recommence in-the Fall, apparently to testify about a previous breakdown in QA/QC. While this person may have believed this to be the case, to the Staff's knowledge no party had finalized its list of witnesses, since the issues with respect to each of the areas of the corrective action activities had - not yet been specified. In addition, none of the parties had yet made'it clear what, if any, witnesses woulo be presented on historical QA/QC l 9/ petitinner claims, again without any support, that Mr. Doe refused a . settlement offer because he would have had to sign an agreement which l would have prohibited him frorr appearing before the Licensing Board. Petition a t 13. Petitioner seems to believe that this unsupported statement should give this proposed witness some credibility with the tsndy ruling on this petition. It should not. It is easy for l-Petitioner to make such assertions without having to produce this unidentified person or any details about this alleged agreement. At the prehearing conference counsel both for CASE and the Applicents made* it quite clear that none of the people involved in the settle-ment of their individual claims were precluded from bringing concerns to the NRC. See, Prehearing Conference Tr. 25,?57, 25,268. Peti-tioner has noDemonstrated why Mr. Doe should have been treated differently. In addition, it would have been absurd for anyone to propose such an agreement in connection with the proposed settlement, since the proceedings were to be dismissed and there would be no Licensing Board hearing testimony. Petitioner's statement on this mot ter should he totally disregarded.
._-_ _ ___ _-_ issues. Therefore, the mere belief on the part of this person that he was to have been a witness on some issue does not in any way demonstrate'that his testimony would have been used or, if used, would have had credibility before the Licensing Board. E To support its argument that Petitioner will be able to contribute to a sound record, Petitioner next alleges that it was approached by an unidentified Brown & Root employee with allega-tions of mismanagement. Petition at 13. Once again, no particular allegation in that area is set forth. Petitioner also does not indicate how such an allegation relates to what it says is its only contention. Petitioner next alleges that this person indicated that Kapton insulation was used throughout the Comanche Peak plant and that it can cause fire around electrical wiring. M. Petitioner does not give any information concerning the qualification of this person to address this issue. Nor does Petitioner even indicate that this person will be a witness for Petitioner on this issue. Therefore, Petitioner has not demonstrated the special expertise in this area to aid it in satisfying Factor (iii). b Petitioner next alleges that allegations of two whistleblowers made in 1988.have never been made public and that they must be made public for -10/ Like other statements in this petition, Petitioner's stetement that Mr. Doe's allegations have in some part been validated by the NRC must be disregarded. Petitioner has not indicated which of Mr. Doe's purported allegations have been validated. The Staff was not, until recently, aware of an alleger called John Doe. Since the Petition does not set forth Mr. Doe's specific allegations, this statement should not be considered in determining whether Petitioner has made the requisite showing under 10 C.F.R. % ?.714(a)(1)(iii). -11/ It should be noted that this issue is already being followed by the Staf f both generically and at Comanche Peak. See, IE Information Notice 87-08, " Degraded l'otor leads in Limitnrque DC Motor Operators," (February 4, 1987); inspection Report 50-445/88-52 anti 50-446/88-48 at 6 (item 4.a).
_ _ _ _ the community to be informed. M.at13-14. Neither the names of the whistleblowers nor the time frame of the allegations are specified nor the relevance of their concerns to the proposed contention. M. This vague statement provides no basis on which the conclusion could be drawn as to whether Petitioner could contribute to the development of a sound record. Petitioner next focuses its attention on the issue of hydrostatic testing and claims that this testing must be redone. Petition at 14. j Petitioner claims that this issue shows a continuing lack of quality control at Comanche Peak. Petitioner bases its statements on verbal contacts it has had with a Mr. James Sutton, a former NRC employee. Petition at 15. Petitioner does not indicate that Mr. Sutton will be Petitioner's witness it, the event Petitioner's request to intervene is granted. Petitioner has not set forth any testimony that Mr. Sutton proposes to give. As Petitioner notes, an allegation concerning the validity of the hydrostatic testing has been made to the NRC. Petition at 14 The Staff is in the process of addressing this allegation. Sy, inspection Report 50-445/88-24 and 50-446/88-21. Petitioner has failed to indicate why the manner in which the Staff is addressing the hydro-L static testing concerns is inadequate. Petitioner has failed to show any L l special expertise in this area, and thus has not shown how it will be able to contribute to the development of a sound record on the issue of the validity of hydrostatic testing. Petitioner also points to some unresolved items and open items in NRC Inspection Report 50-445/88-34 and 50-446/88-30 as basis for saying a pattern of QA deficiencies still exists at Comanche Peak. Petition at 15.
.~ Petitioner has not made any attempt. to show any special expertise on this issue. It merely cites to.the in!,pection report. Indeed Petitioner does not explain in what way the issues raised in this inspection report demonstrate a pattern of QA' deficiencies. Since Petitioner has no witnesses in these areas to present, nor has it shown any other special expertise in this area, it has not shown any ability to contribute to the development of'a sound record on this' issue. Finally, Petitioner alleges as an issue that information long known about the integrity of the welds in the spent fuel pool liner has not been adequately addressed. Petition at 16. Petitioner bases.this allegation apparently upon some information it rec eived at some time from an uniden-tified welder and a former QA/QC inspector. Id. Petitioner does not state that it intends to call these people as witnesses. Petitioner does not summarize what their testimony would be or tell anything about their qualifications to present such testimory. Both the Staff and the Appli-cants have addressed this issue. S_ee, " Safety Evaluation Report Related e to the Operation of Co.aanche Peak Steam Electric Station, Units 1 and 2 " NUREG-0797, Supp. No.11 (May 1985); " Safety Evaluation Report Related to the Operation of Comanche Peak Steam Electric Station, Units 1 and 2 " NUREG-0797, Supp. No. 10 (April 1985); Results Report, Issue Specific Action Plan (!$AP) Vll.c " Construction Reinspection / Documentation Review Plan," Rev. 1 (December 17,1987), Appendix ?4, " Fuel Pool Liner"; Results Report ISAP Vll.a.8, " fuel Poci Liner Documentation," Rev 1 (November 4, 1986). Petitioner has not indicated in what respects the way the Appli-cants and Staff have addressed this issue is inadequate. I j Petitinner also seems to raise a concern, although exactly what it is j talking abnut is somewhat uncicer, about spent fuel remaining on site for
22 - longer than seven years. Petition at 17. Petitioner refers to the Brookhaven report as a basis for this concern. M. To the Staff's knowl-edge, there is nothing in the license application thit would restrict the time for which fuel could be stored on site to seven years. Petitioner has not indicated what in the Brookhaven report supports its assertion that storage of spent fuel for the life of the plant would result in increased accident consequences. Therefore, if Petitioner is raising this as an issue, it has failed to demonstrate any special expertise in this area which would show that it has an ability to contribute to the develop-ment of a sound record on this issue. If Petitioner is implying that somehow Applicants will be able to -store more than seven years worth of spent fuel in the spent fuel pools at Comanche Peak, there is no basis for this claim in the license applica-tion. Applicants have not, at this time, amended their application to allow for more fuel to be stored in the spent fuel pool. Therefore, Petitioner has no basis for such a concern, and has not demonstrated any.. ability to cantribute to a sound record on this issue. In addition, Petitioner has not indicated how this issue relates to quality assurance at Comanche Peak. Therefore, Petitioner has failed to demonstrate the special expertise necessary in this area to contritsute to the development of a sound record on this issue. In sum, though Petitioner has raised a number of general issues it would like to have aired in a new proceedirg, it has not demonstrated any special expertise with respect to any of them. Therefore, this factor should weigh heavily against granting Petitioner intervenor status. Petitioner has not provided erough detail about any proposed witness's testimony to allow the Commission to make a reasoned conclusion about the
__ _ _ _ _ - _ ___ _ _ worth of the testimony with respect to any of the issues raised by Petitioner. F. Whether Petitioner's Participation Would Broaden the issues or Delay the Proceeding. Petitioner contends that its participation would not broaden the issues because it is willing to take the proceeding as it finds it. Petitioner also argues that the only delay its participation would cause would be the time necessary for it to obtain the affidavit of John Doe. Petition at 19-20. These arguments are without merit. As far as broadening the issues is concerned, since the Licensing Board has dismissed the proceeding, granting intervention to Petitioner would be tentamount to starting a whole new proceeding. The mere fact that there would be a new proceeding where there is now no proceeding serves to broaden the issues to be heard. It is not clear to the Staff that Petitioner is sufficiently familiar with the posture of the proceeding before its dismissal to know what is meant by taking it as it finds it. Some of the issues Petitioner wishes to raise, such as increased spent fuel storage or the use of Kapton insulation, would result in a broadening of the issues. It is not clear that the issues Petitioner wishes to raise would, in fact, fall within the ambit of Contention 5. Therefore, Petitioner's participatica would cause a broadening of the issues to be heard. As far as delay is cor.:e. - the question to be decided is whether by filing late Petitioner has occasioned a delay in the proceeding that would not have been present had the filing been on time. ALAB-747, supra, 18 NRC at 1180. Hao Patitioner remained in this procreding it would have,
_ _ _ _ - _ _ _ - _ _ _ _ _ _ _ _ _ 1 .the Staff must suppose, been involved in the events which have taken place since 1982, and would have followed the development of the Applicants' CPRT and corrective actior programs. Petitioner's primary reference to the CPRT and CAP programt is to quote from a CASE newsletter issued in 1987. See, Petition, Attachment G. Petitioners failed to refer to the numerous meetings which have taken place since then, or to the numerous documents which have been issued since that time. Had Petitioner been in the proceeding the whole time, it would now be ready to specify the issues under Contention 5 which relate to the Project Status Reports that have been issued, and to the recently issued supplements to the Staff Safety Evaluation Reports. If Petitioner were granted leave to intervene at this time and is permitted to adopt Contention 5, there would be a significant delay before litigation of specific issues under Contention 5 could begin. Therefore, the untimely filing of this Petition would indeed cause delay. if the dismissed proceeding were reinstated. In sum, had Petitioner fulfilled its intervention responsibilities by remaining in this proceeding, it could have had a voice in whether the proceeding should have been dismissed and what issues should be heard. However, it chose not to do so. To alicw Petitioner to come in after six years and attempt to start a new proceeding once the Licensing Board has dismissed the longstanding proceeding would certainly result in a broadening of the issues and a delay of the proceeding. Therefore, this factor weighs heavily against the granting of Petitioner's requast to intervene. A balancing of the five factors weighs heavily in favor of the dental of this Petition. There is no good cause for the extremely late filing of i .____-__----_______-_--_______-_.D
_ _ _ _ _. _ _- -_____-___ _ _ _ _ _ _ - the Petition. Petitioner has not demonstrated an ability to contribute to the development of a sound record. Petitioner's participation would serve to broaden the issues to be heard and'to delay the proceeding. The other two factors weigh in Petitioner's favor, but in the circumstances of this case should be given far less weight than the other three. Based on the above discussion, Petitioner's request for intervention and request for hearing should be denied. G. Intervention.in the CPA Proceeding Should Also be Denied. CFUR's Petition appears to be directed solely at the Operating License proceeding, although the caption of the case refers to both the Operating License'and Construction Permit Amendment proceedings. As stated above, this is another indication that Petitioner does not understand what proceedings were being held with respect to the Comanche Peak facility. Petitioner has not attempted to address the five factors of 10 C.F.R. 6 2.714(a) with respect to intervention in the Construction Permit Amendment proceeding. Therefore, the Petition is defective on its face and should be denied out of hand with respect to the CPA proceeding. Even if one were to assume that Petitioner's discussion of the factors applied to both the CPA and the OL proceedings, it must be 4 concluded that the first, third and fifth factors would weigh heavily against petitioner. Petitioner ha> utterly failed to demonstrate good cause for its late filing in the CPA proceeding. Petitioner has not made any mention of the contention that would be admitted in the CPA proceeding and has failed to demonstrate any ability to contribute to a sound record
I, concerning the construction permit extension. Though no issues have been identified, it is reasonable to assume that issues would be broadened since without intervention there would be no is:ues to be heard. In addition,-there would be delay, since Petitioner has failed to show any familiarity at all with the status of the CPA proceeding or even what that proceeding is all about. Even assuming that the other two factors weigh in Petitioner's favor, they should not be given sufficient weight to tilt the overwhelming balance of the other three factors, especially since Petitioner did not even attempt to address them with respect to the CPA proceeding. IV. CO M 'JSION For the reasons set forth above. Petitioner's request for permission to intervene late in either the Comanche Peak Operating 1.icense or the Construction Permit Amendment proceeding should be denied. Respectfully submitted, W\\NME NL1.IE Janice E. Moore Counsel for NRC Staff Dated at Rockville, Maryland 'his 31st day of August,1988
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g g 31 P2:45 BEFORE THE COMMISSION
- r.%-
In the Matter of ) ) TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET _AL. ) 50-446-OL ) (Comanche Peak Steam Electric ) Docket No. 50-445-CPA Station, Units 1 and 2) ) CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE IN OPPOSITION TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE BY CITIZENS FO UTILITY REGULATION" in the above-captioned proceeding have been served on the following by deposit in the United States trail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this 31st day of August, 1988: Lando W. Zech, Jr.* Thomas M. Roberts
- Chairman U. S. Nuclear Regulatory U.S. Nuclear Regulatory Comission Comission Washington 0.C.
20555 Washington, D.C. 20555 Kenneth M. Carr* Kenneth C. Rogers' U.S. Nuclear Regulatory Comission U. S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington. 0.C. 20555 Peter 8. Bloch, Esq., Chairman
- Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Comission Dallas, TX 75224 Washington, DC 20555 Susan M. Theisen, Esq.
Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division 1107 West Knapp P.O. Box 12548 Capital Station Stillwater OK 74075 Austin, TX 78711-1548 Ellrabeth 8. Johnson Robert A. Wooldridge, Esq. Administrative Judge Worsham, corsythe, Samples Oak Ridge National Laboratory A Wooldridge P.O. Box X, Building 3500 2001 Dryan Tower, Suite 3200 Oak Ridge, TN 37830 Dallas, TX 75201
, Dr. Walter H. Jordan Joseph Gallo, Esq. Administrative Judge Hopkins & Sutter, Suite 1250 801 West Outer Drive 1050 Connecticut Avenue, N.W. Oak Ridge, TN 37830 Washington, DC 20036 Billie Pirner Garde Mr. W. G. Counsil GAP - Midwest Office Executive Vice President 104 E. Wisconsin Avenue - B Texas Utilities Gener3 ting Company Appleton, WI 54911-4897 400 North Olive Street, L.B. 81 Dallas, TX 75201 William L. Brown, Esq.* U.S. Nuclear Regulatory Commission Anthony Z. Roisman, Esq. 611 Pyan Plaza Drive, Suite 1000 Suite 600 Arlington, TX 76011 1401 New York Avenue, NW Washington, DC 20005 Asst. Director for Inspec. Programs Comanche Peak Pro,iect Division William H. Burcnette, Esq. U.S. Nuclear Regulatory Comission Mark D. Nozette. Esq. P.O. Box 1029 Heron, Burchette, Ruckert Granbury, TX 76048 & Rothwell, Suite 700 Washington, DC 20007 Lanny Alan Sinkin Christic Institute James M. McGaughy 1324 North Capitol Street GDS Assoc. Inc. Washington, DC 20002 1850 Parkway Pl., Suite 720 Marietta, GA 30067 Robert D. Martin
- U.S. Pluclear Regulatory Comission Atomic Safety and Licensing Board 6)) Ryan Plaza Drive, Suite 1000 Panel (1)*
Arlinaton, TX 76011 U.S. Nuclear Regulatory Comission Washington, DC 20555 Robert A. Jablon, Esq. Spiegel & McDiarrid Atomic Safety and Licensing A peal P 1350 New York Avenue Panel (5)* Washington, DC 20005 479P U.S. Nuclear Regulatory Comission Wash +ngton, DC 20555 Jack R. Newman, Esq. ficwran & Holtzfecer, P.C. Rober!! M. Fillmore Suite 100 WorsNm Forsythe, Sanples 1616 L Street, N.W. & Wooldridoe Washington, DC 2C036 ?001 Bryan Tower, Suite 3?00 Dallas, Texas 75?01
t 3 Docketing and Service Section* Office of the Secretary Adjudicatory File
- U.S. Nuclear Regulatory Connission Atomic Safety and Licensing Board Washington, DC 20555 Panel Docket U.S. Nuclear Regulatory Commission Richard Lee Griffin Washington, D.C.
20555 Attorney and Counselor at Law 600 North Main Fort Werth, Texas 76106 O.W W9_ADJd Janice E. Moore Counsel for NRC Staff i ____.__....-____.__.___._______m_m.___
7775 00LKETEP tM PC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 3113 P3 :3) BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0) In the Matter of TEXhS UTILITIES ELECTRIC ,I Docket Nos. 50-445-0L COMPANY, ET AL.
- l 50-446-OL l
Jll (Comanche Peak Steam Electric Docket No. 50-445-CPA Station, Units 1 and 2) NRC STAFF RESPONSE IN OPPOSITION TO MOTION FOR LIMITED INTERVENTION I. INTRODUt. TION On December 16, 1988, I/ Mr. Joseph Macktal filed a motion requesting 2/ that he be permitted to intervene in the Comanche Peak proceedings for the purpose of briefing the Commission as to the interpretation of a January 2,1987, settlement agreement he signed in a case before the DepartnentofLabor(DOL). "Hotion for Limited Intervention," (Decem-ber 16,1988) [hereinaf ter Motion). The Staff of the Nuclear Regulatory Connission (Staff) opposes the Motion on the ground that Mr. Macktal 1/ The Staff notes that the date appearing at the end of the pleading and the date on the " Certificate of Service" differ. For purposes of the computation of time for filing this response, the Staff views the filing date as the date upon which the " Certificate of Service" shows that the pleading was served on the Commission. This date is December 16, 1988. 2/ Although the Motion is captioned with the docket numbers for both the ~ Operating License (OL) and the Construction Permit Amendment (CPA) proceedings, the Motion makes no attempt to address the Construction Permit Amendment proceeding in any way. It is unclear whether Mr. Macktal is even aware that two separate proceedings were in progress with respect to Comanche Peak. For purposes of this response, the Staff will treat the Motion as having been filed in both proceedings. Alff 9004 M ^non 8 0nr Q. s p/ goa 4oocx FDR W
- k. Y i
1 l 8 o cannot meet the standards governing intervention set forth in 10 C.F.R. l 5 2.714 of the Comission's regulations. I II. BACKGROUND The notice of hearing with respect to the issuance of the Comanche 3 l Peak operating license was published in 1979. " Availability of Applicant's Environmental report. Consideration of Issuance of Facility I Operating Licenses, and Opportunity for Hearing," 44 Fed. R_e2 6995 ) I (February 5, 1979). The Licensing Board designated to preside over the proceeding granted the petitions to intervere of Citizens Association for Sound Energy (CASE), Citizens for Fair Utility Regulation (CFUR) and the Texas Association of Community Organizations for Reform Now (ACORN). " Order Relative to Standing of Petitioners to Intervene," (June 27,1979). In 1981 ACORN withdrew frce the proceeding. " Memorandum and Order," (July 24,1981). In 1982, CFUR also withdrew from the proceeding, leaving CASE as the sole intervenor. " Order (Following Conference Call)," (Apml 2, 1982). 1 1 CASE actively participated in the Operating License proceeding until the Licensing Board dismissed both the Operating License (OL) and Construction Pennit Amendment 2/(CPA)proceedingsonJuly 13, 1988. "MemorandumandOrder(DismissingProceedings)"(July 13,1988). The 3/ In 1986, CASE, along with Peddie Gregory, filed petitions to ~ intervene with respect to an amendment extending the construction pennit for Comanche Peak Unit 1. " Petition to Intervene of Citizens (April 7, 1986): " Petition to Association for Sound Energy,"(April 7, 1986). Intervene of Meddie Gregory," Meddie Gregory's participation ended with her death. See, " Notice of withdrawal of Intervention,"(September 14,1987). l
4 3 Licensing Board's action followed a motion to dismiss both proceedings as i a result of a joint stipulation agreed to by CASE Texas Utilities Electric Company (TU or Applicants) and the NRC Staff. " Joint Motion for Dismissal of Proceedings," (July 1,1988); see, also " Joint Stipulation," (July 1, 1988). On August 11, 1988 CFUR filed a petition requesting a hearing and for leave to intervene. " Request for Hearing and Petition for Leave to Intervene by Citizens for Fair Utility Regulation," (August 11, 1988). On September 12, 1988 CFUR filed a first supplement to its August 11, 1988, petition. "CFUR's First Supplement to its August 11, 1988 Request for Hearing and Petition for Leave to Intervene," (Septem-ber 12, 1988). CFUR's First Supplement lists Mr. Macktal's allegations and attaches his August 31, 1988 affidavit. Al s'), on December 16, 1988 CFUR filed a second supplement to the August 11, 1988, petition pertaining exclusively to the alleged improper use of Kapton insu' tion on electrical wiring at the Comanche Peak facility. "CFUR's Second Supplement to its August 11, 1988 Request for Hearing and Petition for Leave to Intervene," (December 16,1980). In its December 21, 1908, decision, the Commission held that CFUR's petition and its supplements failed to satisfy the five-factor test for late-filed intervention petitions set forth in 10 C.F.R. $ 2.714(a)(1-ty). Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1and2),CLI-88-12.(slipop.)(December 21,1988). On December 16, 1988, Mr. Macktal filed his ' Motion for Limited Intervention" in the Comanche Peak proceedings. Mr. Macktal's Motion raises o additional allegattens to those preser.ted in CFUR's First Supplement. In his Motion, Mr. Macktal merely cceplains about the Applicants' and Staff's
1 ' s interpretation of an allegedly illegal January 2,1987, settlement agreement pertaining to a Department of Labor (DOL) proceeding that will purportedly prejudice his position in that proceeding. Motion at 1-2. Additionally, Mr. Macktal requests that the Licensing Board allow him to " fully brief the Comission as to the actual meaning, impact and scope of said Settlement Agreement." Jd. at 2. Mr. Macktal's Motion supplies neither any explanation nor any specifics in accusing the Staff and Applicants of distorting the scope and impact of the signing of this allegedly illegal settlement agreement. In its December 21, 1988, decision, the Comission addressed this identical issue as raised by CFUR and held that "the proper forum for these complaints is likely not the NRC." M CL1-88-12, slip op. at 9-10, n. 8. Therefore, the Staff submits that Mr. Machtal's claims with respect to interpretation of an allegedly illegal January 2,1987, settlement agreement and his request to brief the matter are irrelevant to any issue pertaining to an operating license for the Comanche Peak facility. Since the notice of hearing for the Comanche Ptak facility was issued almost ten years ago in 1979, any additional petition for leave to intervene not only must meet the interest and standing requirements of 10 C.F.R. 5 2.714 but, also, must fulfill the requirements pertaining to late-filed intervention petitions. See, 10 C.F.R. I 2.714(a)(1-v). The ~/ On December 30, 1988 Mr. Macktal filed a " Motion for Reconsideration 4 of Memorandum and Order CLI-88-12." in his itotion, Mr. Macktal acknowledges that the Commission's decision ef fectively denies the relief Mr. Macktal seeks in this " Motion for Limited Intervention." " Motion for Reconsideration of Femorandum and Order CL1-P8-12." (December 30, 1988), at 1.
I', t 1 Staff submits that.Mr. Macktal's Motion meets none of these requirements and must be denied. III. ARGUMENT A. Jurisdiction This " Motion for Limited Intervention" was filed before the Atomic Safety and Licensing Board. Motion at 1. The Licensing Board has the authority to decide, in the first instance, whether it retains jurisdic-tion to rule on this motion. See, Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980). The Staff submits -that the Licensing Board no longer has jurisdiction, to rule on this Motion. Alternatively, if the Licensing Board believes it does have jurisdiction to rule on the Motion, it should refrain from doing so and
- certify the Motion to the Appeal Board for eventual certification to the Comission since the Comission in its Order of December 21, 1988, CLI-88-12 in effect rendered the final decision in the matter and thus -
terminated this proceeding. The Commission's regulations do not specifically discuss the situation where, as here, a proceeding is terminated as the result of a j settlement agreement among the parties which is approved by the Licensing Board. Rather, the regulations are couched in terms of initial decisions. An initial decision of a Licensing Board becomes final agency action 30 days after its issuance. 10 C.F.R. 6 P.760(a). The Licensing Board retains jurisdiction over that decision until either a notice of appeal is filed, or the time has elapsed within which the comission may direct certification of the record. 10C.F.R.I2.717(4).
In this case there was no initial decision in the usual sense of the word. However, the settlement agreement which resulted in the ending of all of the matters in controversy before the Licensing Board could, for jurisdictional purposes, be considered as an initial decision. Therefore, the Licensing Board's jurisdiction would have existed until the-decision became final agency action, 30 days after its issuance. The Licensing Board dismissed both of the Comanche Peak proceedings on July 13, 1988. " Memorandum and Order (Dismissing Proceeding) " (July 13,1988). Therefore, the decision dismissing the proceeding would have becane final agency action on August 12, 1988. On August 11, 1988 CFUR filed its original petition for leave to intervene. The Staff believed that, since CFUR's petition was tantamount to a request for the commencement of a new proceeding, even if the Licensing Board had jurisdiction to rule on it, the Commission should exercise its supervisory authority and rule on that petition itself.
- See, "NRC Staff Respnnse in Opposition to Request for Hearing and Petition for Leave to intervene by Citizens for Fair Utility Regulation," (August 31, 1988); "NRC Staff's Response to CFUR's First Supplement to its Request for Hearing and Petition for Leave to intervene," (October 3,1988). The Commission elected to do just that, and ruled on CFUR's petition in its Order of December 21, 1988. Texas Utilities Electric Co., et.al (Comanche Peak Steam Electric Station. Units 1 and 2), CLI-88-1?, (slip op.)
(December Pl.1988). That Order dismissed CFUR's petition in its 1 l entirety..The effect of that Order was to terminate the Comanche Peak Operating License proceeding, since there were no more parties left, and l no matters in controversy remaining before any tribunal of the Commission. l-i
On December 16, 1988, Mr. Macktal filed his Motion. At that time the Licensing Board could still have had jurisdiction and could still have ~ acted, since the Comission had not yet determined where jurisdiction to rule on the CFUR petition should lie. The Commission could still have directed that the record be certified to it. However, when the Comission acted, the Licensing Board's jurisdiction was teminated. The Licensing Board does.not retain jurisdiction on a motion on which it has not yet acted after it nomally loses jurisdiction. See, generally, Nuclear Fuel Services inc. and New York State Energy Research an'd Development-Authority (Western 0ct York Nuclear Service Center), LBP-83-15, 17'NRC 476,477(1983). That case stands for the proposition that.such motions are effectively denied. The Staff believes that the Licensing Board has lost the jurisdiction to rule on the Motion, and that the Motion must be treated as another attempt to start a new Comanche Peak proceeding. Thus, the Motion would be ruled on by the Commission. If the Licensing Board detemines it has jurisdiction to rule on this Motion, and if it detemines that it should exercise that jurisdictional authority to do so, as discussed below, the Staff submits that the Motion should be denied on the merits. The Motion does not establish Mr. Macktal's standing to intervene in any proceeding related to the Comanche Peak operating license, it does not identify an aspect of the proceeding about which he wishes to intervene, and the Motion does not establish that any balancing of the five factors governing late intervention weigh in any way in favor of Mr. Macktal's intervention. If the Licensino Board does believe, however, that it still retains . jurisdiction, the Staff subnits that the Board Obould exercise that I
jurisdiction only to the extent necessary t' certify the Motion to the Appeal Board for eventual certification to the Commission. As stated above, this Motion is an attempt to commence a proceeding which does not now exist. It involves a question already ruled upon by the Comission in its Order denying CFUR's petition for leave to intervene. The Comission has already said that the settlement agreement which is the subject of Mr. Macktal's Motion does not constitute a violation of Comission regulations, and is more properly before another forum. CLI-88-17, supra, slip op. at 10. Therefore, this motion involves a question of first impression. That is, whether a new proceeding should be started with respect to the Comanche Peak facility limited to a matter which the Comission has ruled is not a violation of Comission regulations and is properly before another forum. In effect, consideration of this motion for limited intervention would require the Comission to revisit its recent ruling. Therefore, the Staff believes that this motion piesents a question appropriate for certification pursuant to 10 C.F.Rd f.718(1) and 2.785(d) of the Commission's regulations. B. Standards for Intervention. A party seeking intervention in a Comission proceeding must satisfy the requirements of 10 C.F.R. 6 2.714 Any petition for leave to intervene must set forth with particularity petitioner's interest in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons the petitioner should be allowed to intervene, and the specific aspects of the subject matter of the proceeding as to which petitioner wishes to intervene. 10 C.F.R. I2.714(a)(?). The burden is on the petitioner to satisfy these
.i f;; '1 .g. requirements. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983). The petition must address the . criteria ~ of 10 C.F.R. I 2.714(d). These criteria are: .(1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding. (3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest. In addition, petitioner must set forth at-least one valid contention. 10C.F.R.l2.714(b). While this requirement does not have to be satisfied by the filing itself, it must be satisfied before a petition will-be granted.- Since the Motion in question here is a late petition for leave to intervene Mr. Macktal must satisfy the late filing requirements of 10 C.F.R. I 2.714(a)(1) in addition to showing that he has standing to intervene, and setting forth the aspect or aspects of the proceeding concerning which he seeks to intervene.. For Mr. Macktal to be successful, the factors of 10 C.F.R. I 2.714(a)(1) must weigh in his favor. These factors are:
- 1) Good cause, if any, for failure to file on time; 11) the extent to which Mr. Macktal's interest can be represented elsewhere; 111) the extent to which Mr. Macktal's participation will contribute to the development of a sound record; iv) the extent to which Mr. Macktal's interests are represented by those of another party; and v) whether Mr.
Macktal's participation will broaden the issues or delay the proceeding. 10 C.F.R. I 2.714(a)(1)(1 v). There is a large body of Comission case
law interpreting the various intervention requirements. The precedents which apply to the circumstances presented by the Motion in question here are discussed below. C. Interest and Standing. The Comission has previously held the judicial concepts-of standing will be used to determine whether a petitioner has standing to intervene in Comission proceedings. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 612 (1976). Judicial concepts of standing require a showing that the action sought in the proceeding will cause injury in fact, and that injury is arguably within the zone of interest protected by the statutes governing the proceeding. CLI-83-25, supra,18 NRC at 332. 'In Comission proceedings the injury must be arguebly within the zone of interest protected by the Atomic Energy Act of 1954 or the National Environmental Policy Act. Niacara Mohawk Power Company (Nine Mile Point Nuclear Station. Unit 2), L?P-83-45, 18 NRC P13, 215 (1983). The Motion makes no attempt to demonstrate that Mr. Macktal has standing to intervene in the Comanche Peak proceeding. Mr. Macktal fails to demonstrate how the granting of an operating license for the Comanche Peak facility would cause him any injury. He merely contests the Staff's and Applicant's interpretation of a settlement agreement he signed before another forum. All he provides is speculation that the Staff's and Applicant's interpretation of the settlement agreement might adversely affect other litigation in which he is involved. Such speculation does not constitute injury in fact. Mr. Macktal makes no attempt to demon-strate how interpretation of this agreement would constitute injury )
within the zone of interests protected by either the Atomic Energy Act or the National Environmental Policy Act. Thus, the Staff submits that Mr. Macktal has established no standing to intervene. Mr. Macktal has identified an issue he wishes to raise should he be granted intervention, namely the interpretation of the scope and impact of the signing of the allegedly illegal January 2, 1987, settlement agree-ment. This issue has already been found by the Commission to be insuffi-cient to support intervention in the Comanche Peak proceedings. See, CLI-88-12, supra, slip op. at 9-10. Therefore, Mr. Macktal has not raised an issue that can be considered an aspect of this proceeding. Even if Mr. Macktal had met the interest and standing requirements of 10 C.F.R. 9 2.714(a) and raised an aspect within the scope of the proceeding, he still must show that a balancing of the five factors, which must be addressed in the case of late-filed petitions, weighs in favor of granting his Motion and must submit a valid contention. D. Good Cause, if any, for Failure to File on Time. The first, and most important of the factors governing late intervention is the showing of good cause, if any, for Mr. Macktal's failure to file on time. If Mr. Macktal fails to demonstrate good cause for the late filing, then he must make a comp...ing showing with respect to the remaining four factors. Washington Public Power Supply System, et al. (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1173 (1983); Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982). The weight of the burden with respect to the remaining factors will depend, as well, on the posture of l
the proceeding at the time of the filing of the petition. ALAB-747, supra, at 1173. The Staff submits that where, as here, there would be no further proceedings without this late-filed petition, the burden should be a very heavy one if Mr. Macktal cannot demonstrate good cause for his late filing. Mr. Macktal makes no attempt in his Motion to specifically address good cause for the late filing of his Motion. He merely asserts that he was not served with the Staff's or Applicant's responses to CFUR's first supplement to its petition. Motion at 1. If this assertion is meant to show good cause for this late filing, it is inadequate. The i Staff had no obligation to provide Mr. Macktal or his counsel with its i response to CFUR's petition. Mr. Macktal is not a party to this proceeding and thus copies of documents filed in this proceeding need not be served upon him. Mr. Macktal's counsel was aware that Mr. Macktal provided an e.tfidavit which was filed in support of CFUR's first supple-ments. The Staff's and Applicant's responses became public information upon their filing. It was Mr. Macktal's counsel's obligation to make himself aware of such public information. See, Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1048 (1983). The failure of Mr. Macktal's counsel to be served with this l information, especially when he did not inform anyone of his desire to be served separately from CFUR, does not establish his good cause for late filing. In addition Mr. Macktal has shown no reason why his extrerely late Motion to intervene should be entertained because he supplies no i specific information as to how the Staff and Applicant purportedly distorted the meaning, impact and scope of the allegedly illegal January j
1 13 2,1987 Settlement Agreement. Therefore, Mr. Macktal has failed to demonstrate any good cause for late filing, and this factor should weigh heavily against the granting of his Potion with respect to any proceeding pertaining to the Comanche Peak facility. E. Availability of Other Means to Protect Mr. Macktal's Interests and the Extent to k'hich That Interest Will be Represented by Existing Parties. 10 C.F.R. I 2.714(a)(ii) concerns whether there is another forum for t a party to have its. interests represented. 10 C.F.R. I 2.714(a)(iv) concerns whether there is another party to represent Mr. Macktal's interests. These factors are generally given less weight than the others. See, Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986), citing, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station Unit 1), ALAB-642, 13 NRC 881,'895 (1981). The Staff believes that Mr. Macktal's interests with respect to his concerns about the January 2,1987, settlement agreement have previously been presented by another party, nanely CFUR, and that his interest has already been examined and found to be without merit in light of the Commission's recent Conanche Peak decision. See, CLI-88-12, supra. Further, as the Comission noted Mr. Macktal has another forum to have his concerns about the January 2, 1987, settlement agreement raised, namely the DOL proceeding. Id. at 9-10. Therefore, factors (ii) and (iv) weigh against Mr. Macktal's intervention. F. Ability to Contribute to the Development of a Sound Record. The third factor set forth in 10 C.F.R. G 2.714(a)(1) concerns the ability of a petitioner to contribute to the development of a sound record. In determining whether a given petitioner will be able to I L
i 14 contribute to the development of a sound record, it must be determined whether a petitioner has any special expertise on the subject it wishes to raise. See, Mississippi Power & Light Co., et al. (Grand Gulf Nuclear Station Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982). It was incumbent on Mr. Macktal to set out with as much particularity as possible the precise issues he wishes to cover, to identify his proposed witnesses and to summarize their testimony. Id.; Long Island Lighting Company (Shorehan Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387, 399-400 (1983). This was not done by Mr. Mactal. Mr. Macktal has failed to meet any of these requirements and has presented only a vague request to inform the Commission as to the meaning of the signing of a settlement agreement which has no relevance to any Comanche Peak operating license. See, Motion at 2. Thus, the Staff submits that Mr. Macktal's failure to demonstrate any ability te contribute to the development of a sound record weighs heavily in favor of denial of his Motion. G. Whether Mr. Macktal's Participation Would Broaden the Issues or Delay the Proceeding. Mr. Macktal does not even attempt to address this factor in his Motion. As far as broadening the issues is concerned, since the Licensing Board has dismissed the proceeding, granting intervention to Mr. Macktal would be tantamount to commencing a whole new proceeding. The mere fact that there would be a new proceeding where there is now no proceeding serves to broaden the issues to be heard. The only issue Mr. Macktal j seeks to raise, namely his concerns with a January 2,1987, settlement agreement, has already been found by this agency's highest tribunal to be
y i . r insufficient to support the ordering of a hearing. Further, it is patently obvious that the untimely filing of this Motion would indeed cause delay if the dismissed proceeding were reinstated. In sum, Mr. Marktal has not established his standing to intervene with respect to any Comanche Peak proceedings. He has not identified an appropriate aspect of any proceeding about which he wishes to intervene. Finally, he has not attempted to address the five factors governing late intervention. An examination of the vague assertions made in Mr. Macktal's Motion leads to the conclusion that none of the five factors would weigh in favor of Mr. Macktal's intervention. IV. CONCLUSION For the reasons set forth above, Mr. Macktal's " Motion for Limited Intervention" in either the Comanche Peak Operating License or the Construction Pennit Amendment proceeding should be denied. Respectfully submitted, L lNb 0. N Janice E. Moore Counsel for NRC Staff Dated at Rockville, Maryland this 5th day of January, 1989
.j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .)r : BEFORE THE ATOMIC SAFETY AND LICENSING BOARD N,uu In 'the Matter of p l TEXAS UTILITIES ELECTRIC l Docket Nos. 50-445-OL COMPANY, ET AL. h 50-446-OL I (Comanche Peak Steam Electric ') Docket No. 50-445-CPA Station, Units 1and2) ) CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE IN OPPOSITION TO MOTION FOR LIMITED INTERVENTION " 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 Consnission's internal mail system, this 5th day of January,1988: Peter B. Bloch, Esq., Chairman
- Mrs. Juanita Ellis
. Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 l Susan M. Theisen, Esq. Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division 1107 West Knapp P.O. Box 12548, Capital Station Stillwater, OK 74075 Austin, TX 78711-1548 Elizabeth B. Johnson Robert A. Wooldridge, Esq. Administrative Judge Worsham Forsythe, Samples Oak Ridge National Laboratory &Wooldridge P.O. Box X, Suilding 3500 2001 Bryan Tower, Suite 3200 Oak Ridge, TN 37830 Dallas, TX 75201 Dr. Walter H. Jordan Joseph Gallo Esq. Administrative Judge Hopkins & Sutter 881 West Outer Drive Suite 1250 Dak Ridge, TN 37830 1050 Connecticut Avenue, N.W. Washington, DC 20036
i Billie Pirner Garde Mr. W. G. Counsil GAP - Midwest Office Executive Vice President 104 E. Wisconsin Avena - B Texas Utilities Generating Company Appleton,'WI 54911-4897 400 North Olive Street, L.B. 81 Dallas, TX 75201 Wil.liam L. Brown Esq.* U.S. Nuclear Regulatory Comission Anthony Z. Roisman, Esq. 611 Ryan Plaza Drive, Suite 1000 Suite 600 Arlington, TX 76011 1401 New York Avenue, NW Washington, DC 20005 -Asst. D! rector for Inspec. Programs Comanche Peak Project Division William H. Burchette, Esq. j U.S. Nuclear Regulatory Comission Mark D. Nozette, Esq. P.O. Box 1029 Heron, Burchette, Ruckert Granbury, TX 76048 & Rothwell, Suite 700 Washington, DC 20007 Lanny Alan Sinkin Christic Institute James M. McGaughy 1324 North Capitol Street GDS Assoc. Inc. Washington, DC 20002 1850 Parkway Pl., Suite 720 Marietta, GA 30067 Robert D. Martin
- U.S. Euclear Regulatory Comission Atomic Safety and Licensing Board 611 Ryan Plaza Drive, Suite 1000 Panel (1)
Arlington, TX 76011 U.S. Nuclear Regulatory Comission Washington, DC 20555 Robert A. Jablon, Esq. Spiegel & McDiarmid Atomic Safety and Licensing Appeal 1350 New York Avenue Panel (5) Washington, DC 20005-4798 U.S. Nuclear Regulatory Comission Washington, DC 20555 Jack R. Newman, Esq. Newman & Holtzinger, P.C. Robert M. Fillmore Suite 100 Worsham, Forsythe, Samples 1615 L Street, N.W. & Wooldridge Washington, DC 20036 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201 Docketing-and Service Section* Office of the Secretary Adjudicatory File
- U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Washington, DC 20555 Panel Docket U.S. Nuclear Regulatory Comission Washington, D.C.
20555 l
r. i. ~ r, i ~ ' 3 L-Stephen M.'Kohn ~ Kohn, Kohn 8~Colapinto, P.C. 526 U Street N.W. Washington, D.C. 20001 WlES./b R Janice E. Moore Counsel for NRC Staff 1 J _ - - - - - _ _ _ - _ _ _ _ _ _ _ - _ _ - - - - _ - - _ - - - -}}