ML19282A831

Answers Notice of Appeal & Appeal Brief of Kudzu Alliance & W Eddleman by Insisting That If Allowed Intervention, Petitioners Must Follow NRC Rules of Practice & File Specific Contentions.Certificate of Svc Encl

ML19282A831
Person / Time
Site:	Harris
Issue date:	02/09/1979
From:	Trowbridge G SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
NUDOCS 7903070147
Download: ML19282A831 (13)

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February 9, 1979

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'O' ll IS[d >/q H UNITED STATES OF AMERICA Ig gt*1N w , / NUCLEAR REGULATORY COMMISSION by 944 0 -

M BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400

) 50-401 (Shearon Harris Nuclear Power ) 50-402 Plant, Units 1, 2, 3 and 4) ) 50-403 APPLICANT'S ANSWER TO NOTICE OF APPEAL AND APPEAL BRIEF OF KUDZU ALLIANCE AND WELLS EDDLEMAN By Memorandum and Order dated January 10, 1979, the Atomic Safety and Licensing Board denied the petition of Kudzu Alliance and Wells Eddleman (Petitioners) to intervene in this proceeding. Petitioners have appealed this denial by Notice of Appeal and Appeal Brief dated January 17, 1979.

As has been the case with all of Petitioners' filings with the Licensing Board, no copies of the Notice of Appeal or Appeal Brief were served on Carolina Power & Light Company (Applicant) or its counsel. Copies of the Notice of Appeal and Appeal Brief were obtained by Applicant's counsel from the Dock-eting and Service Section of the Office of the Secretary.

Each of the Petitioners appeals the denial of what Petitioners characterize as two separate petitions to intervene 7S03070/Y7

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-- one a petition for " general intervention" and the other a petition to intervene in the hearings on Applicant's manage-ment capabilities to be held by the Atomic Safety and Licens-ing Board pursuant to remand by Order of the Commission dated September 5, 1978.

I. Petition for General Intervention In its Memorandum and Order denying Petitioners' re-quest to intervene the Licensing Board treated three letters from Mr. Eddleman dated November 7, 27 and 29, 1978, as a peti-tion to intervene on behalf of both Petitioners. The Licensing Board construed the petition as requesting in part that the Board reopen the Harris construction permit hearings on all of the issues raised therein. The Licensing Board denied this part of the petition for want of jurisdiction.

Petitioners' Appeal Brief explains, however, that it was not Petitioners' intent to request at this time a re-opening of the hearing by the Licensing Board on all of the issues identified in their letters to the Licensing Board.~1/

Petitioners describe their petition for general intervention

~1/ Petitioners have, however, made such a request to the Nuclear Regulatory Commission by a communication dated January 17, 1979. Applicant will respond to this request as appropriate after the Commission determines how the request is to be treated procedurally.

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instead as a request that they "be made parties to the entire Harris plant case, dockets 50-400 through 50-403, and allowed to participate in any future hearings on it, including any we [ Petitioners] may request." As so explained, the petition for general intervention must be denied as inconsistent with the Commission's regulations. Under the Commission's Rules of Practice the construction and operation of a nuclear power plant may entail a variety of proceedings involving hearings or opportunity for hearings, e.g. hearings on applications for a construction permit, for an operating license, for amend-ments of a construction permit or an operating license; hear-ings for antitrust review; and hearings initiated by the NRC on its own initiative or upon request of an interected person on the modification, suspension or revocation of a construc-tion permit or operating license. Section 2.714 of the Rules of Pro,tice clearly contemplates that an interested person desiring to participate in such hearings must petition to in-tervene in each such hearing and that licensing boards estab-lished to rule on petitions to intervene in each such hearing will consider with respect to that hearing the interest of the petiticner in specific aspects of the issues specified in the notice of hearing, the timeliness of the petition in rela-tion to the notice of hearing, the responses of other parties to the petition, and the possible conditioning of an order permitting intervention to avoid repetition and duplication 3

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or to limit participation to issues in which the petitioner has en interest. There is no place in the NRC licensing pro-cedures for a blanket reque.St that a person automatically be made a party to any and all hearings associated with a dock-eted application for construction and operation of a nuclear power plant.

II. Petition to Intervene in Remanded Hearing In considering the Licensing Board's denial of Peti-tioners' request to intervene in the remanded hearing on Appli-cant's management capabilities, and the reasons assigned by the Licensing Board for that denial, it is important first to review the occasien for the remand and the purpose and focus of the remanded hearing.

The occasion for the remand was the letter of August 30, 1978, from the Licensing Board to the Nuclear Regulatory Commission stating that, in the light of a line inspector's report which nurfaced after the hearing, the Licensing Board had been misled by the testimony of two NRC supervisory in-spectors regarding Applicant's management capabilities in the light of experience in the operation of Applicant's Brunswick nuclear units.

The Nuclear Regulatory Commission remanded the pro-ceeding solely because the Licensing Board's letter to the 4

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Commission raised " questions regarding the forthrightness and accuracy of certain staff testimony concerning the management capabilities of Carolina Power & Light Company" and because "The Licensing Board's letter concerns the integrity of the adjudicatory process." The Commission further ordered the Office of Inspector and Auditor (OIA) to conduct a thorough inquiry into the basis for, and seriousness of, the alleged omission of the concerns of the line inspector from the writ-ten and oral testimony of the staff. OIA was to file a re-port on its inquiry with the Licensing Board and the record of the remanded hearing was not to be closed until the parties had an opportunity to assess what bearing, if any, the facts disclosed in the OIA inquiry have on Applicant's management capability.

Thus the purpose and focus of the remand was to ex-plore further the testimony of the NRC supervisory inspectors and the line inspector's report and views. Such exploration could reasonably include further inquiry into the accuracy, completeness and implications of events noted and reported in the course of inspections or contained in the licensee event reports referenced by the line inspector. But the purpose of the remand was not, as Petitioners would have it, to conduct a new and far-reaching inquiry on topics ranging from the fit-ness of Applicant's contractors to contingency plans for de-commissioning the Harris units, which could conceivably have 5

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a bearing on Applicant's management capabilities but no rela-2/

tionship to the occasion or purpose of the remand. -

In the context of the Commission's remand order Ap-plicant submits that the Licensing Board's findings on and balancing of the five factors enumerated in 10 CFR 2.714 (a) (1) were eminently sound.

1. Good cause for late intervention. Petitioners do not dispute that their petition to intervene is late. They argue that the fact that Mr. Eddleman was not a resident of the area and that the Kudzu Alliance had not been formed at the time of the initial notice of hearing in 1972 or subsequent re-notice in 1977 constitutes good cause for a late filing. The Licensing Board rightly rejected this argument. A contrary ruling.would mean that applicants for nuclear power plant per-mits and licenses would be subject to perpetual litigation as new opponents of the plant took up residence in the area and as existing residents formed new organizations to oppose the plant.-3/

-2/ For this reason the Licensing Board was correct in singl-ing out point 11 in Petitioners' letter of November 7 as the only issue raised by Petitioners bearing directly on the Staff testimony with respect to Applicant's operating experience and management capabilities.

3/ Petitioners argue that one member of Kudzu Alliance, Mr.

John Speights, "tried to intervene in 1971 (sic) and was denied." Mr. Speights did on October 2, 1972, within the tbne prescribed by the original notice of hearing, send a postcard to the Secretary of the Commission expressing his interest in participating in the hearing as an " inter-vention party." Both the Staff and Applicant answered (continued) 6

2. Availability of other means for protecting Peti-tioners' interests. The Licensing Board found that there are no other means by which the Petitioners' interests in the re-manded issue will be protected.-4/ It expressly took this fac-tor into account in Petitioners' favor in weighing all of the factorc to be considered.

3. Assistance in developing a sound record. The Licensing Board correctly notes that Petitioners make only passing reference to the central issue in the remand proceed-ing, namely a reexamination and reassessment of the results and implications of NRC inspection reports and testimony, and that Petitioners give no indication that they are in a posi-tion to make a significant contribution to the record of the (Footnote continued) the postcard opposing it as a petition - ttervene on the ground that it met none of the most elementary re-quirements of the Rules of Practice then in effect, in-cluding a failure to state either his interest or any contentions. He was provided ample opportunity by the Licensing Board at a prehearing conference on January 30, 1973, to expand on his interest and concerns. (Tr. 14-24)

The Board denied his petition on the ground that "his petition fails to meet the requirements of S 2.714, and, further, that a consideration of the factors listed in paragraph (d) of that section and the generalized nature of his expressed concerns rule out his qualifying as an actively participating party." (Special Prehearing Con-ference Order, pp.1-2)

-4/ Since under the Commissicn's order the remanded issue includes Applicant's management capability to operate as well as construct the Harris units, the Board's finding overstates the situation. Petitioners themselves recog-nize in their Appeal Brief the further opportunity for hearings at the operating license stage.

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proceeding. With respect to this central issue -- in fact in respect to any of the issues sought to ba raised by Peti-tioners -- there is no showing whatsoever that Petitioners 5/

have new information to contribute,- the technical expertise to evaluate information provided by others or any experience in the management of a nuclear power plant. While Mr. Eddle-man asserts that he is " knowledgeable in general engineering, systems engineering, and energy issues," that he has " access to many other knowledgeable professional and lay persons,"

and that Kudzu Alliance has "several other members with pro-fessional experience in medicine, health, engineering and al-ternative energy sources," he gives no hint how this knowledge or experience would be brought to bear on the subject of Appli-

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cant's management capabilities.

-5/ Petitioners assert in their letter of November 29 (p.5) that they have spoken to unidentified residents and people within CP&L, many of whom would not give their names, at the NC State Fair, and are thus in a position to provide information on "many things that go wrong in construction."

No other description of the alleged information is provided.

"It is to be hoped that we are long past that sorry day in this Nation's history when reliance was placed upon state-ments assertedly made by anonymous informants unwilling to come forward and be confronted on the accuracy of those statements." Metropolitan Edison Company et al (Three Mile Island Nuclear Station, Unit No. 2), ALAB 525, 9 NRC (February 1, 1979), Slip Op. at pp.6-7.

-6/ Mr. Eddleman also claims that many members of Kudzu Alliance, including himself, have investigative experience which will also be helpful. He recites as his own experience his inves-tigation of "the educational policies, history, dining pol-icies, and CIA connections to MIT while he was a student there, as well as an investigation of General Motors policies."

Letter of November 29, p.5.

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Appeal Board decisions have stressed the discretion vested in Licensing Boards in acting on late petitions to in-tervene and that the role of the Appeal Board is confined to deciding whether that discretion has been abused. Public Service Company of Indiana, Inc. (Marble Hill Nuclear Gener-ating Station, Units 1 and 2), ALAB-339, 4 NRC 20, 24 (1976).

Here, where the Licensing Board itself raised at the construc-tion permit hearing the issue of Applicant's operating expe-rience and its bearing on Applicant's management capabilities and has announced its intention to actively participate in the further development of the record, special deference is due the Licensing Board's determination ac to whether Peti-tioners' participation would assist in the development of a sound record on the remand issue.

4. Representation of Petitioners' interests by ex-isting parties. Mr. Eddleman and Kudzu Alliance have asserted no interest cognizable in the proceeding other than a legiti-mate interest common to other residents of the area in the safety and environmental impact of the Harris units. The in-terest of Petitioners is thus identical to the interest of the existing Intervenors, Conservation Council of North Carolina and Wake Environment, Inc., as set forth in their Petitions for Intervention dated October 30, 1972, and October 28, 1972, respectively.

The question posed by this factor is not whether ex-isting Intervenors or their counsel represent Mr. Eddleman or 9

Kudzu Alliance but whether they represent the same interest.

It may well be that Petitioners, if allowed to intervene, would pursue their common interest differently than existing Intervenors and would advance different contentions. This, however, goes only to the question, previously discussed, as to whether Petitioners have shown special expertise or infor-mation in some area not covered by existing Intervenors which would contribute to the development of a sound record on the remand issue. Petitioners have made no such showing.

5. Whether Petitioners' intervention would broaden the issues or delay the proceeding. We have already pointed out that Petitioners seek to inject in the remand proceeding a number of issues which could conceivably have a bearing on Applicant's management capabilities but which in the context of the Commission's remand order are outside the scope of the remand proceeding. As to the question of delay, a late inter-vention by Petitioners would inevitably delay the proceeding.

The Licensing Board has scheduled the remand hearing commenc-ing February 27, 1979. If Petitioners are allowed to inter-vene in the hearing, the only practicable course open to the Licensing Board will be either to postpone the hearing or to proceed as scheduled with existing parties and to reconvene the hearing later to accommodate Petitioners' intervention.

It is inconceivable to Applicant that participation in the hearing by Petitioners could start on February 27. We do not 10

know, of course, how long it would take Petitioners "to get on with preparing our case," to assemble unidentified "new information such as we wish to present" or to complete "in-vestigation such as we wish to conduct." (Appeal Brief, pp.

18 and 19) We do know, however, that Applicant would insist in accordance with the Commission's Rules of Practice that Petitioners file specific contentions, and that Applicant have the opportunity to question the allowability of such contentions, before Petitioners embark on testimony or cross-examination.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By fnj

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_ M s N Gegfge' F. Trowbridge Dated: February 9, 1979 11

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February 9, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400

) 50-401 (Shearon Harris Nuclear Power ) 50-402 Plant, Units 1, 2, 3 and 4) ) 50-403 CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Notice of Appeal and Appeal Brief of Kudzu Alliance and Wells Eddleman," dated February 9, 1979, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 9th day of February, 1979.

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~ V Gegrge F. >Trowbridge /

Dated: February 9, 1979

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400

) 50-401 (Shearon Harris Nuclear Power ) 50-402 Plant, Units 1, 2, 3 and 4) ) 50-403 SERVICE LIST Alan S. Rosenthal, Esq. Charles A. Barth, Esq.

Chairman Office of the Executive Legal Atomic Safety and Licensing Director Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington: D.C. 20555 Thomas S. Erwin, Esq.

Dr. John H. Buck P. O. Box 928 Atomic Safety and Licensing 115 West Morgan Street Appeal Board Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dennis P. Myers, Esq.

Associate Attorney General Michael C. Farrar, Esq. State of North Carolina Atomic Safety and Licensing P. O. Box 629 Appeal Board Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Wells Eddleman Route 1 Box 183 Ivan W. Smith, Esq. Durham, North Carolina 27705 Chairman Atomic Safety and Licensing Board Kudzu Alliance U.S. Nuclear Regulatory Commission Box 3036 Washington, D.C. 20555 Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 i

Dr. J. V. Leeds, Jr.

10807 Atwell Drive Houston, Texas 77096