ML19262B553

Opposes Citizens Against Nuclear Power,Inc 791123 Request to File Second Amended Petition to Intervene.Inexperience Is No Cause for Filing Late Contentions Nor Is Withdrawal of Two Proposed Findings

ML19262B553
Person / Time
Site:	05000599, 05000600
Issue date:	12/10/1979
From:	Bielawski A CONSOLIDATED EDISON CO. OF NEW YORK, INC., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19262B554	List: ML19262B553 ML19262B563
References
NUDOCS 7912280226
Download: ML19262B553 (7)

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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

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COMMONWEALTH EDISON CO., ) Docket Nos. S50-599 and et al. ) S50-600

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(Carroll County Site) )

December 10, 1979 APPLICANTS' RESPONSE TO CANP'S MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION Pursuant to 10 CFR S2.730(a), Commonwealth Edison Company, Interstate Power Company, and Iowa-Illinois Gas and Electric Company (" Applicants") respond to the " Motion For Leave To File Second Amended Petition" and thc "Second Amended Petition For Leave to Intervene" filed on behalf of Citizens Against Nuclear Power, Inc.,

James Runyon and Edward Gogol (" Petitioners") in the above-captioned proceeding. Applicants request that Petitioners' Motion and Amended Petition be denied.

ARGUMENT

1. Procedural History i

In its Order entered July 30, 1979, this Board .,

scheduled a Special Prehearing Conference to be held on September 19, 1979. Pursuant to the Order, and 10 CFR S 2. 714 (b) , Petitioners were required to file their con-tentions on or before September 4, 1979. Petitioners' 1649 192 un2280 a A 6 g,

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t Amended Contentions were filed on November 23, 1979, eighty days past the date these contentions were due.

2. Requirements for Non-Timely Filings The factors to be considered by the Board in determining whether to permit non-timely contentions are:

a) Whether Petitioners demonstrate good cause for their failure to file on time; b) The availability of other means whereby Petitioners' interest will be protected;

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c) The extent to which Petitioners' partici-pation may reasonably be expected to assist in developing a sound record; d) The extent to which Petitioners' interest will be represented by exieting parties; and e) The extent to which Petitioners' partici-pation will broaden the issues or delay the proceedings. 10 CFR S2.714 (a) (3) .

Petitioners seek to meet the " good cause" require-ment based upon the inexperience of counsel and Petitioners and the fact that Applicants withdrew certain proposed findings with respect to which Petitioners submitted timely contentions. But the fact that Petitioners and their counsel admit they are inexperienced is not good cause for filing late contentions. To the contrary, it illustrates that Petitioners are unlikely to provide assistance to this Board in developing a sound record, and that their partici-pation is likely to cuase delay.

Applicants' withdrawal of two proposed findings during the course of the prehearing conference, and Pe-titioners' expression of surprise, does not excuse Petitioners' 1649 193

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submission of new, untimely contentions. As early as May 1, 1979, Petitioners were on notice that the issues to be considered in this proceeding were:

Whether, from both an environmental and safety standpoint, the Carroll County site is suitable with respect to: geology, hydrology, meteorology, terrestrial and aquatic ecology, water use, regional demography, community characteristics, economy, historical and national landmarks, land use, noise considerations and aesthetics. 44 Fed. Reg. 26229 (1979).

Petitioners have failed to show why they could not have raised the issues they now seek to litigate prior to the prehearing conference. Indeed, Petitioners contentions, even at this late date, are merely cribbed from those submitted by other parties who managed to submit them in a timely fashion. The fact that Applicants withdrew two proposed findings, dealing with unrelated issues, at the prehearing conference, is irrelevant. Petitioners have to show why they could not have submitted these contentions on time.

Factors (ii) and (iv) pertain to the availability and the extent to which Petitioners' interest will be protected by other means. The " interest" of Petitioners relating to their Amended Petition, i.e., Petitioners' right to litigate amended contentions 16-19, will be more than adequately protected in the event their Petition is denied.

First, CANP Amended Contentions 16, 17 and 18 are identical in all material respects to the State of Illinois' Amended Contentions 5, 7 and 8 respectively. Iowa Socialist ' arty Contention 1(a) (i) , Iowa Public Interest Group Contention 1649 194

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7, and the State of Illinois Amended Contention 17 (b) (v) all pertain to the emergency planning and evacuation, and thus cover the general issue raised in CANP Amended Contention

19. Thus, each of the issues raised in Petitioners' Amended Contention have been raised by other parties to this pro-ceeding.

Petitioners' assertion that their interests cannot be adequately protected by the parties already admitted by thic proceeding is without foundation. The State of Illinois has been granted intervenor status as a party in this pro-ceeding. The State, through its Attorney General, represents the interests of People of the State of Illinois, and therefore Petitioners' interests, pursuant to Constitutional mandate.

Illinois Constitution of 1970, Art. V, Sec. 15; Ill. Rev.

Stat., Ch. 14, par. 4. Further, the State of Illinois is not inexperienced in NRC proceedings.

Similarly, Petitioners have not established that their participation with respect to their Amended Contentions will assist in developing a sound accord. As has already been stated, Petitioners' Amended Contentions are generally duplicative of the Contentions submitted by the State of Illinois. Moreover, since Petitioners and their counsel admit unfamiliarity with proceedings of this nature, it is doubtful they can contribute to developing the record in this proceeding.

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Finally, due to Petitioners' admitted inexperience, it is reasonable to expect that their participation will inherently result in delay. Such delay might '>e acceptable if Petitioners were seeking to litigate issues which were not already before this Board. But where, as in the case at bar, Petitioners are merely attempting to introduce contentions which other parties with similar interests have already submitted, there is no reasonable justification for admitting Petitioners' Amended Petition.

Petitioners' argument that admitting their Amended Petition would be in the spirit and purpose of the Commission's regulations governing special prehearing conference 1 is spurious. One of the purposes of the prehearing conference and of the negotiations preceeding the prehearing conference is to permit clarification of the contentions which have already been submitted by the parties. All this is meant to achieve definition of the issues to be litigated in a reasonably timely manner. The regulations do not, as Petitioners appear to assert, contemplate that petitioners wi).1 be able to gamble on the admission of one set of contentions upon the assumption that if their arguments are rejected at the prehearing conference, they will have a second chance to submit new and totally different contentions to preserve their right to continued participation.

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3. Adequacy of Contentions In their " Response to the Memorandum of Special Prehearing Conference" Applicants set forth the require-toents for an adequate contention, and specifically addressed the deficiencies with contentions submitted by other Intervenors which are essentially identical to Pecitioners' Amended Contentions. Thus, we will not restate in detail our objections regarding Petitioners' Amended Contentions.

Amended Contention 16 states:

Applicants have failed to adequately show that the Plum River fault is not a capable fault in determining site geologic suitability.

No basis is given for the asserted inadequacy with Applicants' seismic analysis, and thus the conten-tion fails to meet the basis and specificity requirements of 10 CFR S2.714.

Amended Contention 18 states:

Applicants have failed to adequately show that the proximity of the pro-posed site to the Savanna Army Depot does not pose an undue danger to the public's health and safety in the event of an attack or accident in-volving the Depot.

Applicants object to the reference to "an attack" on the depot on the same grounds Applicants objected to the Jo Daviess County Contention 4 (b) . See 1649 197

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" Applicants' Response to the Memorandum of Special Pre-hearing Confernnce and Order," page 16.

Amended Contention 19 states:

Applicants have failed to adequately show that there exist adequate redical facilities or personnel in reasonable proximity of the proposed site in the event of an accidental of f-site discharge of radiation.

Again, Petitioners have not identified any basis for their implied assertion that there are inadequate medical facilities or personnel in reasonable proximity to the site. Accordingly, the contention does not comply with the requirements of 10 CFR S2.714.

CONCLUSION For the reasons stated above, Applicants request that Petitioners' " Motion For Leave to File Second Amended Petition" and the "Second Amended Petition For Leave To Intervene" be denied in their entirety.

In the alternativc Applicants request that the Board strike Amended Contentions 16 and 19 in their entirety and modify Amended Contention 18 as suggested above.

Respectfully submitted,

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By */* ,

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Alan P. @felawski One of the Attorneys for Applicants ISHAM, LINCOLN & BEALE Suite 4200 One First National Plaza Chicago, Illinois 60603 Telephone: 312-558-7500 1649 198