ML19346A036

Memorandum in Support of Nm Beck,Et Al 810427 Petitions to Intervene.Contentions 5 Through 9 Should Be Admitted Even Though Untimely Filed.Certificate of Svc Encl

ML19346A036
Person / Time
Site:	Browns Ferry
Issue date:	05/27/1981
From:	Ellis L, Pyle R AFFILIATION NOT ASSIGNED
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106040418
Download: ML19346A036 (7)

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UNITED STATES OF AMERICA e h w NUCLEAR REGULATORY COMMISSION f 2 , ,; -

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Before the Atomic Safety and Licensing Boarc ([ [ // ,'S 4# '/40 C ti %.l,, Wsey y i In the Matter of ) .wy,gu,g,,

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TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-259 N.', A , fy'

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galei MEMORANDUM IN SUPPORT OF THE PETITIONS OF NOEL M. BECK, ET AL, FOR LEAVE TO INTERVENE, AS AMENDED AND SUPPLEMENTED I.

PBELIMINARY STATEMENT On April 27, 1981, the petitioner, Noel M. Beck, et al, filed and served a document headed " Amended Contentions", amending and supplementing their earlier petitions for leave to intervene by addiag contentions numbered 5 through 9. Petitioners ask this Board to consider the material in this memorandum in support of these nontimely filed contentions.

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CONTENTIONS NUMBERED 3 THROUGH~9 SHOULD BE ENTERTAINED, NOTHWITHSTANDING THAT THEY WERE NOT TIMELY FILED Both the NRC Staff and TVA have filed responses which object to the admissions of petitioners' contentions numbered 5 through 9, as contained in their amended and supplemented petition for leave to intervene, which was filed and served on April 27, 1981. Both responses correctly point out that the petition dated April 27, 1981 made no specific reference to the five factors set out in 10 C.F.R. Section 2.714(a)(1).

The failure to refer to these factors was purely and simply the fault of counsel. By way of explanation but not'of excuse, counsel state that it was an oversight when preparing the contentions themselves which, in retrospect, is difficult tc understand, given the Board's statements during the special pre-hearing conference on April 10. Counsel apologize to the Board for the failure to address these factors. We submit the following in support of the nontimely filing of contentions.

With respect to the first factor, good cause for failure to file on time, good cause exists because of the inadequate time available to counsel to prepare and file the petition which was timely filed and served on March 26. The sequence of events, referring to counsel individually where appropriate, was as l

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'follows: The first contact with the petitioners was . phone call from one of the petitioners to Mr. Ellis on March 16, 1981. On March 20, Mr. Ellis received from the petitioners a copy of the

' order setting the special pre-hearing conference, and other materials of little help in evaluating the possible intervention, but began legal research on the problem of how to approach the issues with which the petitioners were primarily concerned. After phone calls over the weekend of March 21 and March 22, the petitioners sent Mr. Ellis additional materials, which were received on March 24, these materials including TVA's February 28, 1980 Environmental Assessment, the July 31, 1980 Application for License Amendments, with enclosures, and various other materials.

Between that date and March 26, counsel reviewed these materials,'

developed their theory for intervention and prepared and filed the petition.

With respect to the second and fourth factors mentioned 1

in 10 C.F.R. Section 2.714(a)(1), the record speaks for itself.

No other means but inter"ention exists to protect the interest of the petitioners. Their interest in preventing piecemeal consi-deration of the impacts of TVA 's LLRW system cannot be protected if TVA is permitted te obtain a ciecemeal evaluation of its LLRW proposal, as that agency appears intent upon doing, as reflected by the history of its applications for license amendments to permit storage of LLRW and by its responses to the petitions to i

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t W-intervene. The procedure of limited appearance is also not an available remedy since, if leave,to intervene is denied, there will be no hearing, neither the NRC staff nor TVA having peti-tioned for a hearing.

Without impugning the intention of the NRC staff or TVA to protect the public interest in this proceeding, they are the only other existing parties to this proceeding, and obviously do not and cannot represent the interest of the petitioners.

With respect to the third factor, the petitioners believe that their participation has and will continue to asoist in developing a sound record, by requiring, if they are success-ful, an evaluation of TVA 's LLRW proposal.

With respect to the fifth factor, the extent to which l the participation of the petitioners will broaden the issues or l

l delay the proceeding, while their participation obviously will broaden the issues, it should not delay the proceedings, except in j the sense of extending the proceedings by requiring a considera-l tion of issues not raised by the other parties. This should not l

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be a consideration, if the result is compliance with the appli-cable laws and regulations.

submitted:

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'LEROY J. ELLIS, III l

421 harlotte Avenue Nashville, Tennessee 37219

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4220 Nolensville Road Nashville, Tennessee' 37211 Attorneys for Intervenors, 4

Noel M. Beck, et al May 27, 1981.

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U'lITED STATES OF AMERICA O/ S/

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Before the Atomic Sa'fety and Licensing Board In the Matter of )

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TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-259

) 50-260 (Browns Ferry Nuclear Plant, ) 50-296 Units 1, 2, and 3) )

CERTIFICATE OF SERVICE I hereby certify that I have served the original and two conformed copies of each of the following documents on the Nuclear Regulatory Commission by depositing them in the United States mail, postage prepaid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attn.: Chief, Docketing and Service Branch:

MEMORANDUM IN SUPPORT OF THE PETITIONS OF NOEL M. BECK, ET AL, FOR LEAVE TO INTERVENE, AS AMENDED AND SUPPLEMENTED and that I have served a copy of each of the above documents upon the persons listed below by depositing it in the United States mail, postage prepaid and addressed:

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l United States Nuclear H. S. Sanger, Jr., Esq.

Regulatory Commission General Counsel Executive Legal Director Tennessee Valley Authority Washington, D.C. 20555 400 Commerce Avenue 3 118 33C Knoxville, Tennessee 37902 Herbert Grossman, Esq. Mrs. Elizabeth B. Johnson, Chairman, Administrative Judge Administrative Judge U.S'. Nuclear Regulatory Comm. Oak Ridge National Laboratory Atomic Safety and Licensing P.O. Box X, Building 3500 Board Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Dr. Quentin J. Stober, Jessica H. Laverty, Esq.

Administrative Judge Office of the Executive Legal Fisheries Research Institut.e Director University of Washington U.S. Nuclear Regulatory Comm.

Seattle, Washington 98195 Washington, D.C. 20555 W. Walter La Roche, Esq.

Office of the General Counsel Tennessee Valley Authority Knoxville, Tennessee 37902 This 25 7 day of May, 1981.

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LEROY J,/ELLIF,~III Attor%y for Intervenors, Noel /M. Beck, et al Chancery Building 421 Charlotte Avenue Nashville, Tennessee 37219 4

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