ML20148N268
| ML20148N268 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 11/06/1978 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML20148N263 | List: |
| References | |
| NUDOCS 7811270051 | |
| Download: ML20148N268 (13) | |
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11/6/78.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TNE'ATGMIC SAFETY,AND LICENSIf1G BOARD In the Matter of )
)
DUKE POWER COMPANY )
(Amendment of Materials License Docket rio. 70-2623 SNM-1773 for Oconee Nuclear Station )
Spent Fuel Transportation and Storage )
at McGuire fluclear Station) )
NRC STAFF RESPONSE TO DAVIDSON PIRG PETITION SEEKING UNTIMELY INTERVENTION Introduction On July 28, 1978, the Nuclear Regulatory Commission published in the Federal Register a notice of opportunity for public participation in the proposed NRC Licensing Action for Amendment to Special Materials License Sf1M-1773.
43 Fed. Reg. 32905. The amendment to Sf;M-1773 would authorize the licensee, Duke Power Company, to transport spent nuclear fuel from the Oconee Nuclear facility for storage in the spent fuel pool located at the McGuire I
nuclear facility in accordance with Duke's application fcr amendment dated March 9, 1978. The notice provided that any person whose interest may be affected by the proceeding could file a request for public hearing in a form of a petition for leave to intervene with respect to whether the proposed amendment to SNM-1773 should be issued. Petitions to intervene were required to set forth the interest of the petitioner in the proceeding, i how that interest may be affected by the results of the proceeding, and the specific aspects of the subject matter of the proceeedng as to which I
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the petitioner sought to intervene. In addition, fifteen days prior to the !
first prehearing conference, a petitioner was to file c statement of its contentions. See 10 CFR E2.714.
At the prehearing conference held in Charlotte, North Carolina on October 24, 1978, Chuck Gaddy, Chairperson of the Davidson College Chapter of the North Carolina Public Interest Research Group (PIRG) distributed to the parties a copy of a letter dated September 7,1978 to the Chairman of this Atomic Safety and Licensing Board.1/ It was determined that Davidson PIRG sou0ht intervention status in this proceeding (Tr. 62) and the Board ruled that the PIRG 1etter should be treated as a ' petition seeking leave to intervene, and that- the parties would be afforded ten days to frame a response (Tr. 149).
In addition, in off-the-record conversations with the licensee, PIRG t indicated that it would file its contentions with the licensee who would then serve the Board and the parties. (Tr. 147). By an undated letter received by the licensee on November 1,1978, PIRG submitted a contention.
1/ Although the letter in question was dated September 7,1978, this was corrected to read October 7, 1978 on the record. (Tr. 64).
II.
Interest A petition to intervene in this proceeding must set forth with particularity the facts which pertain to the interest which may be affected by the proceeding.
10CFR52.714(a). The Commission has indicated that there is a " functional need for well-defined and specific interests, which will lend concrete adversity to the decisicn-making process".2/
The determination of whether the interests asserted by PIRG entitle it to status as a party is governed by judicial concepts of standing which require that PIRG allege an injury that will occur from the proposed amendment to SNM-1773, and an interest "within- the zone of interests" protected by the relevant statutes.3_/ In the Staff's view, PIRG has adequately alleged injury citing the "... potential threat to the property and possessions of the town's residents and the college and to the health of the students and residents..." and furthermore the alleged injury is clearly within the zone of interests protected by the Atomic Energy Act.1/
i Furthermore, as Mr. Gaddy, a student at Davidson College, and a PIRG member authored the PIRG Petition, the Staff concludes that .a member of PIRG has demonstrated with the requisite particularity how his interests could be adversely affected by the grant the subject license amendment.EI 2/ Edlow International Comp _any_ (Agent for the Government of India on Application to Export Special Nuclear Material), CLI-77-6, 3 NRC 563, 570 (1976).
3/ Portland General Electric Company (Pebble Springs, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 [1976); Sierra Club v. Morton, 405 U.S. 727 (1972). <
Al See Page 2 of the PIRG Petition.
EI Standing to intervene may be based upon residence in the vicinity of the activity. Norther _n States Power Company. (Prairie Island, Units 1 and 2), ALAB-107, 6 4_EC 188, 190 (1973), Aff'd. CLI-73-12, 6 AEC 241 (1973), Davidson College is proximate to Ncrth Carolina Highway 73 which is the route proposed for transport.
Finally, as Mr. Gaddy represents himself to be the Chairperson of the Davidson chapter of the Nortt Carolina PIRG, the Staff construes Mr.
Gaddy's authorship of the PIRG petition as a representation that the Davidson chapter has authorized intervention in this licer. sing proceeding.
-PIRG thus se. vat with particularity an alleged injury which is clearly within the zone of interests protected by the Atomic Energy Act. It has identified a member sufficiently close to the activities of the proposed action to confer standing. It has also adequately presented its author-ization to commit PIRG to intervention status in this proceeding. Thus, in the Staff's view, PIRG has the interest requirad by 52.714.
III.
Timeliness It is undisputed that the intervention is untimely. As such, the request' must be viewed in light of the standards of 10 CFR 52.714 governing untimely i
petitions to intervene which are:
t (i) Good cause, if any, for failure to file on time.
l (ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a ' sound record.
(iv) The extent to which the petitioner's interest will be l represented by existing parties.
(v) The extent to which peritioner's participation will broaden the issues or delay the proceeding.
The Staff response will consider these factors seriatum, l
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Good Cause,'if any, for failure to file on time.
Of the five factors to be considered under s2.714(a)(1), an adequate showing of good cause weighs heavily. PIRG asserts that it- failed .to meet the August 28, 1978 deadline'for its section did not reconvene until ;
classes commenced at Davidson on September 6, 1978. PIRG notes that most of its member were in other parts of the state or the country during the summr and were unaware vf the developments towards a licensing decision. It should be noted that publication in the Federal Register occurs nationwide and constitutes notice to all as a matter of law of the events therein noticed. Thus, in the Staff's view, no element of good !
cause can be attributed to the failure on the part of PIRG members to receive adequate notice. However, it appears that PIRG did not endeavor to intervene with great swiftness once classes reconvened.5/
Nearly two months elapsed from the reconvening of classes to that time.
the parties became apprised of PIRG's interest in this proceeding.
This delay is significant and no sub ;antial showing of good cause i
! has been made with regard to it. Thus whatever good cause l
is present, cannot be judged to be substantial.
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l S/ It should be noted that PIRG's letter to the Licensing Board was dated October 7, 1978, See footnotel 1. But, it was not until the preharing conference on October 24, 1978 that the parties to this proceeding, especially the NRC Staff and the Licensee, became aware of the existence of PIRG's interest in the proceeding. Thus, while a member of the Licensing Board was informed of pIRG's interest prior to the prehearing conference, the other parties were not and this was due entirely to the failure on the part of PIRG to properly serve its letter as required, both by the Commission's Rules of Practice and by the Federal Register notice indicating an opportunity for hearing. In the Staf f's vi~ew, tMe i
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l The availability of other means whereby the petitioner's interest will be protected.
Under this factor, one must first identify what is the petitioner's interest.
l The petitioner's interest seems to be limited to the presentation of certain evidence resulting from a PIRG investigation about the capability of certain public safety officials in responding to traffic accidents.U PIRG apparently wishes to have the results of its investigation made available to the Licensing Board for its examination. To the extent that this is the petitioner's interest , the Staff is of the view that other means are available whereby that interest can be satisfied. Among them, PIRG can present thin material to the Board in the fonn of a limited appearance. While the information presented by a limited appearee is not presented under oath and is not officially a part of the record, to the extent such information is significant or substantial and bears on the issues involved in the application, both the Licensee and the Staff are entitled to respond and the Board, sua sponte, may pursue issues it determines to be significant. Thus, the Staff is of the view that PIRG's interest could be presented by means of a limited appearance.
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
In judging the extent PIRG's participation might reasolably be expected to assist in developing a sound record, ont can only examine the PIRG
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Undated PIRG letter identifying a contention.
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. petition. From that petition, the Staff judges that PIRG has. undertaken certain efforts with a view to providing this Board with relevant infor'-
mation in the area of its interest. In addition, North Carolina PIRG has evidenced an interest in the issue of nuclear transport as evidenced by its issuance of a report, " Nuclear Cargo in North Carolina" dated October of 1976. Furthermore, PIRG alleges that other groups in the Davidson coninunity have indicated support for their efforts to the extent of possibly testifying on relevant issues before this Board.E/ Thus, this factor would appear to weigh favorably for PIRG's participation.
The extent to which the petitioner's interest will be represented by
_ existing parties.
\ lith regard to the extent to which existing parties could represent the interest identified by PIRG, namely, the capability of public safety officials to respond to a traffic accident involving a carrier of necicar waste, Carolina Action has proposed a contention dealing with substantially the same issue in its Contention No. 4.E/ Thus, to the extent that the issue raised by Carolina Action is a litigable issue in this proceeding, PIRG's interest would be represented by an existing party.
S/ PIRG Petition, page.2.
E/ ee S page 4 of " Stipulation of Carolina Action, the NRC Staff and Duke Power Company Relating to the Admission of Contentions" dated October 18, 1978.
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_ g The extent to which petitioner's participation will broaden the issues or delay the proceeding Finally, it is clear that the addition of PIRG as a party to this proceeding would broaden the issues and delay the proceedings since the record would need to deal both with expanded. issues and with the participation of an additional party.
In summary, of the five factors which this Board must weigh in passing on the adequacy of an untimely filing, the element of good cause plays .
an essential role. Here, PIRG has made some showing although it is not substantial. In such circumstances, PIRG must make a particularly strong showing on the remaining four factors to merit a favorable Board ruling. E Weighing in PIRG's favor is the fact that PIRG could be expected to assist in developing a sound record on the issue it wishts to raise. Weighing against PIRG are that its interest could be adequately protected through the mechanism of a limited appearance and that its interest is being adequately represented by Carolina Action. g Finally, it appears clear that the petitioner's participation will broaden the issues and delay the proceeding, although it is difficult to measure the impact of any delay. On balance, the Staff would urge that the petition be denied as untireely.
USERDA (Clinch River Breeder Reactor Plant), ALAB-354, 4 f1RC 383,
'31iF(T976).
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9 IV.
Contentions
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An alternative ground, in addition to untimeliness, exists war' ranting denial of the PIRG petition. PIRG has failed to present an adequate contention. The contention presented by PIRG for consideration reads as follows:
Contention: That the prospect of a traffic accident involving a reactor-waste carrier and involving leakage of some of the contents of said carrier poses an emergency situation which public safety of ficials in Charlotte, (i.e. , police chief, fire chief, civil defense head, etc.), are not adquately prepared to handle in regards to protection of the public.
In the Staff's view, this contention fails to meet the specificity and basis requirements of 10 CFR 52.714(a).
The basis requirement was incorproated into Section 2.714(a) for a purpose. Definition of issues and their supportive basis is the framework within which the hearing process must function as the Atomic Energy Commission recognized in its Statement of Consideration when it .
promulgated the section:
Intervantion. The present procedures for intervention 5}iich stem from statutory requirements) are essentially retained, but certain new responsibilities are placed on those penuitted to intervene in connection with making and supporting allegations on matters they seek to place in controversy for hearing consideration...
Definition of the matters in controversy is widely r_ecognized as the keystone to the efficient progress
,of a contested _ proceeding. In order to put a matter ITissue; it will not be sufficient merely to make
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an unsupportqd alijgation. [ Emphasis supplied. 37 Fed. Reg 15127 (July 28, 1972)].
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The rule is not onerous. All that is required is a contention stated with reasonable specificity and some basis assigned.to.it. See fiississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-130, 6 AEC 423, 424.(1973). The contention proferred by PIRG fails to meet this test.
Conclusion _
In the Staff's view, PIRG has made out an adequate showing of interest-to merit party status in this proceeding. With regard to its untimely:
petition, PIRG's showing of good cause is not. substantial. In addition although it appears that PIRG 'might aid in developing a sound record, it further appears that an alternative equally likely to assist the record is available to represent PIRG's interest. Namely, PIRG may assume the role of.a limited appearee. Furthermore, it appears that another party to this proceeding has proposed a contention which embraces the concerns !i' raised by PIRG. Finally, participation by PIRG as a full party to this If proceeding would produce some measure of delay. In weighing these.
considerations, the Staff judges- that an adequate showing has not made. [.
to excuse the lack of timeliness on the party of PIRG and that petition I t -
should be denied as untimely. Furthermore, PIRG has not set forth an l4 i
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adequate contention which would entitle it to party status. Although given an opportunity to do so, PIRG has not formulated contentions with the specificity and basis required under the Rules of Practice, thus'
. providing another ground for the denial of its intervention petition.
Respectfully submitted, I,/ g' n t v\
/
R1ctSq ard K.cho- .
Hoefling '
/
Counsel for HRC Staff Q Dated at Bethesda,11aryland this 6th day of November,1978
>.<y,
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD
-1 In the Matter of )
-)
DUKE POWER COMPANY ) Docket No. 70-2623 (Amendment to Materials License SNM-1773 for Oconee fluclear Station ) 1 Spent Fuel Transportation and Storage -)
at McGuire fluclear Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION TO FILE RESPONSE OUT OF TIME", and "NRC STAFF RESPONSE TO DAVIDSON PIRG PETITION SEEKIllG UNTIMELY IllTERVENTION", dated November 6, 1978, in the above-captioned proceedin0, have been served on the.following by deposit in the United States mail, first class, or, as indicated by an asterisk through depsoit in the Nuclear Regulatory Conmission's internal mail system, I this 6th day of November,1978:
l Robert M. Lazo, Esq., Chairman Ms. Brenda Best Atomic Safety and Licensing Board Carolina Action ,
U.S. Nuclear Regulatory Commission 1740 E. Independence Blvd. l t!ashington, D. C. 20555 Charlotte, North Carolina 28205 I Dr. Cadet H. Hand, Jr. , Director Anthony Z. Roisman, Esq.
Bodega Marine Laboratory Natural Resources ' Defense Council University of California 917 - 15th Street, N.W.
P.O. Box 247 Washington, D. C. 20005 Bodega Bay, California 94923 Mr. Jeremy Bloch Dr. Emmeth A. Luebke Safe Energy Alliance ,
Atomic Safety and Licensing Board 1707 Lombardy Circle '
U.S. Nuclear Regulatory Commission Charlotte, North Carolina 28203 Washington, D. C. 20555 Shelley B lum, Esq. i W. L. Porter, Esq. 418 Law Building Associate General Counsel 730 East Trade Street Legal Department Charlotte, North Carolina 28202 Duke Power Company 422 South Church Street J. Michael McGarry, III, Esq.
Charlotte, North Carolina 28242 Debevoise & Liberman 700 Shoreham Building 806 Fifteenth Street, N.W. ,
Washington, D.C. 20005
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Atomic Safety and Licensing Appeal' Board Mr. Charles Gaddy - ;
U.S. Nuclear Regulatory Commission ~P. O. Box-2501 Washington, D.C. 20555 . Davidson College Davidson, fl.C. 28036 Atomic Safety and. Licensing Board Panel U.S. Nuclear Regulatory Commission
. Washington, D. C. 20555 Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D. C. 20555.
i fir. Jesso L. Riley, President Carolina Environmental Study Group 854 Henley Place Charlotte, florth Carolina 28207 Richard P. Wilson, Esq. 1 Assistant Attorney General State of South Carolina
-2600 liull Street Columbia, South ' Carolina 29201
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l Richard K. Hoefling /
q Counsel for NRC Staff-i-
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