ML20154Q512
| ML20154Q512 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 03/19/1986 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-471 OLA-OLA-2, NUDOCS 8603210183 | |
| Download: ML20154Q512 (36) | |
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DOCKETED USHRC UNITED S'IATES OF AMERICg,,,
NUCLEAR REGUIATORY CCM4ISBION"9 g p"p q(,
Before the Atanic Safety and Licensing Appeal Board In the Matter of
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) Docket No. 50-352-eI*
Philadelphia Electric Canpany
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Docket No. 50-352-eh&4 (Limerick Generating Station,
)
(Containment Isolation)
Unit 1)
)
March 19, 1986 LICENSEE'S MOTION FOR DIRECTED CERTIFICATION OF THE
" MEMORANDUM AND ORDER RULING ON ROBERT L. ANTHONY'S PETITION FOR LEAVE TO INTERVENE" Troy B. Conner Jr.
Robert M. Rader Nils N. Nichols Conner & Wetterhahn, P.C.
Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Counsel for the Licensee Philadelphia Electric Coupany Of Counsel:
Edward G. Bauer, Jr.
' Eugene J. Bradley 2301 Market Street Philadelphia, PA 19101 8603210183 860319 PDR ADOCK 05000352 G
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t TABIE OF CONIDTIS Preliminary Statenent.
1
Background
4 7
Argument I.
The Board Erred in Permitting Late Intervention Because Petitioner Wholly Failed to Address the Five Mandatory Lateness Criteria..........
7 II. The Licensing Board Ignored the Federal Pagister Act and Erred in Finding " Good Cause" for Lateness 11 III. The Board Erred in Evaluating the Renaining Four Lateness Factors........
17 IV. The Appeal Board Should Direct Certification of the Licensing Board's Manifestly Erroneous
" Memorandum and Order" for Review Now......................
21 Conclusion 26 9
1 TABLE OF CITATIONS Cases Anthony v. NBC, No. 85-3606 (3d Cir. November 26, 1985) 10 Anthony v. NRC, No. 84-3409 (3d Cir. December 21, 1984) 10 Federal Crop Insurance Corp. v. Merrill, 332 U.S.
380 (1947) 13 NBC Issuances Boston Edison Ccxupany (Pilgrim Nuclear Power Station),
ALAB-816, 22 NBC 461 (1985) 8, 9, 10, 16, 19 Boston Edison Ccznpany (Pilgrim Nuclear Power Station),
LBP-85-24, 22 NBC 97 (1985) 15 Cleveland Electric Illuminating Ccrnpany (Perry Nuclear Power Plant, Units 1 and 2), ALAB-706,16 NRC 1754 (1982) 24, 25 Cleveland Electric Illuminating Ccmpany (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NBC 1105 (1982) 2, 16
_Ccmnonwealth Edison Ccrnpany (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470 (1985) 24 Detroit Edison Ccznpany (Enrico Fermi Atcznic Power Plant, Unit 2), ALAB-707,16 NBC 1760 (1982) 18 Duke Power Ccanpany (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59 (1985) 20 Duke Power Ccmpany (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NBC 460 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041-3 (1983) 25 Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615,12 NRC 350 (1980) 10
- ii -
Florida Power and Light Ca@any (Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-79-21, 4
10 NBC 183 (1979) 14 Houston Lighting and Power Cmpany (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NBC 309 (1981) 23 Houston Lighting and Power Canpany (Allens Creek Nuclear Generating Station, Unit 1), AIAB-585, 11 NRC 469 (1980) 24 Houston Lighting and Power Canpany (South Texas Project, Units 1 and 2), AIAB-549, 9 NBC 644 (1979) 25 Long Island Lighting Caupany (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NPC 387 (1983) 20
_ Maine Yankee Atanic Power Canpany (Maine Yankee Atanic Power Station), LBP-82-4,15 NFC 199 (1982) 14 Metropolitan Edison Canpany (Three Mile Island Nuclear Station, Unit No.1), CLI-83-25,18 NRC 327 (1983) 9, 17 Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725 (1982) 20 New England Power & Light Caupany (NEP, Units 1 and 2),
LBP-78-18, 7 NFC 932 (1978) 14 Pennsylvania Power & Light Canpany (Susquehanna Steam Electric Station, Units 1 and 2),
AIAB-641,13 NFC 550 (1981) 24 Philadelphia Electric Camany (Limerick Generating Station, Unit 1), Docket No. 50-352-OIA-2,
" Establishment of Atanic Safety and Licensing Board" (March 13, 1986) 26 Philadelphia Electric Cacpany (Limerick Generating Station, Unit 1) (Check Valve) " Memorandum and Order Ruling on Pobert L. Anthony's Petition for Ieave to Intervene" (March 13, 1986) passim "Mennorandum and Order on Licensee's Motion to Defer Answers to Petitioner's Contentions" (March 6,1986) 22
" Establishment of Atanic Safety and Licensing Board" (February 12, 1986) 6
- iii -
Philadelphia Electric Ccanpany (Limerick Generating Station, Unit 1) (Check Valve) (Containment Isolation), " Notice of Prehearing Conference" (March 14,1986) 22
" Memorandum and Order Consolidating Proceedings and Setting Schedule for Identification of Issues" 4
(March 14,1986) 22, 26 Philadelphia Electric Ccupany (Limerick Generating Station, Units 1 and 2), AIAB-828, 23 NRC (January 16, 1986) 10, 18, 21 AIAB-823, 22 NBC (Novenber 19, 1985) 10
" Order" (August 5,1985) 12 LBP-82-43A,15 NRC 1423 (1982) 10 DD-86-01, 23 NRC (January 21, 1986) 15 DD-85-18, 22 NRC 870 (1985) 15 DD-85-11, 22 NRC 149 (1985) 15 Public Service Ccnpany of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
AIAB-405, 5 NBC 1190 (1977) 2, 23 Public Service Ccunpany of New Hanpshire (Seabrook Station, Units 1 and 2), CLI-83-23,18 NBC 311 (1983) 17 Public Service Ccrnpany of New Hanpshire (Seabrook Station, Units 1 and 2), AIAB-271, 1 NRC'478 (1975) 1 Public Service Ccrnpany of New Hanpshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029 (1982) 14 Public Service Electric and Gas Ccmpany (Salem Nuclear Generating Station, Unit 1), AIAB-588, 11 NBC 533 (1980) 23 South Carolina Electric and Gas Ccmpany (Virgil.C.
Sumner Nuclear Station, Unit 1), ALAB-642,13 NRC 881 (1981), aff'd sub nom. Fairfield United Action v_. NRC, 679 F.2d 261 (D.C. Cir.1982) 16, 20, 21 l
Virginia Electric and Power Coupany (North Anna j
Power Station, Units 1 and 2), AIAB-741, 18 NRC 371 (1983) 24
- iv -
i i
l Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167 (1983) 20, 21 Statutes Federal Register Act, 44 U.S.C. S1508 13 Regulations 10 C.F.R. S1.32 11 10 C.F.R. 51.33 11 10 C.F.R. S2.105(d) 2, 3 10 C.F.R. S2.206 10, 18 10 C.F.R. 52.708 6
10 C.F.R. S2.709 12 10 C.F.R. S2.712 6
10 C.F.R. S2.714 6
10 C.F.R. S2.714 (a) (1) (i)-(v) 7 10 C.F.R. S2.714a 2, 21, 23 10 C.F.R. S2.718 (i) 1, 23 10 C.F.R. 52.732 9
10 C.F.R. S2.785 (b) (1) 1 10 C.F.R. 550.91.....................
20 10 C.F.R. S50.91(a) (2) 2, 3 10 C.F.R. 550.92 4, 20 10 C.F.R. S50.100 18 Miscellaneous 4
50 Fed. Reg. 52874 (Decmber 26, 1985) 4, 5 50 Fed. Reg. 53235 (December 30, 1985) 25
-v-
Letter fran Walter R. Butler, Division of BWR Licensing, NRC to Edward G. Bauer, Jr., Vice President and General Counsel, Philadelphia Electric Canpany (February 6,1986) 5 Ietter fran William L. Clements, Chief, Docketing and Service Branch, NRC to Pobert L. Anthony (February 6, 1986) 6 Letter fran Eugene J. Bradley, Associate General Counsel, Philadelphia Electric Canpany to Harold R.
Denton, Director, Office of Nuclear Peactor Regulation, NBC (Decernber 18, 1985) 4 l
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UNITED STATES OF AMERICA NUCLEAR REGULA'IORY ComISSION Before the Atmic Safety and Licensing Appeal Board In the Matter of
)
) Docket No. 50-352-OIA Philadelphia Electric Cmpany
)
) Docket No. 50-352-OIA-2 (Limerick Generating Station,
)
(Containment Isclation)
Unit 1)
) March 19, 1986 LICENSEE'S MCTI' ION mR DIRECTED CERI'IFICATION OF THE
" MEMORANDUM AND ORDER RULING ON ROBERT L. ANI'HONY'S PEI'ITION FOR LEAVE 'IO INI'ERVENE" Preliminary Statment Pursuant to 10 C.F.R. SS2.718 (i) and 2.785 (b) (1),1/
Philadelphia Electric Campany
(" Licensee") requests the Atmic Safety and Licensi /;
Appeal Board
(" Appeal Board") to direct certification of a Memorandum and Order issued March 13, 1986 by the presiding Atmic Safety and Licensing Board (" Licensing Board" or " Board").
The Licensing Board ruled that Mr. Robert Anthony's late-filed petition regarding issuance of an amendment to the operating license for the Limerick Generating 1/
See generally Public Service Cmpany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271,1 NBC 478, 482-83 (1975).
2/
Philadelphia Electric Cmpany (Limerick Generating Station, Unit 1)
(Check Valve), " Memorandum and Order Ruling on Robert L. Anthony's Petition for leave to Intervene" (March 13, 1986).
As discussed below, the proceeding in which the Board entered the subject Memorandum and Order, which relates to Amendment No. 1 for the Limerick operating license, has been consolidated with a new proceeding related to Amendment No. 2.
l I
I
Station
(" Limerick") met the requirments for late intervention and standing under the Ca mission's regulations 3/.
The net effect of the Board's ruling is to create a licensing proceeding where none would otherwise be required,U based upon mani-fest error "so ' patently inconsistent' with prevailing law as to merit attention now."
Certification is warranted under precedent because the ruling " affect (s) the basic structure of the proceeding in a pervasive or unusual manner,"6/ namely:
Refusing to follow the 30-day notice requirements o
prescribed by the Federal Register Act and 10 C.F.R. SS2.105 (d) and 50.91(a) (2) by substituting the Board's own notion of what it deemed " fair" (slip op. at 6-7).
Sua sponte developnent of arguments on behalf of a petitioner who wholly failed to address the five lateness criteria in his petition and who therefore did not meet his affirmative obligation to do so (slip op at 7).
3_/
Licensee disagrees with the Board's findings on standing, but does not seek certification of the matter.
~4/
The Board's decision was subject to admission of at least one valid contention. See "Mmorandum and Order Ruling on Anthony Petition" at 10.
As discussed below, hwever, the Board clearly stated its intention to expedite the proceeding in order to cmplete it by May 26, 1986, the end of the extension granted by the amendment at issue for surveillance testing of certain excess flow check valves.
Therefore, recourse to review under 10 C.F.R. S2.714a will not provide a practical means of relief if the Board grants any one or nore of the 11 contentions proposed by Mr. Anthony in the Amendment No.1 proceeding alone.
These special circumstances and the need for certification are detailed in Part IV, _ infra.
5/
Cleveland Electric Illuminating Cmpany (Perry Nuclear Power Plant, Units 1 and 2), AIAB-675,15 NFC 1105,1113 (1982).
6_/
Public Service Capany of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
Finding that petitioner, as "a long-time inter-venor in the Limerick operating license proceed-ing," had greater rights in intervening than other individuals, i.e., he "should not have had to monitor the Federal Register to learn about his opportunity to participate in this amendment proceeding" (slip op. at 6-7).
Violating camission precedent on admitting late contentions by ruling that a showing of " good cause" for lateness creates "a light burden on the other four factors to be balanced for late-filed petitions" (slip op. at 7).
Determining as a legal and factual matter that a petitioner has met the third factor for admitting a late petition where the Board "has no informa-tion about whether [ petitioner's] participation would assist in developing a sound record" (slip op. at 7) (emphasis added).
Ruling that admission of a late-filed petition does not " delay the proceeding" even though there would otherwise be no proceeding if the petition were denied (slip op. at 7).
The Board's decision has the effect of overriding the Camission's regulations under 10 C.F.R. 52.105 (d) and 550.91(a) (2) for providing notice to interested parties of the proposed issuance of operating license amendments. It has created a new corollary to these rules such that the intervention deadline does not expire, at least for "long-time" intervenors like Mr. Anthony, until actual, personalized notice of an opportunity for hearing has been received.
Further, the Board holds that such an _intervenor is totally excused frm his affirmative obligation to justify his untimely request for intervention.
In short, the Board has so radically departed fra Cmmission -
precedent governing the binding effect of notice by publication in the Federal Register and construing well-defined criteria for admitting late petitions that inmediate review is justified and necessary to prevent
_4_
initiation of an adjudicatory proceeding which would otherwise never take place.E
'Iherefore, given the shortened time frame indicated by the Board, the Appeal Board should direct certification, vacate the decision below and dismiss Mr. Anthony's petition.
Background
This request for certification arises frm a late petition for leave to intervene and for a hearing filed by Robert L. Anthony with respect to the proposed issuance of Amendment No.1 to the operating license for Limerick. On December 18, 1985, Licensee subnitted an application which requested the NRC to issue an amendment to its operating license for Limerick Unit i revising the Technical Specifications to allow a one-time-only extension of 14 weeks for the testing of excess flow check valves in certain instrumentation lines.0I This routine testing required by the Technical Specifications must be performed every 18
-7/
Licensee notes that Frank R.
Rmano filed a late petition for intervention in this matter on February 24, 1986. As discussed at pages 25-26, infra, the pendency of that petition, filed one month late, does not make it any more likely that a hearing will be necessary.
As regards lateness, the Anthony and Rmano petitions are indistinguishable, except that Mr.
Rmano is even more untimely.
Accordingly, if the Appeal Board directs certification and reverses, Mr. Rmano's petition should be rejected a, fortiori.
8_/
The application discussed the need and technical basis for the requested amendment and also provided information regarding the determination on "significant hazards consideration" to be made by the Cm mission pursuant to 10 C.F.R.
S50.92.
The Licensee concluded that the proposed terrporary amendment of the schedule for tests specified in the application did not constitute a significant hazards consideration under Section 50.92.
See generally letter frm Eugene J. Bradley, Associate General Counsel, Philadelphia-Electric Cmpany to Harold R. Denton, Director, Office of Nuclear Reactor Regulation, NRC (Deceber 18, 1985) (enclosing Application for Amendment of Facility Operating License NPF-39).
See also 50 Fed. Reg. 52874 (December 26, 1985).
o.
months and necessitates a plant shutdown. As shown on the application's certificate of service, Mr. Anthony and other parties to the NRC operat-ing license proceeding were served.
Pursuant to the regulations, the NBC published notice in the Federal Pegister on Decernber 26, 1985 of its proposed determination that the requested amendment involves no significant hazards consideration and stated that the NRC was seeking public cmments on its proposed deter-mination.
The notice provided that, by January 26, 1986, "any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene."1/ As custmary, the notice also stated that untimely petitions to intervene would not be entertained absent a i
favorable determination based upon a balancing of the factors for admitting late contentions. The NBC granted the proposed amendment on a
^
February 6, 1986, authorizing the testing to be performed during a scheduled outage to begin on or before May 26, 1986.10/
By letter dated February 6,1986, the Chief, Docketing and Service Branch, NRC, confirmed an earlier telephone conversation in which Mr.
9/
50 Fed. Reg. 52874, 52875 (December 26, 1985).
As the Licensing
~
Board observed, the notice was inartfully worded because it did not explicitly include the right of a petitioner to request a hearing.
As the Board also noted, however, "it is apparent that Mr. Anthony j
was not mislead (sicl" because he in fact requested a hearing.
" Memorandum and Order Ruling on Anthony Petition" at 5 n.4.
- Thus, there is no question as to the adequacy of Federal Register notice.
-10/ See Iatter frm Walter R. Butler, Division of BWR Licensir4J, NRC to Edward G.
- Bauer, Jr.,
Vice President and General Counsel, Philadelphia Electric Cmpany (February 6, 1986).
The license amendment was supported by a written safety evaluation which was also attached.
i i
Anthony was informed that the Office of the General Counsel had reviewed and rejected his January 30th petition because of its nonecupliance with the rules.b Accordingly, the NBC expressly declined to docket Mr.
l Anthony's nonconforming petition.
On February 5, 1986, Mr. Anthony filed an amendment to his petition.
4 By Order dated February 12, 1986, the Chairman of the Atmic Safety I
and Licensing Board Panel appointed a licensing board to rule upon j
petitions for leave to intervene and/or requests for hearing with respect to Amendment No.
1, and to preside over the proceeding if a hearing were ordered.b Both the Licensee and NBC Staff opposed Mr.
Anthony's petition to intervene. After preliminary procedural rulings, the Licensing Board held "that Mr. Anthony's petition meets the thresh-1 old requirments for admission set out in Section 2.714."13_/ 'Ihe Board directed the filing of answers to contentions (filed February 15, 1986 by Mr. Anthony) by noon, March 17, 1986 and scheduled a prehearing conference for March 27,1986.b i
-11/ The docketing officer cited violations of (1) the formal requirements for documents under 10 C.F.R.
S2.708; (2) the requirements for a certificate of service under 10 C.F.R. 52.712; and (3) the requirments for a petition to intervene under 10 C.F.R. 52.714.
According to his letter, after Mr. Anthony said that he would file an amendment to his petition, the docketing officer stated that he would refer the amendment to the Atmic Safety and Licensing Board Panel for consideration when received.
y Limerick, supra, " Establishment of Atmic Safety and Licensing Board" (February 12, 1986).
13/ " Memorandum and Order Ruling on Anthony Petition" at 10.
14/ Id. at 11.
Araument I.
The Board Erred in Permitting Late Intervention Because Petitioner Wholly Failed to Address the Five Mandatory Lateness Criteria.
Boards have discretion in weighing the five lateness factors, but under 10 C.F.R. S2.714 (a) (1) (i)-(v), the principles governing admission of late-filed petitions are themselves well-defined and understood.E!
In this case, a licensing board has not simply abused its discretion in weighing the five lateness criteria.
Rather, it has ignored the unambiguous mandate of the regulations.
Because Mr. Anthony's petition is wholly devoid of ay discussion of the five factors, the Board was obliged by regulation and precedent to dismiss it out of hand. Instead, the Board engaged in an improper sua sponte developaent of arguments on f
3/ Section 2.714(a) (1) provides in relevant part:
Nontimely filings will not be entertained absent a determination... that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in Paragraph (d) of this section:
(i) Good cause, if any, for failure to file on time.
i (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 presented by existing parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the Proceeding.
- l Mr. Anthony's behalf based on its own perceptions.
Such action was empletely unjustified, especially here, inasmuch as "Mr. Anthony was a long-time intervenor in the Limerick operating license proceeding."El Mr. Anthony was therefore fully conversant with the requirement under the regulations to address the five lateness factors.
Virtually the same situation recently arose in the Pilgrim license amendment proceeding. Like Mr. Anthony, the petitioner in that case was a veteran intervenor in NRC proceedings.
Nonetheless, he did not discuss the lateness factors in his petition, which was filed several days beyond the deadline noticed in the Federal Register, again, like 1
Mr. Anthony.
The Appeal Board affirmed denial of the petition.
It held: "(G]iven [ petitioner's]
failure even to address the section 2.714 (a) lateness factors, his intervention petition was correctly denied because it was untimely."EI The Appeal Board rejected petition-er's claim that he had no duty to address lateness until it was raised as a defense by the NRC Staff and licensee.
The ruling in the instant case is so patently contrary to the Pilgrim ruling as to warrant sumary reversal:
There is no conceivable merit to (petitioner's]
claim that his duty to confront the five lateness factors did not materialize until after the appli-cant and the staff had responded to the intervention l
petition and raised the matter of its untim liness....
In short, it is of no conse-quence whether, in an opposition to the late peti-tion, one of the other litigants points to the M /
"M morandum and Order Ruling on Anthony Petition" at 6.
f E/ Boston Edison Cmpany (Pilgrim Nuclear Power Station), AMB-816, 22 NRC 461, 465-66 (1985), aff'q, LBP-85-24, 22 NRC 97 (1985)
(etphasis added).
untimeliness.
Even if all of the parties are inclined to waive the tardiness, the board neverthe-less is duty-bound to deny the petition on its own initiative unless it is persuaded that, on balance, the lateness factors point in the opposite direc-tion.
l It is equally clear that the burden of persuasion on the lateness factors is on the tardy petitioner and that, in order to discharge that burden, the l
petitioner nust cme to grips with those factors in the petition itself. The underlying reason for this requirement is particularly apparent in the context of the first factor. A licensing board hardly could determine whether there was justification for the untimely filing without knowing why the petition was not subnitted by the prescribed damaline - informa-1 tion peculiarly within the possession of the peti-I tioner.
Likewise, in most instances at least the board will not be able to assess confidently the third factor (the extent to which the petitioner's l
participation may reasonably be expected to assist in developing a sound record) without having before it the petitioner's reasons for believing that the factor weighs in his or her favor.M/
In sum, the Appeal Board reaffirmed that petitioner's " obligation is to establish affirmatively at the threshold (i.e.,
in the late petition itself) that a balancing of the five lateness factors warrants overlook-ingthetardiness."El l
This is nothing new.
The Appeal Board ernphasized years ago in Perkins that "the late petitioner nust address each of those five I
factors and affirmatively dernonstrate that, on balance, they favor 4
i i
o.
i M/ Pilgrim, supra, ALAB-816, 22 NFC at 466 (enphasis added) (footnotes I
cmitted).
1 19/ Id. at 467 n.22 (enphasis added).
See generally 10 C.F.R. 52.732; j
Metropolitan Edison Ccmpany ('Ihree !lile Island Nuclear Station, Unit No.1), CLI-83-25,18 NPC 327, 331 (1983).
t k,
)
?
permitting his tardy admission to the proceeding."El Moreover, Mr.
Anthony is no stranger to NBC procedures and requirenents under the Rules of Practice.
He actively participated as an intervenor in the Limerick operating license proceeding 21/ and has previously had to deal with the lateness factors, for exanple, in two requests in 1985 to reopen the record in the operating license proceeding for Limerick.E Therefore, Mr. Anthony, by personal knowledge and experience, was well versed in the rules, specifically the requirernent that he must address the five lateness factors.
Mr.
Anthony's status is indistinguishable frcm that of the petitioner in Pilgrim, also "by no means a newccmer to NRC licensing proceedings" who nonetheless " paid no heed to [ thel admonition" in the Federal Register notice that the five lateness factors nust be addressed.23/
Mr. Anthony's petition should have been denied on this ground alone.
--20/ Duke Power Ccunpany (Perkins Nuclear Station, Units 1, 2 and 3),
ALAB-615,12 NBC 350, 352 (1980) (enphasis added).
21/ Limerick, supra, LBP-82-43A,15 NBC 1423,1440 (1982). In addition to his participation in licensing proceedings since 1981, Mr.
Anthony has filed several motions for stays and to reopen proceedings (discussed infra), at least five petitions under 10 C.F.R. S2.206 (see note 38, infra), and two motions for stays in the United States Court of AMals for the Third Circuit (Anthony
- v. NBC, No. 85-3606 (3d Cir. November 26, 1985); Anthony v. NRC, No. 84-3409 (3d Cir. December 21, 1984)), all of which have been denied.
_2_2 / See Limerick, s_upra, ALAB-828, 23 NRC (January 16, 1986) (slip 2
op. at 10); Limerick, supra, ALAB-823, 22 NRC 773 (1985).
23/ Pil_g jr, supra, ALAB-816, 22 NBC at 467.
II. The Licensing Board Ignored the Federal Register Act and Erred in Finding " Good Cause" for Lateness.
By excusing Mr. Anthony fran his affirmative obligation, the Licensing Board necessarily inferred reasons and arguments Mr. Anthony never made on his own behalf, even finding in his favor where it acknowledged that the record is blank. This impermissively reversed the burden of proof.
On the first factor, good cause for lateness, it is difficult to discern what actually constitutes the " good cause" found to justify Mr. Anthony's untimeliness.
Initially, the Board erred in considering Mr. Anthony's letter of January 30, 1986 as a petition in response to the published notice in determining timeliness.EI As the Board accurately stated, that letter was rejected by the Office of the Secretary and the General Counsel for nonempliance with specific requiranents for accepting docketed mat-ters.E While the Board disclaimed any intent to overrule that action,26/ that is precisely what it did by relying on the undocketed letter.EI It is irrelevant whether the Board regarded the January 30th letter as functional, canprehensible or otherwise informative of Mr.
M/ See "Manorandum and Order Ruling on Anthony Petition" at 4.
25/ Id. at 2.
See note 11, supra.
26/ Id. at 5 n.3.
27/ Id. at 3.
The Office of the Secretary is the Comtission's delegate for maintaining its official docket.
10 C.F.R. 51.33. The Office of the General Counsel has been delegated respcnsibility to provide legal advice and assistance to the Camtission's offices. 10 C.F.R.
S1.32. As such, the Secretary, as guided by the General Counsel, had every right and responsibility to reject Mr. Anthony's January 30, 1986 letter as in violation of docketing requirements.
f
. l j
Anthony's " intervention intentions."El Inasnuch as it was never docketed, the letter failed to toll the time for filing a petition to intervene.E# For the Board's purposes, it was a legal nullity.-
As the Board accurately stated, Mr. Anthony did not even acknowl-f edge that his January 30th letter was late.
It nust be enphasized that nowhere in either his January 30th letter or his February 5th petition a
did Mr. Anthony address lateness or g of the five factors for admit-ting late-filed petitions. Nonetheless, the Board credited Mr. Anthony with prevailing on the " good cause" factor because he " alludes to a I
possible good cause justification by explaining that he could not have i
l responded any earlier" since the nonthly NRC notice did not reach him until January 29, 1986.E The Board therefore illegally acted sua l
sponte to relieve Mr. Anthony of his affirmative obligation to justify 1
his lateness.
,28/ " Memorandum and Order Ruling on Anthony Petition" at 4-5.
29/ See 10 C.F.R. S2.709.
30/ Even if the Board could have legally considered the January 30th 1986 letter as an attspted filing in order to judge " good cause" for lateness, it erred in not taking the further step of detemining whether the letter constituted a good faith, bona fide effort to file a valid petition. As the Board noted, Mr. Anthony is a veteran of NRC proceedings and is by now fully conversant with the Ccnmission's pleading requirenents.
He has been repeatedly achonished on the irrportance of emplying with the Camission's procedural rules for filing documents, including a specific warning that future filings not in conformance with the Rules of Practice "will be subject to sunmary rejection."
Limerick, supra, ALAB
" Order" (August 5,1985) (slip op. at 3).
Therefore, objectively speaking, Mr. Anthony had no reason to believe that his January 30th letter met filing requirements.
t H/ " Memorandum and Order Ruling on Anthony Petition" at 5 (enphasis added).
- O Even so, the Board's analysis was predicated upon clear legal error. Although acknowledging that publication in the Federal Register gives legal notice of NRC actions, the Board reached the startling conclusion that Mr. Anthony should be excused frm the binding effect of the license amendment notice because Mr. Anthony was a long-time intervenor in the Limerick operating license proceeding. In fairness, Mr. Anthony should not have had to monitor the Federal Register to learn about his opportunity to participate in this amendment proceeding, especially when the notice was published so soon after the application.R/
This constitutes clear error. To state that Mr. Anthony was at liberty to ignore legal notices on Limerick in the Federal Register because he participated in earlier NBC proceedings makes a mockery of the Federal Register Act and is highly prejudicial to the rights of Licensee.
If the Licensing Board's decision were allowed to stand, no Cmmission licensing action would be safe frm late attacks by individuals who had intervened in previous proceedings.
The Federal Register Act explicitly provides that publication constitutes notice to "all persons residing within the States of the Union."E Years ago, the United States Supree Court held in Federal Crop Insurance Corp.
v.
Merrill, 332 U.S.
380, 384-85 (1947), that publication in the Federal Register gives legal notice to all citizens.
As aptly stated in the Seabrook proceeding, publication in the Federal Register to parties wishing to intervene in hearings before the NRC "is 32/ Id. at 6-7.
33] 44 U.S.C. 51508.
3
a notice to all the world."31/
The Licensing Board's contrary ruling violates an unbroken line of Cmmission precedents by which filing deadlines are those noticed in the Federal Register.N!
The Board's error arose frcn its reliance in part upon the Staff practice of mailing out monthly ccmpilations of previously published notices, above and beyond the 30-day Federal Register notice required by the ccanission's regulations.
It also based its decision upon the fact that the NRC technical Staff acted on the application with cmpetent, timely approval.EI No basis exists under the Federal. Register Act or the Ccmnission's regulations for the Board to have given Mr. Anthony additional time to file his petition because of the Staff's voluntarily initiated practice of sending notices to intervenors in the operating license proceeding.
No legal nexus between the operating license proceeding and the subsequent amendment proceedings exists.
Additionally, the Board incorrectly failed to charge Mr. Anthony with actual notice of the amendment application when served upon him on December 18, 1985 by Licensee. It noted that " notice of the application 34/ Seabrook, supra, LBP-82-76,16 NBC 1029,1085 (1982).
_3_5] See, e.g,, Maine Yankee Atcmic Power Ccznpany (Maine Yankee Atcmic 5
Power Station), LBP-82-4,15 NBC 199, 201 (1982); Florida Power and
_ Light Ccmpany (Turkey Point Nuclear Generating Station, Units 3 and
- 4), LBP-79-21, 10 NBC 183,192 (1979); New England Power & Light Ccmpany (NEP, Units 1 and 2), LBP-78-18, 7 NBC 932, 933-34 (1978).
36,/ " Memorandum and Order Ruling on Anthony Petition" at 6-7.
The Board erroneously stated that the Staff "inplies that Mr. Anthony was entitled to receive a copy of the Federal Register notice when it was published." Id. at 7.
The Staff took no such position. It merely noted that iFinadvertently neglected to send Mr. Anthony the rnanthly ccupilation of notices under the practice the Staff recently elected to institute.
~
7
-,n.
c
-.---e
for the amendment is not notice of the opportunity for a hearing on the amendment."E The Board's reasoning overlooked the obvious:
Mr.
Anthony had the application in hand and was well aware of intervention rights frm previous experience.
If the application truly concerned him, Mr. Anthony was duly alerted to check the Federal Register or at least contact the NRC.E The Board's extraordinary leniency to Mr.
Anthony on notice and lateness far exceeds its discretion.
The Board's astounding conclusion that Mr. Anthony was entitled to greater notice privileges because he was a "long-time intervenor in the Limerick operating license proceeding"E defies explanation.
To the contrary, boards have repeatedly ruled that veteran intervenors are charged with creater, not lesser, knowledge of the rules.
The Appeal Board recently reiterated this very point in the Pilgrim case, discussed above, where a long-time intervenor in NRC proceedings ignored the deadline for timely intervention given in a Federal Register notice.
The petitioner did not contest the finding that his petition, filed eight days late, was untimely.E In affirming the denial of the late petition, the Appeal Board did not state that it was " unfair" to hold 37/ " Memorandum and Order Ruling on Anthony Petition" at 6.
38/ Licensee notes that Mr. Anthony has routinely contacted the NRC Staff, both fonnally and informally, on numerous occasions. Recent decisions by the Director of the Office of Nuclear Reactor Regulation discuss only a fraction of illustrative cmmunications.
- Limerick, supra, DD-86-01, 23 NRC (January 21, 1986);
Limerick, supra, DD-85-18, 22 NPC 870 (1985); Limerick, supra, DD-85-11, 22 NBC 149 (1985).
3_9/ " Memorandum and Order Ruling on Anthony Petition" at 6.
9
$/ See generally Pilgrim, supra, LBP-85-24, 22 NRC 97 (1985).
petitioner to the deadline noticed in the Federal Pegister even though he was "only" eight days late, like Mr. Anthony, who filed ten days late.S on the contrary, both Mr. Anthony and petitioner in Pilgrim
" fully apprehended the reach of the affirmative obligation inmW upon the petitioner who appears on the scene after the prescribed deadline haspassed."SI In ruling that "Mr. Anthony has demonstrated good cause for the slightly late filing,"E the Board erred in confusing " good cause" for lateness with degree of lateness.
Mr. Anthony stated no justification for missing the Federal Pegister deadline.
In Sumer, the Appeal Board stressed that "whether there is ' good cause' for a late filing depends wholly upon the substantiality of the reasons assigned for not having 1
filed at an earlier date."SI As the Appeal Board found in Pilgrim, lateness of "only" a few days does not equal good cause for the late-ness.
If the rule were otherwise, the Federal Register Act and the ccmnission's regulations governing notice would be effectively abolished.
41/ Pilgrim, supra, ALAB-816, 22 NFC at 466-68.
Mr. Anthony did not file a timely petition until February 5, 1986.
42/ Id. at 468.
M/ " Memorandum and Order Ruling on Anthony Petition" at 7.
M/ South Carolina Electric and Gas Canpany (Virgil C. Sumer Nuclear Station, Unit 1), ALAB-642,13 NBC 881, 887 n.5 (1981) (erphasis in original), aff'd sub nom. Fairfield United Action v. NBC, 679 F.2d 261 (D.C. Cir.1982). The Appeal Board repeated this admonition in Perry, supra, AIAB-675,15 NBC at 1113 n.9.
j
.,i III. The Board Erred in Evaluating the Remaining Four Lateness Factors.
Inasmuch as Mr. Anthony did not address any of the lateness fac-i tors, the Licensing Board's evaluation was necessarily conclusory and
)
unsubstantiated.
In reality, the record developed by petitioner was 4
totally silent and all five factors therefore weighed against him as a 1
matter of law.
Preliminarily, however, the Board ruled that "[w]ith good cause shown for late filing, Mr. Anthony has a light burden on the l
f cther four factors to be balanced for late-filed petitions."E The I
i Board cited no authority for this novel proposition.
The Board's j
improper standard thereby violated the regulations by excusing Mr.
Anthony from the requisite showing on all of the lateness factors.N i
As the Carmission expressly stated in ihree Mile Island:
"While recent I'
events may be a key factor in establishing ' good cause' for late inter-j vention, they do not relieve (petitioner] of the obligation to address the other factors."EI On the second factor, the Licensing Board stated in conclusory i
l fashion that there are no other means by which Mr. Anthony's interest may be protected.
The Board apparently did not consider the recent l
decision of the Appeal Board in Limerick that reliance upon the NRC l
g/ "Manorandum and Order Ruling on Anthony Petition" at 7.
46/ In
- Seabrook, for
- instance, the Ccanission reaffirmed its interpretation "that the admissibility of a late-filed contention nust be determined by a balancing of all five of the late intervention factors in 10 C.F.R. 52.714 (a). "
Seabrook, supra, 4
l CLI-83-23,18 NRC 311, 312 (1983) (emphasis in original).
l g / Three Mile Island, supra, CLI-83-25, 18 NRC at 331.
i
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--_,-_,--,--ee-,
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,.r~-,-m-,y,-...c.c.,y,.
werm.v,_,
-w..-i,w,
Staff may constitute sufficient "other means," depending upon the issues sought to be raised, the relief requested and the stage of the proceed-ing.18/ As the Appeal Board observed in Fermi, a party unable to gain admittance to a proceeding may request the Director of Nuclear Begu-lation under 10 C.F.R. 52.206 to institute a proceeding to address its This alternative remedy "is a real one." E concerns.
In this instance, Mr. Anthony has, in fact, sought relief frczn the Ccumission related to the subject amendment, which the Ccanission has referred to the Director under 10 C.F.R.
S2.206. 0,/
Inasnuch as the Staff has already prepared a detailed, written safety evaluation on Amendment No. 1, it is clear that it has acted and will continue to act in protection of any interest asserted by Mr. Anthony.
In Pilgrdn, the Appeal Board, while not directly addressing the second factor, stated a relevant conrideration:
Among other things, it does not appear that saddling
[ petitioner) with the consequences of his own dereliction might result in a possibly serious safety problen escaping proper scrutiny. While the merits of the proposed license anendment are not 4_8/ Limerick, supra, ALAB-828, 23 NRC (January 16, 1986) (slip op, at 12).
49/ Detroit Fdison Ccmpany (Enrico Fermi Atcmic Power Plant, Unit 2),
ALAB-707,16 NBC 1760,1767 (1982). Mr. Anthony has filed at least five such requests known to Licensee, including three which resulted in fonral decisions. See note 38, supra.
5_0/ On February 12, 1986, Mr. Anthony filed a petition with the Ccmnission seeking review and revocation of Airerdicat No. 1 and petitioning for an inmediately effective stay.
On February 27, 1986, Mr. Anthony filed a petition to suspend the operating license for Limerick pursuant to 10 C.F.R. 550.100 alleging, inter alir.,
that the NBC acted illegally in issuing Airerdient Nos.1 and 2.
We have been advised by the NRC Staff that the Ccanission has referred both matters to the Director for disposition.
- 19 _
before us, it can be said at this juncture that we neither have been provided with nor know of any technical basis for questioning the staff's judgment that if approved by it, the [prwsed <=re-dre_nt) will furnish an adequate margin of safety.5_1/
Likewise here, the operating license amendment granting a brief exten-sion of time to conduct routine surveillance tests is a routine action with no significant safety implications.
The Staff will continue to protect the interests of the public, including Mr. Anthony, even in the absence of an adjudication.
On the third factor, the Board flatly stated that it "has no information about whether Mr. Anthony's participation muld assist in developing a sound record." 2/ Here again, the Board violated the regu-lations by relieving Mr. Anthony of his burden of proof. As the Appeal Board stated in Pilgrim, "the board will not be able to assess confi-dently the third factor... without having before it the petitioner's reasons for believing that the / actor weighs in his or her favor."E In the Catawba proceeding, the Appeal Board rejected intervenors' argument that their past effectiveness in participating on other issues in the proceeding provided a basis for concluding that they could assist in developing a sound record on a late contention.
The Appeal Board stated:
Such a bare assertion, unsupoorted by specific information frczn which a Board could draw an in-formed inference that the intervenors can and aill 51/ Pilgrim, supra, ALAB-816, 22 NBC at 468.
52/ "Menorandum and Order Ruling on Anthony Petition" at 7.
53/ Pilgrim, supra, ALAB-816, 22 NBC at 466.
make a valuable contribution on a particular issue in this proceeding, will not suffice.54/
Mr. Anthony does not even fare that well.
He did not cite his prior participation as evidence of an ability to enhance the record. He made no personal claim of expertise in analyzing the potential for significant safety hazards associated with the subject operating license amendment.
Nor did he provide the names of any prospective expert witnesses and a sumary of their proposed testimony, as required by the Appeal Board in Grand Gulf. b !
On the fourth criterion, the Board similarly found in conclusory fashion that there is no other party which will represent Mr. Anthony's interests.
For the reasons discussed above, the NBC Staff, which thoroughly evaluated safety and enviromental considerations of the subject amendment as required under 10 C.F.R. SS50.91 and 50.92, would adequately represent Mr. Anthony's interest if there were a hearing on the challenged amendment.
In any event, the second and fourth lateness factors are entitled to substantially less weight.N!
On the fifth factor, the Board correctly noted that if it denied the petition there would be no hearing and, therefore, that Mr.
54/ Duke Power Cmpany (Catawba Nuclear Station, Units 1 and 2),
AIAB-813, 22 NBC 59, 85 (1985) (enphasis added).
-55/ Mississippi Power & Light Cmpany (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).
See also Washington Public Power Supply System (WPPSS Nuclear Project No.
- 3), ALAB-747, 18 NBC 1167, 1177 (1983); long Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit 1), AIAB-743,18 NBC 387, 399 (1983).
M/ Sumer, supra, AIAB-642,13 NBC at 894-95.
Anthony's " participation necessarily will broaden the issues."EI The Board ruled, howver, that "since the amendment is already in force, his participation will not delay the prWing."El The Board thereby violated the clear admonition of the Appeal Board in several cases that it is delay of the proceedine, not delay in licensing, which is control-ling.EI Also, by considering whether any other " harm" would result by permitting a hearing, the Board impermissibly introduced an extraneous factor into the lateness test.
The regulation deems delay in the proceeding harm enough without proof of other adverse consequences.
Even so, the Board totally ignored the expenditure of hearing time and expense on the part of Licensee in defending against the challenge. The extraordinary prejudice of defending its case at a hearing when none is truly required obviously constitutes palpable harm to Licensee.
IV. The Appeal Board Should Direct Certification of the Licensing Board's Manifestly Erroneous "Menorandum and Order" fer Review Now.
Ordinarily, a party seeks review of a licensing board's order granting or denying intervention after the board has determined that petitioner has pleaded at Jeast one valid contention.60
In this instance, the normal appellate route under 10 C.F.R. S2.714a will not E/ " Memorandum and Order Ruling on Anthony Petition" at 7.
58/ Id.
59/
E.g.,
Limerick, supra, ALAB-828, 23 dBC (January 16, 1986)
(slip op. at 15).
g/ See e.g., WPPSS, supra, ALAB-747, 18 NPC at 1170 n.5; Sur: vl, supra, ALAB-642, 13 NFC at 884.
afford Licensee meaningful relief.
As noted, the airerdrr.nt at issue granted an extension for certain routine testing until the next scheduled outage to begin on or about May 26, 1986. The Licensing Board has already announced its intention to expedite cmpletion of the hearing on Mr. Anthony's contentions by that date. The Board stated:
[I] f the Board were to allow this proceeding to progress in the normal sequence with the nonnal timing, the parties might still be wrestling with prehearing matters well into the time period in issue. Even with the best efforts of the Board and the parties it may be very difficult to resolve this proceeding before the scheduled outage on May 26, 1986.61/
The Board gave no explanation for its assuription that cmpleting the hearing by May 26th is necessary.
In conditionally admitting Mr. Anthony to the proceeding, the Board gave part of its expedited schedule.S On March 14, 1986, the Board issued another order consolidating the check valve amendment proceeding (Amendment No.
- 1) with the containment isolation valve proceeding (Amendment No.
2) and noticed a prehearing conference for both proceedings for March 27, 1986.63/
In its consolidation order, the Board set out an accelerated schedule for the filing and disposition of contentions relating to both Amendment Nos. I arel 2 at the prehearing conference, g/ Limerick (Check Valve), _ supra, " Memorandum and Order on Licensee's Motion to Defer Answers to Petitioner's Contentions" (March 6, 1986) (slip op. at 1-2).
62/ " Memorandum and Order Ruling on Anthony Petition" at 11.
g/ _ Limerick (Check valve) (Containment Isolation), supra, "Menorandum and Order Consolidating Proceedings and Setting Schedule for Identification of Issues" (March 14,1986); -Limerick (Check Valve)
(Footnote Continued)
Thus, assuning the Board admits just one of Mr. Anthony's eleven proposed contentions on Amendment No.
1, any contention filed by Mr.
Ranano on Aiicimina:ait No. 1 or any contention filed by Mr. Anthony on Amendment No.
2, it plans to catmence hearings so as to accamodate issuance of an initial decision before May 26, 1986. Given the time for briefing before the Appeal Board and time for review and decision, any practical relief on acoeal is problematical. Hence, delay by resort to an appeal under Section 2.714a will, in all likelihood, foreclose meaningful review of admitting Mr. Anthony.
Licensee's motion meets the test for directed certification under 10 C.F.R. 52.718 (i). Following the standard in Marble Hill, the Appeal Board will accept discretionary interlocutory review "where the ruling below either (1) threatened the party adversely affected by it with 1 mediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic unusual manner.,,64/
structure of the proceeding in a pervasive or Licensee meets either standard, but rnost clearly the second.
As explained above, subsequent appeal under Section 2.714a cannot, as a practical matter, assure that the Licensing Board's error can be alleviated by a later appeal. Licensee is mindful of those decisions in (Footnote Continued)
(Containment Isolation), supra, " Notice of Prehearing Conference" (March 14,1986).
-64/ Marble Hill, supra, ALAB-405, 'S NRC at 1192.
See also Houston Lighting and Power Carpany (Allens Creek Nuclear Generating i
Station, Unit 1), ALAB-635,13 NRC 309, 310 (1981) ; Public Service Electric and Gas Carpany (Salem Nuclear Generating Station, Unit i
- 1), ALAB-588,11 NBC 533, 536 (1980).
l
which the Appeal Board has declined interlocutory review of applicants' challenges to the allowance of one or more contentions based on the argument that they should not be put to the time and cost of defending inadmissible issues.S/
As the Appeal Board explained in Braidwood,
"[e]ven assuming a violation of the Ccmnission's regulations..., the net effect of the Board's rulings is sinply to admit one additional contention to a proceeding that already involves litigation of various matters."66/
Licensee believes that these cases are distinguishable because, in the situation here, m hearing at all would occur but for the Board's erroneous ruling. That is far different frcm sinply having to defend against additional contentions in a hearing to which an intervenor is otherwise entitled.
Alternatively, the Board's error in ignoring the notice provisions and intervention requirenents of the regulations up.stionably affects the basic structule of the instant proceeding in a pervasive or unusual manner because, in allowing intervention, "the Licensing Board has effectively abandoned or fundamentally altered... the requirements of g/ See e.g., Virginia Electric and Power Capany (North Anna Power Station, Units 1 and 2), ALAB-741,18 NBC 371 (1983) ; Perry, supra, AIAB-706,16 NRC 1754 (1982). See also Ccmnonwealth Edison Cmpany (Braidwood Nuclear Power Station, Units 1 and 2), AIAB-817, 22 NRC 470 (1985)
(denied interlocutory review of ruling permitting intervenors to take discovery on inadmissibly vague contention);
Pennsylvania Power & Light Cmpany (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NBC 550 (1981) (declined interlocutory appeal to review denial of sunmary disposition of contentions) ; Allens Creek, supra, ALAB-585, 11 NBC 469 (1980)
(dimissing interlocutory appeal by intervenor on denial of less than all his contentions).
66/ Braidwood, supra, ALAB-817, 22 NFC at 474.
w
10 CFR S2.714 (and] Ccamission precedent."6_7/
Moreover, the Board cmpounded its error by stating its intention to expedite hearings, thereby prejudicing any effective appeal by Licensee.
This action justifies innediate review now.
It is also significant that the Board's ruling has generic inplica-tions far beyond Limerick.
This enhances the justification for re-view.SI The legal effect of notice by publication in the Federal Register is particularly likely to be a recurring issue in operating license ameht proceedings.
Typically, such proceedings lack the notoriety of construction permit or operating license proceedings. The binding effect of such notice should be settled inmediately.
Moreover, Licensee notes that Mr. Rcmano, yet another petitioner, has sought intervention in the instant proceeding.
He likewise jus-tifies his one-month lateness by receipt in hand of the NFC Staff's monthly ccrapilation of notices.
Finally, identical issues are posed by Mr. Anthony's petition requesting intervention and a hearing on Amend-ment No. 2 for Limerick. b The same Board mernbers have been designated H/ Perry, supra, ALAB-706, 16 NBC at 1758.
As noted, this is not a case in which the Board sinply abused its discretion.
E.g. Houston Lighting and Power Ccapany (South Texas Project, Units 1 and 2),
ALAB-549, 9 NFC 644, 648 (1979).
-68/ Catawba, supra, ALAB-687,16 NRC 460, 465 (1982), vacated in part on other grounds, CLI-83-19,17 NBC 1041 (1983).
69/ See letter dated February 24, 1986 frcm Frank R. Rcmano to the Secretary of the Ca mission; Petition by Intervenor Anthony /EDE for a Hearing and Leave to Intervene in Opposition to PECO's Request to Amend TS 4.6.1.2.d and g, License NPF-39 (February 26, 1986). The latter petition by Mr. Anthony was filed about two nonths late in response to notice in the Federal Register at 50 Fed. Reg. 53235 (Footnote Continued) l l
l i
[
as a new Licensing Board to rule upon Mr. Anthony's request.70/
The Board's recent order abbreviating the normal time for filing and reply to contentions on ATierdimuit No. 2 suphasizes its intent to ccmnence hearings soon.
/
All of these considerations warrant review and 71 reversal of the Licensing Board's serious errors innediately.
Conclusion For the reasons discussed above, the Licensing Board clearly abused its discretion in permitting Mr. Anthony's late intervention so as to adversely affect the basic structure of the proceeding in a pervasive and unusual way.
The Appeal Board should direct certification of the matter, vacate the decision below and dismiss Mr. Anthony's petition.
Respectfully subnitted, 1
4 CONNER & WEITERHAHN, P.C.
i 1
).
i Troy er, Jr.
Robert M. Rader Nils N. Nichols Counsel for Licensee March 19, 1986 i
l (Footnote Continued)
(December 30, 1985). Except for the statenent by Mr. Rmano on his untimeliness, neither his petition nor Mr.
Anthony's second i
petition contains any discussion of the five lateness factors.
-70/ Limerick, Docket No. 50-352-OIA-2, supra, " Establishment of Atmic Safety and Licensing Board" (March 13, 1986).
71/ Limerick (Check Valve) (Containment Isolation), supra, " Memorandum 1
and Order Consolidating Proceedings and Setting Schedule for j
Identification of Issues" at 4-6 (March 14,1986).
s 00(,KE T Ef' USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION16 MR 20 #0:06 In the Matter of
)
0FFILE e L
) Docket IO99K!69452--OLA Philadelphia Electric Company
) (Check ValvejRAN&
) Docket No. 50-352-OLA-2 (Limerick Generating Station,
) (Containment Isolation)
Unit 1)
)
March 19, 1986 CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Directed Certification of the ' Memorandum and Order Ruling on Robert L. Anthony's Petition for Leave to Intervene,'"
dated March 19, 1986 in the captioned matter have been served upon the followin.g by deposit in the United States mail this 19th day of March, 1986:
- Mr. Ivan W.
Smith, Chairman
- Atomic Safety and Atomic Safety and Licensing Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service
- Dr. Richard F. Cole Section Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
- Benjamin H. Vogler, Esq.
Counsel for NRC Staff
- Mr. Gustave A.
Linenberger, Jr.
Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Hand Delivery
Atomic Safety and Licensing James Wiggins Board Panel Senior Resident Inspector U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 P.O. Box 47 Sanatoga, PA 19464 Philadelphia Electric Company ATTN:
Edward G. Bauer, Jr.
- Mr. Frank R. Romano Vice President &
61 Forest Avenue General Counsel Ambler, PA 19002 2301 Market Street Philadelphia, PA 19101
- Mr. Robert L. Anthony Friends of the Earth in the Delaware Valley 106 Vernon Lane, Box 186 Moylan, PA 19065 Jay M. Gutierrez, Esq.
U.S. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, PA 19406 l
d Robe'rt M. 'RadEr i
Federal Express
.. -..