._

*. .

UNITED STATES OF AMERICA /

NUCLEAR REGULATORY COMMISSION /3 ..,

/M m:y n3

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ffl t-

T JUN 81981 = '

In the Matter of: ) pp , jprf /,

SOUTH CAROLINA ELECTRIC AND CAS Docket No. 50-395 OL \ 1

pCOMPANY, ET AL. s

as J !'

(V l . Summer Nuclear Station, June 5, 1981 ff/' $

b 7T 44g /gg I k -11\ '

rop'*%% Q !i

'

APPLICATION FOR STAY OF DECISION PENDING REVIEWU

|Pursuant to 10 CFR S2.788, Fairfield United Action (FUA) hereby Cu '

,

'

plies for a stay pending filing and a decision on review of the effect ofIthe Atomic Safety and Licensing Board's decision reversing the Licensing

Board in the above-captioned proceeding and remanding for denial as untimely i;!

the Petition to Intervene of FUA. ALAB-642, 13 NRC , reversing LBP-81-11,

13 NRC FUA will expeditously file with the Commission a Petition for.

Review under 10 CFR S 2.786(b).'

In support of this application, FUA would show that it is likely to pre-Ivail on the merits on review, that FUA would suffer irreparable injury unless

a stay is granted, that minimal harm will be suffered by other parties, und fthat the public in'erest lies with granting a stay.

Commencement of the evidentiary hearings in this proceeding is scheduled :

!

for June 22, 1981, less than three weeks after the June 3, 1981, service of ,

this decision on FUA. Granting of a stay would preserve the status quo prior

to the issuance of that decision pending a decision on the merits on review.

Doeskin Products v. United States Paper Co., 195 F.2d 356, 358 (7th Cir. 1952),

citea at National Association of Farm Workers, etc. v. Marshall, 628 F.2d

604, 613 (DC Cir. 1980).

t

81060906%I

:.G

;

i'

- _ _,_ __- __. _ _ _

- - -

[,.

Ir .

-2- !.

:-

!iI.

!In failing to follow the " abuse of discretion" standard for reviewing!

Licensing Board decisions on late petitions to intervene under 10 CFR !

S2.714(c) (ALAB-462, at p. 5), the Appeal Board took unprecedented action-

i

violative of the Commission policy " . . . giving the Licensing Board

broad discretion in the circumstances of individual cases (of late petitions y

to intervene]." Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), j

CLI-75-4,1NRC273,275(1975); and Florida Power & Light Co. (St. Lucie

Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8,13 (1977); Project

Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC '

;

383, 389,)30 (1976). In support of its position that the " abuse of dis-

c.retion" standard of appellate review " . . . does not foreclose our close

scrutiny of the factual and legal ingredients of the analysis underlying

|the Board's ultimate conclusion," (ALAB-462, at p. 5) the Appeal Board

cites three cases. Two of those cases (ALAB-420, supra, and ALAB-354, supg)

affirmed Licensing Board decisions on untimely petitions to intervene

and reiterate the " abuse of discretion" standard. The third case presents

an appeal from a Licensing Board decision to grant an untimely petition to t

intervene where the Licensing Board failed to apply all five of the factors

set forth at 10 CFR S2.714. Metrcpolitan Edison Company (Three Mile Island

Nuclear Station, Unit 2), ALAB-384, 5 NRC 612 (1977). That may certainly

be distinguished from the instant proceeding wherein the Licensing Board

carefully weighed each of the five factors.and decided on that basis to

admit FUA. LBP-81-11.

In its decision, the Appeal Board reaches different conclusions from

the Licensing Board on several issues: disadvantage to other parties from

,

.

.

-3-.

I

.

FUA's inten tention (ALAB-462, at p. 9); the likelihood of delay in the

progress of the proceedings (Id.); the broadening of issues to be litigated ,

by the admission of FUA's contentions (Ibid., at pp.13-16); and FUA's

ability to assist the Board in developing a record (Ibid., at pp.16-22).'

s

Although the Appeal Board here takes " official notice that the two

technical members of the Board below have served on the Licensing Board

Panel for nine and eight years respectively, during which period each has

sat on numerous licensing proceedings" (Ibid., at p. 20), the Appeal

Board then fails to credit their ability and experience to evaluate the

whole record which they have seen developed in this proceeding over the

years and to make informed decisions within their discretion about the

effects of a new intervention on this proceeding. Likewise, in addition

to the written pleadings which are described by Appeal Board member Kohl,

in a concurring opinion as " impressive" (Ibid., at p. 26), the Board below

had the benefit of nearly two days of discussion at hearing in wnich to

form an opinion of the ability of FUA, and especially of its Authorized

Representative, Dr. John C. Ruoff, to assist the Board in developing a

record in this case. LBP-81-11 (slip opinion, at p. 10). The Appeal Board

rejected the request of FUA, in which it was subsequently joined by the

Applicants, for oral argument. ALAB-462, at p. 3; Applicants' Response to

Fairfield United Action Request for Oral Argument, May 22, 1981. Thus,

the Appeal Board deprived itself of the opportunity to evaluate live

, the ability of FUA to assist the Board below to develop a record.

The Appeal Board describes the possibility of delay in the proceedings

resulting from FUA's intervention as "not merely a theoretical possibility

,

y ,-- _ _ - - _ _ _ . , , , ,_

- . .

.

*

-4-*

,

but rather a very likely proximate result," because FUA had moved for

a continuance of the July 13 recomencement of the hearings when faced !

with the possibility of being forced to surrender its interests in either

the licensing proceedings or a coincident rate proceeding. ALAB-462, at

p. 10. FUA moved to protect its interests in both forums, and the Licensing

Board credited FUA's fears that collusion between Applicant South Carolina

Electric and Gas Company and the South Carolina Public Service Comission

had produced that coincident scheduling. Order, May 18, 1981. Upon motion,

of FUA and John C. Ruoff, pro se, joined by SCE&G, the South Carolina Public

Service Comission has changed the date of the rate proceeding, so that no

proximate ' delay to the licensing hearings would obtain from FUA's inter-!

vention. See Attachment A. i

,

In its actions since being admitted as an Intervenor, FUA has demon-,

,strated its ability to contribute the record in this proceeding. Rather than

resting on the technical posture of waiting for a resolution of its status

while appeals were pending, FUA has moved forward and made valuable contri- I

butions to the record. In addition to the Prefiled Direct Testimony ofi

Dr. Janet Greenhut and Arlene Bowers Andrews (see ALAB-462, at p. 21) on

emergency planning, FUA has filed substantial responses in opposition to

motions for sumary disposition on Intervenor Brett Allen Bursey's contentions

on the financial qualifications of the utilities, the seismic monitoring

program, and the health effects of normal operations of the facility. In

its response in opposition to the Staff's motion for summary disposition of

Intervenor Bursey's financial qualifications contention, FUA submitted a

detailed affidavit from Dr. John C. Ruoff examining the financial condition

of the Applicants. FUA has already made a substantial contribution to the record. ,

;'

,

. , .

. _ _ _ .

.

..

-5-i

,.

. <

As set forth above (at p. 2, supra), precedent premised on specific '

Comission policy supports the admission of FUA where the Board below

was not abusive of its discretion. The Appeal Board has made no such

finding. Thus, FUA is likely to prevail on the merits of its case. t

II i

Unless a stay is granted, the evidentiary hearings in this proceeding

will commence on June 22, 1981, without FUA being able to participate ful- ,

ly as a party. That will result in irreparable injury to FUA. Even with [

expeditious filing of a Petition for Review and responses, Commission action

on the Petition cannot reasonably be expected prior to the beginning of !

the hearings. ,

The Appeal Board concedes that that full participation is the only

means whereby FUA may fully protect its interest. ALAB-462, at p. 23. i

i Further, the Appeal Board concedes FUA's standing and interest. Ibid., at|

!

I p. 3. On review, de novo hearings might well be available to FUA as the.I

t

remedy for erroneous exclusion from the proceeding. However, one must t

in reality recognize that the Comission or a court of law will be chary !

of granting such relief where hearings are either in process or completed.

Especially under expedited scheduling processes recently adopted by the

Comission (Imediate Effectiveness Rule,10 CFR Part 2, issued May 22,1981),

the Sumer station could well be licensed before completion of review.

This especially obtains at a time when political pressure--some of

it at behest of Applicants here--is applied to the Comission to speed

licensing in this and other proceedings. Letter, South Carolina Congressional.

Delegation to Hon. John F. Ahearne (Attachment B); see also Preh. Conf. Tr., ,

!at 574. The role of Applicants in this matter is set forth in the attached

._ _ _. . . . _ . . _ - - . . - _ - . - - - - - - .

-. _ . _ _ _

,

<.

-6-.

.

Letter of the Hon. Thomas F. Hartnett to Mr. Michael Lowe of Palmetto

Alliance, Incorporated (Attachment C, appended to Affidavit of Mary Ellen

R. Westmoreland). :

Unless permitted to participate ab_ initio in the hearings, the interest

of FUA will be irreparably harmed. )

III L

Little harm will obtain to other parties by FUA's participation in ;

the evidentiary hearings pending review. Had FUA sought to stay the i!

hearings pending review rather thc.n to seek the relief requested herein, |

delay might well have been incurred. However, staying the effect of the fAppeal Board decision will not delay the beginning of the bearings. Re-

gardless, they will commence on June 22, 1981, as scheduled.

Further, the potential injury alleged by Staff and Applicants from

FUA's intervention requiring the generation of additional testimony and

scheduling of additional witnesses has, if it was injury, already occured.

Staff Br. , at p. 8; Appl . Br. , at p.17. As the Appeal Board notes, Direct

Testimony was scheduled to be filed on May 28, 1981. ALAB-642, at p. 12n.

All parties filed that testimony and no party sought a continuance of time

to file because of inability to prepare its case in time. Thus, the stay

sought here would cause no injury in that regard tu other parties.

Although Applicants have asserted injury from delay as a result of

FUA's intervention, challenges to adduce proof from FUA and the Board below

have produced no results. Applicants' Response to Untimely Petition, Ap- ;

pendix C; Appl. Br., at p.13; Prehear. Conf. Tr., at pp. 529-532, 539-540,

542; FUA Br. , at 13,14). Those allegations of damage are based on no re- r

'

liable evidence and must be discounted.

,

__--__._-______, __ . _ _ , _ _ __

- - -

t

!.

-7- f-,

!

fDespite the fact that Summer is one of those plants for which the !

!license might not issue until after completion of construction, Applicants i

have not alleged an immediate and pressing need for it. Instead, they have ,

!asserted need to have the plant available for the " heavy demands of late

Spring and Summer of 1982." Applicants' Response, p. 15. Moreover, Appli--

cant South Carolina Electric and Gas Company already finds itself in a

position of extreme excess capacity projecting a 39 % reserve capacity at

peak of Summer 1982. Prehear. Conf. Tr., at p. 559.

As discussed above, the possibility of delay resulting from FUA's,

Motion for Continuance in this proceeding has been mooted. See p. 4, supra. |4

I

Thus, the only damage which can reasonably be alleged by the other'

parties from the effect of the stay would be some indeterminate extension j'

of the hearing itself. The Board below determined that no unproductive

delay would ensue from FUA's participation. LPB-81-11(slipopinion,at

p. 9). Although litigation of FUA's contentions and the contribution of

FUA's testimony and cross-examination in the proceeding might well re-

sult in license conditions or other results not favorable to the Applicants,

improved safety can scarcely be found to be harmful to the Applicants.

If FUA should not prevail on review, then the contributions of

FUA may be disregarded by the Board. FUA accepts that risk in seeking:

this stay. Without this stay, however, the other parties will be forced

to go forward under the cloud of this review and the possibility of having

to relitigate the issues cle_ novo should FUA prevail.

t

I

{

F

-,- , , - - . .---_ , - , - ---,,m, - n

. ._ - .-- -

.

.

-8-

IV

The public interest lies in granting FUA's application for stay

pending review and in permitting full participation of FUA in these pro-

ceedings pending review. The public interest lies in a full and fair,

|-

adversarial proceeding. The Appeal Board does not dispute the Licensing ;

;Board's lack of conridence in the ability of the only other intervenor

to represent his own interests, FUA's interest, or to assist the Board >

in developing a record on its Question about corporate management. LBP- ;

81-11 (slip opinion, at pp. 10-12); ALAB-642, at p. 23.

I The Commission has a statutory obligation to assure the health and

safety of the general public. As a matter of public policy, adversarial

proceedings have been determined as the best means for parties to protect

their interests. In Puget Sound Power and Light Company, et al. (Skagit ,

Nuclear Power Project, Units 1 and 2), ALAd-559,10 NRC 162,172 (1979),,

the Appeal Board declared that "the promiscuous grant of intervention

! petitions inexcusably filed long after the prescribed deadline would pose

a clear and unacceptable threat to the adjudicatory process." The mirror

of the Skagit decision, however, is that with the preferance for an adver- |

sarial process it would be a clear and unacceptable threat to the adjudi-

catory process to go forward with a mere sham of an adjudication without

capable adversary parties and a sound record for decision.

If FUA is permitted to go forward pending review, then the Board has

at its disposal the expertise of FUA on important issues of health and

sa fety. Even if FUA ultimately does not prevail on the merits, the Licensing,

Board will have had access to information which will assist it in making

important decisions and in pursuing on its own important questions. The

_

_ .. _ _ _ _ .__ _. - . _ - _ _ _ __

-r

*.

-9-,

!-

I'

[other parties will not have substantially been more disadvantaged than ;

they are in any case. FUA goes forward with the case at its own risk,

recognizing that its efforts in the proceeding may be in vain if it fails |. ,

,

to prevail on the merits. !,

However, until that review has been completed, the public interest j'

is best served by FUA's participation under a stay pending review.

CONCLUSION it

J For the reasons set forth above, FUA urges the Appeal Board to stay

i the effect pending review of its decision reversing the Licensing Board's:

order granting FUA's Petition to Intervene in the Summer operating license '

' '

proceeding.

Respectfully submitted, j

k L_ b- Ay-; .

' Dr. John C. Ruoff'

Authorized Representative

For Fairfield United Action

1

i

}

Ie

|

!i-

'

?

i

I

t

i s

!'

f.

- - - -,_- - - - - , . . . . - . . - _ - _ - - - - - - - - , - . - - . - . - , . .

fTA Et A'

.

DOCKET NUMBERPRODA UTIL FAC fon 3(, - wavs ..o u c,~.

p:a xetLw3 Q. eswwims ou ,..~x,

s :.: -g e. :e s- c-.

.

Congrcsg of tijc Unitch shtates WSCELLI"...ous nLE- -

*'

%0052 O! Etpresentatibts'

#s 9

{.ZZlarfjington, D.C. 20515

5 U s. &j 9 ,. 'Q'Febi 'ry 19, 1981" IS8J g

y'~7 %%%e, 'rDocu m n elUSNMC b. '

y8 2 519g ,,"

< c.. ' ,g/.'H:ncrable .*0nr.:. Ahearne b %Ny-

Cna:.r .an - ,

Ofrece of the %say,(e,/

'*;n: ed States nu:lsar

1 Meting aEegulatory CommissionSran. //Was hing ton , O. C. OC5H

% 4''

Dear Yr. Cha:.rman:

We are deeply concerned bl your January 30, 1981 report to theHouse Appr:r:.ations Sub ccmittee on Energy and Water Development. I

:.s cur understant.ng that the schedule which you repcrted for considerationby your agency Of licensing of the Virgil C. Sun..er Nuclear Unit may well::s: the censu,ers cf Scu.h Carolina over ene huna;ed millien dollars,

and may im,er:1 the reliable and adequa e energy supply so necessary f:ra nealthy e: nc: y in Our state.

As we understand the slippage revealed in your report, it is actec:as:.Oned by the need :: consider any dramatic new safety cr environmentalissue; indeed the slippage does not seem to relate to any matter of sub-stan:e. :: appears to predict procedural delays in administratave pro-cessing, decision making, and reviews.

Between them, the owners of the Su mer Unit, South CarolinaElectric and Gas Company and Santee-Cooper, serve more than 34% of thecensumers and 36% of the load in our state. Each sys).gm..is nonethelessrelatively small on a natienal scale, and the 600 megawa,tts1 Summer would- 3add :: tne S CE&~, system and the 300 megawatts it represent.&, tc;Sant'ee , T

' . ~ . -*

Cccper are ir.portant issues. -

We are told that power from the Summer Unit will be vitallynecessary by the early summer of 1982 to serve load, displace oil, andminimi:e c.cs; increases. It has been reported to ur that the SummerUnit will be complete and ready to load fuel by the -late su:::ner of thisyear. 1; is our understanding that an extensive period of tes-ing followsfus. leading a.d that about six montns will be required to achieve commer-::.11 Operatien. Hence, it w:.li be necessary for the, licensing pr0:ess :Le ::mplete cy the late fall of this year, assuming, cf ecurse, that r.o ...

s w -* - ve reascn : m 1 :ed : ycur dis:retien and'' expertise precludes . ._

su:n a s:nedule. 0;herwise, the Summer Unit will nct te available.for . . . , , , , ,

:nc neav'; der.and Of tne se.r:mer months.

9 '39810 2 27 US% S Io ,

tsis s ,rioscay paru r: =s rArca m4=c wits ac vetco naces j.

i

!

-P.M, Q . /

{f/O * *

\.s, ' . _ . . .

-

/ .

.

.

Honerable John T. AhearneTehraary 19, 1981 *

Page 'No

:: is cur cc..sidered cpanien :nat the CO:::ssion sh0u.2 reinstate1.a .:rev:.cus schedula for review cf the Surrer pla..: se as to move without

cela. :nto ne pub 1:e nearing phase and 3:hedule c:n. let :n cf the licensing.

prc:ess n 1961. Add:: onally, we are requesting Of the Secretary of Energythat nas Depar =ent review the impact of the pro 3ected delay in terms ofcosts, capacity, and energy to the two systems and to the more than 375,000customers they serve, and report to Congress his findings and the pusitionof the Adr.inistratice in cases of this kind.

We want :: werk with you and our Cc11eagues to move fcrward withreview cf the Succer Unit and we urge that our request be given favorahlecensideration.

Sincerely,

/' i<

.

,' | f!' sfi w v.. ,

s. . u ._

73 . .a. . . . . ... ~. ....~._

__

'' C~'''~'.'..'."~'''..'-='~*'.,y.'.". :. ...l

-. .' e&4 f

g ,,#.G SPE E, M.C. ( EPS/ST?., M0/LLINGS, U.S.S.

o,

W '** ^

( g.

JOHN L. NAP;ER, M.C. 8TROM THUP.MOND, U.S.S. i

.Yr k.s w # W....e.=, . . . . - - d. . ~. . . r. . . , .s.

_

3 .. : r. . _ . ,.z., M.C.r . . . . ._ .___:.

.

|1

- ,6