ML19263C636
| ML19263C636 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 01/19/1979 |
| From: | Axelrod M, Rachel Johnson LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PORTLAND GENERAL ELECTRIC CO. |
| To: | |
| Shared Package | |
| ML19263C637 | List: |
| References | |
| NUDOCS 7902280075 | |
| Download: ML19263C636 (10) | |
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NUCLEAR REGULATCRY CCMMISSION
-)f BEFORE THE ATCMIC SAFETY AND LICENSING APPEAL BOARD In the Macter of
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PORTLAND GENERAL ELECTRIC COMPANY
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Docket No. 50-344 e_t_ a_l.
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(Control Building Proceeding)
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January 19, 1979 (Trojan Nuclear Piant)
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ANSWER OF LICENSEE IN OPPOSITION TO COLUMBIA EDIIRONMENTAL COUNCIL REQUEST FOR STAY OF ORDER On January 5, 1979, Columbia Environmental Council (" CEC"), an intervenor in this proceeding, filed a Request for Stay of Order (the
" Request") asking that "a temporary stay be granted" of the Atomic and Safety Licensing Board's (the " Board") Partial Initial Decision (the " Decision") dated December 21, 1978.
In requesting such stay, CEC states that it " believes it has fulfilled all the requirements as outlined in the Rules of Practice for Domescic Licensing Proceed-ings, Section 2.788."
Portland General Electric Company
(" Licensee") urges the Appeal Board to deny the Request summarily because CEC's failure to appeal the Decision precludes it from seeking a stay under 52.788.
As set forth in subsection (a), the explicit purpose of that section is to permit any party to a proceeding to file an application for a stay of the effectiveness of a decision "pending filing of and a deci-sicn on an appeal or petition for review."
Since the Decision was served on December 26, 1978, any appeal thereof had to be initiated by the filing of exceptions en or before January 10, 1979 79022800~16
(15 days after December 26, including mailing time) pursuant to 52.762.
Since the time for initiating an appeal of the Decision has expired and CEC has failed to file timely exceptions, its Request is fatally defo:tive under S2.788.
The Request should also be denied because CEC completely fails to demonstrate that application of the four governing criteria set forth in 52.78S (e) would warrant the grant of a stay.
Fe address each of those criteria in turn below.
Likelihcod of Prevailine on the Merits Since CEC has not filed an appeal, it is imcossible for CEC to prevail on the merits.
Obviously this defect alone requires denial of the Request.
For purposes of this Answer, however, we will address briefly the following allegations in the Request, which apparently constitute CEC's complaints concerning the Board's actions:
(1)
The hearings were conducted too expeditiously.
(2)
The Scard erred in refusing to subpcena Rchert D.
Pollard as its witness.
(3)
A decision concerning interin operation of the Plant "cannot be logically made prior to the hearings on the prcposed mcdifications."
(4)
The conclusions and decision of the Board were based en biased information and testimony.
CEC's showing concerning these alleged errors is defective since it has failed to comply with the requirement af 52.788 (b) (4) that it provide appropriate references to the record or affidavits concerning the facts supporting its allegations en the merits. ~*/ The Request
- /We note that CEC apparently does not claim that the record is de-
?icient, since it refers to the evidence succlied by others (pre-sumably including Licensee) as "all base (sic) havinc been covered, and a proper test or analysis to confirm their answers."
(Requese,
- p. 2)
contains " virtually no elucidation of the facts and legal principles that might support it;" such an unsupported " general broadside" is wholly insufficient to warrant a stay.-*/ In view of the Request's sub-stantial non-conformity with the requirerents of 52.788 it should be denied.
In addition to lack of support in the Request, each of the four grounds cited by CEC are also completely without merit.
CEC's complaint concerning the conduct of the hearing is diffi-cult to rebut since it does not cite any ruling of the Board which allegedly caused it prejudice.
The record shows, however, that CEC had ample time to prepare and participate in the hearing.--**/It is difficult to understand how CEC can rationally claim it was " rushed"
- /Thus, for exanple:
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(1)
CEC had advantage of informal discovery becinning on July 27, 1978, when Licensee volunteered to make documents relating to the Control Building design deficiency available to intervenors at its Portland office (Tr. 305-06).
In addition, the intervenors received responses to extensive interrogatories addressed to the Licensee, the NRC Staff and the State of Oregon.
(2)
Although the hearing was originally scheduled to ccmmence on September 6, it was rescheduled to October 23 after Licensee informed the Ecard and parties of additicnal information utilizing a new, finite element analysis (S tardyne) of the seismic capability of the Control Building that became availabe in August.
Thus, CEC had approximately three months to prepare for hearing.
Moreover, at the conclusion of the hearing session on Movenber 3, the hearing was recessed until December 11, providing CEC an additional five weeks to prepare.
(3)
The Board requested that proposed findings of facts and con-clusions of law based en the first hearing session be submitted by November 20, authorized the presentation of additional proposed findings orally or in writing at the December 11 hearing session or by December 19, and permitted concluding argurents on December 12.
CEC never submitted any proposed findinas or conclusions, and de-clined to present a concluding statement (Tr. 2613).
. through a 5-renth hearing process on a single issue, particularly when it failed to take advantage of any of the many opportunities to present testimony or to state its position orally cr in writing.
The Board did not err in refusina to call Mr. Pcllard as a wit-ness for the Board.
He had been identified as early as October 23 as a tentative witness for one of the intervenors (Tr. 489).
When Mr.
Pollard chose, instead of appearing as a witness, to submit a written limited appearance statement (Letter from Mr. Pollard to the Eoard, Decenter 6, 1978) (Tr. 2398-99), the Board expressly kept the record open after testimony by the parties and concluding arguments had been presented, solely to receive his statement (Tr. 2647-48).
Thereafter, the Board reviewed his statement and, exercising its discretion, requested Licensee and the NRC Staff to provide expert witnesses to respond to questions which it viewed as appropriate for further inquiry (Tr. 2716-20, 2723-29, 2736, 2742-44).
The hearing was protracted for two additional days for this sole purpose.
Ob-viously, the Ecard's actions concerning Mr. Pollard's statement were more than adequate under the circumstances, and it was fully warranted in not choosing to call him as a witness.
As the Appeal Ecard has held, "the decision to call or not to call a witness for the Scard must rest and does rest ultimately in the sound discretien of the tribunal alone."-*/The Board used sound discretion in this instance.
- /Cc.nsumers Power Cc. (Midland Plant, Units 1 and 2), ALA3-382, 5 IIRC ti O 3, 000 (1977).
--a~
. CEC's argument that a decision concerninc interir operation "can-not be logically made prior to the hearings en the proposed modifi-catiens" is both unsupported and untirely.
Licensee filed a rotion en July 21 requesting bifurcation of the proceedinc and setting forth at length the reasons why the separate matters relatinc to interim cperation could be heard and determined prior to censideration of the issue relating to the proposed mcdifications.
CEC did not re-spend to the notion.
At the pre-hearing conference when the rotion was considered, counsel fer CEC e::plicitly stated "I think that the issues are analytically severable" (Tr. 329; originally misnumbered as Tr. 6504) and did not oppose granting of the rotion.
The Board's ruling on bifurcation was confirmed in its order of August 25.
CEC did not object cr ask for reconsideration.
It is far too late in the proceed-ing for CEC to raise this argument even if it had merit, which, of course, it does not.
CEC's claims that the conclusions and decisions were based on biased evidence and testimony are utterly false.
The Board con-sidered such allegations by the intervenors and found them to be with-out merit (Decisicn, pp. 28-30, p.
50).
In view of intervencrs' allegaticns, the Scard admitted into the record the PGE-Bechtel con-tract (Board Exhibit 1); and detailed questicning by the Ecard re-vealed that the Bechtel witnesses had never seen the contract and that matters relating to potential Eechtel liability had no in-fluence of any kind upcn their professional judgrent or their tes-timony (Tr. S44-49).
'!o reo ver, the Scard fcund that the credible testimony of the Eechtel engineers and the PGE expert witnesses was
-o corroborated by " substantial and convincing evidence" presented by other experts (Decision, p.
29).
Licensee presented two independent experts, Prof, Myle J.
Holley, Jr. and Prof. Boris Bresler, who pre-sented a study report on the capability of the Control Building and who impressed the Board with "their dencnstrated knowledge of the Building Complex and their reasoned respcnse to numerous cuestions" (pl., pp. 23-29).
In addition, the State of Oregen also presented "a knowledgeable and convincing expert witness," Prof. Harold J.
Laursen, who provided further credible evidence confirmine the cap-ability of the as-built Building Complex (p[., pp. 29-30).
- Finally, CEC's allegation that there was no independent analysis is also belied by the extensive testimony of the NP.C Staff.-*/Thus, the Beard's findings are soundly based upon the unanimous testimony of all of these experts - testimony which was not only uncontroverted but ccmprehensive and highly creditable.
Irrecarable Injurv to CEC Ot the four criteria, a showing of irreparable injury to the petitioner is the most critical.
If no such injury exists, there is little reason why a petitioner should not wait until his claims can be fully evaluated on the merits, and thus a stay will not ordinarily
- /
be granted.--
- /For example, the principal URC Staff witness pcinted cut that his 34 fages of prepared testimony (NRC Staf f Exh. 5) concerning pre-Stardyne analyses contained extensive calculations and evaluations he had per-sonally perforred, that his supplemental post-Stardyne testimony (NRC Staff Exh. 6) was also essentially ccnfirmed by these independent cal-culations, that the NRC Staff performed as much independent checking and recalculation as is warranted in specific circumstances, and that extensive additional resources within the NRC Staff would have been available for further work if deered necessary (Tr. 2161-62, 2203).
- /See, e.c.,
Public Service Co. of New Harcshire, et al. (Seabrook SEaticn, Units 1 anc 2) CLI-77-27, o NRC 715 LC77); Public Service Co.
of Indiana (Marble Hill Suclear Generating Statien, Units 1 and 2),
ALAB-437, 6 NRC 630, 632 (1977).
- 7_
CEC apparently alleges that, in the event of an earthquake, damage to the Centrol Recm Building cculd result in the Plant not being able to shut down safely and that CEC's members livine within 25 miles would be injured by radicactive releases.
These allegations simply ignore both the record and the Board's explicit findings.
For example, the Ecard found, with extensive citations to the record, that the as-built Control Building Ccmelex has " adequate structural capacity and strength to withstand safely the licensed SSE of 0.25,"
that gross failure or collapse of the shear walls "is not a credible consequence of earthquakes up to and including the SSE," and that the experts agreed "the Control Building can safely withstand an earth-quake at least 50% higher than the licensed SSE" (Decis ion, p.
30; see also pp. 42-43).
It also explicitly fcund that "the safety-re-lated equipment, components and systems necessary for safe shutdown, as well as the safety-related piping [after the rodification required prior to interim operation], are adequately qualified to withstand tha SSE" (Id., p.
40).
Thus, CEC simply alleges, without record ref-erence or other support, an inability to shut down the Plant which is ccmpletely contrary to the record.
Moreover, CEC's allegations involve the sheerest speculation concerning how the effects of an earthcuake upon the Plant could re-sult in any impact on CEC.
Obviously, unsupported concerns that some unspecified centingencies may occur at sore unknown future time cannet satisfy the irreparable injury requirement.-*/
- /See, e.c.,
Tcledo Ediscn Co. et al. (Davis-Besse Nuclear Pcwer Sta-Eion, Unics 1, 2 and 3), ALAB-335, 5 NRC 621, 626-29 (1977).
We need deal only briefly with CEC's Attachments 1, 2 and 3.-*/ apparently consists of Reportable Cccurrence Repcrts filed by Licensee with the NRC plus some miscellaneous documents, none of which are in the record of this proceeding.
CEC does not even present a plausible argument as to the relevance of these materials to the issue in this proceeding, and it is obvious that no such relevance exists. is apparently presented to show only that CEC members live near the Plant.
To the extent that the affidavits (all executed prier to the hearing in this proceeding) purport to present any other facts or opinions (i.e.,
as to alleged impacts on the CEC members) they are worthless both because the prc-ponents have no expertise in the relevant areas and because the affidavits provide no factual support for the opiniens expressed. --sej Finally, Attachment 3 is a werthless potpourri of unsworn publica-tions by the Trojan Decommissioning Alliance and newspaper articles and cartoons completely unrelated to this proceeding which deserves no reply.
Earm to Other Parties CEC alleges that the recuested stay would not " endanger the lives or health of the other parties" and that, although closing the Plant may cause a loss of revenues to Licensee, " financial considera-tiens are not an issue of these hearings."
- / Licensee is simultaneously filina a motien to strike Attachments I and 3 as violaticns of 10 CFR S2.738 (b).
- / Licensee controverts all facts and ooinions ennressed in such I?fidavits.
In light of the extensive ' sworn testimony presented by
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Licensee's witnesses at the hearings and the explicit findings of the Ecard on the safety of interim operation, however, rebuttal affidavits are deemed unnecessary.
_g_
CEC is simply wrong in suggesting that financial injury to a party is not properly taken into account in considering whether a party will be harmed by a stay.
The financial costs resulting from the enforced shutdcwn of a large pcwer generating facility are very significant, and must necessarily be taken into account in the appli-cation of the S2.786 criteria. -*/
The substantial economic impact to Licensee and Bonneville Power Administration (BPA) that would result from granting of a stay, as weli as the impact upon Licensee's ability to meet the needs of its system and BPA's ability to serve certain industrial customers, were dccumented in the January 15, 1979 affidavits of Glen E.
Bredemeier of Licensee and Hector Durocher of BPA that were submitted with the " Answer of Licensee In Opposition to Petition for Stay Filed by Coalition for Safe Power" (January 15, 1979).--**/As there demonstrated, in contrast to the lack of injury to CEC, it is uncon-testable that the granting of a stay would inflict substantial harm on Licensee and BPA, and those that they serve.
The Public Interest The Raquest does not explicitly address the fourth criterien:
where does the public interest lie.
As noted in Licensee's Answer to the CSFP Petition, the absence of any public interest basis for granting the stay is evident in the
- /See, e.c., Metrocolitan Edison Co..
et al. (Three Mile Isl:nd '?uclear Station, Unit No. 2), CLI-7e-3, 7 SRC 307, 309-10 (1973).
'*/Since such affidavits were served on the Appeal Board and all par. ties ITncluding CEC) on January 15, 1979, additional copies are not being submittec with the instant Answer.
uncentroverted record concerning the safety of interin eneration and the lack of environnental irract.
In light of the serious adverse ef fects of Plant shutdown and the lack of any adverse innacts of Plant operatien,the public interest can only be served by denial of the Stay.
Respectfully submitted, l'\\
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acnald W.
Jennson, Esq.
Portland General Electric Cenpany 121 S.W.
Salmen Street Portland, Oregen 92704 31 3
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Maurice Axelrad, Esq.t Lowenstein, New.an, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.
53ashington, D.
C.
20036 Attorneys for Portland General Electric Cenpany