ML19274D439
| ML19274D439 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 01/09/1979 |
| From: | Culp R, Newman J, Schearz M BAKER & BOTTS, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| References | |
| NUDOCS 7901230369 | |
| Download: ML19274D439 (52) | |
Text
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cv NRO PUMJC D00tTMarf ROOM ocam S
O unna UNITED STATES OF AMERICA 91978 > fi fg JAN NUCLEAR REGULATORY COMMISSION pa= es n. s BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 38**gton S
N IN THE MATTER OF
)
)
HOUSTON LIGHTING & POWER COMPANY,
)
)
50-499
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(South Texas Project Units 1 & 2)
)
APPLICANTS' RESPONSE TO AMENDED PETITIONS FOR LEAVE TO INTERVENE In a memorandum and order dated October 23, 1978, this Board concluded that a petition to intervene in this operating license proceeding submitted on behalf of Citizens Concerned About Nuclear Power, Inc. ("CCANP") and an ap-parently late-filed petition to intervene submitted by David Marke did not " include sufficient information for us to determine whether the petitioners have standing as of right or, alternatively, whether they should be permitted to participate as a matter of discretion." (p. 3)
As amended by an order dated November 17, 1978, the memorandum and order permitted the petitioners to " amend or supplement their pe-titions by no later than December 26, 1978."
In a separate order, also dated November 17, 1978, the Board accorded similar treatment to a late-filed petition for leave to intervene filed by D. Michael McCaughan.
7901230369
t No such amended or supplemental petition has been received from Mr. McCaughan, but, a " Petition for Leave to Intervene" by CCANP ("Second CC Petition") and a " Supple-mentary Petition by David Marke and Listing of Contentions"
("Marke Supplement") both dated December 26, 1978, have been received.
In this response, filed on behalf of the Applicants herein we demonstrate that neither Mr. Marke, the organization referred to in the Marke Supplement nor CCANP have standing as of right to intervene in this proceeding.
We also demonstrate that neither Mr. Marke nor those organi-zations should be permitted to pa*ticipate as a matter of discretion.
I Standing To Intervene In its memorandum and order of October 23, 1978, this Board stated:
Thus, both petitioners appear to assert certain " health" interests.
It is clear that a petitioner may base its standing upon a showing that his or her residence, or that of its members, is "within the geographical zone that might be affected by an accidental release of fission products."
Louisiana Power and Light Co.- (Waterford Steam Electric Sta-tion, Unit 3), ALAB-125, 6 AEC 371, 372
- n. 6 (1973).
. =
=
Applying those criteria to this case, it is evident that the residence of Mr.
Marke in Austin, Texas (over 100 miles from the site) and the headquarters of Concerned Citizens in San Antonio, Texas (over 150 miles frem the site) are too remote to con-fer standing upon those petitioners.
Because Concerned Citizens have not specifically iden-tified any of its members, we presume they all live in San Antonio.
If any of them live or cenduct substantial activities in the site vi-cinity, they should be identified (and their activities explained) in a supplemental peti-tion.
Similarly, should Mr. Marke engage in significant activities near the site, those activities should likewise be identified.
(pp. 4-5)
Neither the Second CC Petition nor the Marke Supplement meets the requirements necessary to establish standing as specified by this Board.
CCANP.
CCANP first filed a petition to intervene in these operating license proceedings on August 31, 1978.
In that petition CCANP referred to itself as a " San Antonio, Texas, based non-profit organization" that was " interested in this action in that its members, residents of San Antonio" might be adversely affected by plant operation. (pp. 1,2)
As the basis for its standing to intervene in this matter, CCANP alleged no stake in the outcome of these proceedings other than the " economic and health" interests of those "resi-dents of San Antonio."
Consequently, when the Board granted CCANP permission to file a " supplemental petition," the Board requested the organization to identify members living or conducting " substantial activities in the site vicinity "and explained their activities.
The Board also requested that " extensive particularization" be supplied concerning a
. contention relating to accidents in transportation and that "special circumstances" be specified concerning a contention relating to over-pressurization of the pressure vessel. (pp. 6, 7)
In response to the Board's request the Second CC Petition modifies the organization's original description of itself.
It is now "a non-profit corporation with members in Bexar and Matagorda Counties."
It explains that this corporation has approximately 120 members, at least four of which " reside within twenty-five miles of the South Texas Nuclear Project (STNP)."
Thus, CCANP seeks to satisfy the " geographical zone of interest" requirement by alleging that less than a handful of its members, apparently entirely segregated from the rest of the membership, reside within twenty-five miles of the plant.
The Second CC Petition alleges that the organization has members in both Bexar County, where San Antonio is located, and Matagorda County, where the South Texas Project is located.
However, CCANP does not allege that any of its members reside in one or more of the several counties lying between Bexar and Matagorda Counties.
Thus, from all that appears, the geographical distribution of CCANP's membership is concentrated in San Anton,io with only four segregated members living over 100 miles from San Antonio in Matagorda County.
Those four members also fail to satisfy the requirement of Sierra Club v. Morton, 405 U.S.
727 (1972), that in order for an association or other organization to obtain standing as of right it must allage that it or the members of the association
, are in fact injured by the contested action.
Consistent with this requirement, NRC licensing and. appeal boards have demon-strated concern that standing would be obtained on the basis of interest "however small or short-lived" without a legitimate and substantial showing of injury.
In Allied General Nuclear Services et al.
(Barnwell Fuel Receiving and Storage Station),
ALAB-328, 3 NRC 402, 421-22 (1976), the Appeal Board held that the American Civil Liberties Union did not have standing to intervene in a licensing proceeding because it had not included
" particularized" inforniation as to the injury that members would suffer or why these members wished to be represented by this organization.
The Appeal Board quoted, with approval, from the Licensing Board's decision:
Not only does the petition fail to spell out this interest, but ACLU /SC has fur-ther complicated matters by its failura to supply affidavits from its members which state what their concerns are and why they wish ACLU /SC to represent them.
Instead, all we are furnished is a single affidavit from a member residing some 30 miles from the plant site.
That affidavit merely attests to the truth of the peti-tion.
It does not specify why the affiant believes her civil liberties to be in dan-ger, or which of her property interests may be injured by this proceeding.
Cer-tainly ACLU /SC's case would be stronger had it supplied affidavits from members indicating their specific property inter-ests and their own civil liberties.
3 NRC at 423.
. The Second CC Petition contains nothing whatsoever about such particularized interests of the Matagorda County members of CCANP.
To the contrary, the pleading treats all of CCANP's members identically, referring without differentiation to the alleged " unnecessary risk" to which "its members" may be subject (p. 1) and the " health and safety of the members of CCANP..."
(p. 3).
Very recently, a Licensing Board denied petitions of organizations for leave to intervene in circumstances very similar to those presented here.
See " Order and Recommenda-tion on Petitions for Leave to Intervene," dated December 8, 1978, in Virginia Electric and Power Company (VEPCO), (North Anna Power Station Units 1 and 2), Docket Nos.50-338SP,50-339SP.
The latter proceeding involved an amendment to the North Anna Power Station's operating license to expand the capacity of the spent fuel pool.
Two organizations petitioned to intervene.
One, the Potomac Alliance, is Washington based and has approximately 75 members living in Virginia and the District of Columbia.
Three members were alleged to live
, within a 45-mile radius of the plant.
A second organization, Citizens' Energy Forum, alleged that its members live in a 50-mile radius of the power plant, with two couples living on the shore of Lake Anna, where the Power Station is also located.
Another member was alleged to live within 10 miles of the facility.
Allegations concerning recreational activity in the area of the facility were also made in support of standing.
Numerous conten; ions concerning radioactive con-tamination of the waters of Lake Anna, of groundwater, of food and atmosphere were made.
The petitions to intervene were denied, with the Board ruling (pp. 11-12):
More specifically, the bare recital that five of CEP's members living on the shore of Lake Anna or within ten miles of the North Anna Power Station are " concerned" about possible radioactive contamination of one or another part of the environment or products thereof as a result of the proposed increase of waste storage at the Power Station does not meet the interest requirement of setting forth with particularity the interest of the petitioner and of setting forth how a particular interest may be affected by the results of the proceeding.
Briefly, it is not enough simply to call out neighboring waters, air and agricultural pro-ducts and to allege that these elements of the environment might or will be adversely affected to some undefined extent and in some undeter-mined manner by the expansion of the spent fuel pool capacity.
How the expansion of the spent fuel pool capacity might or will bring about environmental contamination, and the extent of such contamination, would appear to deserve to be described with reasonable specificity.
Otherwise, intervention becomes sustainable merely on the basis of general assertions of interest in health, safety and the environment and on the basis of general allegations of cause and effect relationships without meaning-ful supporting allegations of specific facts establishing a reasonable nexus between cause on the one hand and effect on the other.
The same considerations clearly apply here.
The Second CC Petition does little more than make " general assertions of interest in health, safety and the environment" without any specificity.
It wholly fails to make any distinction between those who live without and those who live "within the geographical zone that might be affected...."
CCANP's limited and minimal membership residing in the vicinity of the plant is therefore clearly insufficient to confer upon it the status of an intervenor as of right.
This position is materially different from organizations such as Sierra Club which have a nationwide or even state-wide member-ship with a declared interest in a subject matter of com-parably broad concern (e. g., conservation and protection of the environment).
Organizations representing such broader constituencies may more readily have ascribed to them the standing derived from the interest of a few specific members within an affected crea; the continuing interest and activities of such organizations naturally reach beyond political borders.
In contrast, CCANP, by its own description, is representative of a far more narrow constituency - citizens of a community more than 100 miles from the STP site.
Imputing to such an organization status derived from the residence of a handful of its members entails an unjustified extension of the principles of Sierra Club v. Morton, -* /. for virtually no other members of CCANP have interests of the type which may be ascribed to the few Matagorda County resident-members.
too long a step from the situation presented here
- / It is not to one in which, for instaace, a local Los Angeles organiza-tion obtains standing in New York on the basis of four individuals residing in the latter state who allege that they are members of the Los Angeles organization.
We are aware of the "Prehearing Conference Order Ruling upon Intervention Petitions", dated January 2, 1979, and issued in Detroit Edison Company et al (Enrico Fermi Atomic Power Plant, Unit 2).
There, it was stated that standing as of right could be accorded to an organization where two identified members were shown to reside 35 and 2 miles from the site, respectively, and to have authorized the organization to represent them.
We respectfully submit that this statement is not consistent with North Anna and Barnwell. /
However the validity of the statement need not be addressed here.
The Fermi Order was not based upon the organization's standing or interest.
It was based upon a clear showing by affidavit that two individuals, undeniably residing within the geographical zone of interest, adopted and supported the statements in the organizations' petition and that each " desires CEE to represent his interest in the proceeding.
(pp.
5, 6).
In such circumstances the separate standing of the organization is almost irrelevant.
It is merely representing the two individuals.
Presumably the proceeding would terminate if they should withdraw the authorizations.
-*/ Also relevant is a memorandum and order recently isssued in the Midland proceeding stating:
"We believe the applicant is entitled to have a clear and current showing that a significant number of Saginaw members do in fact reside near the plant Consumers Power Company (Midland Plant, Units 1 and 2), 8 NRC 275, 277 August 14, 1978; (emphasis added).
Here no such authorizations have been executed.
No evidence whatsoever has been submitted showing that any individual residing within the zone of interest desires to have CCANP " represent his interest in the proceeding, and that he adopts and supports the statements of interests and contentions delineated in [CCANP's] petition".
(Fermi Order, p.
6)
Consequently CCANP has not established its authority to participate in the proceeding as a representa-tive of any individuals.
Evidence of such authority is particularly necessary here in view of the fact that the organization alleges, as the basis for its obtaining representa-tional standing, that four lone members reside near the plant.
The fact that these individuals are segregated by over 100 miles from the vast majority of CCANP's membership indicates that there may be no unity of interest between these four and the organization alleging to represent them.
Lacking such evidence ~*/CCANP cannot establish a right to intervene in this proceeding even as a representative of individuals.
Moreover, the general nature of CCANP's contentions and their lack of merit, as discussed below, demonstrate that this Board should not exercise discretionary authority to confer intervenor status upon the organization.
-*/
If the Board extends an opportunity to CCANP to establish such authority, the circumstances are such that the proferred evidence should be subject to discover or cross-examination, or both.
In addition, the authority of the individual or individuals who will appear to represent the persons residing in the affected geographical zone and the organization should be clearly established.
See, Fermi, Order of January 2, 1979 and Midland Memorandum and Order of August 14, 1978, supra.
i In this connection, it is noted that an affidavit attached to the Second CC Petition identifies seven members of the organization "to indicate their expertise and potential to contribute toward developing a sound record...."
One is apparently a student, others appear to have graduate degrees.
However, no effort is made to relate that expertise to any particular issue which may be put in contention.
Nor is there any indication that the particular individuals, even if their qualifications could be established, will in fact be available to testify.
In short, the affidavit does nothing more than demonstrate that, out of an organization of approximately 120 members, in the course of their education or professional life, seven have devoted some time to subjects which may or may not be relevant to this proceeding.
Marke.
The Marke Supplement does not controvert the fact that Mr. Marke lives in Austin, over 100 miles from the site and approximately twice as far as this Board char-acterized as "the longest distance heretofore determined to be within the zone which might be affected by a reactor incident...."
Mr. Marke basically makes three arguments concerning why he, nevertheless, is entitled to intervene.
None have merit.
The first is "that traditional geographic limitations cannot be held any longer in such proceedings."
(p. 8)
The reasons offered for this are that normal releases of radioactivity from the units could be carried to Austin by air or by releases into the food chain (p. 6), and that he lives or works near rail lines and roads upon which radioactive wastes might be carried (pp. 7-8).
These are obviously considerations which were taken into account when the " traditional geographic limitations" were established; and so far as transportation accidents are concerned, what Mr. Marke appears to be saying is that if nuclear materials or wastes are transported along the routes he suggests and if there is a serious transportation accident, he may be affected.
Such an allegation is entirely speculative in nature.
Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center), 6 NRC 518, 519-20 (1977).
It has already been so characterized in the Board's memorandum and order of October 23, 1978 (p. 6).
It wholly fails to supply the " extensive particularization" requested by this Board.
A second basis for Mr. Marke's personal interest is his statement that he is " regularly involved in recreational pursuits, particularly along the Southern Gulf Coast, specifically involved in off-shore and on-shore fishing in the area south of Galveston and Port Aransas." (p. 8)
The distance between Galveston and Port Aransas is approximately 180 miles.
Clearly, the unspecified use of recreational facilities some place in this vast area is not a basis for standing.
Virginia Electric and Power Company, supra.
While Mr. Marke says he is regularly involved in " recreational pursuits" in this
. large area, he does not indicate the frequency or nature of such regular activity.
Mr. Marke's statement concerning his recreational activities cannot, therefore, be viewed as satisfying the Board's request to demonstrate, if he can do so, thac he is engaged "in significant activites near the site."
A similar assertion regarding occasional visits to
" unspecified communities asserted to be 'near' the site.
has been held insufficient to confer standing.
Public Service Company of Oklahoma et al.
(Black Fox Station Units 1 and 2),
ALAB-397, 5 NRC 1143, 1150 (1977).
The final basis for Mr. Marke's claim to his personal interest is that he has " current and permanent status as an' interested consumer' in this proceeding."
(p. 9)
The short answer to that contention is that such a status constitutes a purely economic interest and is not within the zone of interests which may be addressed in this proceeding.
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418, 1420-21 (1977); Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 (1976); Long Island Lighting Company (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 638-41 (1975).
In short, despite the renewed opportunity afforded him, Mr. Marke has wholly failed to demonstrate an interest entitling him to standing in this proceeding.
Apparently for this reason, he claims for the first time " Standing as a Representative of a Quasi-Public Board" (p. 10).
This claim, too, is without merit.
The Marke supplement states (pp. 10-11)
While not professionally engaged, petitioner Marke is a member of the steering committee, i.e.
the governing body, of a group known as Austin Citizens for Economical Energy (ACEE).
Petitioner Marke has been authorized by vote of the governing body of ACEE to represent them, and the combined interest of a group of citizens open to the public comprizing at this time over 100 formally aligned members in Austin and other communities, and supported at least in principle by a constituancy of several thousand residents and consumers in Austin and the surrounding area including residents of the Houston community, including Mr. and Mrs. Robert Cook of Wadsworth, Texas, who reside less than 8 miles from the reactor location.
While it would be time consuming if indeed not impossible to list all of the members and others represented by the members of ACEE, petitioneer has attached as Appendix A to this pleading the names and addresses of the Chairman and Members of the steering committee of ACEE who have so designated Mr. Marke to represent their interests.
It is not entirely clear whether Mr. Marke is contending that the ACEE should be admitted as an. additional party inter-venor, and that he will represent it, or whether he is claiming that his membership in the organization simply constitutes an additional ground permitting him to intervene as an individual.
If the former is being requested, it is obvious that ACEE's request is out of time and that no effort has been made to satisfy the requirements of 10 CFR S 2.714 (a) (1) relating to late filings.
In addition, all of the inadequacies of the Second CCANP Petition apply to any attempt by ACEE to intervene.
Its name makes it clear that it is an organization of " Austin Citizens" whose primary concern is " Economical Energy."
It has only two, rather than four, members living in the site area; and the listing of its Steering Committee members fails to disclose any special expertise to contribute to the proceeding.
On the other hand, there exist some indications that Marke's membership in the ACEE is merely referred to in support of his personal petition to intervene.
In hic original petition, dated August 24, 1978, Petitioner Marke stated that "my interest is personal" and "that I am not engaged by any group to present these contentions, and that it is not my intention to become so engaged." (p. 3)
The Marke Supplement itself is called a "Supplimentary Petition by David Marke...;" and elsewhere he refers to "the petitioner's contentions" and states "Petitioneer David Marke therefore contends..." (p. 17).
No effort is made to associate the organization with the contentions.
Mr. Marke's organizational connection with ACEE clearly does not operate to confer separate personal standing upon him.
In some circumstances membership in an organization might be evidence of some expertise, but in the absence of any statement of the qualifications for membership in the ACEE, that cannot be the case here.
In sum, Mr. Ma*,ce has not provided the information which this Board required to establish his standing as of right.
Nor does the Marke Supplement support the discretionary grant of intervention status.
. II Contentions Both the Marke Supplement and the Second CC Petition enumerate " contentions."
These are addressed below, jointly where they are similar and susceptible to con-venient joint discussion.
CCANP Contention 1 and Marke Contention 1 Both of these proposed " contentions" urge that the proceedings be delayed.
CCANP asks that the delay run until " construction is far enough advanced to insure proper inspection."
Marke suggests that the delay extend until construction "get[s] to the point Nhere it should have been, if on schedule, when the August notice was published.
Essentially these are not contentions at all.
Rather they are suggestions concerning the manner in which the NRC's business should be conducted.
The suggestions are wholly at odds with the Commission's policy and the regula-tions implementing that policy.
It is clearly the contempla-tion of NRC regulatory practice that licensing boards in operating license cases will initiate proceedings as promptly as possible after an application for such a license has been docketed.
10 CFR S2.104 (c) provides that:
. In the case of an application for an operating license.
, a notice of opportunity for hearing shall be issued as soon as practicable after the application has been docketed.
This is the early notice procedure that was followed in the instant proceeding.
The Notice of Opportunity for Hearing, dated July 26, 1978 (43 Fed. Reg. 33968, August 2,
1978), recites that the last parts of the application, the final safety analysis report and the environmental report, were received on May 10, 1978.
After review by the staff, the application was docketed on July 17, 1978.
This "early notice" procedure was incorporated into the Commission's regulations as a part of the restructuring of the Commission's hearing process in 1972 (37 Fed. Reg. 15127, August 27, 1972) for the express purposes of pro-viding " potential intervenors a better opportunity for more meaningful participation in the hearing process.
avoiding " delays in completing the decisional process with respect to construction and operation.
" and " expediting the decisionmaking process."
In the light of this deliberate policy the requests for delay cannot be granted.
To the extent that the requests or contentions are based upon some legal theory, the; are clearly erroneous.
The current construction schedule for the two units is wholly compatible with the construction permits.
The Construction Permit for Unit 1 provides:
The earliest date for the completion of the facility is May 1, 1980, and the latest date for completion is May 31, 1982.
With respect to the Construction Permit for Unit 2 these dates are October 1, 1981, and October 31, 1983.
By letter of October 30, 1978, E. A.
Turner, Vice President of Houston Lighting and Power Company advised Mr. Roger S.
Boyd of the Commission:
The revised construction schedule indicates that fuel loading of Unit 1 will be November 1, 1981, with commercial operation commencing April 1, 1982.
Fuel loading and start up ot Unit 2 will take place approximately one year later [ November 1, 1982, and April 1, 1983, respectively].
The Marke Supplement (p. 18) may be interpreted as suggesting that an operating license proceeding cannot be conducted until after construction has been completed.
It states "that Unit 1 is only 41.5% complete.
tinit 2 is well behind that timeline."
It argues that " license hearings are initially to assure that the reactor has in fact been constructed in accordance with the construction permit."
However, these statements proceed from an erroneous impression of the nature and structure of the NRC regulatory process.
Under the practice operating license proceedings are initiated -- as 10 CFR S2.105(a) requires -- well before construction is completed.
}lar~ke Contentions 2, 10 and 21 - CCAMP Contention 2 These proposed contentions are nothing more than com-j plaints related to the not abnormal problems associated with the construction of nuclear power plants, routinely reported to the NRC and corrected pursuant to NRC-approved procedures.
Certain of the deficiencies noted by petitioners have been identified and found to be baseless
/ or have been, or are being, corrected. - j All are matters of public record.
Further, contrary to Petitioner Marke's implication, virtually all, if not all, of the NRC inspections are unannounced, and satisfactory inspection results are no less common when in connection with a special investigation.
- / For example, NRC inspection Report No. 50-498/78-09; 50-499/78-09 dated June 6, 1978 contained the following conclusion:
Based on a review of records and interviews with all individuals in the departments in-volved, it was determined that there was no evidence that cadweld records had been falsified.
- / By NRC Inspection Report No. 50-498/78-17; 50-499/78-17 the steps adopted by Applicants to resolve deficiencies in the cadweld procedures were tabulated, and it was noted that "this matter is considered resolved."
- / For example, the report on a special unannounced investigation on July 25-28, 1978 (Report No.
50-498/78-12; 50-499/78-12 reads:
Special, unannounced investigation of allegations of insufficient training for implementation of newly issued procedures; inadequate nonconformance reporting system; reluctance by QA to issue non-conformance reports; inadequate support of QC inspectors; poor control of QC documents; inaccurate as-built drawings; inaccessability of upper management; undue pressure on QC inspectors; performance of repairs without approved pro-cedures; and inability of construction engineers to perform work.
The investigation involved seventy-two inspector-hours on site by three NRC inspectors.
Results:
No items of noncompliance or deviations were identified."
Petitioner Marke also seeks to use this forum improperly to impugn the integrity
(" willingness to falsify," and
" fraud," contention 2; " deliberate falsification,"
contention 18) of the Project Manager, Applicant Houston Lighting & Power Company and the constructor, Brown &
Root, Inc., and to cast unsubstantiated aspersions on the workers
(" unconfirmed report of use of illegal aliens," contention 21).
These unsupported allegations should be stricken.
Petitioner Marke suggests that this Board continuously inspect the project.
Under 10 CFR Sl.64 this is the responsibility of the Office of Inspection and Enforcement, a role that office is carrying out as is evidenced by the reports referenced by the petitioner.
That is nat the role assigned to ASLBs under the Commission's regulations.
As noted above, STP is not immune to the construction problems entailed in the extraordinarily complex business of building a massive power generating station.
The periodic reports of non-conformances and correction are not evidence of a breakdown in the quality assurance system.
It is the ability of the system to detect and respond to,these problems that is the real test.
Neither of the petitioners presents convincing allegations that Applicants' have failed to meet this test.
Neither petitioner purports to have expertise or special experience in connection with the matters covered by these contentions.
Neither has either petitioner offered to supply any evidence in support of the contentions. /
For the foregoing reasons each of these contentions should be denied.
Marke Contention 3 Petitioner's allegation in contention 3 that the ECCS has not been " demonstrated effective" is a direct challenge to the Commission's ECCS regulations set forth in 10 CFR S50.46 and Appendix K to Part 50.
Under the procedures provided in 10 CFR S2.758 a party may not challenge the validity of an NRC rule in a licensing proceeding.
If that party seeks a waiver or exception of that rule under S2.758 (b), he must demonr,trate "special circumstances"; and such a waiver or excepcion can be granted only in unusual and compelling circumstances.
Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), CLI-72-31, 5 AEC 25, 26 (1972).
Further-more, a showing of special circumstances requires more than a mere allegation thereof, Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-126, 6 AEC 399, 402 n.10 (1973).
Since petitioner has done nothing more than make a generalized complaint about ECCS testing, this contention is inappropriate for this proceeding.
See, Ohio Edison Co. (Erie Nuclear Plant, Units 1 and 2)
ASLB Order Subsequent to the First Prehearing Conference (August 18, 1977), at p. 7 where the Board rejected a very similar contention.
- /
Fermi Order p. 10.
Furthermore, as petitioner himself admits, the Commission has announced its intention to initiate a rulemaking for changing technical as well as nontechnical requirements within the existing ECCS rule.
43 Fed. Reg. 57157 (December 6, 1978).
Since the Commission has undertaken to reconsider this issue on a generic basis, it makes no sense to adjudicate it in individual licensing cases.
In fact, the Appeal Board has specifically stated "that licensing boards should not accept in individual licensing proceedings contentions which are (or about to become) the subject of general rulemaning by the Commission."
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974).
Thus, even if petitioner had supplied the special showing requisite to a challenge to the Commission's regulations, this contention should have to be denied under the Douglas Point criteria.
Marke Contentions 4, 11 and 12 - CCANP Contention 5 In proposed contention 4 Petitioner Marke makes various statements and allegations concerning routine low level radioactive releases from the South Texas Project during normal operation.
These concerns cover routine relt ses to the air, to the cooling lake, and ultimate introduction into the food chain.
In proposed contentions 11 and 12, Petitioner Marke merely asks questions with respect to these releases and the evaluation of the resulting doses.
Similarly, CCANP requests a " scientific explanation" of radioactive releases.
Commission regulations, however, specify in detail the acceptable radioactive effluent concentrations for both restricted and unrestricted areas.
- See, e.g.,
10 CFR S20.106 and Part 50, Appendix I.
If the claims are that routine releases from STP will not meet the requirements set forth in the regulations, petitioners fail to provide any basis whatever for this allegation, and make no attempt to specify in what respect any releases will exceed regulatory restrictions.
- Thus, such allegations do not satisfy the " specificity" require-ments of 10 CFR S2.714 (b).
The Environmental Report-Operating License Stage provides detailed information concerning the radiological impacts associated with facility operation.
For example, see 555.2 and 5.3.3 concerning releases to the air; SSS.2, 5.3.2, App. 5.3.A concerning releases into the cooling reservoir; S55.2.2, 5.3.1 concerning seepage from the reservoir; S5.3.1 concerning the area water supply; SS5.2.3, 5.3.2 and 5.3.3 concerning ingestion through the food chain, crops, seafood and game birds.
Within such a context, conclusory statements that, "[t]he physical, mental, and gene ic health of the petitioneer (sic], ACEE, and the public are jeopardized by significant amounts of such materials" areinsufficient to identify--in a manner suitable for adjudication -- precisely what are the alleged deficiencies in the environmental analysis for the South Texas Project.
For this reason, these contentions should be denied.
If petitioners are claiming that routine gaseous and liquid effluent releases from STP must be lower in any respect than the regulatory requirements, such a claim is a challenge to the adequacy of the Commission's regulations and, absent some showing of special circum-stances, is not permitted in this licensing proceeding.
10 CFR S2.758.
Marke Contention 5-CCANP Contention 3 In its October 23rd Memorandum and Order, this Board clearly identified infirmities in the vague contentions of both petitioners concerning over-pressurization of the pressure vessel.
The Board called on the petitioners to identify in specific detail the "special circumstances" which would support a reconsideration of this issue under the Commission's precedent.
The Commission has unambiguously stated that the probability of a rupture of the pressure vessel is "an appropriate area of in-quiry in a licensing proceeding only upon a showing of special circumstances."
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 336 (1973).
Special circumstances must involve "a particular facility in issnet" and licensing boards "are empowered to exclude contentions or challenges which have no substantial or prima facie basis, or which merely amount to genera-lized attacks upon the standards presently required by the regula-tions."
Consolidated Edison Co. of New York (Indian Point Unit No.
2), 5 AEC 20, 21 n.5 (1972),
Petitioners Marke and CCANP have ignored the Board's directive and instead rely solely on broad generalizations and desr-iptions of the over-pressurization " problem," much -- if not all - of which is contained in a NFC Staff Study, NUREG-0138, documenting the particulars of past PWR pressure transients.
Petitioners apparently assert that the staff summary of pertinent PWR operating histories alone is conclusive evidence of a " defect" (Marke) or a possible " rupture of the reactor pressure vessel and thus
. a large scale release of radioactive material into the surrounding-area."
(CCANP).
Such conclusory statements based on a cursory recitation of operating incidents (some admittedly " unconfirmed,"
Marke p. 21) collected over four years from numerous plants hardly constitute particularized prima facie evidence of special circumstances.
Indeed, petitioners have not alleged that the present regulatory standards for assuring pressure vessel integrity provide an insufficient margin of safety in the face of such
~
The contention should be dismissed.
Marke Conte.ntion 6 Petitioner Marke's sixth proposed contention is nothing more than a conclusory statement that some of the Applicants are not financially capable of building or operating the South Texas Project.
It is vague and indefinite.
It does not sat forth with specificity any basis therefor as required by 10 CFR S2.714 (b).
Petitioner Marke does not identify which of the Applicants are not financially capable / nor does he explain why one or more of the Applicants asa not financially capable.
He does refer to the City of Austin and speculates (i) that, ".
city officials fear that the bonds for the next progress payment on the original may not be saleable placing Austin in default"; and (ii) "it is questionable whether the other participants 'can take up the slack'."
No basis for either of these conclusory statements
- /
In view of each Applicant's AA, Al or A+ ratings by both Moody's Investor Service, Inc. and Standard & Poor's Corp.
in mid 1978 (see, South Texas Project Application, as amended July 12, 1978, p.
13), Petitioner's allegation of a lack of financial capability is simply not credible.
is given.
Because this proposed contention fails to meet the specificity requirements of the Commission's regulations it should be denied.
Marke Contention 7 In this proposed contention Petitioner Marke first alleges that the South Texas Project "is not requisite for the assured energy futures of the participants," but then qualifies this allegation by stating that "a large portion of the planned capacity can be demonstrated unnecessary."
Reference to Figure 1.1-8 of the South Texas Project Environmental Report-Operating License Stage demonstrates the fallacy of Petitioner Marke's allegation.
That figure shows that in 1983, the first full year of anticipated operation of South Texas Project Unit 1, the Applicants will not be able to maintain a 15 percent reserve margin over their predicted peak loads without South Texas Pro-ject Unit 1 in operation.-*/
Further, Petitioner Marke's proposed contention 7 must be evaluated in the context of a facility already under construction.
He gives no reason as to why it would be preferable from an environmental, cost, or other basis to operate another facility instead of the South Texas Project (presumably, the only conceivable alternative at the operating license stage) except to suggest that, "it would seem that a technology not so high in risk" might be used.
He neither identifies the " technology" to be compared nor the " risk" to be avoided.
As in the case of consideration of alternative sources, (see answer to Marke 9, infra) need for power is a matter which
- /
See also, FES S 8.5.
is more appropriately dealt with at the construction permit stage of review.
It is the type of issue which, in order to be considered in an operating license proceeding, must be supported by "significant new information developed after the construction permit review."
Fermi Order p.
24a.
That showing is absent in the instant pleading.
Accordingly, the proposed contention fails to meet the requirements of 10 CFR 2.714 (b) and should not be allowed.
Marke Contention 8 This contention demands an assurance of "zero-error performance" in the transportation of fuel and high level wastes.
There is, of course, nothing in the Atomic Energy Act or Commission precedent contemplating the perfection suggested by petitioner.
Rather, under the Atomic Energy Act, the Commission is charged with defining what are reasonable assurances of safe operation.
Absent a special showing of a deficiency within the.wda of safety regulations, compliance with them is a sufficient demonstration of safety.
See Maine Yankee Atomic Power Co. (Main Yankee Atomic Power Station), 6 AEC 1003, 1008-10 (1975), af f ' d sub nom.,
Citizens For Safe Power v. NRC, 524 F.2d 1291 (1975)
Moreover, the allegations contained in the contention are totally vague and unspecific, and supported only by a most obscure reference to an unidentified " accident in the Northeast."
Petitioner's only attempt at specificity is to cast wholly unsubstantiated aspersions on Applicants'
. technical competence.
The " contention" thus fails to meet the requirement of 10 CFR S2.714 (a) that petitioner identify "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene and the bases for his contentions. "
To the extent that petitioner takes issue with the consideration given to the environmental effects resulting from transportation of fuel or waste, he challenge = Section
- 51. 20 ( f) (1) and Table S.4 of the Commission's regulations which prescribe the environmental consideration to be given to the effects of such transportation to and from a reactor site.
As for the health and safety aspects of transporta-tion, the Commission's regulations provide a panoply of requirements directed at assuring adequate protection.
- See, e.g.
10 CFR Part 71, S573.30-73.36.
Since this contention does not allege that Applicant will not comply with all applic-able regulations, and makes no effort at showing the requisite "special circumstances," it must be interpreted as an impermis-sible challenge to the regulations and cannot be allowed.
10 CFR S 2.758.
Marke Contention o Proposed contention 9 essentially asserts that insufficient studies were given to alternate fuel sources, citing coal, lignite, solar and coal gasification.
Petitioner Marke makes no reference to the analysis contained in S 9.1.2.1 of the South Texas Project Final Environmental Statement prepared by the Commission Staff.
There, after considering the feasible power source alternatives, the conclusion was reached that a
" conventional coal-fired power plant is the only serious alternative to STP" and the conclusion was reached that the South Texas Project "is the more favorable alternative from both economic and environmental considerations."
Lignite, which is characterized by petitioner as being present "in abundance,"
was considered specifically in Section 11.6.1 of the Final Environmental Statement in response to comments on the draft statement.
No specific criticism of this analysis is made, and one wonders if the petitioner was aware of same.
In Section 9.2.1 of Applicant's Environmental Report-Construction Permit Stage, non-traditional sources of alternate fuels referred to by the petitioner were also considered.
There it is clearly demonstrated that these alternatives were not accepted because the technology was not sufficiently developed.
Petitioner Marke's objections to the analyses are vague and indefinite.
He does not provide a specific challenge to the' basis of any of the conclusions.
The short answer to petitioner's complaint is that unbiased analyses on alternate fuels have been made.
Finally, petitioner Marke suggests that "an agressive [ sic]
conservation program could obviate the need for any new gener-ating facilities in [the area to be served by the South Texas Project] during the next decade.
"[C]onservation does not give rise to a separate issue--it is just one factor which must be considered along with many other factors in connection with need for power projections."
Consumers Power Company (Midland Units 1 and 2), ALAB-458 7 NRC 155, 165 (1978).
The Final Environmental Statement for the South Texas Project (NUREG-75/019) concludes in 58.2.3.7 that "even if conservation of energy measures are effective in reducing the demand for electricity in the 1980s, it is desirable to add nuclear capacity to reduce the amount of fuel consumed by gas--or oil--fired units, thus increasing the availability of these resources for which there are no available substitutes."
No basis for a challenge to this conclusion is asserted by petitioner.
The Atomic Safety and Licensing Board hearing the applica-tion for construction permits for the South Texas Project determined that as a result of:
the uncertainty of gas and oil supplies, the participants have reduced their planned additions to fossil plants, thus increasing the need for STP.
[ Citations omitted.]
In sum, the Board finds that the power to be generated by STP is needed,..."
Partial Initial Decision, Houston Lighting & Power i
Company, et al.
(South Texas Project Nuclear Generating Station, Units 1 and 2) LBP-75-46, 2 NRC 271, 295 (1975).
Petitioner Marke here makes no real contention.
He does not allege any defects in the analyses made by Applicants and the Commission Staf f, of the bases therefore.
He does not demonstrate any error in the Board's findings.
The contention should not be allowed.
Since the evaluation of alternative sources is more properly made at the construction permit stage, petitioner is required, in order to raise a contention on this issue, to make a " strong showing.
that there exists a significant issue which had not previously been adequately considered or significant new information which had developed after the construction permit review." Fermi Order p.
24a.
Petitioner has made no such showing here.
e Marke Contention 10 Petitioner Marke's proposed contention 10 does not in any way challenge Applicants' plans to insure an adequate cooling water supply nor Applicants' verification that this has been done.
Petitioner alludes to the cyclic rainfall and drought patterns common to southern Texas, vaguely cites a May, 1977 report by the Texas Water Development Board / and then asks the question, what are Applicants' plans?
Applicants' plans to provide a dependable, adequate supply of cooling water for South Texas Project Units 1 and 2 were set forth in detail in S 2.4 of the Preliminary Safety Analysis Report and again in S 2.4 of the Final Safety Analysis Report.
These plans include:
(i) a reservoir of 7000 surface acres (FSAR S 2. 4.1.1) ; (ii) a separate Seismic Category I Essential Cooling Pond described in FSAR S 9.2.5; (iii) a permit from the Texas Water Rights Commission (now Texas Department of Water Resources) issued February 24, 1976 (ER/OL Stage Table 12.1-1) authorizing diversion and use of the water necessary to satisfy the water requirements discussed in S 2.4.11.6 of the Final Safety Analysis Report (with annual diversions from the Colorado In May 1977, the date of the Texas Water Development Board
_ report cited by Petitioner Marke, and on February 24, 1976, the date of the basic permit for the water supply for the South Texas Project was issued by the Texas Water Rights Commission, the Texas Water Rights Commission, not the Texas Water Develop-ment Board, had jurisdiction to act on applications for permits to appropriate public water for beneficial use and the construc-tion of works for storage of such water.
Sec. 6.057 of the Texas Water Code of 1971.
River of up to 102,000 acre-feetperyear)[ rand (iv) a back-up contract with the Lower Colorado River Authority, holder of rights in stored waters of the Colorado River above the South Texas Project, to provide stored waters when necessary for the normal operation and maintenance of integrity of the facilities. /
The cyclic droughts to which petitioner Marke refers were analyzed (FSAR S 2.4.11.3.1) and were incorporated into a 40-year reservoir operation analysis made to verify the ability of the water supply to meet the cooling requirements of the Project as presented in the Final Safety Analysis Report S 2.4.11.6.
Based upon these plans and the verification of their suf-ficiency, it was determined, even without consideration of the back-up supply of stored water, "that an adequate safety-related water supply will be available" (South Texas Project Safety Evaluation Report NUREG-75/075 S 2.4.5, p. 2-19).
This proposed contention merely asks a question answered by existing and available documents and, therefore, should be denied.
- / As noted in FSAR S 2.4.11.6, the Attorney General of Texas appealed the decision of the Texas Water Rights Commission in issuing a contractual permit based on the back-up contract with the Lower Colorado River Authority to supply stored water.
The Judgment of the State District Court, dismissing the State Attorney General's appeal from the issuance of a state permit, was affirmed by the Court of Civil Appeals for the Third Supreme Judicial District on July 12, 1978 (568 S.W. 2d 473, Tex.Civ.
App.-Austin), and the State Attorney General's Application for Writ of Error to the Supreme Court of Texas was refused on November 15, 1978 (Te.:.Supr.Ct. Jour. Vol. 22, No. 7).
t Marke Contention 13 In this proposed contention Petitioner Marke correctly recognizes that the Price-Anderson Act, 42 U.S.C.A.
S 2210, has recently been upheld.1/
He then goes on to express a con-cern as to the adequacy of compensation provided under the Price-Anderson Act.
The equities of Price-Anderson and the limits of potential liability thereunder are not issues for determination by an Atomic Safety and -Licensing Board.
Florida Power & Light Co.
(Turkey Point Units 3 and 4), Commission Memorandum and Order, 4 AEC 787, 788 (1972).
Accordingly, the contention is clearly improper anC should be disallowed.
- / Apparently Petitioner Marke refers to the decision of the Supreme Court of the United States in Duke Power Co. v. Carolina Environmental Study Grou?., Inc., 98 S.Ct. 2620, 46 U.S.L.W.
4845 (1978).
, Marke Contention 14 Contention 14 raises a number of vague and confusing assertions.
In the first of these, petitioner apparently argues that Applicants' evacuation plans are not adequate nor have they been made public.
As to the adequacy of emergency preparedness plans, petitioner does not recite one fact or allegation challenging Applicants' full com-pliance with the requirements of 10 CFR Part 50 and Appendix E thereto.
Indeed, petitioner does not even address the Operating License requirements of these regulations.
Needless to say, then, petitioner has not demonstrated the specificity necessary to admit questions concerning the adequacy of emergency plans into this proceeding.
/
Petitioner's assertion that evacuation plans have not been made public is clearly wrong.
The South Texas Project Emergency Plan is an integral part of the FSAR; as such it is fully open to the public and available at
~
the Commission's public document room.
Petitioner also asks "where will enough workers be obtained to maintain proper radiation dosage levels?"
Presumably the concern is that occupational radiation exposure limits may require a large number of qualified
- / Further answer to the adequacy of Applicants' emergency plans is set forth in the response to CCANP Contantion 4, infra.
workers in the event extended repairs in radiation fields are necessary.
No grounds for this concern are specified, however.
Without a hint of particularization, this con-tention can be no more than speculative, without basis, and unacceptably vague.
Accordingly, it must be denied.
See 10 CFR S 2. 714 (b)
Contention 15 As Petitioner Marke states, the fuel tanks.for the standby generators at the South Texas Project are located above the diesel compartment.
The Diesel Generator Fuel Storage and Transfer System described in FSAR 59.5.4 is designed to function during emergency conditions with a single active or passive failure of any one of its com-ponents.
For example, the fuel tanks are located above the diesels to provide net positive suction head under all conditions.
Each fuel storage tank is located within an individual missle-proof seismic category I compartment and physically separated so that a failure of one diesel fuel train will not affect the remaining two trains.. The system is designed to operate during and after a probable maximum flood and will withstand all environmental design conditions including earthquake, hurricane and tornado loadings.
Petitioner Marke does not identify any defect in the At system nor does he suggest a preferable alternative.
best he submits an unfounded, conclusory assumption that this is a " supreme engineering error."
Nothing is presented for litigation and for the foregoing reasons, the contention should be disallowed.
Marke Contention 16 Petitioner's " conjecture" that the provisions for on-site storage of spent fuel may not be adequate is wholly speculative and unacceptably vague.
In no way does it constitute, as required, a listing "of the contentions which petitioner seeks to have litigated.
.and the bases for each contention set forth with reasonable specificity."
10 CFR S2.714(b).
Plans for spent fuel management are discussed extensively in the FSAR (Section 9.1.2) and the ER-OL stage (Section 3.8).
Pe-titioner does not take issue with the facts as set forth therein. /
Petitioner jumps next to an unspecific concern about the disposition of low-level wastes.
To the extent petitioner questions the scheme for controlling.such disposition, the Commission provides a full set of regulations covering every aspect of low level waste disposal.
See e.g.
10 CFR 5S20.301-20.401.
Petitioner han not alleged that Applicants cannot or will not comply with these regulations and fails to take issue
- /
Petitioner's reference to the " Report to the President by the Interagency Review Group on Nuclear Waste Management" suggests that this contention may relate to the adequacy of facilities for high level waste disposal.
If so, it fails as a contention.
(See answer to CCANP Contention 6.)
with the plans for low-level waste storage as set forth in the FSAR (Section 11.4), the ER-OL stage (Section 3.5.3) and the FES (p. 5-17).
To the extent Petitioner implies that the environmental effects of low-level waste disposal have not been accounted for, he is clearly wrong.
Section 5.4.3 of the FES affirmatively states the environmental effects of low-level wastes are within the scope of the NRC report entitled " Environmental Survey of the Uranium Fuel Cycle" (WASH-1248), which finds them to be negligible.
Pe-titioner has provided no basis for challenging this conclusion.
In sum, the Petitioner's unsupported speculation and vague queries are not sufficient to constitute a litigable issue and should be dismissed.
Marke Contention 17 This proposed contention is no more than a series of questions.
The Fetitioner does not even state that fuel supplies are not or will not be available.
In any event, the contention relates only to an economic interest outside the " zones of interests" of either the Atomic Energy Act or NEPA.
See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2) ALAB-476, 7 NRC 473 e
(1978) and, in the same docket, Fermi Order pp. 20-21.
Marke Contention 19 In this connection petitioner chastizes the Commission for the method used in publicly announcing the initiation of these proceedings.
It places no fact in issue and, at best, is an unsupported challenge to the Commission's regulations.
Section 2.105 of 10 CFR sets out the procedures for noticing the application for an operating license.
These procedores follow directly from Section 189a of the Atomic Energy Act of 1954, which states that the Commission may " issue an operating license.
.upon thirty days' notice.
and publication once in the Federal Register of its intent e
e*
to do so."
If petitioner chooses to attack these procedures, then clearly he must satisfy the special circumstances rule of S2.758.
Having failed to do so, the contention must be denied.
Marke Contention 20 This contention alleges deficiencies in the technical and fiscal plans for decommissioning of STP.
These matters, however, have been noticed as the subject of a proposed rulemaking.
Specifically, the Commission proposes to assay the technical, and health physics criteria, and funding or other surety arrangements that should be required in de-commissioning regulations.
43 Fed. Reg. 10371 (March 23, 1978).
Since all of petitioner's concerns are presently under generic consideration, it is inappropriate to adjudicate them in an individual licensing proceeding.
Douglas Point, supra.
CCANP Contention 4 In this contention Petitioner maintains that evacuation plans for a twenty-mile radius of the STP site must be pre-pared and publicly disseminated.
Petitioner does not argue, as it cannot, that Applicants are not in compliance with the Commission's regulations contained in 10 CFR Part 50 and Appendir E thereto.
Instead, Petitioner asserts that the analytical parameters incorporated in WASH-1400 should be applied in the operating license review of Applicants' evacuation plans.
Pe!'itioner, however, totally misconstrues the relevance and the Commission's use of WASH-1400.
The Reactor Safety Study has never been relied upon for licensing evaluations or decisions.
In fact, the Commission has warned that " discrete parts of the draft study [ WASH-1400] cannot be considered in isolation from the study's overall risk assessment as a basis for present regulatory change."
Pro-tection Against Accidents In Nuclear Power Reactors, Interim General Statement of Policy, 39 Fed. Reg. 30964 (August 27, 1974).
Most importantly, the Commission has eschewed intro-ducing the WASH-1400 analysis into the licensing process in order to preserve " conservatism" in approach.
Id.
Presently, an applicant need not formulate emergency plans for areas outside the low population zone (LPZ).
New England Power Co. (NEP Units 1 and 2), ALAB-390, 5 NRC 733 (1977).
Moreover, even considering the Commission's interim guidance under the proposed rule for modifying emergency planning, 43 Fed. Reg. 37473 (August 23, 1978), there is no basis for investigatin: the necessity for an emergency plan outside the LPZ absent particular information why such plan would be warranted.
Fermi Order,.p. 12.
No such information has been alleged here.
Accordingly, the contention should be disregarded.
CCANP Contention 6 This contention concerns high level waste disposal.
To the extent the contention alleges that a decision must be made as to the ultimate means of high level waste disposal before an operating license can be granted, it is in error as a matter of law.
The Commission itself has concluded that it is not obligated to make a finding that there are presently availaole methods of waste disposal available before licensing a reactor.
42 Fed. Reg. 34, 391 (1977).
This position was recently upheld by the United States Court of Appeals for the Second Circuit.
NRDC v. NRC, 582 F.2d 166, (2d Cir. 1978).
Accordingly, the contention is irrelevant and should not be allowed.
To th7 extent the contention alleges that the " plant will be producing nuclear wastes in amounts too great to be handled on site, it is unacceptably vague and unspecific.
If meant to refer to the storage of spent fuel, plans for that purpose are specified in the ER-OL stage (Section 3.8) and the FSAR (Section 9.1.2).
If meant to refer to low level solid wastes produced during reactor operation, plans for that purpose are specified in the FSAR (Section 11.4),
the FES (p. 5-17), and the ER (Section 3.5.3).
In neither case does the contention take issue with these facts.
Within such a context, an unsupported assertion that the " plant will be producing nuclear wastes in amounts tuo great to be handled on site" is clearly not sufficient to place a matter in issue for adjudication.
See 10 CFR S2.714(b).
To the extent the contention is related to the environ-mental effects of spent fuel storage and/or the handling of solid, low-level radioactive wastes, those matters are covered in Table S-3 and are not subject to challange in the absence of the requisite showing under 10 CFR 52.758.
Fermi Order p.
20.
. III Conclusion We submit that we have established above that neither CCANP nor Mr. Marke nor - if it is in fact a petitioner - ACEE has demon-strated standing as of right to participate in this proceeding.
We submit that we have also demonstrated that even if they had established standing as of right they should not be permitted to participate as parties because of their failure to set forth even one contention with the specificity required by 10 CFR S 2.714 (b).
If the Board concurs in both of the propositions asserted above, that will be the end of the matter.
If, however, the Board concludes that standing as of right has not been established but that the requirements of 10 CFR S 2.714 (b) have been met with respect to at least one contention, the Board will have to decide whether to permit either of the petitioners to intervene as a matter of discretion.
There are, we believe, compelling reasons why no such discre-tionary authority should be exercised.
As the Board has emphasized in its memorandum and order of October 23, 1978 (pp. 6-7), the Commission regards as "[f]oremost among the factors" which deter-mine the exercise of that discretionary authority "whether such participation would likely produce a ' valuable contribution.
to our decision-making process'." CCANP and Mr. Marke have each now filed two pleadings which serve as evidence of the type of contribution they may make.
While all the pleadings express generalized objections to nuclear power, each is sorely deficient
. in any indication that either petitioner is in a position to make "a valuable contribution" to any specific question properly relevant to whether operating licenses for these particular units should be issued.
Moreover, from all indications, Petitioner Marke did not petition in a timely manner, and when asked to explain why, admits that " good cause cannot be s$beified" for his tardiness; states that he "does not wish to argue at this time the point as to whether the petition was filed untimely.
" and ob-fuscates the facts surrounding the late filing.
(Marke Sup-plement, pp. 1-2.)
Certainly such treatment of a Board Order hardly indicates a dedication to'an orderly and efficient process.
The other petitioner, CCANP, does not make a better case for the exercise of discretion.
Finally, we wish to emphasize that, unlike such con-struction permit proceed.ngs as Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), 4 NRC 608 (1979), this is an operating license proceeding.
While hearings are mandated for all construction permit proceedings, they are not required in licensing proceedings unless specific issues are raised by parties who are genuinely aggrieved.
In the absence of such circumstances public policy does not call for a hearing.
It is important in this respect, to be aware of the legislative history of section 189 of the Atomic Energy Act of 1954.
Until 1962, that section provided for a mandatory hearing at both the construction permit and operating license stages in connection with the licensing of utilization facilities.
2
. In 1961, the Joint Committee on Atomic Energy undertook a massive re-evaluation of the AEC licensing process.
In a study entitled " Improving the AEC Regulatory Process" (Joint Committee Print, 87th Congress, 1st Session (March 1961), the Committee's staff and consultants called for a re-evaluation of the hearing requirement at the operating license stage.
Speak-ing of the role of the Atomic Safety and Licensing Board (to be created the following year) the Committee's staff and con-sultants wrote:
The Board should decide that an operating license should issue after publishing notice of intent to do so, but without a hearing un-less it determines that a hearing would be in the public interest.
Intervention at the hearing (or in case of a notice without a hear-ing) should be limited to matters which were not determined at the previous hearing, unless the intervenors show that subsequent events or findings indicate the existence of new ques-tions of health and safety.
(p. 73)
The requirement for the operating license hearing was aired further in Joint Committee hearings in June, 1961.
(Joint Com-mittee Print, Radiation Safety and Regulation, 87th Congress, 1st Session, 1961) and the Committee ultimately determined that, absent bona fide intervention, no hearing should be held at the operating license stage:
At the " Radiation Safety and Regulation" hearings in June 1961 and at the 1962 regula-tory hearings, there was sdbstantial unanimity of opinion that the mands%ory hearing require-ment of the act with respect to power and test-ing facilities should be relaxed.
The second hearing on the operating license was regarded, by most witnesses, as unnecessary and burden-some in the absence of bona fide intervention.
H.
Rept. No. 1966, 87th Cong. 2d Sess. July 5, 1962, pp. 7-8.
. The Committee's recommendation became law on August 29, 1962 (Public Law 87-615, 76 Stat. 409, 1962).
It clearly reflects the view of Congress that hearings at the operating license stage would be initiated only after the most careful scrutiny of the justification offered therefor.
For this reason, Atomic Safety and Licensing Appeals Boards have admonished that both the interests and the contentions of potential intervenors should be closely scrutinized to ensure that such parties "do have a real stake in the proceeding."
Cincinnati Gas & Electric Co. et al. (William Zimmer Nuclear Power Station),
ALAB-305, 3 NRC 8, 12 (1976); see also, Gulf States Utilities Co.
(River Bend Station Units 1 and 2) ALAB-183, 7 AEC 223, 226, n. 10 (1974).
Consequently it seems clear that the fact that no hearing will be held if intervention is denied,;rather than constituting a factor in favor of granting discretionary intervention, is a factor to be considered as weighing against it.
In the circumstances here presented a hearing is neither warranted nor justified by public policy.
O
. Respectfully submitted, Jack R. Newman Robert H. Culp 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Melbert D. Schwarz Charles G. Thrash, Jr.
3000 One Shell Plaza Houston, Texas 77002 Attorneys for the Applicant, HOUSTON LIGHTING & POWER COMPANY, Project Manager of the South Texas Project, acting herein on behalf of itself and the other Applicants, THE CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and THE CITY OF AUSTIN, TEXAS OF COUNSEL:
LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 G
e a
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF
)
)
HOUSTON LIGHTING & POWER COMPANY,
)
).
50-499 I
(South Texas Project Units 1 & 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing.pplicants' Response to Amended Petitions for Leave to Intervene in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery, this 5th day of January, 1979:
Charles Bechhoefer, Esq.
Chairman Atomic Safety and Licensing Board U.S. Nucl_.T Regulatory Commission Washington, D. C.
20555 Dr. James C. Lamb, III 313 Woodhaven Road Chapel Hill, North Carolina 27514 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Henry J. McGurren, Esq.
Hearing Attorney Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Richard W. Lowerre, Esq.
Assistant Attorney General for the State of Texas P.O. Box 12548 Capitol Station Austin, Texas 78711
- Honorable Burt O'Connell County Judge, Matagorda County Matagorda County Court House Bay City,' Texas 77414 Melbert D.
Schwarz, Esq.
Baker & Botts One Shell P.laza Houston, Texas 77002 R. Gordon Gooch, Esq.
Baker & Botts 1701 Pennsylvania Avenue, N.W.
Washington, D. C.
20006 Coral R. Ryan Citizens Concerned About Nuclear Power 414 Kings Ct. #C San Antonio, Texas 78212 Mr. David Marke 3904 Warehouse Row, Suite C Austin, Texas 78704 D. Michael McCaughan 3131 Timmons Lane Apt 254 Houston, Texas 77027 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Chase R.
Stephens Docketing and Service Section Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 -
[
Jack R.
Newmah i
l i