ML19341B429
| ML19341B429 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 01/26/1981 |
| From: | Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102020182 | |
| Download: ML19341B429 (12) | |
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[g-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION jh Ak c f%;.,
e SEFORE THE ATOMIC SAFETY AND LICENSING SOAPS 9
'6 O
In the Matter of S
S HOUSTON LIGHTING & POWER COMPANY S
Cocket No. 50-466 S
(Allens Creek Nuclear Generating S
Station, Unit 1)
S APPLICANT'S PISPONSE TO JOHN F.
DOHERTY CONTENTIONS 51, 52, 53 and 54 On January 15, 1981, Mr. Doherty filed an untimely pleading raising four new environmental contentions, all dealing with inadequacies in Supplement No. 2 to the Allens Creek Final Environmental Statement (hereinafter " Draft Supplement").
Mr. Doherty has failed to justify the untimely filing of contentions in accordance with the requirements of 10 CFR S 2.714.
Moreover, none of his contentions are litigable
(
contentions in their present form.
Both of these points are gSO3 discussed in more detail below, S
II.
Turning first to the question of timeliness, f
Mr. Doherty has not addressed any of the factors that must be met for the filing of untimely contentions.
Applicant submits that an examination of those factors weighs heavily against 8102020 h CC
admission of Mr Ccharty's contentions, particularly when cententions are raised at this late date in the proceeding.
Rather than attempt to explain why the cententions could not have been raised at an earlier date, Mr. Coherty simply quotes a statement by the Scard to the effect that the issuance of the Draf: Supplement might generate a=end=ents to the petitions to intervene.
In =aking that stata=ent, the Scard did not indicate that it was waiving the requirements of Section 2.714.
A.
Gced Cause for Late Filine The =are existence of a new Staff document does not aunc=atically provide good cause to file new contentions.
If that were the case the proceeding could never end because every time the Staff or Applicant filed testimony or an exhibit to testi=cny there would automatically be grounds for additional contentions.-1/
Logic si= ply dictates that such a course cannet be permitted if the Co==ission is to ever end the proceeding.
The basic thrust of Mr. Dcherty's Contention 51 is that the Li-3 site is a superior site.
Clearly, the existence of the Li-3 site has been known for man; months to the intervenors.
It was one of the sites discussed in the siting study that was
-1/ Indeed,_cne of the contentions (No. - 51q) cites _as the basis for the contention Applicant's testimony on an issue already in the proceeding. -
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l produced during discovery in response to intervenors' discovery requests.
In addition, the Staff revealed many months ago that this was one of the sites undergoing evaluation for purposes of the analysis in the Draft Supplement.
More importantly, there is absolutely no reason why Mr. Doherty could not have raised this contention when he initially intervened.
Obviously, the Li-3 site existed then and Mr. Doherty could have alleged that it was a superior site at the time he intervened.
There is simply no good cause for waiting until this late in the proceeding to raise any alternative site contention.
In fact, other intervanors have raised alternative site contentions without the benefit of the Draf t Supplement.
Mr. Doherty never explains how the Draft Supplement constitutes "new evidence" which might justify this late filed contention.
With respect to Contention 52, there is already a contention in the case dealing with the impa<:ts of transmission lines on migratory water fowl.
There is no explanation as to why this contention could not have been raised at the same tine that Dr. Marracx raised his contention concerning the impacts on water fowl.
The only document cited here as serving as any kind of basis for "new evidence" is a 1978 publication by the Department of Interior.
Clearly, a document of that date does not give rise to grounds for allegations of new evidence, nor does Mr. Doherty assert that the Draft Supplement constitutes new evidence with respect to this contention.
With respect to Contention 53, the centention is too vague to fully comprehend.
Mr. Doherty intimates that the Je-3 and Ma-3 sites might be environmentally superior if the Staff had done something different in their analysis.
If it is Mr. Ocherty's allegation that those two sites are "obviously superior" to the Allens Creek site, there is no reason why he could not have alleged at a much earlier date that the sites were superior.
As in the case of the Li-3 site, the existence of these two sizes should have been known by the intervenors for many months.
Contention 54 is basically an allegation that there would be less socio-econcmic impact associated with construction of a third unit at the STP site as opposed to censtruction of ACNGS Unit 1.
Doherty sets forth absolutely no reason why he could not r. eve raised this point earlier.
As the Scard is aware, there is already a contention in the case that alleges that the STP site is supepior to the Allens Creek site.
Mr. Doherty does not explain why he could not have raised that same contention at an earlier date and specified that one of the reasons for the STP site superiority related to socio-econcmic impacts.
Mr. Doherty alleges that the Draft Supplement No. 2 constitutes the first time that the Staff has compared the socio-economic effects of construction at the two sites.
He is wrong.
The Staff did such a comparison I
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at page S.9-13 of the Final Supplement to the Final Environmental Statement dated August, 1978.
There simply cannot be any good cause for this late filed contention.
B.
Availability of other Means to Protect Petitioner's Interests Each of the contentions amounts to nothing rare than 1
a criticism of some of the specific statements contained in i
the Draft Supplement.
Clearly, there are other means whereby petitioner's interests can be protected.
First, Mr. Doherty's criticisms of the adequacy of the Draft Supplement can be i
addressed by the Staff in the final version of the Supplement.
Second, Staff will present a witness who will testify on the, 4
Staff's alternative site evaluation.
Clearly, Mr. Doherty's I
so-called contentions are really nothing more than questions I
concerning the adequacy of the Staff's analysis.
Even if the contention is not a6mitted, the very same questions may be put to the Staff's witness.
C.
Development *of a Sound Record As the Board is aware, Mr. Doherty has now been-a party to this proceeding for over two years.
Notwithstanding the fact that he has the largest number of contentions admitted in the proceeding, Mr. Doherty has not retained a single witness.
Since Mr. Doherty has not addressed the standards of Section 2.714 and represented to the Board that he would have i
a witness who could testify.on these-contentions,~the Board
-S-
must presume that he still does not have any witesses.
Mr. Doherty has been present throughout these proceedings and has limited his participation to cross-examination of the Applicant's and Staff's witnesses.
As stated above, all of the matters raised in his contentiens are questions that could be put to a witness en cross-examination.
To the extent that Mr. Doherty's participation can assist the record that is obviously the most appropriate course to take in this instance.
D.
Reoresentation by Existing Parties Applicant has no ccmment en the questien of whether Mr. Dcherty has been more effective or less effective than other intervenors in conducting cross-examination.
E.
Delay of the Proceeding The Board must presume that admission of these 3
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contentions would delay the proceeding.
As the 3 card knows, l
the enviponmental phase of the proceeding is already behind schedule.
The injection of any new issue in the proceeding at this time is necessarily going to causc delay.
III.
A.
Contention 51 Not only has Mr. Doherty failed to show good cause for a
the late filing of these contentions,-Applicant submits that the contentions themselves are not admissible contentions.
In j
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w Contention 51 Mr. Coherty alleges that the Staff's analysis of the Li-3 site is defective in =any respects.
The fundamental flaw in Centention 51 is that it fails to establish why the Li-3 site is obviously superior to the Allens Creek site, even assuming that all of Mr. Coherty's allegations were true.
It is not enough for Mr. Doherty to allege that the Staff has not adequately assessed the Li-3 site.
He must specify reason why the Li-3 site is obvicusly,=uperior.
See, Public Service Co. cf New Hampshire (Seabrcok Station, Units 1 and 2),
CL2-77-8, 5 NRC 503 (1977); New England Coalition en Nuclear Pollutien v.
U.
S. Nuclear Regulatory Cenmissien, 582 F.2d 37 (1st Cir. 1973).
One cannot find in the entire seven pages of this c=ntention, any explanation as to hcw the Li-3 site is superior to Allens Creek even if the contentions were true.
This failure is particularly relevant in this instance because the Staff's
, analysis clearly demonstrates that there are many serious problems with the Li-3 site.
For example, the Staff notes that the transmission lines from the Li-3 site would have to cross parts of the Big Thicket, which supports a wide diversity of wildlife.
The makeup and discharge pipelines would also go through hardwood forest areas and would terminate in an
" excellent wildlife habitat" area.
(See Draft Supp. p.2-31.)
The portion of the Trinity River near the site is rated as a _
unique fishery, and it is stated that any impact to this fishery cannot be mitigated.
(Draft Supp. P.2-31.)
Mr. Doherty never explains how the Li-3 site could be "obviously superior" to the ACNGS site in the face of these conclusions by the Staff.
The basic thrust of Mr. Doherty's contention is that if the Staff had used data that was as detailed as the data presented on Allens Creek there would have been a different 2/
result in seme of the comparative ratings.
However, the Ccemission recognizes that alternative sites will never be addressed with the same degree of specificity as the site selected by Applicant.
Seabrcok, supra, pp. 528-529.
This expected disparity in information serves as the foundation for the "obviously superior" standard.
In short, Mr. Doherty has done nothing more than allege that the Staff has relied on reconnaissance level data in analyzing the Li-3 site.
Such allegations do not satisfy the "obviously superior" standard; therefore, Mr. Doherty has not raised a litigable issue.
B.
Contention 52 Mr. Doherty asserts that other agencies will be unable to ccmment on the Draft Supplement because it is in-accurate and vague at points.
It is not the Licensing Board's function to supervise the Staff's preparation of impact statements.
That is an independent function of the 2/
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(n), (p), (s), and (t).
Subparts See subparts (a)
(o) and (q) are clearly attempts to challenge the adequacy of pricr analyses of the Allens Creek site.
There is no good cause shown for raising these issues at this time.
Subpart (r) is so incomprehensible that Applicant cannot formulate a response. - -.
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t NRC Staff.
Seabrook, supra. p. 526.
The contention should i
be'cismissed for failure to state a litigable issue.
t C.
Contention 53 The simple allegation that there are deficiencies i
in the Staff's comparative site analysis is not sufficient to raise an alternativa site contention.
Mr. Coherty has i
failed. to specify why the Je-3 and Ma-3 sites are superior i
to the Allens Creek site.
As such, his contention does not aise a litigable issue.
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D.
Contention 54 As stated earlier, this contention is premised on the representation that this is the first time that any socio-economic comparison has been done in comparing the STP site and the Allens Creek site.
This premise is clearly wrong; therefore, the contention is defective on its face and should be denied.
VIII.
.i For all of the foregoing reasons, Applicant respect-i
. fully requests that the Board deny Mr. Coherty's motion to admit Contentions 51, 52, 53 and 54.
Mr. Doherty has failed to show good cause for the untimely filing.
Furthermore, he has failed to present the Board with any litigable contentions.
Respectfully submitted, OF COUNSEL:
J
- Grego, CgelanB The
~ BMdle, Jr..
BAKER & BOTTS 000 One Shell Plaza 3000 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002
-9
LOWENSTEIN, NEWMAN, Jack R. Newman REIS & AXELRAD Robert H. Culp 1025 Connecticut Ave., N.W.
David Raskin Washington, D. C.
20036 1025 Connecticut Ave., N.W.
Washington, D. C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY i
I I
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATCMIC SAFETY AND LICENSING BOARD In the Matter of S
S HCUSTON LIGHTING & PCWER S
CCMPANY S
Docket No. 50-466 S
(Allens Creek Nuclear S
Generating Station, Unit S
No. 1)
S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing l
Applicant's Response to Doherty's Contentions 51, 52, 53 and l
l 54 in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 26th day of January, 1981.
Mr. Sheldon J. Wolfe, Chairman Ms. Susan Plettman Atomic Safety and Licensing Mr. David Preister Board Panel Texas Attorney General's U. S.
Nuclear Regulatory Office Commission P. O. Box 12548 Washington, D. C.
20555 Capitol Station Austin, Texas 78711 Dr. E.
Leonard Cheatum Route 3, Box 350A Honorable Charles J. Dusek Watkinsville, Georgia 30677 Mayor, City of Wallis P. O. Box 312 Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Honorable Leroy H. Grebe U.
S. Nuclear Regulatory Commission County Judge, Austin County Washington, D. C.
20555 P. O. Box 99 Bellville, Texas 77418 Mr. Chase R.
Stephens Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of the Appeal Board Commission U.
S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D. C.
20555 Washington, D. C.
20555 l
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Mr. Bryan L. Baker Mr.
D. Marrack 1118 Montrose 420 Mulberry Lane Houston, Texas 77019 Bellaire, Texas 77401 Mr. Stephen A. Doggett Mr. J. Morgan Bishop P. O. Box 592 11418 Oak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Mr. W. Matthew Perrenad Mr. John F. Doherty 4070 Merrick 4327 Alconbury Houston, Texas 77025 Houston, Texas 77021 Mr. James M. Scott Ms. Brenda McCorkle 13935 Ivy Mount 6140.Darnell Sugar Land, Texas 77478 Houston, Texas 77074 Mr. Richard Black Mr. Wayne E.
Rentfro Staff Counsel P. O. Box 1335 U. S. Nuclear R6gulatory Rosenberg, Texas 77471 Commission Washington, D. C.
20555 Ms. Carro Hinderstein 609 Fannin, suite 521 Mr. William Schuessler Houston, Texas 77002 5810 Darnell Houston, Texas 77074 Atomic Safety and Licensing Board Panel U.
S. Nuclear Regulatory Commission Washington, D. C.
20555 s
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