ML19345G884

Response in Opposition to Intervenor 810401 Motion to Reopen Record.Motion Is Untimely & Lacks Showing of Good Cause. Intervenor Allegation Insignificant & Would Not Alter Result

ML19345G884
Person / Time
Site:	Perkins
Issue date:	04/13/1981
From:	Porter W DUKE POWER CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML19345G885	List: ML19345G884 ML19345G887
References
NUDOCS 8104220633
Download: ML19345G884 (5)

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DCOXITED y UNITED STATES OF AMERICA b -

APR 151981, --

NUCLEAR REGULATORY COMMISSION -

4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARU Q Cff!:a cf the Se:retary C:2! IJeni:e g ~M In the Matter of ) N

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DUKE POWER COMPANY ) Docket Nos. STN 50-488

) 50-489 (Perkins Nuclear Station, ) / 50-490 Units 1, 2 and 3) ) /f f 3 d /

S APPLICANT'S OPPOSITION TO INTERVENORS' MOTION TO REOPEN THE RECORD AND REMAND FOR FURTHER PROCEEDINGS On April 1, 1981, immediately prior to the commencement of oral argument regarding alternative site issues, Intervenors served on Applicant, by hand, its Motion to Reopen the Record and Remand for Further Proceedings. This Atomic Safety and Licensing Appeal Board noted at the outset of the oral argument thst it would expect the Staff and Applicant to respond within the time provided by the Rules of Practice. Oral Argument Tr. 4-5.

Pursuant thereto and 10 CFR S 2.730, Applicant makes the following response in opposition to the motion.

The standards governing reopening of hearing records are clearly set forth in Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1) ALAB-462, 7 NRC 320, 338 (1978):

As is well settled, the proponent of a motion to reopen'the record has a heavy burden. Duke Power y$C Company (Catawba Nuclear Station, Units 1 and 2), 3 ALAB-359, 4 NRC 619, 620 (1976). The motion must be both timely presented and addressed to a signi-ficant safety or environmental issue. Vermont /[

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); -

lre Id., ALAB-167, 6 AEC 1151-52 (1975); Georgia Power 7\,h@ ~ k,x{g Company (Alvin W. Vogtle Nuclear Plant, Units 1 and ,s 2), ALAB-291, 2 NRC 404, 409 (1975). Beyond that, f pi 810.4220 W

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1 it must be established that "a different result would have been reached initially had it [the material submitted in support of the motion) been considered."

North,ern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974).

With respect to motions to reopen which are untimely without good cause, "the movant has an even greater burden; he must demonstrate not merely that the isque is significant but, as well, that the matter is of such gravity that the public interest demands its further exploration." Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21 (1978) referencing Vermont Yankee Nuclear Power Corporation, ALAB-138, 6 AEC 520, 523 (1973); Id., ALAB-167, 6 AEC 1151-52 (1973). In short, for Intervenors to be successful, its Motion must show that (1) the issue is timely raised, or that good cause exists for an untimely filing, (2) that the issue is significant and, if it has not been timely raised without good cause, is of such gravity that the public interest demands its further explora-tion in a reopened hearing, and (3) based on the material sub-mitted in support of its Metion that a different result would have been reached had such material been considered.

With respect to timeliness, as the Appeal Board noted (Oral Argument Tr. 4) Intervenors' Motion comes late. Further, there has been absolutely no showing of good cause except a statement to the effect that "Intervenors have just discovered" the alleged discrepancy in the location of the Lake Norman "E" site. Intervenors have made no attempt to demonstrate why this

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- 3-matter could not have been raised at the time of the reopened proceeding regarding alternate sites in 1978. Applicant sub-mits that Intervenors cannot make such a showing. As set forth in the attached Affidavit of D. B. Blackmon, representatives of Intervenors attended the 1978 Staff site visit of the subject Lake Norman "E" site. Testimony of Intervenors' witnesses reflect that they also visited.the Lake Norman "E" site after the preparation of their testimony, i.e., early 1979. (Tr. 3444, 3514-6). If, as suggested by Intervenors, Intervenors' witnesses visited a Lake Norman "E" site different from that visited by the Staff and Intervenors' representatives, such would have been 1

apparent at the time of the presentation of evidence at the January-February 1979 evidentiary hearings.1# No allegation to this effect was made at that time. So postured, it cannot be said that Intervenors have satisfied the first reopening criterion.

With respect to the second reopening criterion, Applicant cannot maintain that, if correct, Intervenors' allegation would be insignificant. Thus, it is necessary to turn to the third reopening criterion, to-wit, whether the material submitted in support of the Motion would lead to a different result. The essence of Intervenors' brief Motion and supporting material is 1/ One of the Intervenors' representatives who visited the Lake Norman "E" site with the Staf f was Mr. David Springer. The record reflects that Mr. Springer assisted Mr. William Pfefferkorn in representing Intervenors at the evidentiary hearings. (Tr. 2823).

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that Applicant has not properly identified the Lake Norman "E" site in this proceeding; that Applicant showed the Staff the wrong Lake ' Norman "E" site, thereby calling into question the Staff review of alternate sites; that Intervenors' witnesses, relying upon other material, visited the real Lake Norman "E"

site; and that the material presented by Intervenors reflects the Lake Norman "E" site to be in yarious locations. As set forth in the attached Affidavit of D. B. Blackmon, Intervenors' position is simply incorrect. Mr. Blackmon states that the Lake Norman "E" site has always been at the location visited by the NRC Staff and Intervenors' representatives. The record shows the Lake Norman "E" site at a specified location. See Summary Report, Duke Power Company, Phase 1 Siting Study, January 1978, Staff Exhibit 10. The three extra-record documents attached to the l Intervenors' Motion all show the Lake Norman "E" site to be at 1

the same location as reflected in Staff Exhibit 10. Affidavit of D. B. Blackmon. In sum, there is no basis to Intervenors' allegations to the contrary and likewise no compliance with either the second or third reopening criterion.

On the basis of the above, Applicant respectfully requests that Intervenors' Motion to Reopen the Record and Remand for Further Proceedings be denied.

Dated: April 13, 1981 Respectfully submitted, s

William 1. porter i Associate General Counsel Duke power Company P. O. Box 33189 Charlotte, North Carolina 28242 (704) 373-4825

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Of Counselt i

l J. Michael McGarry, III Debevoise & Liberman 1200 Seventeenth Street, N.W.

Washington, D. C. 20036 i

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