ML20039C237

Response Opposing Intervenors 811208 Motion to Consider New Evidence & Reopen Proceeding.Motion Fails to Meet Stds for Reopening Proceeding.New Evidence Is Unsupported Allegation of Recreational Use.Certificate of Svc Encl

ML20039C237
Person / Time
Site:	Perkins
Issue date:	12/23/1981
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8112290099
Download: ML20039C237 (11)

Text

-

/

Dk 4

• @ @ N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION WQ ge(\\y<yG g BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD p-

-o In the Matter of

)

)

DUKE POWER COMPANY

)

Docket Nos. STN 50-488

)

50- ^^^l,e (Perkins Nuclear Station,

)

q Units 1, 2 and 3)

)

O

/

k 6'

Of D-I APPLICANT'S OPPOSITION TO INTERVENORS' N Nh 3 Nf::;. g(9,A MOTION TO CONSIDER NEW EVIDENCE AND

,j (h(. '9

/

3 REOPEN THE PROCEEDINGS

' ' '4 x

Pursuant to 10 CFR $2.730(c) Applicant hereby responds

% 's J to Intervenors December 8, 1981 Motion to Consider New Evi-dence and Reopen the Proceedings.

This marks the sixteenth time Intervenors have sought to delay the proceedings and the tenth time they have moved to reopen.

As Applicant will show below, Intervenors Motion must be denied, as it l

fails totally to meet the standards for reopening Commission proceedings.

In its Motion, Intervenors ask that the entire I

record of this proceeding (including the matter of alternate g

sites now pending before this Appeal Board) be reopened on the grounds of alleged "new evidence." 1/

The "new evidence" l

1/

Intervenors have asked that the proceeding be reopened and that the pending appeal on the question of alternate sites be stayed until the reopened proceeding is concluded.

With respect to the reopening request, a question arises as to whether such should have been filed with the Licen-sing Board.

See June 17, 1980 Order of Licensing Board (unpublished).

Given the past history of procedural complexities in this case, (see ALAD-591, 11 NRC 741 (1980) and ALAB-597, 11 NRC 870-(1980)) Applicant has h S

(Footnote continued on next page.)

/ j/

8112290099 00 PDR ADOCK 0 00 PDR i

G

. consists of unsupported allegations of recreational use of High Rock Lake which Intervenors claim have not been addressed in the record.

The standards governing reopening are by now well-known to Intervenors and yet these standards are not even addressed.

Rather, for the tenth time, the burden shifts to Applicant and Staff to set forth the standards and demonstrate Inter-venors' lack of compliance therewith.

Intervenors have been, and continue to be, represented by experienced counsel.

Clearly, they, and their counsel, must be held to some measure of responsibility.

(Footnote continued from previous page.)

addressed its opposition to this Appeal Board since (1) the Motion was addressed to it, and (2) since it will address the stay aspect of the Motion.

Applicant notes that it does not oppose the Appeal Board's consideration of the matter and only raises the point given the past procedural concerns. Id.

With respect to the stay request, such is properly before this Appeal Board; however, Intervenors have failed to address the requisite standard governing stays, 10 CFR $2.788(e).

Applicant maintains, as discussed herein, that the stay request should be denied in that:

(1) Intervenors have not made a strong showing that they are likely to prevail on the merits of their reopening request; (2) Intervenors will not be irreparably injured by the Appeal Board's acting on the pending appeal; and (3) the public interest lies in completing the appellate process.

1

. The standards governing reopening of hearing records are clearly set forth in Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 2) ALAB-462, 7 NRC 320, 338 (1978):

As is well settled, the proponen of a motion to reopen the record has a heavy burden.

Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

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);

Id.,

ALAB-167, 6 AEC 1151-52 (1973);

Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 409 (1975).

Beyond that, 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.'

Northern 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 issue is significant but, as well, that the matter is of such gravity that the public inter-est 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, their Motion must show that (1) the issue is

4 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 exploration in a reopened hearing, and (3) based on the material submitted in support of the Motion that a differ-ent result would have been reached had such material been considered.

It is important to note at the outset that the i= pact of Perkins on High Rock Lake has been the primary focus of Intervenors from the inception of their participation.

Extensive hearings were conducted on the subject and deci-sions have been rendered by the Licensing Board.

See 8 NRC 470 (1978) and 11 NRC 310 (1980).

While the thrust of these proceedings has been on the impact during recreational months (May-September), Applicant and Staff reviews by necessity.

considered the matter as a whole.

Information is contained in the record as to the impact of Perkins on High Rock Lake over the course of the year.

This information which is discussed below, shows that there is no merit to Intervenors' position.

With respect to the first reopening criterion (timeli-i ness), Intervenors' Motion comes late.

The opportunity for intervention and raising of contentions was provided for in i

I l

,. 1 July, 1974; hearings on the impact of Perkins on High Rock Lake were conducted in 1976, 1977 and 1979.

Intervenors failed to raise the instant matter at that time. Given the I

extremity of Intervenors' position, 2/ their general concern with lake levels and the fact that information concerning Perkins' impact on High Rock Lake throughout the year was available, it was incumbent upon Intervenors to raise the matter years ago.

Intervenors have failed to provide any showing of good cause except to state "[d]uring the fall of 1981, it has become apparent that the recreational'use of High Rock Lake is extensive during the fall season."

Such a bare allegation cannot serve as good cause particularly in light of the fact that this proceeding has been ongoing since 1976.

Certainly more is required.

Further,-Applicant questions why the Fall of 1981 was markedly different from the Fall of 1980, 1979, etc.

Intervenorn have not assisted the Board and parties in this regard.

In sum, it cannot be said that Intervenors have satisfied the first reopening criterion.

With respect to the second reopening criterion (signifi-cant matter), Applicant questions its significance.

The thrust of Intervenors' position is that The operation of the Perkins Plant during the fall, winter and spring months would result in catastrophic drawdown in that the proposed

~2/

Intervenors. allege that Perkins operation during non-recreational months will produce " catastrophic results" 1.e.,

"The Lake would have virtually disappeared."

6-water use by~the Perkins Plant could reduce the Lake to nonexistence during these periods of time.

As noted, the record in this regard focused upon Perkins' impact on High Rock Lake during the recreational months (May-September).

However, the record also discloses that there is no support for Intervenors' position regarding the non-recreational months.

Applicant's Environmental Report

("ER") 3/ Section 2.5.1.2 discusses the streamflow of the Yadkin River, i.e.,

the water source which will be used by Perkins and the river which flows through High Rock Lake. 4/

ER Section 2.5.2 describes the lake characteristics of High Rock Lake.

ER Section 3.3 focuses upon station water use. 5/

3/

The ER was received into evidence as Applicant's.

Exhibit 1 (Tr. 266).

4/

See 8 NRC at 484-485 wherein the Licensing Board des-cribed High Rock Lake as follows:

...the High Rock Lake Impoundment.is approxi-mately 31 miles downstream from Perkins (ER, Figure 2.1-1) and was built in 1927 as the uppermost of a series of hydroelectric pro-jects.

Yadkin, Inc., a subsidiary of'Alcoa, operates the Impoundment under a Federal Power Commission license which imposes minimum release limits on the Impoundment.

In 1968, the FPC amended that license to require Yadkin, Inc., to use a ' rule curve' in releasing lake water (Applicant's Water Use Report ('WUR')

at WUR-III-2, following Tr. 523; see also 39 FPC 396).

Applicant would note that the rule curve is in effect year round.

~5/

See attachment to Applicant's Water Use Report (WUR) which was received into evidence at Tr. 523.

The WUR updates figures contained in the ER.

3 y

-noe v----

,w,,,e

,m,

-m

,--y y,,

.r,-,,-

gn,,c--,,-,e,,-4--

,.-----,,,w,,

y

-n,v n-,-y,,,-~-n,,-,,,o,~,n-p

-,,vg

<----,,-,.,y

.c,-

g-,~,-m.

-,y w

~

This information clearly demonstrates that operation of Perkins would never " reduce the lake to nonexistence." 6/.

n sf

's Accordingly, Intervenors have failed to satisfy the second'

-6/

Perkins' maximum consumptive use is set forth in WDR Table 2 as follows:

September 97 cfs October 90.8 cfs November 84.5 cfs December 80.2 cfs s

The representative flow of the Yadkin River at the Perkins site (based on 20 years of data, 1950-1969)

-J is set forth in ER Figure 2.5.1-6 and is approxi-mated as follows:

September 2000 cfs

~

ka October 2000 cfs November 2400 cfs December 2700 cfs s

The representative flow of the Yadkin River at the y

entrance of High Rock Lake (based on 20 years'of data, 1950-1969) is set forth in ER Figure 2.5.2-21 and is approximated as follows:

September 3000 cfs October 3200 cfs November 4000 cfs December 4800 cfs s

(Mean monthly average inflows were used inasmuch'as low monthly average inflows reflect'an. unregulated m

streamflow.

In 1962, the W. Kerr Scott Reservoir-

" ~

l began opera tion.

It is upstream of the.. Perkins site.

Its operation regulates streamflows and_ acts to cause 2_x the liver to correspond to the mean monthly-average inflows.

See 8 NRC at 486 sherein it is stated that -

l the Reservoir "could probably serve to maintain a N

l higher streamflow during dry periods due to maintain-sc.,

l ing minimum releases."

See also WUR-Table 7, Column headed 1962-1972, wherein the impact of the Reservoir is clearly seen when compared to the period prior;to its operation.)

s (Footnote continued on next page.)

l s

N l

,,;.~

a;

~,,

o p.

c

a:-

. m:,

u x

.sg-1 s

/ y3

, ~ ~ *, -

,t

s. '

..g1 g,w.

~.s y N

- s.-G

~..- q yy

/

4

%%f :T,7':'

%c e u

s

.f ey j~.

1 s

m.

m. -<

4>

reopening criterion. 7/..

r 4-x-

with?respec' ito the t,hird reopening criterion (differ-Q,,

t

,O

~

%.._y R'ent result)*,

Intervenor,s must b~

viewed in non-compliance.

e s

.s

• >r q,

[

Theyhave' failed'topresentangmaterialinsupportofthe

y x

Motion.

Rather,t they rely upon pnsopported allegation.

.w

. c y ;,

.e a, <

n f Given thd content of their allegation that High Rock Lake f,'---

will be. reduced to nonexistence _and"given the fact that the ER-clearly refutes such allegation, a decision different

.r '.

.m

3. E '

4 rom that'.}ssued-ty~the Licensing Board would not result.

.H Thus,,Intc;rvenors 1 ave failed to, comply with the third

~

m s

.e 3,

-e

['

reopening'cIltehion.

3

.y.

, 7 e ;~

'.9___

2_

['

(Footnote con %inue frpm previous page.)

Q.

The representative e v of the Yadkin River from i-High Rock Lake (bas-20 year data, 1950-1969) is

.a.

C-setCforthain ER Figure 2.5.2-22 and;is approximated as#follows:x

, ' " ~

q-

[ TSepYemb k, /

3200 cfs

~ ' -

g-t f'=

. October w./.v 3200 cfs

E N-

[NiWe: Sher C

.Z.. 3500 cfs.?

De celhber 4600 cfs

(

' r s.

,\\

m

~

s (See discussion above-regarding the propriety of using meaninionthly average ' values. )

H.

y l1 7/

Applicant would raise another qtiestion as to the signi-

'.4. _

ficance of the, allegation.

Intervenors allega that

[

extensive use of High Rock Lake during the Fall will be l'tervenors inhibited by operation of Perkins.'.Yet n

L.

specifically state that now, prior jo the operation of

(

Perkins, the " usages have to be made under certain hazardoua, conditions."

Applicant staggests that a lake g

with exist.ing hazardous conditions does not foster

's l

,_ j xten'sive use.

1 s

f e

ew.9 9.,

i' %

l u

\\

L

,~

,3 49 g

1 1

jw

On the basis of the above, Applicant respectfully requests that Intervenors' Motion to Consider New Evidence and Reopen the Proceedings be denied.

Respect 1'ully submitted, h

f. Michael McGafry, 11f DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

s Washington, D.C.

20036 4

(202) 857-9833 William L. Porter DUKE POWER COMPANY Attorneys for Duke Power Company December 23, 1981 i

I e

I j

h?

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

DUKE POWER CCMPANY

)

Docket NGG. STN 50-488

)

50-489 (Perkins Nuclear Station,

)

50-490 Units 1, 2 and 3)

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Opposition To Intervenors' Motion To Consider New Evidence And Reopen The Proceedings" dated December 23, 1981, in the captioned matter have been served upon the following by deposit in the.

United States mail this 23rd day of December, 1981.

Alan S. Rosenthal, Esq.

Dr. Donald P. deSylva Chairman Associate Professor of Atomic Safety and Licensing Marine Science Appeal Board Rosenstiel School of Marine U.S. Nuclear Regulatory and Atmospheric Science Commission University of Miami Washington, D.C.

20555 Miami, Florida 33149 Dr. John H. Buck

'Dr. Walter H. Jordan Atomic Safety and 881 West Outer Drive Licensing Appeal Board Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission William L.

Porter, Esq.

Washington, D.C.

20555 Associate General Counsel Duke Power Company Thomas S. Moore Post Office Box 33189 Atomic Safety and Licensing Charlotte, North Carolina 28242 Appeal Board U.S. Nuclear Regulatory Charles A. Barth, Esq.

Commission Counsel for NRC Regulatory Washington, D.C.

20555 Staff Office of the Executive Elizabeth S. Bowers Legal Director Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 1

J ;

William A.

Raney, Jr., Esq.

Chase R.

Stephens Special Deputy Attorney General Docketing and Service'Section State of North Carolina Office of the Secretary Department of Justice U.S. Nuclear Regulatory Post Office Box 629 Commission Raleigh, North Carolina 27602 Washington, D.C.

20555 William G. Pfefferkorn, Esq.

Quentin Lawson, Esq.

2124 Wachovia Building Federal Energy Regulatory Winston-Salem, North Carolina 27101 Commission Room 8611 Mary Apperson Davis 825 N. Capitol Street, N.E.

Route 4 Washington, D.C.

20426 Box 261 l

I Mockeville, North Carolina 27028 Sherwin E. Turk, Esq.

Counsel for NRC Staff Chairman, Atomic Safety and U.S. Nuclear Regulatory Licensing Board Panel Commission U.S.

Nuclear Regulatory Washington, D.C.

20555

. Commission Washington, D.C.

20555

~

[6. Michael McGarfy, IIIf 4

_