ML20039C721
| ML20039C721 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 12/28/1981 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8112300078 | |
| Download: ML20039C721 (13) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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Docket Nos. STN 50-488 DUKE POWER COMPANY
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50-489
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50-490 (Perkins Nuclear Station,
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Units 1, 2 and 3)
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NRC STAFF'S ANSWER TO MOTION TO CONSIDER NEW EVIDENCE AND RE0 PEN THE PPOCEEDING FILED BY NON-PARTY HIGH ROCK LAKE ASSOCIATION, INC.
Sherwin E. Turk
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Counsel for NRC Staff December _28, 1981
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8112300078 811228 i
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UNITED STATES OF A!1ERILS tlVCLEAR REGULATORY C0ft!!!SSION BEFORE THE AT0flIC SAFETY AND LICENSING APPEAL BOARD In the i tter of
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Docket Nos. STN 50-488 DUKE POWER C0ftPANY
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50-489
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50-490 (Perkins Nuclear Station, Units
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1, 2 and 3)
)
NRC STAFF'S. ANSWER TO MOTION TO CONSIDER NEW EVIDENCE AND RE0 PEN THE PROCEEDING FILED BY NON-PARTY HIGH ROCK LAKE ASSOCIATION, INC.
On December 8,1981. High Rock Lake Association, Inc. ("HRLA") --
an organization which is not a party to this proceeding M -- filed its "liotion to Consider New Evidence and Reopen the Proceedings" (" Motion").
For the reasons set forth below, the NRC Staff (" Staff") opposes HRLA's Motion and recommends that it be denied.
4 INTRODUCTION AND BACKGROUND While HRLA's tiotion was filed before the Atomic Safety and Licensing Appeal Board (" Appeal Board"), it does not raise any issues which directly i
relate to the appeal from the Partial Initial Decision (PID) on alternative 1
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y HRLA's liotion and accompanying Certificate of Service are signed by
" William G. Pfefferkorn, Attorney for High Rock Lake Association,
<l' Inc." khile the fiction purports to have been filed by "Intervenors" (see, e.g., Motion, at 1), the Staff notes that the only Intervenors admitted to this proceeding are Mary Apperson Davis and the Yadkin River Committee -- parties who have in the past been represented by e
Mr. Pfefferkorn and whose names do not appear in the instant Motion.
l As far as we are aware, High Rock Lake Association, Inc. has never filed a petition for leave to intervene in this proceeding.
i
! 4 sites which is currently pending before the Appeal Board. U Rather, the Motion primarily relates' to a contention which was considered by the Atomic Safety and Licensing Board (" Licensing Board") in its earlier PID on safety and environmental issues; M that decision is not the subject of any appeal. 4j In its Motion, HRLA asserts without supporting affidavits or other E that (a) recreational usage of High Rock Lake during the Fall evidence J
of 1981 was " extensive" (Mution, at 1); (b) the rule curve "is in effect only from May 15 to September 15 of each year" (i_d.); and (c) during the Fall d
of 1981, the water level at High Rock Lake " dropped to between 10 and 15 feet below nomal" (id_., at 2).
Based upon this " evidence," HRLA argues that " catastrophic results will occur to all users of the Lake and property owners around the Lake during the fall season if a nuclear plant... were y
Duke Power Co. (Perkins Nuclear Station, Units 1, 2. and 3), LBP-80-9, 11 f4RC 310 (1980), appeal filed Oct. 28, 1980, appeal argued April 1, 1981.
To the extent that the Motion raises an alternate site question and thus relates to the pending appeal, the Staff believes that it fails to demonstrate that either reopening the record or a stay is warranted.
See discussion infra, at 4-9.
y Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), LBP-78-34, 8 NRC 470, 484-87 (1978).
_4f The time in which to appeal from the Licensing Board's earlier PID (LBP-78-34) was tolled by the Appeal Board's Order of October 30, 1978.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3) (unpublished Order, October 30,1978), at 2.
The time in which to file that appeal was unaffected by the Appeal Board's subsequent order directing the filing of appeals limited solely to the alternate site decision.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3) (unpublished Order, May 30, 1980), at 2.
p 10 C.F.R. 5 2.730(b) specifically provides, in pertinent part, that written motions "shall state witn particularity the grounds and the relief sought, and shall be accompanied by any affidavits or evidence relied on, and, as appropriate, a proposed fom of order."
1 ever put into operation" (id_.), and that "there are significant interests involved in this matter which have not previously been addressed in tl.at it has been assumed in the previous hearings...that the recreational season eaded on September 15" (id., at 1).
As a consequence of this alleged new evidence, HRLA asserts that the following actions should be taken:
(1)
"this matter which has been placed on hold for a period of two years [should] be reopened at the end-of said two year period" (id.); p/
(2)
"the appeal on the question of alternate sites also [should]
be stayed and reopened on the grounds of the same new t-matters"(id.);
(3)
"the entire proceeding [should] be reopened at the end of the current two year period of no action" (id.); and (4)
"the Appeal Board and Licensing Board [should]... open this matter up and go into it extensively before rendering any further decisions in this matter" (id. at 3).
The Staff believes that HRLA's Motion is deficient for the following reasons: (a) it was not filed by a party to this proceeding; (b) it fails to demonstrate the existence of new evidence suf#icient to require a reopening of the proceeding; (c) it fails to demonstrate that a stay of the pending appeal is warranted; and (d) it prematurely seeks relief as to the course of action to be taken by the Licensing Board upon the expi-ration of the present stay.
In the discussion which follows, each of these reasons is addressed seriatim.
5/
Presumably, HRLA is referring to the two-year stay entered by the Licensing Board in its " Order Relative to Motion to Dismiss Pro-ceedings or in the Alternative to Stay Action," dated May 14, 1981.
That' Order, of course, did not affect the Appeal Board's authority to decide the pending appeal or take other actions as it deems appropriate.
. DISCUSSI0t1 A.
fion-Party Filing Pursuant to 10 C.F.R. 9 2.715, persons who are not parties to a Com-mission proceeding may be allowed to make a limited appearance, however, they "may not otherwise participate in the proceeding." Since HRLA was never admitted as a party to this proceeding, the filing of the instant Motion by Mr. Pfefferkorn, acting as Attorney for HRLA, violates the express prohibition of the regulation. U For this reason alone, the instant Motion should be dismissed. Cf. Metropolitan Edison Co. (Three Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39, 40 (1978) (appeal by non-party limited appearor dismissed).
B.
Reopening Is Unwarran_ted A review of HRLA's Motion demonstrates that even if it had been filed by one of the Intervenors in this proceeding, it should be denied in that it fails to satisfy the legal standards for reopening the record in Commission proceedings. Those standards were defined by the Appeal Board in Kansas Gas and Electric Co. (Wolf Creek Generating Station, 7/
In addition,10 C.F.R. @ 2.708(c) requires pleadings to be signed by a party, its authorized representative, or attorney, and further provides as follows:
The capacity of the person signing...shall be stated. The signature of a person signing in a representative capacity is a representation that the document has been subscribed in the capacity specified with full authority, that to has
-read it and knows the contents, that to the best of his
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. knowledge, information, and belief the statements made in
. it are true and that it is not interposed for delay, i
. Unit No.1), ALAB-462, 7 NRC 320, 338 (1978). As stated by the Appeal Board, "the proponent of a motion to reopen the record has a heavy buraen" (M.). Jhe movant must demonstrate:
(1) that the motion is timely, (2) that the motion is directed to a significant safety or environmental issue; and (3) that a different result would have been reached initially had the material submitted in support of the motion been considered.
(Id.).
Accord, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903 (1981); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573,10 NRC 775, 804 (1979).
While HRLA's Motion appears to rely upon the alleged recreational usage of High Rock Lake from September 15, 1981 to December 1, 1981 (and thus would appear to be timely), it is important to note that the recrea-tional usage of that lake has been litigated at length in this proceeding.
The Licensing Board's earlier PID fully considered the effect of the rule curn on High Rock Lake and the extent of water withdrawal therefrom j
during the critical summer months. LBP-78-34, 8 NRC at 484-87 (1978).
Con-tention III( A)(1) filed by Intervenors Mary Apperson Davis and Yadkin River Committee concerned the effect Perkins would have on High Rock Lake during "the summer months" which were described as "both the period of Applicant's systemwide peakloads and also the period of maximum recreational use of High j
Rock Lake" (M., at 484).
The Licensing Board expressly found that "there is no evi~dence that the operation of Perkins will appreciably affect the lake 1evels" (,id., at 487).
Further, the Licensing Board found that "Perkins' i
use of Yadkin River water will have a negligible impact on High Rock Lake 1
drawdowns.
Since the effect on drawdowns is negligible, the effect on recreation and property values should also be negligible" (id.). -8/
The " evidence" referred to by HRLA in the instant Motion concerns the water levels allegedly experienced at High Rock Lake during the Fall season
-- a season which was not included in Intervenors' Contention III( A)(1),
presumably because the Intervenors were concerned primarily about the summer months when there is maximum recreational use of High Rock Lake as well as maximum peakloads.
To the extent that HRLA now seeks to litigate the effects of the facility during the Fall months, it raises an issue outside the scope of the admitted contention, which could have been raised in a more timely fashion considerably earlier in this proceeding.
This is particularly true in light of the fact that the attorney for HRLA is also the attorney of record for the Intervenors.
Furthermore, the Licensing Board's PID expressly considered the effects the facility would have on High Rock Lake at times when the water level is drawn down by a figure approaching 10 feet, while the rule curve is in effect.
LBP-78-34, 8 NRC at 485, 486.
HRLA's unsupported estimate that the water level " dropped to between 10 and 15 feet below normal" during the Fall of 1981 (Motion, at 2) does not appear to raise new issues not substantially considered previously by the Licensing Board.
In addition, 8]
The Licensing Board also stated that its " finding that withdrawal of 100 cfs from the Yadkin River will not lead to unacceptable conse-quences is based in large measure on the continued application of the rule curve. A change in the rule curve would require a re-evaluation of the impact of Perkins." LGP-78-34, 8 NRC at 487.
There is, of course, no allegation or evidence in the instant Motion as to there being any change in the rule curve.
Indeed, the Licensing Board's PID discusses the period of time the rule curve is in effect.
LBP-78-34, 8 NRC at 484-85.
HRLA has not provided any real evidence of the drop in water levels at High Rock Lake during the Fall of 1981, and provided only a rough estimate thereof,-unsupported by affidavit; this estimate does not even purport to be an actual measurement, and clearly fails to constitute new evidence sufficient to require a reopening of this proceeding.
There is no reason to believe that a different result would have been reached had this
" evidence" been considered by the Licensing Board, particularly in view of the fact that the Licensing Board expressly considered situations when water levels are drawn down by almost 10 feet.
For these reasons, the Staff believes that HRLA's Motion fails to satisfy the requirements for reopening the proceeding. E C.
A Stay Is Unwarranted In addition to seeking a reopening of the record related to the Licensing Board's earlier PID, HRLA seeks to stay and reopen "the appeal on the question of alternate sites... on the grounds of the same new matters" (Motion, at 1). N It is apparent, however, that HRLA has not 9/
Furthermore, it is well established that new issues (such as recrea-tional usage of High Rock Lake during the Fall season) ordinarily may not be raised for the first time on appeal.
See, e.g., Houston Lighting and Power Co, ( Allens Creek fluclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980); Metropolitan Edison Co.
(Three flile Island fluclear Station, Unit 2), ALAB-486, 8 fiRC 9, 28 (1978); Tennessee Valley Authority (Hartsville fluclear Plant, Units 1A, 2A, 18 and 28), ALAB-463, 7 tiRC 341, 348 (1978).
The proper forum for such issues to be raised is with the Licensing Board -- particularly where, as here, the PID to which the new issue relates is not the subfect of any pending appeal and may, in fact, still be appealed.
10/ As discussed supra at 1 and 4, HRLA is not a party to this proceeding, nor did it even attempt to file an appeal from the Licensing Board's decision.
Accordingly, it lacks standing to seek a stay of the Appeal Board's consideration of the Intervenors' appeal.
demonstrated compliance with the Commission's requirements applicable to the granting of stays, as set forth in 10 C.F.R. 9 2.788(e). U That regulation requires consideration of the following factors:
(1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would ham other-parties; and (4) where the public interest lies.
Of these factors, the Commission has stated that "the weightiest is the 4
need to maintain the status quo -- whether the party requesting a stay has shown that it will be irreparably injured unless a stay is granted."
Westinghouse Electric Corp. (Exports to the Phillipines), CLI-80-14, 11 NRC 631, 662 (1980).
HRLA's Motion fails to demonstrate to any degree that it is likely to prevail "on the merits", nor has it provided any real evidence in support of its Motion, other than a rough estimate of one season's drop in water level and a plea that "the exact information" be obtained (Motion, at 2-3).
This is simply not a showing sufficient to demonstrate that 1_1f 10 C.F.R 6 2.788(e) incorporates the criteria laid down in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir.1958).
i See, e.9., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10,13 (1976).
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M 9-HRLA is likely to prevail on the merits. J2/
Further, HRLA has profferred no evidence which would indicate that it will be irreparably injured unless a stay is granted.
On the contrary, HRLA recognizes that this. proceeding has already been stayed for two years by 'the Licensing Board (Motion, at 1). There is no reason to believe that-HRLA will be irreparably injured if the Appeal Board issues its decision on the alternate site uppeal prior to the expiration of the Licensing Board's stay.
Indeed, the issuance of such a decision will have no effect on HRLA, since other issues remain to be litigated before the Licensing Board and 1
f an appeal from the Licensing Board's decisions (on all issues other than 1
alternate sites) may be filed in the future.
Inasmuch as a construction permit may not be issued prior to resolution of all such issues by the Licensing Board, HRLA will suffer no hann whatsoever in the absence of a stay. Accordingly, its request for a stay of the pending appeal should be denied.52/
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12/ During the period of the current stay ordered by the Licensing Board, HRLA and the Intervenors should have ample time to obtain such evidence, which might then be proffered in support of a motion which satisfies the appropriate regulatory requirements.
~~~13/ Wnile HRLA has not addressed either of the other two factors set forth in 10 C.F.R. b 2.788(e) (harm to other parties and public interest), the Staff believes.that the parties to this proceeding would benefit from a resolution of the alternate site appeal and that the public interest lies in favor of the expeditious resolu-tion of that appeal.
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The Relief Requested Is Inappropriate and Premature As HRLA recognizes, a two-year stay of this proceeding has already been ordered by the Licensing Board. - Upon the recommencenent of the pro-ceeding at the end of that period, the Intervenors may file any appropriate motions concerning water levels during the Fall season, subject to the -
t Commission's requirements related to late-filed contentions and to motions to reopen and/or stay. 3S/ New evidence concerning the Intervenors' existing contention should be raised at that time, as should any motion to file additforal contentions. To the extent that the Intervenors may wish to introduce new evidence related to the alternate site issue, a motion to reopen at that time would be appropriate to the extent that it complies with the Commission's regulations.
At this time, however, a further reopening or stay of this proceeding is both inappropriate and premature.
CONCLUSION For the reasons set forth above, the Staff believes that HRLA's Motion should be denied.
Respectfully submitted, M4 b Sherwi-E. Turk Counsus for NRC Staff Dated at Bethesda, Maryland this 28th day of December,1981.
14/ Of course, if HRLA wishes to become an intervenor in this proceeding, its. petition for leave to intervene would be subject to the require-ments of 10 C.F.R. 5 2.714 concerning late-filed petitions.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. STN 50-488 DUKE POWER COMPANY STN 50-489 (PerkinsNuclearStation, Units-1, 2 and 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S ANSWER TO MOTION TO CONSIDER NEW EVIDENCE AND REOPEN THE PROCEEDING FILED BY NON-PARTY HIGH. ROCK LAKE ASSOCIA-TION, INC. in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 28th day of December, 1981.
Dr. Donald P. deSylva Alan S. Rosenthal, Esq., Chairman
- Administrative Judge Atomic Safety and Licensing Associate Professor of Marine Science Appeal Board Rosenstiel School of Marine U.S. Nuclear Regulatory Comission and Atmospheric Science Washington, D.C.
20555 University of Miami Miami, Florida 33149 Dr. John H. Buck
- Atomic Safety and Licensing Dr. Walter H. Jordan Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission 881 W. Outer Drive Washington, D.C.
20555 Oak Ridge, Tennessee 37830 Mr. Thomas S. Moore
- J. Michael McGarry, III, Esq.
Atomic Safety and Licensing Debevoise and Liberman Appeal Board 1200 Seventeenth Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20035 i
Washington, D.C.
20555 t
Elizabeth S. Bowers, Esq., Chairman William A. Raney, Jr., Esq.
1 Administrative Judge Special Deputy Attorney General Atomic. Safety and Licensing Board P. O.
Box 629 U.S. Tuclear Regulatory Comission Raleigh, North Carolina 27602
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Washington, D.C.
20555
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William L. Porter, Esq.
Atomic Safety and Licensing Associate General Counsel Board Panel
- Duke Power Company U.S. Nuclear Regulatory Commission 422 South Church Street Washington, D.C.
20555 Charlotte, North Carolina 28242 Atonic Safety and Licensing Mrs. Mary Davis Appeal Board
- Route 4. Box 261 U.S. Nuclear Regulatory Commission Mocksville, North Carolina 27028 Washington, D.C.
20555 l
William G. Pfefferkorn, Esq.
Docketing and Service Section*
P. O.
Box 43 Office of the Secretary Winston-Salem, North Carolina 27102 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Quinten Lawson, Esq.
Federal Energy Regulatory Commission Room F611 885 North Capitol, N.E.
Washington, D.C.
2042C 240L TYuAk
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l Sherwin E. Turk Counsel for NRC Staff l
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