ML20056G502

Response of Gulf States Utils Co to Cajun Electric Power Cooperative,Inc Amend to Petition to Intervene & Request for Hearing & License Conditions.* W/Certificate of Svc

ML20056G502
Person / Time
Site:	River Bend
Issue date:	08/27/1993
From:	Knotts J CAJUN ELECTRIC POWER COOPERATIVE, INC., WINSTON & STRAWN
To:	Atomic Safety and Licensing Board Panel
References
CON-#393-14256 OLA, NUDOCS 9309030199
Download: ML20056G502 (9)

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UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE  ;, o- ^7

^3 ATOMIC SAFETY AND LICENSING BOARD ,W,

• In the Matter of )

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GULF STATES UTILITIES COMPANY ) Docket No. 50-458- OL A

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(River Bend Station) )

RESPONSE OF GULF STATES UTILITIES COMPANY TO CAJUN ELECTRIC POWER COOPERATIVE, INC.'S AMENDMENT TO ITS PETITION TO INTERVENE AND REQUEST FOR A HEARING AND LICENSE CONDITIONS I. INTRODUCTION On August 6, 1993, in response to notices published in the Federal Register,1/ Cajun Electric Power Cooperative, Inc.

(" Cajun"), filed a petition for leave to intervene and a request for a hearing.I' Thereafter, on August 14, 1993, Cajun filed an amended pleading that purports to supplement its prior submission l'

58 Fed. Reg. 36,423, 36,435 and 36,436 (July 7, 1993). The notices relate to two amendments to the Facility Operating License NPF-47 (" License") for the River Bend Station - Unit 1 (" River Bend"). The first application sought the Nuclear Regulatory Commission's ("NRC" or " Commission") consent pursuant to 10 C.F.R. S 50.80 to a change of control over Gulf States Utilities ("GSU") and a conforming amendment to the operating license to reflect the change in control over the j licensee (" merger application") . Egg License Amendment --

i Change in Ownership of Licensee, dated January 13, 1993. The second application sought a license amendment to reflect a change in the licensed operator of the facility from GSU to Entergy Operations, Inc. ("EOI"), a subsidiary of Entergy Corporation ("Entergy") (' operator application") . Egg License Amendment -- Change in Licensed Operator of the Facility, dated January 13, 1993.

Z/ GSU filed a timely opposition to Cajun's petition for intervention and request for a hearing. Ega Opposition of Gulf States Utilities Company to the Petition to Intervene and Request for a Hearing of Cajun Electric Power Cooperative, Inc. ("GSU Opposition"), dated August 23, 1993.

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(hereinafter, " Cajun Supplement"). Cajun's amended pleading provides material that relates only to contractual disputes and antitrust issues that are beyond the jurisdiction of this Board.

The amended pleading provides no additional support for the standing of Cajun in these proceedings. Therefore, Cajun's petition for leave to intervene and request for a hearing should be denied.

II. DISCUSSION Cajun offers three additional matters for the Licensing Board's consideration. Specifically, Cajun asserts that: 1) the proposed amendment to transfer operating responsibility to EOI cannot be approved without Cajun's consent and Cajun has not given its consent; 2) the proposed license amendment cannot be approved due to an adverse impact on Cajun's alleged contractual rights regarding the operation of River Bend; and 3) GSU and EOI should be i

required to comply with the current River Bend antitrust license conditions. Cajun Supplement at 2. These three matters do not  !

l cure the defects in Cajun's prior petition to intervene and for a '

hearing.1/ Nor do these matters support a finding that Cajun has standing in any proceeding relating to the two license amendments at issue here.

3/ While not an issue before the Licensing Board, GSU notes that the Cajun Supplement does not add any additional argument or support for Cajun's opposition to the Staff's preliminary finding of no significant hazards consideration with respect to the two amendments. The three matters identified in the Cajun Supplement bear no relation to the criteria set forth in 10 C.F.R. S 50.92.

i A. The Issue of Cajun's Consent to the Filing of the License Amendment to Permit EOI to Operate River Bend Is Not a Matter for the Licensine Board.

Cajun asserts that GSU had no authority to submit the l i i operator application amendment and that Cajun does not consent now to the requested amendment in its " current form. " Cajun Supplement ,

at 3. The short rebuttal to Cajun's argument is that this question  !

of authority to file applications for license amendments under the l

, Joint Ownership, Participation and Operating Agreement ("JOPOA") is at most a contractual issue not redressable by the NRC. Such ;

i concerns are beyond the " zone of interests" protected by the Atomic  !

Energy Act of 1954 ("AEA"), as amended, 42 U.S.C. S 2201 gt agg. l

, Indeed, it has never been successfully disputed that "the protected i t t

, interests under the Atomic Energy Act relate to radiological health

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and safety." Detroit Edison Comcany (Enrico Fermi Atomic Power i

Plant, Unit 2), LBP-78-11, 7 NRC 381, 385, aff'd, ALAB-470, 7 NRC  !

473 (1978). Cajun's attempt to draw the NRC into this purely 4

contractual dispute under the guise of an objection to the operator  !

1 application amendment should be rejected.1/

In any event, a Licensing Board is not the correct forum i for resolution of purely contractual disputes between co-licensees. I Issues of state law and the legal ramifications of a specific agency relationship are matters which must be lef t to resolution by i/

There is a long history of amendment requests coming solely

from GSU without any prior challenge by Cajun. This is  !

i because Cajun delegated the responsibility to make such '

requests to GSU when it entered into the JOPOA with GSU.

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the courts.1/ Egg, e.g., Northern States Power Co. (Tyrone Energy Park, Unit 1), ALAB-464, 7 NRC 372, 375 (1978) ("The requirements of State law are beyond our ken; such matters are for the State regulatory commission") . The Cajun Supplement demonstrates this point. In support of its argument, Cajun cites the Licensing Board  !

to a number of Louisiana state court cases on the legal issue of l

agency relationships. Cajun Supplement at 5. The Licensing Board l I

should reject Cajun's attempt to use the issue of " consent" as a  ;

basis for standing in this proceeding.

B. Any Purported " Adverse Impact" on Cajun's Rights Is Not l a Health or Safety Matter And Thus Is Beyond the Jurisdiction of the Licensino Board2 Cajun asserts that the NRC should " step in" to the dispute between GSU and Cajun to protect Cajun's rights as a 30%  ;

owner of River Bend. The dearth of case law or other support cited by Cajun for this novel request is telling. Egg Cajun Supplement  ;

at 8-13. Once again, Cajun is attempting to draw the NRC into the position of resolving a contractual dispute between two entities.  ;

i Resolution of this dispute involves interpreting the JOPOA as well as the application of state law principles governing, inter alta, agency law and contract interpretation. These are not matters l'

By Cajun's own admission, the agency question presented by Cajun is not a settled issue under Louisiana Law. Egg Cajun Supplement at 5-6 ("The agency language included in the JOPOA, while broad, does not ar. pear to fall within the narrow definition of the irrevocable agency condition known as a

' mandate coupled with an interest' recognized by the law of Louisiana, which could, possibly, allow GSU to file the license without Cajun's consent." (emphasis added)).

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I appropriate for consideration by the Licensing Board for purposes i of determining standing or otherwise, as they do not involve issues  !

i of public health and safety. i Cajun argues that the installation of EOI as the operator i

of River Bend may be " costly" to Cajun. In response to Cajun's *{

i earlier pleading seeking intervention and a hearing, GSU pointed l -

out that Cajun's alleged injury was purely economic and beyond the j t

purview of the Licensing Board's authority under the Atomic Energy '

Act. . San GSU Opposition at 14-17. Once again, Cajun has raised 1 l I allegations of injury that set forth purely economic issues.A/ l i'

Detroit Edison Comoany (Enrico Fermi Atomic Power Plant, Unit 2),

ALAB-470, 7 NRC 473, 476 (1978) ("Under the Atomic Energy Act, in fashioning [the terms and conditions under which a nuclear power plant is to be built and operated) this Commission's responsibility

] is to protect the public health and safety -- not the pocketbooks i'

of owners or customers of the electric utilities involved") .II For d

the reasons stated by GSU in its prior memorandum, Cajun's alleged 4

4 O s/ The injuries alleged in the Cajun Supplement are also too speculative for purposes of demonstrating standing. San Cajun

Supplement at 11 (the arrangement with EOI "could be costly to Cajun a and " costs to Cajun would be expected to increase").

j II In f act, Cajun states that it "does not necessarily oppose the requested license amendment related to EOI operation," Cajun Amendment at 12, as long as certain conditions are imposed to protect Cajun's interest. Cajun's concession that its

" interests" would be protected by the proposed license 4 conditions demonstrates the purely economic nature of its interests. In sum, Cajun has conceded that it has no health I

or safety concerns with the proposed license amendments; therefore, it lacks standing in this matter.

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injuries are insufficient to confer standing in any proceeding related to the issuance of the operator application.E' Sag GSU Opposition at 11-26.

C. The License Amendment Process Is Not the Proper Avenue to Seek Enforcement of Antitrust License Conditions.

Cajun's last argument is taat the Licensing Board should i hold a hearing on the issue of whether GSU has complied with certain antitrust conditions of the existing license. Cajun Supplement at 13-16.2/ These issues are antitrust matters, ,

therefore, Cajun's request that these matters be considered in the  !

context of this proceeding is inappropriate.E'  !

t It is well established that the Licensing Board only has {

jurisdiction over those matters that are within the scope of the i amendment application. Wisconsin Electric Power Co. (Point Beach i

Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983) l (The Board may only admit a party's issues insofar as those issues are within the scope of matters outlined in the Commission's notice of hearing on the license amendments) ; Commonwealth Edison Company  ;

(Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426 (1980) i i

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Nor has Cajun justified the imposition of the panoply of license conditions set forth in the Cajun Supplement. Cajun I Supplement at 12-13. (

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The specific license conditions raised by Cajun deal with the l provision of transmission services and the sale of power at specific delivery points.

E' In fact, there was a separate Federal Register notice issued concerning the antitrust implications of the proposed merger of GSU and Entergy, and Cajun filed a response to the notice.

Egg 58 Fed. Reg. 16,246 (1993).  ;

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" t 4 (the Licensing Board's jurisdiction " extends only to issues fairly j l

i raised" by the application for a license amendment); Vemont Yankee i Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ,

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. LBP-88-19, 28 NRC 145, 152-53 (1938).

I Specifically, with respect to antitrust issues, the i i

! Commission has long held that antitrust matters are not proper i i

issues in a proceeding convened to consider health and safety. j Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating 7

Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976). j Whether or not GSU is in violation of the existing license l I

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] conditions that related to antitrust issues is of no relevance to a ,

j this proceeding. Portland General Electric Co. (Trojan Nuclear '

Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979). ,

] Finally, to the extent Cajun believes that it can show that existing license conditions in the River Bend license are not ,

being met, it can file a petition for an enforcement action in i

accordance with 10 C.F.R. S 2.206. Id. j III. CONCLUSION l

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i The Cajun Supplement of fers no additional support for the i .!

interest aspect of its request for intervention and a hearing in '

connection with the operator application license amendment. The l matters sought to be considered by Cajun in this forum are not t proper issues for the Licensing Board. Accordingly, for the 1  !

reasons stated herein, and in GSU's prior memorandum in opposition J

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f to Cajun's petition to intervene and a hearing, the Licensing Board  !

l should deny Cajun's petition.

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Respectfully submitted, WINSTON & STRAWN M/ ,  !

l Josep B. Knotts, Jr.  !

Mark J. Wetterhahn l

1400 L Street, N.W. .

Washington, D.C., 20005-3502 l (202) 371-5700 '

Counsel for Gulf States Utilities i Company j i

August 27, 1993 l i

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I

In the Matter of ) '

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GULF STATES UTILITIES COMPANY ) Docket No. 50-458

) 33 fE 33 P i di '

(River Bend Station) ) ,

M CERTIFICATE OF SERVICE  !

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I, Mark J. Wetterhahn, hereby certify that on this 27th  !

day of August, 1993, I served on the following, by first class i mail, postage pre-paid, copies of " Response of Gulf States Utilities Company to Cajun Electric Power Cooperative, Inc.'s Amendment to its Petition to Intervene and Request for a Hearing {

and License Conditions." '

B. Paul Cotter, Jr., Esq. James D. Pembroke, Esq. t Chairman, Atomic Safety Duncan, Weinberg, Miller & l and Licensing Board Pembroke, p.C.  ;

U.S. Nuclear Regulatory 1615 M Street, N.W. i Cornission Suite 800 l WashingLan, D.C. 20555 Washington, D.C. 20036 .

Dr. Richard F. Cole Victor J. Elmer ['

Atomic Safety and Licensing Vice President - Operations Board Cajun Electric Power +

U.S. Nuclear Regulatory Cooperative, Inc. l Commission 10719 Airline Highway I

Washington, D.C. 20555 Baton Rouge, LA 70895 Dr. Peter S. Lam Donald W. Clements  !

l Atomic Safety and Licensing Gulf States Utilities Company Board P. O. Box 2951 U.S. Nuclear Regulatory Beaumont, Texas 77704 Commission l Washington, D.C. 20555 Robert B. McGehee, Esq.

Wise Carter Child & Caraway Docketing and Services Branch 600 Heritage Building U.S. Nuclear Regulatory P. O. Box 651 Commission Jackson, Mississippi 39205 Washington, D.C. 20555 Edwin J. Reis, Esq.

Office of the General Counsel  !

U.S. Nuclear Regulatory  ;

Commission l Washington, D.C. 20555 g i

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Mark J. Wetterhahn Winston & Strawn t Counsel for Gulf States Utilities Company August 27, 1993 l

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