ML20062E144
| ML20062E144 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 11/13/1978 |
| From: | Newman J, Schwarz M BAKER & BOTTS, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| References | |
| NUDOCS 7812040367 | |
| Download: ML20062E144 (13) | |
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NRC PUBLIC DOCU'.2NI :'.00M Mi 8g-i j !
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UNITED STATES OF AMERICA (o;.
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i NUCLEAR REGULATORY CCMMISSION
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NU' BEFORE THE ATCMIC SAFETY AND LICENSING BOARD l
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In the Matter of 5
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HOUSTON LIGHTING & POWER COMPANY, 5 Docket Nos. 50-498 OL ET AL.
5 50-499 OL e
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(South Texas Projects Units 1 and 2)5 l
t APPLICANTS' RESPONSE TO PETITION l
f FOR LEAVE TO INTERVENE FILED BY D'.
MICHAEL McCAUGHAN Cn Novemcer 3, 1978, counsel for Applicant Houston Lighting & Power Company received from the Docketing and Service Section of the Nuclear Regulatory Commission (th3 i
commission) an undated letter addressed to the SecretaryAof'.
the Commission from D. Michael McCaughan (petitioner) Gherein petitioner states that he is " petitioning for leave to intervene k.-
late in the operating permit hearings for the ' South Texas Project'".
Following this statement are 2.' numbered paragraphs which petitioner identifies as his " contentions."
Applicant i
opposes the admission of petitioner as a party to this l
proceeding and urges the Board to deny petitioner's request i
for late intervention.
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Timeliness Petitioner's letter seeking leave to intervene in this proceeding was filed some two months after September 1, 1978, the deadline which was established in the Commission's I
Notice of Opportunity for Hearing published August 2, 1978 (43 F.R. 33968).
The Commission's regulations provide in 10 CFR $2.714(a)(1) that nontimely petitions for leave to intervene will not be granted unless justified on a balancing of the factors listed in 52.714(a)(1)(i)-(v).
Petitioner has made no attempt whatsoever to discuss these factors, nor has he in any way sought to justify why he did not file his petition on time.
Accordingly, the Board should deny the petition on the grounds that it was not filed timely.
i II.
Interest Under the Commission's regulations set forth in 10 CFR
$2.714(a), and as stated in the Commission's published Notice J
of opportunity for Hearing, a petition for leave to intervene:
. shall set forth with particularity the interest of the petitioner in the proceeding, [and] how that interest may be affected by the results of the proceeding."
l Compliance with this requirement is especially important in j
an operating license proceeding, where a hearing is not i
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In these circumstances hoards have been admonished to assure themselves that a potential intervenor has a real interest or "a real stake in the proceeding."
Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station),
ALAB-305, 3 NRC 8, 12 (1976).
Petitioner has made no attempt to comply with these requirements.
i Further, petitioner has failed to identify any " interest" of his own or of others for whom he may purport to actMn i
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this proceeding or to describe how such an interest might be affected by this proceeding.
Apparently, petitioner resides in Houston,M which is some 70 miles from the South Texas 1/
Petitioner has signed his peti *. ion for leave to intervene as a member of the Environmental Task Force.
However, petitioner's letter reads, "I am petitioning 4
to intervene late,"-and no allegations appear in the pe'tition with respect to this organization.
If petitioner is attempting to represent this organization in this pro-ceeding, he has failed to comply with the Commission's
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requirements.
There are no allegations in the petition with respect to the nature of the organization, the number, names and addresses of the members or an identification of the specific individual members who will be affected by operation of the South Texas Project nor a showing that any members have authorized the organization to represent their interests.
Allied General Nuclear Services, et al.
(Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976).
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Petitioner does not identify his place of residence i
other than by an address shown below his signature, which is 3131 Timmons Lane, Apartment 254, Houston, Texas 77027.
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Project site.
This distance is well beyond the range within which licensing boards have been villing to infer a health interest.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC t
188, 190 (1973) (30-40 miles); Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421, note 4 (1977) (up to 50 miles).
In light of this complete lack of a showing of interest, petitioner's request for leave to intervene should be denied.
III.
Contentions While petitioner's request should be denied on the fore-going grounds alone, Applicants also will address the 23 numbered paragraphs of petitioner's letter, which petitioner identifies as his " contentions."
Not one is a valid contention, and for this additional reason petitioner should not be permitted to participate as a party to this k
proceeding.
10 CFR $2.714(b).
The Commission's Rules of Practice require that a petitioner state the contentions which he or she " seeks to have litigated in in the matter, and the basis for each contention set forth with reasonable specificity."
10 CFR
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$2.714(b).
None of petitioner's contentions, however, meet this basic requirement.
All of the assertions are
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unsupported by a statement of specific basis.
Without such a statement, one can only speculate concerning the precise nature of the matters which petitioner seeks to raise, and any relevance they might have to this operating
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license proceeding.
Moreover, the contentions suffer from the additional infirmities discussed below.
Contentions I, II, XIV, XV, XVIII and XIX These contentions (and perhaps contention XIII dis-('
cussed below) all pertain in unspecified ways to the economic costs or benefits associated with constructing and operating the South Texas Project.
Economic considera-tions, however, without mention of the relative environ-mental effects of alternatives, are irrelevant to this proceeding.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALA3-458, 7 NRC 155, 162-63 (1978).
Accordingly, these contentions should not be allowed.
k, Contentions III and VIII These contentions seek to raise issues relating to accidents other than design basis accidents (i.e. class 9 accidents).
They concern matters which have been held i
to be inappropriate for litigation in individual licensing i
i proceedings and are therefore improper.
- See, e.g.,
-i Carolina Environmental Study Group v. United States, 510 t
F.2d 796, 798-800 (D.C. Cir. 1975).
In addition, i
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!'i contention VIII should be rejected in that it seeks to challenge the adequacy of Commission regulations prescribing acceptance criteria for emergency core cooling systems,-10 CFR 550.46, without an attempt at showing special circum-
. stances as required by 10 CFR 52.758.
Contentions V, VI and VII These contentions all concern the safeguarding of nuclear materials.
Commission regulations, however, prescribe
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requirements for the protection of such materials, both at fixed sites and in transit.
- See, e.g., 10 CFR Par,ts 70, 11 and 73.
In the absence of any allegation that these regula-tory requirements will not be met, these contentions can only be read as a challenge to the adequacy of the regulations which, without a showing of special circumstances, is improper.
Contention IX (I
This contention states:
"i'his plant will produce highly dangerous and toxic radioactive wastes like plutonium-239.
There is no proven technology available to isolate these wastes."
The Commission has concluded that it is not obligated to
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resolve the issue of permanent waste disposal before licensing a reactor.
42 Fed. Reg. 34,391 (1977).
This position was 4
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recently upheld by the United States Court of Appeals for the Second Circuit.
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'ral Resources Defense Council
- v. NRC, F.2d 11 ERC 1945 (1978).
Accordingly, the contention is irrelevant and should not be allowed.
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In short, there is nothing to litigate with respect to this contention.
Contention X This contention relates to radioactive releases.
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Commission regulations, however, prescribe the amounts of radioactive effluents which are permissible.
See 10 CFR Part 20 and Appendix I to Part 50.
Since petitioner nowhere alleges that the South Texas Project will fail to comply with regulatory requirements, the contention can only be read as an impermissible challenge to the regulations which
'cannot be allowed without a showing of special circumstances.
10 CFR $2.758.
C Contention XVII According to contention XVII:
"This plant will be too dangerous to insure by private enterprizes (sic)."
This contention directly challenges the Price-Anderson Act,M the constitutionality of which was recently upheld t
y 42 U.S.C.A.
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by the Supreme Court of the United States in Duke Power Co. v. Carolina Environmental Study Group, Inc.,
98 S.Ct. 2620, 46 U.S.L.W. 4845 (1978).
As a result, the contention is clearly improper and should be disallowed.
I See also Florida Power & Light Company (Turkey Point Units 3 and 4) Commission Memorandum and Order, 4 AEC 787, 788 (1972).
Contention XXI
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According to contention XXI:
"The right of eminant (sic) domain powers used to acqui:;e this land are unconstitutional."
This rather novel contention seeks to raise a matter which is beyond the Commission's power to adjudicate and is, therefore, irrelevant.
The basic statutes enforced by the Ccmmission in licensing proceedings are the Atcmic Energy Ac+. of 19541/ and the National Environmental Policy Act.5/
Long Island Lichting Company (Jamesport Nuclear Power
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i Station, Units 1 and 2), ALAB-292, 2 NRC 631, 638 (1975).
These statutes are not concerned with the right of 4/
42 U.S.C.A.
52011, et seq.
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42 U.S.C.A.
54321, et seq.
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i eminent domain.
Accordingly, the contention raises a l
matter beyond the scope of the instant proceeding and should be rejected.
Contention XXII j
This contention alleges that:
"The A.E.C.-Rasmussen ' study' has been relied upon for its safety contentions for this project.
- But, after reevaluation, the A.E.C.-Rasmussen ' study'
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has been found invalid and its integrity question-able, certainly not a dependable source for support of atomic power production safety."
No reliance has been placed upon the Rasmussen study / 37 6
. the Commission in connection with its safety review.
This is consistent with the Interim General Statement of Policy issued by the Commission which conclud d, among other things, that the contents of the study / are not an appropriate 2
basis for licensing decisions.
39 Fed. Reg. 30,964 (1974).
Since the contention is based on a false premise, it is improper and should be disallowed.
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WASH-1400.
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The Interim General Statement of Policy was issued in connection with the release of the draft version of WASE-1400, but anticipated and, by its terms, is applicable to the final study.
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i Contentions IV, XI, XII, XIII, XVI, XX and XXIII I
These contentions are simply broad conclusory state-ments..In many cases the statements are nothing more than unsubstantiated expressions of the petitioner's opinion.E Their relation to the proceeding is so unclear that it is impossible even to speculate as to what issues are sought to be raised.
Accordingly, each of these contentions is inap-propriate for adjudication and should be rejected.
b IV.
Conclusion Having failed to meet even the minimum requirements of 10 CFR $2.714(a) and of the published Notice of Opportunity 8/
For example, contention XX in its entirety reads:
"These types of plants have a history of regulatory failure."
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for Hearing, petitioner's request to intervene should be denied.
Respectfully submitted, V
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Melbert D. Schwarz
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Charles G. Thrash, Jr.
3000 One Shell Plaza Houston, Texas 77002 Jack R. Newman Robert H. Culp 1025 Connecticut Avenue, N.W.
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Washington, D.C.
20036 OF COUNSEL:
Attorneys for the Applicant HOUSTON LIGHTING & POWER COMPAW,
BAKER & BOTTS Project Manager of the South 3000 One Shell Plaza Texas Project, acting herein on Houston, Texas 77002 behalf of itself and the other Applicants, THE CITY OF SAN LOWENSTEIN, NEWMAN, ANTONIO, TE:GS, acting by and REIS, AXELRAD & TOLL through the City Public Service 1025 Connecticut Board of the City of San Antonio, Avenue, N.W.
CENTRAL POWER AND LIGET COMPAW Washington, D.C.
20036 and THE CITY OF AUSTIN, TE GS f
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i UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF 5
HOUSTON LIGHTING & POWER COMPANY, 5
50-499 OL i
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(South Texas Project Units 1 & 2 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Response in the above-captioned proceeding were served on
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thefollowingbydepositintheUnitedStagsmail, post-age prepaid, or by hand-delivery, this /8 day of November, 1978:
Charles Bechhoefer, Esq.
Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. James C. Lamb, III 313 Woodhaven Road Chapel Eill, North Carolina 27514 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission
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Washington, D. C.
20555 Henry J. McGurren, Esq.
Staff Counsel Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Richard W. Lowerre, Esq.
Assistant Attorney General l
for the State of Texas i
P. O. Box 12548 Capitol Station Austin, Texas 78711 i
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Honorable Burt O'Connell County Judge, Matagorda County l
Matagorda County Court House Bay City, Texas 77414 i
R. Gordon Gooch, Esq.
Baker & Botts 1701 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Robert A. Schulman, Esq.
i 901 N.E. Loop 410, Suite 618 San Antonio, Texas 78209 Mr. D. Michael McCaughan 3131 Timmons Lane, Apartment 254
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Houston, Texas 77027 Mr. David Marke 3904 Warehouse Row, Suite C Austin, Texas 78704 Atomic Safety and Li0ensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Chase R. Stephens Docketing and Service Section
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Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C.
20555 J 1r
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i Melbert D.~Schw~arz j
Attorney for i
I Houston Lighting & Power Company 5
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