ML20062M903
| ML20062M903 | |
| Person / Time | |
|---|---|
| Site: | Grand Gulf  |
| Issue date: | 08/19/1982 |
| From: | Conner T CONNER & WETTERHAHN, MISSISSIPPI POWER & LIGHT CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8208200240 | |
| Download: ML20062M903 (21) | |
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UNITED STATES OF AMERICA 82 f.S919 P2:16 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Bo'ard ..
In the Matter of ) ,,
)
Mississippi Power & Light ) Docket Nos. 50-416 Company, et al. ) % ,-- 50-411.g r
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(Grand Gulf Nuclear Station, ) ,
Units 1 and 2) )
APPLICANT'S ANSWER TO STATE OF LOUISIANA " PETITION TO PARTICIPATE AS AN INTERESTED STATE IN FACILITY OPERATING LICENSE PROCEEDING AND TO REOPEN SUCH PROCEEDINGS" Preliminary Statement On July 28, 1978, the Nuclear Regulatory Commission
(" Commission" or "NRC") published a notice in the Federal Register entitled " Receipt of Application for Facility Operating Licenses; Availability of Applicants' Environmental Report; Consideration of Issuance of Facility
, Operating Licenses and Opportunity for Hearing." 1 No petition for leave to intervene or request for hearing was received b'y the NRC within the thirty day period prescribed by the notice of opportunity for hearing. Accordingly, the
{ application for operating licenses for the Grand Gulf I
Nuclear Station, Units 1 and 2, was unopposed and the license authorizing operation of Unit 1 at five percent of l
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J/ 43 Fed. Reg. 3 2'J 0 3 (July 28, 1978).
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8208200240 820819 gDRADOCK 05000416 f PDR _.
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full power was issued by the Director, Nuclear Reactor Regulation on June 16, 1982. 2/
On July 21, 1982, the State of Louisiana
(" petitioner"), represented by its Attorney General, filed a petition seeking late intervention and requesting a hearing in this proceeding. -3/ Petitioner seeks full-party status pursuant to 10 C.F.R. 52.714 to litigate environmental impacts associated with the permanent disposal of reactor spent fuel. Certainly this is not the -proper forum for litigating such a generic issue. Applicant opposes the request for leave to intervene and other relief sought
. 4/
therein.
Under settled principles of the Commission's Rules of Practice governing the conduct of licensing hearings, the petition by the State of Louisiana must be denied. Insofar as the petition relates to Grand Gulf, Unit 1, the operating license has been issued and there is no longer any delegated
-2/ 47 Fed. Reg. 26953 (June 22, 1982). The matter of full power authorization is pending before t h e C'o m m i s s i o n pursuant to the Statement of Policy on Issuance of Uncontested Fuel Loading and Low Power. Testing Operating Licenses," 46 Fed. Reg. 47906 (September 30, 1981).
-3/ The petition was petitioner.
not served upon Applicant by The service list-appended to the petition was applicable to the Waterford proceeding.
Applicant's time for response to the petition was calculated from the date of service by the Docketing and Service Section of the Office of the Secretary.
4/ As used herein, " Applicant" refers to all co-Applicants for Grand Gulf Nuclear Station, Unit 2 and the co-licensees of Unit 1, i.e., Mississippi Power & Light Company, Middle South Energy, Inc. and South Mississippi Electric Power Association.
function for the Atomic Safety and Licensing Board
(" Licensing Board" or " Board") to perform. The Licensing Board is therefore without jurisdiction to consider the petition or grant any of the requested relief. Even if the Board were to find that it has jurisdiction, petitioner has completely failed to satisfy the Commission's requirements for permitting late intervention.
5/
Argument I. The Licensing Board Lacks Jurisdiction to Consider the Petition or Grant Any Relief With Respect to Grand Gulf, Unit 1.
Under the regulatory scheme of the NRC, only the Commission itself may exercise plenary authority over all
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regulatory matters within the agency's jurisdiction.
Licensing Boards, on the other hand, may perform only the delegated functions within the jurisdiction granted them by
-5/ As mentioned above and discussed at greater length below, petitioner seeks status as a party, not as an
" interested State" under 10 C.F.R. 52.715(c).
Petitioner is therefore obliged to satisfy the requirements for late intervention under 10 C.F.R.
S2.714 (a) (1) , as petitioner itself acknowledges in its petition. On the other hand, the petition states at page 2 that the Attorney General has been requested "to intervene in this proceeding without opposition to the operating license." Such language is more consistent with a desire to participate pursuant to 10 C.F.R.
S2.715(c).
-6/ See, e.g., Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-81-5, 13 NRC 361, 362 n.1 (1981); Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, 11 NRC 514, 516-17 (1980).
-4 -
the Commission and as delineated in the notice of hearing 7/
for a given proceeding.
The notice of hearing in the instant proceeding authorized the Licensing Board to entertain petitions for intervention and requests for a hearing but did not authorize consideration of any relief after a license had been granted. Thus, when the Director, Nuclear Reactor Regulation, issued an operating license on June 16, 1982, the proceeding with regard to Unit 1 was at an end and the Licensing Board no longer possessed jurisdiction to entertain a petition for intervention or a request for any relief.
In the South Texas proceeding, the Commission was faced with an analogous question as to whether the construction permit proceeding had ended and the operating license had commenced. The Commission stated:
An initial decision favorable to the applicants was issued in late 1975 (LBP-75-71, 2 NRC 894), construction permits were duly issued, and the Atomic Safety and Licensing Appeal Board affirmed the initial decision in early 1976. ALAB-306, 3 NRC 14. The Commission chose not to review the Appeal Board's decision, and judicial l
review was not sought within the prescribed time. At that point, the 7/ See, e.g., Shearon Harris, supra, 11 NRC at 517; Florida Power and Light Company (St. Lucie Nuclear Power Station, Unit 2), ALAB-661, 14 NRC 1117, 1122 j.13 (1981); Ccmmonwealth Edison Company (Carroll County site), ALAB-601, 12 NRC 18, 24 (1980).
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construction permit proceeding. . . had come to an end. 8/
Therefore, the filing of a late petition for intervention after the issuance of an operating license in an uncontested case, as petitioner acknowledges, constitutes a request to reopen the proceeding. The Appeal Board in the Marble Hill proceeding dismissed such a motion for want of jurisdiction, stating:
By motion received on March 16, 1979, intervenor Save the Valley moves to reopen the safety hearings in this proceeding. We are without authority to grant that relief. More than 6 months have elapsed since our final decision affirming the issuance of construction permits to the applicants. ALAB-493, 8 NRC 253 (August 30, 1978). In the interim, the Commission elected not to review our decision. It consequently represents the agency's final action and our authority over the cause is ended.
10 CFR 2. 717 ( a) and 2.786(a); Public Service Company of New Hampshire (Seabrook Station), ALAB-513 8 NRC 694 (December 21, 1978); accord, Washington Public Power Supply System (WPPSS Projects 3 and 5), ALAB-501, 8 NRC 381 (1978); and see Marble Hill, ALAB-493, supra, 8 NRC at 260 fn.27. J/
8/ Houston- Lighting and Power Company (South Texas Project, Unit Nos. 1 and 2) , CLI-77-13, 5 NRC 1303, 1305 (1977) (emphasis added).
-9/ Public Service Company of ' Indiana , Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530, 9 NRC 261, 262 (1979). The Appeal Board made the same finding of a lack of jurisdiction to reopen the record in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978). See also Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), Docket Nos. 50-400, 50-401, 50-402 and 50-403,
" Memorandum and Order Denying Intervention Petition" (January 10, 1979) (slip op. at 1-2). .
In this instance as well, the license has issued.
II. Even if the Licensing Board Has Jurisdiction, the Petition for Intervention and Request for Hearing Are Untimely and Should Be Denied.
As noted above, the instant proceeding was commenced pursuant to a notice of opportunity for hearing published in the Federal Register on July 28, 1978. No petition seeking intervention or request for a hearing was received by the NRC in response. Accordingly, the application for operating licenses have, until now, been unopposed and no hearing on the application has been previously contemplated inasmuch as a hearing is not mandatory at the operating license stage.
Under these circumstances, the showing made by a party seeking intervention at a very late date must be particularly strong in order to satisfy the requirements for late intervention under 10 C.F.R. S2. 714 (a) (1) (i-v) . As discussed below, no such showing has been made.
Initially, Applicant again points out that petitioner has elected to seek intervention as a party under 10 C.F.R.
S2.714 and not as an " interested State" under 10 C.F.R.
10/ as S2.715(c). -
Petitioner's potential status an 1_0/ Although the petition's caption refers to participation as an " interested State," the text clearly. indicates petitioner's desire to participate as a party by litigating specific contentions which it intends to raise regarding high-level waste disposal. Petitioner specifically states that it seeks " leave to participate (Footnote M/ continued on next page)
" interested State," which it has chosen not to seek, does not relieve it of the requirements for late intervention or lessen its burden of proof for justifying its lateness. As the Licensing Board recently ruled in the Shoreham proceeding, an " interested State" which seeks full party status must comply with the procedural requirements incumbent upon such parties. The Board stated:
[T]he County does not lose its right to participate as an interested governmental agency pursuant to 10 CFR 52.715(c) because it has elected to participate as a full intervenor on specified contentions. Project Management Corporation (Clinch River Breeder Reactor Plant) , ALAB-354, 4 NRC 383, 392-93 (1976). However, it may not at this stage, less than two months before the start of the hearing, raise new issues in the case not already embraced within the scope of admitted contentions. Accordingly, if the County seeks to litigate new seismic issues as it has indicated it might, it will have to satisfy the balancing test applicable to late contentions. Gulf States Utilities Co. (River Bend, Units 1 and
- 2) , ALAB-444, 6 NRC 760, 768-70 (1977).
12/
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l_0/ (Continued)
. . . pursuant to . . . 10 CFR, Part 2, at S2.714 (a) (1) . " Petition at 1. See also note 4, supra.
In any event, it is clear that petitioner could not be granted any substantive relief under 10 C.F.R.
S2.715(c) inasmuch as "a request under this section does not itself trigger a hearing." Northern States Power Company (Tyrone Energy Park, Unit 1), CLI-80-36,
( 12 NRC 523, 527 (1980) (views of Chairman Ahearne ar.d Commissioner Hendrie.
l 11/ Long Island Lighting Company (Shoreham Nuclear Power i Station, Unit 1), LBP-82-19, 15 NRC 601, 617 (1982)
(footnote omitted).
The Licensing Board in the Perry proceeding also made it clear that an " interested State' petitioning for intervention under 10 C.F.R. S2.714 rather than merely seeking admission under 10 C.F.R. S2. 715 (c) must satisfy 1
requirements for late intervention.
Petitioner does not even address the five factors under 10 C.F.R. 52.714 (a) (i)-(v) which must be balanced to determine whether late intervention will be allowed. Even though designed to determine whether late intervention may be permitted in an existing adjudicatory proceeding, the principles of the rules apply equally here where there is no l such proceeding. Compliance with the requirements for late j intervention is mandatory. Pacific Gas and Electric Company
! (Diablo Canyon Nuclear Power Plant Units 1 and 2) CLI-81-5, 13 NRC 361, 364 (1981).
- 1. No " good cause" has been shown for almost four years of lateness. The decisions of the Appeal Board stress timely compliance with the rules is ordinarily required for intervention and that late petitions may not be admitted without a strong showing of good cause. EI As the Appeal i
--12/ Cleveland-Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-35, 14 NRC 682, 688 (1981).
'--13/ See generally Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant) , CLI-75-4, 1 NRC 273, 275 (1975);
Metropolitan Edicon Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977); Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and (Footnote M/ continued on next page)
1 Board stated in the Midland proceeding in denying contentions filed two weeks late, a petitioner has failed to establish the requisite " good cause" for lateness where it has " offered no coherent or plausible excuse for the delay."
M/
The instant petition does not even discuss, let alone make any attempt to justify, the fact that petitioner waited almost four years beyond the prescribed period for seeking intervention. Presumably, petitioner would attempt to justify its delay by pointing to the decision by the Court of Appeals in the Table S-3 case rendered on April 27, 1982.
The basis for a challenge to Table S-3, however, existed at each point of its metamorphosis. As the NRDC decision pointedly indicates, challenges to the NRC's evaluation in Table S-3 of environmental impacts attributable to permanent waste disposal have been in litigation for several years.
The rendering of a decision by the court therefore does not constitute "new information" timely presented. The under-lying facts pertinent to the validity of Table S-3 have
- existed since the adoption by the Commission of the various versions of the final rule for Table S-3.
l_3/ (Continued) 3), ALAB-440, 6 NRC 642, 643 (1977); Duke Power Company (Perkins Nuclear Station, Units 1, . 2 and 3),
ALAB-431, 6 NRC 460, 462 (1977); Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3) , ,
ALAB-615, 12 NRC 350, 352 ( 19 8 0 ) ' .
14/ Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-624, 12 NRC 680, 682 (1980).
In an analogous situation, the Appeal Board in Diablo Canyon denied a motion to reopen based upon a report by the United States Geologic Survey where the underlying information contained in the report had been recently discovered by the movant but was not truly "new." 15/
4 Thus, the mere fact (if so) that petitioner had only recently learned of the court decision would not justify lateness.
Further, certain aspects of the matters petitioner addresses, e.g., health, socioeconomic and cumulative impacts of projected radioactive releases, could have been litigated within the bounds of the Table S-3 rule. b To that extent, the NRDC decision is irrelevant to petitioner's lateness. Also, aspects of ultimate waste disposal other than those relating to Table S-3 which petitioner wishes to litigate, e.g., the methodology of waste burial, have likewise been within the public domain for years and years.
The NRDC decision is equally irrelevant to those concerns.
Even if the NRDC decision encompassed all aspects of the petition (which it does not), no justification for lateness has been shown. In similar cases in which-petitioners claimed they had become aware of certain
-15/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 994-95 (1981).
-16/ See Licensing and Regulatory Policy and Procedures for Environmental Protection; Uranium Fuel Cycle Impacts From Spent Fuel Reprocessing and Radioactive -Waste Management, 44 Fed. Reg. 45362, 45371 (August 2, 1979).
developments only as a result of recent publications, the boards have uniformly held that recent publication of previously existing facts is insufficient to establish gcod cause. As the Board ruled in the Allens Creek proceeding,
"[ilt cannot be seriously contended that the (publication] L t
opened the door for the first time to the exploration" of the subject matter petitioner wishes to pursue." b The Board in Perry stated that if the rule were otherwise, "even matters broadly known could be brought to an intervenor's attention through a [ publication] about a matter that was already quite stale." -18/ Along the same lines, the Board in the Summer proceeding held that "a petitioner cannot sit back and observe the proceeding, and then intervene upon deciding that its interest [s] are not being adequately protected by existing parties." 19/ Thus, 17/ Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1) , Docket No.
50-466-CP, " Memorandum and Order" (January 12, 1982)
(slip op at 3), aff'd,.ALAB-671 (March 31, 1982). See also Houston Lighting and~ Power Company (Allens Creek '
Nuclear Generating Station, Unit 1) , Docket No.
50-456-CP, " Order" (July 22, 1981) (slip op. at 2).
18/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), Docket Nos. 50-440-OL and 50-441-OL, " Memorandum and Order" (March 3, 1982) (slip ,
op, at 3). See also Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2),
Docket Nos. 50-387 OL and 50-388 OL, " Memorandum and Order on Pending Motions" (September 23, 1981).
M/ Nuclear South Carolina Electric & Gas Company-(Virgil C. Summer Station, Unit 1), Docket No. 50-395 OL,
" Partial Order Following Prehearing Conference" (April 30, 1981) (slip op. at 4).
a party which has not been diligent in " discovering or exercising [its) rights" is not entitled to participate in a licensing proceeding. -20/ No such diligence whatsoever has been shown by petitioner in this instance.
- 2. The NRC Staff will adecuately protect petitioner's interests. -21/ The NRC Staff has an independent, statutory responsibility to take all measures necessary to protect the public health and safety. -22/ The Appeal Boar? itself expressly recognized this fact as a basis for denying late intervention in Summer, stating:
As to those aspects of reactor operation not considered in an adjudicatory pro-ceeding (if one is conducted) , it is the staff's duty to ensure the existence of an adequate basis for each of the requisite Section 50.57 determina-tions.p/
20/ Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), Docket No. 50-309-OLA, " Memorandum and Order Regarding Petition for Leave to Intervene" (January 22, 1982) (slip op. at 4).
21/ Preliminarily, it is noteworthy that the Appeal Boari has ruled that the availability of other means by which petitioner can protect its interests and the extent to which other parties will represent those interests are to be accorded less weight than the other three factors in 10 C.F.R. S2.714. South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 895 (1981).
-22/ See generally Offshore Power Systems (Floating Nuclear Power Plant), ALAB-489, 8 NRC 194, 201 (1978); New England Power Company (NEP, Units 1 and 2), 7 NRC 271-279 (1978).
-23/ South Carolina Electric and Gas Company (Virgil C.
Summer Nuclear Station, Unit 1) , ALAB-642, 13 NRC 881, 896 (1981).
The Staff has, of course, equal obligations with regard to environmental matters under 10 C.F.R. Part 51. Whatever disposition by the Commission as to Table S-3 or high-level waste disposal in general, any necessary action can and will be taken by the NRC Staff with regard to the Grand Gulf Nuclear Station and, presumably, all other nuclear facilities similarly situated. Inasmuch as the Commission has taken no action with regard to the licenses of other plants whose environmental analyses were performed on the basis of Table S-3, no such action is justified with regard to Grand Gulf. E In this regard, it is well to remember that the Commission has instituted a Waste Confidence Rulemaking proceeding, which is still in _ progress. -25/ Thus, the matter which petitioner seeks to explore -
environmental impacts attributable to permanent waste disposal - is-truly generic in nature. Certainly, petitioner has not pointed out any aspects of waste disposal unique to the Grand Gulf Nuclear Station. There is no reason to ' single out this
-24/ For the past several ' weeks, the Commission has scheduled on its weekly meeting agenda a discussion of a proposed Statement of Policy regarding the treatment of Table S-3 issues - in licensing proceedings pending possible Supreme Court review of the Court of Appeals' decision. The regular appearance _of this matter on the Commission's' agenda indicates its clear desire-that the matters decided by the Court of Appeals be addressed generically at the. Commission. level.
25/ Sae Storage and Disposal of Nuclear Waste,.44-Fed. Reg.
T1772 (October 25, 1979).
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facility, let alone halt its licensing. The Commission's boards have consistently held that the ultimate disposition of reactor waste is a generic issue to be determined by the Commission by rulemaking and is therefore not a matter for consideration by individual licensing boards. 2_6,/
Consistent with these rulings and the basic policy of the Commission to consider waste disposal issues generically, it can reasonably be expected that the Commission will initiate a new Table S-3 rulemaking to correct any deficiencies found by the Court of Appeals in the NRDC case if the court's decision is upheld on appeal.
Such broad generic issues have no special relevance to the Grand Gulf Nuclear Station.
- 3. Petitioner has not shown an ability to assist the Licensing Board in developing a sound record. Petitioner has indicated that it wishes to litigate the methodology for ultimate disposal of high-level waste and the environmental impacts attributable to such disposal. There has been no
-26/ See generally Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Docket Nos. 50-352 OL and 50-353 OL, "Special Prehearing Conference Order" (June 1, 1982) (slip op. at 47-49); Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2) , Docket Nos. 50-338 SP and 50-339 SP, " Order Denying Intervenors' Motion to Amend Petition to Intervene" (August 17, 1979); Houston Lighting and Power Company (Allens Creek. Nuclear Generating Station, Unit 1), Docket No. 50-466 CP, " Order" (March 10, 1980)
(slip op, at 38). See also Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and-2), ALAB-455, 7 NRC 41 (1978), remanded, State of Minnesota v. United States Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979).
demonstration in the petition of any special qualifications which would even begin to justify permitting petitioner to take up the environmental questions it has raised, particularly where the Commission itself is conducting a plenary rulemaking proceeding on the subject. There is no evidence that petitioner's representatives are by training, education or experience technically qualified and competent to assist the Licensing Board in addressing environmental issues related to the disposal of high-level wastes. As the Commission stated in the Pebble Springs proceeding:
Permission to intervene should prove more readily available where petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set forth these matters with suitable specificity to allow evaluation and demonstrate their importance and immediacy, justifying the time necessary to consider them. E/
Petitioner's failure to specify the credentials of its representatives leaves it in much the same position as a i petitioner whose late intervention was disallowed in the Allen Creek proceeding, who " offered nothing beyond his bare assertion which might lead [the Board] to believe that he
-27/ Portland General Electric Company (Pebble Springs l Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976). See also Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1145 (1977); Tennessee Valley Authority (Wattis Bar Nuclear Plant, Units 1 and 2) , ALAB-413, 5 NRC 1418, 1422-23 (1977); Virginia Electric & Power Company (North Anna Power Station, Units 1 and 2) ,
l ALAB-363, 4 NRC 631, 633 (1976).
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would be able to make a significant contribution to the development of an evidentiary record." 28/
In any event, any expertise which petitioner or its representatives would have to contribute in this area would be much more profitably invested in the ongoing rulemaking proceeding. Certainly, any record on waste disposal issues which might be compiled in an individual adjudicatory proceeding cannot possibly prove more comprehensive or authoritative than the record in the Commission's Waste Confidence Rulemaking proceeding or any record of a rulemaking proceeding subsequently initiated with regard to Table S-3.
4.* Petitioner's interests will be adequately protected by the existing parties. -29/ For reasons-discussed above, the NRC Staff will fully and adequately protect the interests of petitioner while completing its environmental review for the Grand Gulf Nuclear Station and will impose any necessary license conditions relating to environmental 1
impacts ettributable to the disposal of high-level waste.
Further, the Commission itself through its rulemaking powers l will ensure that all environmental impacts attributable to i
-28/ Houston Lighting & Power Company (Allens Creek Nuclear
, Generating Station, Unit 1), ALAB-582, 11 NRC 239, 244-l (1980).
29/ As indicated in note 21, supra, the Appeal Board ruled in the Summer proceeding that this concern is not among the more significant factors to be weighed in the-balancing test for late - intervention under 10 C.F.R.
S2.714.
high-level waste disposal are identified and thoroughly considered.
In the Indian Point proceeding, where a late petitioner sought intervention in a proceeding which would not have ;
otherwise had a hearing, the Licensing Board held that this factor weighed against intervention, noting:
i
[The staff] has a duty to see to it that the public interest in the enforcement of the Atomic Energy Act's requirements is met. In the circumstance of an unjustifiably late request which does not indicate what benefits to the public will result from its allowance, we believe it appropriate to assume that the Petitioners' interest will be adequately represented by the Staff. M /
- 5. Permitting late intervention will necessarily r-broaden the issues and possibly delay the proceeding by requiring a hearing which would not otherwise occur. No other petitioner has sought intervention in this proceeding.
- Where a late petition will require a hearing which would not 1
otherwise occur, it is submitted that a particularly strong showing of " good cause" must be made. A petition which is almost four years late will inevitably create delay. See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit l
No. 2), ALAB-475, 7 NRC 752, 762 (1982).
While the course. of 'any such hearing cannot be predicted with certainty, it is clear that a potential for serious delay exists. Although it may be assumed that the
-30/ Consolidated Edison Company (Indian Point Station, Unit No. 2), LBP-82-1, 15 NRC 37, 41 (1982).
Commission itself will take all measures necessary to expedite final resolution of all waste disposal and related environmental issues, the completion date of its current Waste Confidence Rulemaking proceeding is uncertain. The time within which an appeal (if any) to the Supreme Court on the NRDC decision will be completed is likewise uncertain.
Further, if operating authority were suspended for Unit 1, as requested by petitioner, the customers of the facility's owners would be denied this important source of needed electrical power, contrary to the public interest as determined by the Commission in its finding that a need for this generated power exists. -31/ Additionally, the owners would incur substantial financial losses in any suspension of the operation of Unit 1.
To permit such potential for delay would be squarely contrary to the Commission's policy on the conduct of licensing proceedings. The Commission has recognized that the overall cost of significant delays in reactor licensing "could reach billions of dollars." 3_2,/ The Commission has expressly instructed licensing boards to take strong t measures to avoid any delay caused by intervenors. --33/ The Commission's policy against delay should be enforced even i
- 3J/ Final Environmental Statement $2.5 (September 1981).
~
32/ Statement of Policy on Conduct of Licensing
, Proceedings, CLI-81-8, 13 NRC 452, 453 (1981).
l 33/ Id. at 454.
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more stringently against a petitioner, who, unlike an intervenor admitted to the proceeding, has not yet made the threshold demonstration necessary to qualify for full party status. As the Licensing Board stated in the Indian Point proceeding, supra, in ruling upon whether petitioners' intervention would broaden the issues or delay the proceeding:
Clearly their participation will do both. Absent some showing that a public benefit will accrue from their participation, it must be assumed that starting a proceeding at this late date will have the effects of, at a minimum, inconveniencing the Applicant and diverting Commission resources from other tasks. 34/
Conclusion For the reasons discussed above, the Licensing Board lacks jurisdiction to grant any relief with regard to Grand Gulf Nuclear Station, Unit 1. In any event, petitioner has failed to satisfy the requirements for late intervention into this proceeding. Therefore, the Board should dismiss the petition in part for want of jurisdiction or, alternatively, deny the entire petition as unjustifiably, late. Certainly individual licensing proceedings are not the proper forum for deciding such generic questions as petitioner is raising here. If the Licensing Board is nonetheless inclined to grant the petition, it should hold the petition and any request for relief in abeyance pending 34/ Indian Point, supra, 15 NRC at 41.
guidance from the Commission on the generic issues of ultimate waste disposal and Table S-3 discussed above.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
W) ,
Troy B. Conner, Jr.
Mark J. Wetterhahn Robert M. Rader Counsel for the Applicant August 19, 1982 h
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.. 1-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
MISSISSIPPI POWER & LIGHT ) Docket Nos. 50-416 COMPANY, _e t _a l . ) 50-417 (Grand Gulf Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE j I hereby certify that copies of " Applicant's Answer to State of Louisiana ' Petition to Participate as an Interested State in Facility Operating License Proceeding and to Reopen Such Proceedings'" dated August 19, 1982 and " Notice of Appearance" for Troy B. Conner, Jr., Mark J. Wetterhahn and Robert M. Rader, all dated August 16, 1982 in the captioned proceeding have been served upon the following by deposit in the United States mail this 19th day of August, 1982:
James A. Laurenson, Chairman William J. Guste, Jr., Esq.
Atomic Safety and Licensing Linda B. Watkins, Esq.
Board Peter M. Arnow, Esq. ,
U.S. Nuclear Regulatory Office of Attorney General Commission Department of Justice Washington, D.C. 20555 7434 Parkins Road, Suite C Baton Rouge, LA 70808 Glenn O. Bright Atomic Safety and Licensing Atomic Safety and Licensing
, Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour Atomic Safety and Licensing l Atomic Safety and Licensing Appeal Board
- Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Richard J. Rawson, Esq.
l Robert B. McGehee, Esq. Counsel for NRC Staff Wise, Carter, Child Office of the Executive-
& Caraway Legal Director P. O. Box 651 U.S. Nuclear Regulatory Jackson, Mississippi 39205 Commission Washington, D.C. 20555 Docketing and Service Branch U.S. Nuclear Regulatory ,
Commission Washington, D.C. 20555 u\ M in e K s A 0 jr ,
Robert M. Radef'
-~
.