ML20063B147
| ML20063B147 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 08/23/1982 |
| From: | Hamlin J LOUISIANA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8208250234 | |
| Download: ML20063B147 (15) | |
Text
.,
f .+ : S. *.
s 4-00CKETED August 23, kh82 UNITED STATES OF AMERICA . M0 24 till:18 NUCLEARREGULATORYCOMMISSIO{_, , , _ _ .
W 1 n<
Before the Atomic Safety and Licensing Appeal Board "
- . < >. ; , n .:
In the Matter of )
)
LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382
)
l (Waterford Steam Electric )
Station, Unit 3) )
l
- l APPLICANT'S BRIEF IN OPPOSITION TO APPEAL BY STATE OF LOUISIANA In accordance with the Appeal Board's Order of August 11, 1982, Louisiana Power & Light Company (" Applicant") submits this brief in opposition to the Notice of Appeal filed by the State of Louisiana (" State") on August 6, 1982. The appeal is from an order announced by the Licensing Board on April 16, 1982, which denied a petition by the State to intervene in the Waterford 3 operating license proceeding. For the reasons stated below, Applicant submits that the Appeal Board should
- either dismiss the appeal as untimely or affirm the Licensing Board order from which the State appeals.
INTRODUCTION The procedural context in which this appeal arises is crucial to a proper disposition of the appeal. Accordingly, Applicant will begin by summarizing.the pertinent events in this operating license proceeding.
-m 8208250234 820023 .
saa^*** "oi! _
90,
1
~
l l
The proceeding was formally initiated by publication of a notice of opportunity for hearing in the Federal Register on January 2, 1979. 44 Fed. Reg. 125 (1979). The notice stated that anyone, wishing to intervene in the proceeding should file a petition for leave to intervene by February 1, 1979. A timely petition to intervene was filed by Save our Wetlands, Inc. and Oystershell Alliance, Inc. This petition was granted, and these petitioners have acted jointly through-out the proceeding and have generally been referred to as
" Joint Intervenors" by the parties and the Licensing Board.
Joint Intervenors have been an active party throughout the course of the proceeding.
A timely petition to intervene was also filed by Louisiana Consumer's League ("LCL"). That petition was also granted, and LCL participated as an active party until October 15, 1981, when it withdrew from the proceeding pursuant to an agreement reached with Applicant.
During the prehearing phase of the proceeding, the case was winnowed down to contentions by Joint Intervenors relating to emergency planning and the synergistic effects of low-level radiation and environmental pollutants. On January 15, 1982, the Licensing Board issued a Memorandum and Order providing that the evidentiary hearing was to begin on March 23, 1982.
The hearing date was subsequently published in a Federal Register notice. 47 Fed. Reg. 4371 (Jan. 29, 1982).1I 1/ The hearing was held on March 23 -_ April 2, and May 3-12, 1982.
,e - ,
i On March 19, 1982 -- four days before the commencement !
l of the hearing -- the Licensing Board issued a Memorandum and Order raising sua sponte the issue of the capability at Waterford 3 for rapid depressurization following shutdown, i.e., the need for'a " feed and bleed" back-up system. The Order called for testimony on this sua sponte issue by Applicant and the Staff and stated that the matter would be heard during the course of the hearing. On March 26, 1982, Appli-cant filed a motion for reconsideration of the' Licensing i Board's sua sponte order. Applicant's motion provided the Board with new information on the feed-and-bleed issue, including the fact that the Staff was addressing the issue on a-generic basis for all recent Combustion Engineering plants, and it argued that feed-and-bleed was not a serious safety issue appropriate for sua sponte review. The Staff filed an extensive brief and affidavits in support of Applicant's motion for reconsideration. Joint Intervenors submitted a letter dated April 8, 1982, stating that they took no position on the matter.
On April 16, 1982, the Louisiana Attorney General filed a document entitled " Petition For Leave To Participate As An I Interested State In Facility Operating License Proceedings And For A Hearing Of The Issue Raised Sua Sponte On March 18, 1982." The petition cited 10 C.F.R. S 2.714 (a) (1) and sought leave to participate in the proceeding solely with respect to the feed-and-bleed issue raised sua sponte by the Licensing l
l l
_4_
Board.2/ On the same day, the Board held a conference call to announce its ruling on Applicant's motion for reconsideration.
Linda B.-Watkins, Assistant Attorney General of Louisiana, was a party to the conference call on behalf of the State.
The Board announced Uhat it had decided to grant Applicant's motion and to withdraw its sua sponte issue. In light.of that
[ withdrawal, the Board also denied the State's petition to intervene on the feed-and-bleed issue. Although the conference call was not transcribed, it is the recollection of Applicant's counsel that Ms. Watkins conceded that the State's petition became moot when the sua sponte issue was withdrawn.S! The Board also advised Ms. Watkins during the conference call that if the State wished to attempt to raise the feed-and-bleed issue as its own contention, the State could file a petition to intervene to that end, and the Board cautioned her about the need to show good cause for the untimeliness of any such petition.
On April 20, 1982, the Licensing Board served a written Order denying the State's petition on the ground that the sua
- sponte issue had been withdrawn by the Board. Apparently, a l
copy of this Order inadvertently was not sent to the Loulslana ,
Attorney General's Office at the time it was served. On 2/ Although the petition was styled as a " Petition For Leave To j Participate As An Interested State," it appears in essence to be seeking intervention rather than participation under 10 C.F.R. S l
- 2. 715 (c) . This is so because it cites 10 C.F.R. S 2.714 (a) (1) ,
and its text tracks the language and requirements of that section.
In addition, the petition repeatedly characterizes the State as an'"intervenor" or as a party seeking " intervention."
3/ The Staff's recollection is the same. See NRC Staff's Response To Petition Filed By The State Of' Louisiana, dated August 1, 1982, at 3.
. April 28, 1982, the Licensing Board served a Memorandum and Order explaining its reasons for withdrawing the sua sponte issue. In essence, the Board concluded that the sua sponte feed-and-bleed issue need not be litigated in the Waterford 3 operating license pr5ceeding because the issue is being con-sidered generically by the Staff and the ACRS.
The operating license hearing record was formally closed on May 12, 1982, and all of the parties' post-hearing filings (proposed findings of fact and conclusions of law and Appli-cant's reply findings) were on file by July 26, 1982. Until the August 6, 1982 Notice of Appeal, the State made absolutely no attempt to appeal or seek relief from the denial of its petition to intervene on April 16, 1982. However, on July 21, 1982, the State filed with the Licensing Board yet another petition, this one entitled " Petition To Participate As An Interested State In Facility Operating License Proceedings And To Reopen Such Proceedings To Precipitate Commission Rulings Consistant [ sic] With Recent Court Of Appeals Decision And To Request The Nuclear Regulatory Commission To Cease Issuing Licenses Consistant [ sic] With The Court Of Appeals Decision."
This petition sought, inter alia, to raise again the feed-and-bleed issue, and it stated:
The State of Louisiana reminds the Nuclear Regulatory Commission, that the Atomic Safety and Licensing Board has never served (by mail) the order denying the State's previous intervention request which should have been accepted or denied on or about April 20, 1982.
Petition, p. 3. Applicant and the Staff have responded to the l
State's second petition, and no ruling on it has yet been issued by the Licensing Board.
On July 29, 1982, the Licensing Board Chairman sent a letter to the Louisiana Attorney General enclosing a copy of the April 20 Order. The State filed its Notice of Appeal on August 6, 1982. The Notice states at the outset that its purpose is to appeal the denial of the State's intervention petition during the conference call on April 16, 1982.
Finally, on August 12, 1982, the Licensing Board issued a Memorandum and Order noting that the feed-and-bleed issue has been designated as an unresolved generic safety issue (A-45). The Board therefore directed the Staff to supply an j affidavit substantiating the conclusion that Waterford 3 can be operated safely pending generic resolution of the issue.
That affidavit is due to be filed on August 25, 1982.
ARGUMENT I. THE APPEAL SHOULD BE DISMISSED AS UNTIMELY Under 10 C.F.R. S 2.714a (a) , an appeal from an order deny-ing a petition for intervention must be filed within 10 days after service of the order.4/ In past cases, the Appeal Board has strictly enforced this time limit. Houston Lighting &
Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
4/ The Appeal Board's August 11 Order expressed some uncertainty about whether this appeal should be treated as one under 10 C.F.R.
S 2.714a or under 10 C.F.R. S 2.762. Applicant believes that this is not an appeal from an " initial decision" within the meaning of secticn 2.762 (and 10 C.F.R. S 2.760a), but is rather an appeal from a denial of a petition to intervene covered by section 2.714a.
However, the distinction is not important for present purposes be-cause under either section appellate review must be sought within 10 days.
l
. I ALAB-547, 9 N.R.C. 638 (1979); Iowa Electric Light & Power Co. l (Duane Arnold Energy Center), ALAB-108, 6 A.E.C. 195 (1973).
Here, the Licensing Board's ruling was announced orally on April 16, 1982 during a conference call in which the State's representative participated. Thus the State had actual know-ledge of the ruling on April 16 but did not file its Notice of-Appeal until August 6 -- more than three months later.
The appeal is untimely in the extreme and should be dismissed.
The State no doubt will argue that its appeal is timely because it did not receive a copy of the written order until July 29, 1982. This argument might have some merit if the State had no knowledge of the ruling until it received the written order. Here, however, the ruling was announced on April 16 in a direct telephone communication from the Licensing Board to the representative of the State. In the face of that oral ruling, the State should have either commenced its appellate proceeding or made prompt inquiry as to the absence of a written order. As the Appeal Board has held in a somewhat different context, a party "must make a reasonable effort to have a procedural error corrected"; it may not " stand pat" and " hoard" the error for later use. 'Public Servico Co. of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAF.-
459, 7 N.R.C. 179, 188-89 (1978). When a party, like the State here, has actual knowledge of a ruling, it should not be permitted to take advantage of an inadvertent error in
s service to delay the appellate process by more than three months. The appeal should be dismissed.
II. '.IN THE ALTERNATIVE, THE LICENSING BOARD'S RULING SHOULD BE AFFIRMED If the Appeal Board concludes that the State's appeal is timely and should not be dismissed, then the Board should affirm the Licensing Board's denial of the State's petition to inter-vene. As discussed below, there are several different reasons for such an affirmance.
First, the State's petition sought to participate speci-1 fically and exclusively in the sua sponte issue raised by the Licensing Board. When that issue was withdrawn, there was nothing left in which to participate and the objective of the petition was eliminated. In fact, counsel for the State her-self conceded that the petition would become moot upon with-drawal of the sua sponte issue. Having so advised the Licensing Board during the April 16 conference call, the State can hardly complain on appeal about the dismissal of its petition.
Second, although its Notice of Appeal is not entirely clear, the State may believe that when the sua sponte issue was withdrawn the State should have been permitted to intervene and to adopt and litigate the feed-and-bleed issue as its own con-tention. This, of course, was not what the State's petition
1 h
or its counsel requested. Moreover, the Board was careful to point out to Ms. Watkins during the conference call that if that was what the State wished to do, it should file such a
, petition and preseht-good cause for the petition's untimeli-ness.E!
~
In any event, had the State's April 16 petition been a-request to pursue the feed-and-bleed issue on its own, irrespective of the withdrawal of the Board's sua sponte issue the petition would have been properly denied because the State 4
was more than three years late in filing its petition and it made no attempt to show good cause for the untimeliness of the petition. The factors to be considered in ruling upon an untimely petition for intervention are specified in 10 C.F.R.
S 2.714 (a) (1) . One who files an untimely petition bears a i
heavy burden of showing that intervention is warranted under the criteria listed in section 2.714 (a) (1) , particularly where, as here, the petition is not filed until after commencement of the evidentiary hearing. Houston Lighting &' Power Co. (Allens I Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 N.R.C. 1 508, 511 (1982). In this case, the State's petition did not I
even mention the criteria listed in section 2.714 (a) (1) , nor !
l did it make any attempt to justify the tardiness of its peti- l
[ tion. The State clearly did not sustain its burden, and its l
5/ This is apparently what the State's second petition to inter-vene, served July 21, 1982, seeks to achieve. It is to say the least awkward:to have the_~same issue in the same case pending simultaneously before the Licensing Board and the Appeal' Board.
See Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-630, 13 N.R.C. 84, 85 (1981).
I
(
-~
petition properly could have been denied on that basis alone.5!
Although the Board's withdrawal of the sua sponte issue by granting Applicant's Motion for Reconsideration is .
not here at issue before the Appeal Board, it is worthy of note that the Licensing Board was correct in concluding that the feed-and-bleed issue should be resolved generically by the . and the ACRS and should not be injected as a new issue to be litigated.in the case after the evidentiary hearing had already begun. The Licensing Board had before it voluminous documenta' tion on the' feed-and-bleed issue submitted by Applicant and the Staff, as well as the conclusions of the ACRS on the subject, all of which support the Licensing Board's determination that this issue is best resolved generically by the Staff. The Board's decision finds further support in the Commission's recent discussion and vote on the full power operating license for San Onofre Unit 2, a Com-bustion Engineering unit similar to Waterford 3. See Transcript of Commission Meeting of July 28, 1982, pp. 14-69, 102-110. In that meeting, the Commission rejected a license condition proposed by the Staff that would have required the applicant to generate a design for back-up depressurization capability (e .g . , feed-and-bleed capability). It was the apparent sense of the Commissioners that the design requirement
! 6/ The Licensing Board's April 20 written order did not discuss l
the timeliness of the State's petition because, presumably, it i took Ms. Watkins at her word that the petition would be moot upon withdrawal of the sua sponte issue. Thus there'was no need to address the timeliness issue.
l
o should not be imposed upon a single applicant but should be dealt with on a more generic basis by the Staff and the industry. The Licensing Board's decision here is therefore consistent with the Commission's treatment of the same issue in the San Onofre case.
The Licensing Board's decision is also consistent with the Appeal Board's decision in South Carolina Electric & Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 N.R.C.
881 (1381), aff'd sub nom. Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1982). There, the Appeal Board held that when an untimely intervenor is excluded from a proceeding, it
,f does not mean that the concerns raised by the intervenor will be ignored in the licensing process. Rather, "under the long-prevailing regulatory scheme these concerns fall within the province of the staff." 13 N.R.C. at 895. Here, of course, the Staff will be considering the feed-and-bleed issue both generically and as it bears upon the safety of Waterford 3.
CONCLUSIGN For all the foregoing reasons, the appeal by the State of Louisiana should be dismissed, or in the alternative the Appeal Board should affirm the Licensing Board's order denying the State's untimely petition for leave to intervene in the Waterford 3 operating license proceeding.
Dated: August 23, 1982.
12 -
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 By: _
fBrQce W. ChuYchill
- James B. Hamlin QissaA. Ridgway Counsel for Applicant Louisiana Power & Light Company o
I e
i l
l l
O
- _ _ m - . _ _ , _ , _ -, .3
1 August 23, 1982 l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382
)
(Waterford Steam Electric )
Station, Unit 3) )
CERTIFICATE OF SERVICE I hereby certify that four true and correct copies of
/ the foregoing APPLICANT'S BRIEF IN OPPOSITION TO APPEAL BY STATE OF LOUISIANA were served by hand-delivery to Sherwin E. 7 Turk, Esquire, counsel for the NRC Staff; and that one true and correct copy of same was served by deposit in the United States mail, postage prepaid, addressed to each of those persons on the attached Service List, all on this 23rd day of August, 1982.
i I
) James B' Hamlin 1
s
a o
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of .
)
)
LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382
) ,
(Waterford Steam Electric ) l Station, Unit 3) )
SERVICE LIST e Administrative Judge Administrative Judge Stephen F. Eilperin, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Chairman, Atomic Safety &
Appeal Board Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory U Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Christine N. Kohl Harry Foreman Atomic Safety & Licensing Atomic Safety & Licensing Board Appeal Board Director, Center for Population U.S. Nuclear Regulatory Studies Commission Box 395, Mayo Washington, D.C. 20555 University of Minnesota Minneapolis, MN 55455 Administrative Judge Reginald L. Gotchy Administrative Judge Atomic Safety & Licensing Walter H. Jordan Appeal Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory 881 West Outer Drive Commission Oak Ridge, TN 37830 Washington, D.C. 20555
.- Docketing & Service Section (3)
Sherwin E. Turk, Esquire (4) Office of the Secretary Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555
. Commission Washington, D.C. 20555
O
~ '
Mr. Gary Groesch Luke B. Fontana, Esquire 2257 Bayou Road 824 Esplanade Avenue New Orleans, LA 70119 New Orleans, LA 70116 Linda B. Watkins, Esquire Assistant Attorney General Department of Justice 7434 Perkins Road, S6ite C Baton Rouge, LA 70808
.'l d
H I
I
~
i
, - -- -- _ - ~