ML20072S701
| ML20072S701 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/04/1983 |
| From: | Newman J JOINT APPLICANTS - SOUTH TEXAS PROJECT, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8304070300 | |
| Download: ML20072S701 (14) | |
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' USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'83 APR -6 N0:28 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD E
In the Hatter of )
)
HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, _ET _AL. ) 50-499 OL (South Texas Project, Units 1 )
and 2) )
Applicants' Response to CCANP's Motion for New Contention I. Introduction By motion dated March 18, 1983 (Motion), Citizens Con-cerned About Nuclear Power (CCANP) has requested admission of a new contention addressing the financial qualifications of Houston Lighting & Power Company (HL&P) to safely complete and operate the South Texas Project (STP).-*/ While acknow-ledging that electric utilities are no longer subject to financial qualifications reviews in NRC proceedings, and that its Motion is untimely, CCANP argues that an exception i
from the rule should be made under 10 CFR S 2.758 and that
- / The proposed contention provides:
l In light of the current economic climate for l nuclear investment generally, the current financial condition of HL&P, the recent actions of the Public Utility Commission of Texas in response to HL&P's 1982 rate increase request, and the potential economic consequences to HL&P resulting from the r lawsuit filed by the City of Austin, does HL&P lack
( the financial qualifications to successfully complete l and operate the South Texas Nuclear Project in a manner consistent with protection of the public health and safety?
Motion at 2.
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there was good cause for its lateness. Applicants' view is that CCANP has failed to comply with the procedural requirements of 10 CFR S .2.758, and to make the requisite prima facie showing pursuant to that section for an exception or waiver of the Commission's financial qualifications regulations.
CCANP has also failed to meet the requirements of 10 CFR S 2.714 for admission of late-filed contentions. CCANP's Motion should therefore be denied.
II. CCANP Has Failed to Demonstrate a Sufficient Basis for Waiver of the Commission's Financial Qualifications Regulations Pursuant to 10 CFR S 2.758 CCANP has requested that the Atomic Safety and Licensing Board (Board) consider HL&P's financial qualifications to safely complete and operate the STP. In March of last year, however, the Commission amended its regulations to eliminate the need for a review of the financial qualifications of electric utilities applying for construction permits or operating licenses for production or utilization. facilities.
47 Fed. Reg. 13750 (1982).-*/ .Thus, as CCANP recognizes, in order for its Motion to be granted, it must obtain a waiver or exemption from those regulations pursuant to 10 CFR S 2.758. Motion at 2-3. Although CCANP's Motion reeks to address section 2.758, it utterly fails to meet the require-ments of that rule.
- / The Commission's Order, adopting the financial quali-fications amendment, is currently under review by the
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U.S. Court of Appeals for the District of Columbia Circuit in New England Coalition on Nuclear Pollution
- v. NRC, No. 82-1581.
. , First, section 2.758(b) requires that any petition for a waiver or exemption from a Commission regulation "shall be accompanied by an affidavit" identifying the " specific aspect or aspects of the subject matter of the proceeding as to which application of the rule or regulation . . . would not serve the purposes for which [it] was adopted . . . .
10 CFR S 2.758(b). CCANP supplied no affidavit of any sort.
Its failure to meet this clear procedural requirement man-
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dates denial of the Motion.
Second, the " sole ground" for such relief is that the petitioning party has made a prima facie showing that "special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation . . . would not serve the purposes for which the rule or regulation was adopted." 10 CFR S 2.758(b). A petitioner bears a heavy burden in making the requisite
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The absence of an affidavit, and CCANP's failure to comply with the requirement in section 2.758 that the movant plead "with particularity" the justification for the requested relief, is particularly significant be-cause of the rambling, disjointed nature of CCANP's i Motion, and the difficulty this presents to the parties
, and the Board in determining the bases for CCANP's l claims. Since the Motion is deficient on its face, however, HL&P has not unnecessarily burdened the record by providing an affidavit in support of this response, nor has it made an effort to comprehensively respond to CCANP's factual assertions. HL&P does note, however, that the "recent" bond deratings (Motion at 4) referenced by CCANP, occurred in November, 1981 (by Moody 's) ,
November, 1980 (by Standard & Poor's) , and February, 1975 (by both). If the Licensing Board determines that any of CCANP's factual allegations are of significance to its decision, HL&P will promptly submit an affidavit or other evidence addressing the matter in more detail.
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. prima facie showing under section 2.758. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), CLI 3, 7 NRC 307 (1978) (waiver granted); Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1), CLI-80-16, 11 NRC 674 (1980) (waiver denied) ; Duke Power Co.- (Catawba Nuclear Station, Units 1 and 2), CLI-75-9, 2 NRC 180, 185 (1975) (exemption granted).
A requested waiver will be granted "only in unusual and compelling circumstances." Northern States Power Co.
(Monticello Nuclear Generating Plant, Unit 1), CLI-72-31, 5 AEC 25, at 26 (1972). CCANP has not made the requisite prima facie showing to warrant an exception to the Commission's financial qualifications regulations. It has not alleged that there is an error in the rule and it has not identified any compelling or special circumstances which would distinguish the instant case from the situation contemplated by the Commission in adopting its amendments to the financial qualifications rule. CCAMP's allegations predominantly address matters which were explicitly considered by the Commission in promulgating its financial qualifications regulations, and thus cannot be marshalled to suggest that application of=those regulations in this case would not serve the purposes for which they were adopted.
4 For example, CCANP alleges that utilities engaged in nuclear power development have been experiencing a poor economic climate, including escalating construction costs, high interest rates, lowered bond ratings, and declining investor
confidence. The Commission's Statement of Considerations addressed assertions that utilities are experiencing "diffi-culty in raising funds to cover capital, operating and maintenance costs . . . . 47 Fed. Reg. 13750 (1982).
CCANP argues that the Texas Public Utility Commission (PUC) has taken, and may in the future take, actions adverse to HL&P rate requests. CCANP also cites the lawsuit filed by Austin against HL&P, speculating that it may result in transfer of an ownership interest and increased financial demands on one or more of the Project participants. Motion at 9. However, the Commission explicitly addressed comments regarding the financial demands upon HL&P in constructing the STP-and more general comments about the inability of utilities to recover all costs. 47 Fed. Reg. 13750-51 (1982).
CCANP alleges that HL&P has a " poor safety record" and is "more likely [than other utilities] to commit safety violations as a result of financial pressure .
Motion.at 10, 11.~/ CCANP also severely criticizes the inspection and enforcement efforts of NRC Region IV, and-suggests that those efforts have been inadequate to ensure the safety of the STP. However, such allegations regarding
- NRC inspection findings at STP were explicitly addressed by
- /- The record in Phase I does not support the assertion that financial pressures caused the noncompliances found by the NRC Staff (see, e.g., Tr. 9962-64
-(Phillips, Hayes, Shewmaker) ) .
, the Commission, which noted that events at the STP have
" substantiate [d], rather than undercut, the Commission's view that any violations of safety regulations are being found." 47 Fed. Reg. 13750, 13751 (1982).
Thus, CCANP has failed to demonstrate that "special circumstances" exist, such that application of the Commission's financial qualifications regulations in this proceeding would not serve the purposes for which they were intended.
As a result, its Motion should be denied.
III. CCANP Has Failed to Meet the Requirements for Admission of Late-Filed Contentions Pursuant to 10 CFR S 2.714 In order for CCANP to be successful in seeking a waiver of the financial qualifications requirements, it must not only satisfy the requirements of 10 CFR S 2.75F,, but must also make the showing required by 10 CFR S 2.714 (a) (1) for admission of a late-filed contention. That provision requires the Board to consider five factors in determining whether or not such a contention should be admitted, and the burden is
! on the proponent to demonstrate that a balancing of the relevant factors warrants admission of the contention. Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3),
ALAB-615, 12 NRC 350 (1980). In the present case it is clear that CCANP has failed to make the showing required by 10 CFR S 2.714 and as a result, its Motion should be denied.
A. Good Cause Section 2.714 (a) (1) (i) requires first that the Board consider whether there is "[g]ood cause" for the petitioner's
failure to file on time. Although CCANP asserts that it filed its proposed contention within a reasonable time after receiving the information upon which the contention was based, in fact there is no new information cited by CCANP.
The November PUC decision upon which CCANP primarily relies, was the subject of CCANP's December 6, 1982 motion'to reopen the record in the Phase I proceeding, not some recent develop-
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ment.
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Other CCANP allegations relating to the financial climate "since 1978" and increases in construction costs "since the early seventies" (Motion at 3, 5) are certainly not new information.
The only matter cited by CCANP that was not known to it in mid-November was the lawsuit filed by the City of Austin on January 6, 1983, some ten weeks prior to the CCANP Motion.
The effect of that lawsuit on HL&P's future financial condi-tion is so highly speculative however, that it could not constitute changed circumstances adequate to demonstrate good cause for CCANP's delay, even if CCANP had filed its **/
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Hotion within a reasonable time after learning of its occurrence.
l' Therefore, there is clearly no good cause for CCANP's delay in seeking admission of this contention.
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l */ By raising the same issues it raised at that time, albeit this time under the pretext of a concern for HL&P's financial qualifications, CCANP is attempting to bring before this Board issues which it rejected almost three months.ago. Memorandum and Order (Denying CCANP's l
L Morion to Reopen Record), (January 10, 1983). (Memo-1 randum and Order.)
- / Moreover, CCANP was well aware that the Austin _ lawsuit might be filed many months earlier, and had already raised that issue before the Board on December 8, 1981 (Tr. 9110-11).
Having failed to demonstrate good cause for delay in submitting its proposed contention, CCANP must bear a parti-cularly heavy burden with respect to the remaining factors to be considered pursuant to Section 2.714 (a) (1) . Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975); Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-431, 6 NRC 460 (1977).
B. Availability of Other Means to Protect the Petitioner's Interest The second factor to be considered is the extent to which there are "other means whereby the petitioner's interest will be protected." 10 CFR S 2.714 (a) (1) (ii) . CCANP's Motion does not demonstrate an interest in any issues entitled to protection in this proceeding. As indicated above, when CCANP, almost four months ago, attempted to reopen the record on the basis of the PUC decision, the Board recognized that the issues raised in the PUC hearing "have no necessary bearing" on the safety issues before it, and that CCANP "has not adequately explained how any such link might exist."
Memorandum and Order at 4. Although CCANP now alleges that financial considerations, and HL&P's financial qualifications l
in particular, raise safety concerns appropriate for considera-tion by this Board, it continues to' provide no basis for its contention that such a relationship exists. Moreover, a careful examination of CCANP's Motion reveals that its
, allegations are directed primarily towards the availability of funds for completion of the STP, rather than for operating d
and decommissioning costs. These allegations could not serve as the basis for admitting a contention on the financial qualifications to operate a nuclear plant, even under the previous financial qualifications regulations. 10 CFR S 50.33(f) (1982); Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 192-95 (1981). Thus, the second factor to be considered under Section 2.714 (a) (1) weighs against admis-sion of CCANP's contention.
C. Development of a Sound Record The third factor to be considered in determining whether CCANP's contention should be admitted is the extent to which its participation "may reasonably be expected to assist in
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developing a sound record." 10 CFR S 2. 714 (a) (1) (iii) . As discussed above, the matters CCANP seeks to raise have no bearing on the issues before the Board, and thus addressing those matters will not contribute to the development of a sound record. Even if financial qualifications were to be considered in this proceeding, CCANP has provided no evidence that it has any special knowledge or expertise, or that it intends to provide any expert witnesses who might contribute
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to the development of a sound record on that issue.
Thus, this factor too must be weighed against admission of CCANP's contention.
. */ Instead, it argues irrelevantly, and without factual support, that the record would be " seriously incomplete" unless it is permitted to raise HL&P's financial quali-fications. Motion at 16.
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e D. Representation of Petitioner's Interest By Existing Parties Next, the extent to which CCANP's interest "will be represented by existing parties" must also be considered.
10 CFR S 2.714 (a) (1) (iv) . ~ Admittedly, no other parties to this proceeding have raised the financial qualifications issue. However, as indicated above, CCANP's real interest appears to involve an effort to bring before this Board matters which it has previously rejected, which have no demonstrable bearing on safety, and which are not within the scope of an operating license proceeding. Here again, CCANP's true interest is not entitled to protection in this proceeding and this factor as well must be weighed against CCANP.
E. Broadening of the Issues or Delay Finally, the Board must consider the extent to which 4
CCANP's participation "will broaden the issues or delay the proceeding." 10 CFR S 2.714 (a) (1) (v) . By CCANP's own 4
admission, its proposed contention would inject an entirely new issue into this already extensive proceeding. Motion at
- 17. While admission of the contention may have no readily apparent impact on the timing of STP operation, it will further delay what was intended by the Commission to be an expedited review of HL&P's character and competence (CLI 32), including any aspects thereof to be considered in Phase II.of this proceeding. ~*/ Thus, the fifth factor also weighs
- / In this regard, CCANP has also moved that upon admission lof its proposed contention, a discovery period of ninety days be granted, and that the Phase II hearings not com-
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mence until~all discovery has been completed. Motion at 17-18. Applicants view this aspect of CCANP's Motion as premature and have not-. responded thereto.
against admission of CCANP's proposed contention.
CCANP has therefore failed to provide sufficient grounds to warrant admission of its late-filed contention, based upon a balancing of the five relevant factors set forth in Section 2.714 (a) (1) . As a result, its Motion should be denied.
IV. Conclusion In order to justify admission of its contention regarding HL&P's financial qualifications, CCANP was required to demonstrate a prima facie basis for the unusual remedy of a waiver or exception to the Commission's regulations, as well as sufficient grounds for admission of a late-filed conten-tion. CCANP has failed to submit the affidavit required by 10 CFR S 2.758, and has failed to demonstrate the "special circumstances" that would warrant an exception pursuant to that section. Even if a waiver of the Commission's financial qualifications regulations were to be considered, CCANP's Motion focuses on the availability of funds for completion of construction, rather than operation and as such, it is beyond the scope of an operating license proceeding, even under the former financial qualifications regulations.
Finally, CCANP's contention cannot be admitted on the basis of a-balancing of the-five factors set forth in 10 CFR S 2.714. Having failed to make the requisite showings under both regulations, CCANP's Motion should be denied.
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Respectfully submitted, r /
( -f, itW ack R. Newman~ (
!aurice Axelrad
,Alvin H. Gutterman Donald J. Silverman 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 Finis E. Cowan Thomas B. Hudson, Jr.
3000 One Shell Plaza Houston, Texas 77002 Dated:
ATTORNEYS FOR HOUSTON LIGHTING
& POWER COMPANY, Project flanager -
LOWENSTEIN, NEWMAN, REIS of the South Texas Project acting
& AXELRAD, P.C. herein on behalf of itself and 1025 Connecticut Avenue, the other Applicants, THE CITY OF N.W. _
SAN ANTONIO, TEXAS, acting by and Washington, D.C. 20036 through the City Public Service Board of the City of San Antonio, BAKER & BOTTS CENTRAL POWER AND LIGHT COMPANY, 3000 One Shell Plaza and CITY OF AUSTIN, TEXAS Houston, Texas 77002 i
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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
HOUSTON LIGHTING AND POWER :) Docket Nos. 50-498 OL COMPANY, ET AL. -
) 50-499 OL
)
(South Texas Project, Units 1 )
and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Response to CCANP's Motion for New Contention dated April 4, 1984, have been served on the following individuals and entities by deposit in the U.S. Mail, first class, postage prepaid on this 4th day of April 1983.
Charles Bechhoefer, Esq. Brian Lerwick, Esq.
Chairman, Administrative Judge Assistant Attorney General Atomic Safety and Licensing for the State of Texas Board Panel Environmental Protection U.S. Nuclear Regulatory Commission Division Washington, D.C. 20555 P.O. Box 12548, Capitol Station Austin, TX 78711 Dr. James C. Lamb, III Administrative Judge William S. Jordan, III, Esq.
313 Woodhaven Road Harmon & Weiss Chapel Hill, NC 27514 1725 I Street, N.W.
t Washington, D.C. 20006 l Ernest E. Hill Administrative Judge Kim Eastman, Co-coordinator l
, Lawrence Livermore Laboratory Barbara A. Miller l University of California Pat Coy I P.O. Box 808, L-46 Citizens Concerned About
. Livermore, CA 94550 Nuclear Power 5106 Casa Oro l
Mrs. Peggy Buchorn San Antonio, TX 78233 l Executive Director p Citizens for Equitable Lanny Sinkin Utilities, Inc. 2207-D Nueces Route 1, Box 1684 Austin, TX 78705 Brazoria, TX 77422 i
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o Robert G. Perlis, Esq.
Office of the' Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washiigton, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .
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