ML20077P162

Objections to 830826 Special Prehearing Conference Order. ASLB Ruling on & Restatement of Designated Contention 2 on Failure of Old River Control Structure May Be Misinterpreted.Certificate of Svc Encl

ML20077P162
Person / Time
Site:	River Bend
Issue date:	09/09/1983
From:	Wetterhahn M CONNER & WETTERHAHN, GULF STATES UTILITIES CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8309130309
Download: ML20077P162 (8)

Text

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"25p UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION EP12 5'I Tlfc IAP !

Before the Atomic Safety and Licensing BoarefRANCH RYlk In the Matter of )

.)

~ Gulf States Utilities Company, ) Docket Nos. 50-458 et al. ) 50-459

)

(River Bend' Station, Units 1 )

and 2) )

?

' APPLICANTS' OBJECTIONS TO THE SPECIAL PREHEARING CONFERENCE ORDER Preliminary Statement On August 26, 1983, the Atomic Safety and Licensing Board -(" Licensing Board" or " Board") issued a Memorandum in the above captioned proceeding. ruling on the admissibility of contentions and other matters considered at a prehearing

. conference pursuant to 10 C.F.R. 52.751a on June 14, 1983 in I' . Baton Rouge, Louisiana'.1! The objection by Applicants Gulf l~ States Utilities Company, et. al. (" Applicants") to this order relates to the possibility of misinterpretation of the Board's ruling on and restatement of designated Contention 2

-relating to ' failure _ of the Old River Control Structure.

l_/ While not. specifically identified as a special

.prehearing conference order, it is clear that the Board intended its Memorandum to be the order required by 10

'C.F.R. S2.751a.

r 8309130309 830909 PDR ADOCK 05000458 1 0 PDR

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' Applicants believe" that additional , guidance from the Board will .-remove J any possible. confusion and maka litigation of 3 1 tthe matter. more efficient for. all those involved.

V = Applicants ; therefore ' request ' that' Cont'ention 2 be reworded

asicdiscussed be' low.

Argument In-its Memorandum, the-Board reviewed the positions of theointervenors, the State of Louisiana', the Applicant's and the.NRC Staff 1regarding the failure of the Old' River Control Structure. ! It specifically noted that "

. . . neither

. Applicants :nor Staff refuted the statement that there is a 50% ' probability-lof. failure of the Old River Control St'ructure,"$!=and admitted the: contention as follows:

-In the event of failure of the Old River Control Structure, ' Applicants ' have not considered the public-health, safety'and environmental- impacts of further facility operation under ' altered river flow and salinity' conditions.4_/

. The LNuclear-' Regu'latory.' Commission's case law is clear

~

that at the pleading _ stage, one opposed to the admission of

, 'a. contention may not: dispute the factual assertions made in

.a petition.'for leave to intervene,5_/ i.e. may not reach the

-2f iMemorandum.at 14-16.-

3/' Id. atL16.

4/' Id. at 18'.

'5/_ Houston 'Lightin'q- and~ Power-- Company. (Allens Creek (Footnote Continued)

merits of an issue. The. Board is obligated to treat these factual assertions as true for the purpose of ' deciding the

. admissibility of the contention. It was on this basis that Applicants did not attempt to refute the State's assertion

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as to 'the probability that the Old River Control Structure might fail during the life of the River Bend Station. -

Nevertheless, it appears that the Board granted this contention based upon the. speculative allegation of an individual. There-is no reason'to believe that the United States Government, through its Army Corps of Engineers, would : allow the Old River Control Structure to fail, given

.the incredibly adverse impact to the Southern Louisiana area which would result. Even so, the impact of such a postulated failure on River Bend's operation would be equally speculative. As such, the Board's decision appears directly contra to the holdings in such cases as Carolina Power and Light Company (H.B. Robinson Steam Electric Plant,

-Unit 2), Docket No. 50-261-OLA (April 12, 1983) (slip op. at (Footnote Continued)

Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 547-48 (1980),' quoting Mississippi Power and Light Company (Grand Gulf - Nuclear Station, Units 1 and 2),

ALAB-130, 6 AEC 423, 426 (1973).

'6/- If it was not clear before, Applicants wish to state that it is their view that there is a high probability that the Old River ' Control Structure will continue to perform its functions over the life of .the River Bend Station.

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14), in which' that Board rejected an equally speculative hypothesis, stating:

Petitioner's support for its contention rests upon mere speculation that the dosage levels would be so high as to overtax the supply of qualified workers. No acceptable basis has been submitted to substantiate the proposed contention. There was no attempt .at establishing- the number of qualified

. workers - available and how the anticipated doses would relate to them.

. Even if the number of qualified workers were reduced, there is nothing to indicate Applicant would press on with those unqualified to make the repairs rather than drawing out the project over a longer period of time. Because Petitioner has failed to provide a basis for its proposed contention, it is rejected by the Licensing Board.

Accordingly, Applicants object to the admission of this contention on the basis stated by the- Board in its Memorandum.

However, if the Board does not agree, Applicants request that the contention be admitted subject to an opportunity to establish by; affidavits from competent hydraulic engineers, and perhaps from a representative of the Corps of Engineers, in the nature of a motion for summary disposition, that adequate remedial measures as necessary are available to protect the natural resources of the Southern Louisiana area.

Otherwise, the wording of Contention 2 may be

, interpreted as precluding a showing that there is a high probability that-the Old River Control Structure will not

fail.during the life of the River Bend Station. Applicants E

. submit that such showing would eliminate the need for further evaluation of the ' contingency of failure. The speculative nature of this hypothesized collapse is extremely significant in this proceedin., because such conjecture is not .necessary in determining impacts in accordance with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. S4321 et seg, See, e.g., Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1026 (9th Cir. 1980) (evaluation of possible dam failure not required). Applicants thus request that this possibility be explicitly recognized and that Contention 2 be reworded as follows:

The probability of failure of the Old River Control Structure is sufficiently high.that the consequences of operating the River Bend Station following such failure must be considered. Applicants have not ' considered the public health safety and environmental impacts of further facility operation under altered river flow and salinity conditions in the event of failure.

This wording makes clear that the likelihood of such a failure is a relevant issue in litigating this contention.

e

-f-Conclusion For the reasons set forth above, Applicants respectfully request that Contention 2 be reworded as requested.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

=Y Troy B. Conner, Jr.

Mark J. Wetterhahn Counsel for Applicants September 9, 1983

v ,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

GULF-STATES UTILITIEC ) Docket Nos. 50-458 OL COMPANY, et al. ) 50-459 OL

)

(River Bend Station, Unit 1 )

and 2 )-

SERVICE LIST I hereby~ certify that copies of " Applicant's Objections to.the Special Prehearing Conference Order" dated September 9,'1983, in the captioned matter, have been served upon the following by deposit in the United States mail this 9th day of September, 1983:

B. Paul Cotter, Jr., Esq. James W. Pierce, Jr., Esq.

Chairman, Atomic Safety and P. O. Box 23571 Licensing Board Baton Rouge, LA 70893

U.S. Nuclear Regulatory Commission Doris Falkenheiner, Esq.

Washington, D.C. 20555 Stephen M. Irving, Esq.

355 Napoleon Street Judge Gustave A. Linenberger Baton Rouge, LA 70802 Atomic Safety and Licensing Board William Guste, Jr., Esq.

U.S. Nuclear Regulatory Attorney General Commission State of Louisiana Washington,-D.C. 20555 234 Loyola Avenue New Orleans, LA 70112 Dr. Richard F. Cole Atomic Safety and Licensing Ian D. Lindsey, Esq.

Board Department of Justice U.S. Nuclear Regulatory 7434 Perkins Road Commission Suite C Washington, D.C. 20555 Baton Rouge, LA 70808

' David A. Repka, Esq. . Docketing & Service Section Counsel for NRC Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear. Regulatory Commission Washington, D.C. 20555 L

6 Linda B..Watkins, Esq. Gulf States Utilties 355 Napoleon Street- Company Baton-Rouge, LA 70802 Attn: Mr. James E. Booker Manager - Engineering and Licensing

- P. O. Box 2951 Beaumont, Texas 77704 1

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Mark J. Wetterhahn i

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