ML20148M836

Applicant Gsu'S Response to Petition of DM Mccaughan for Leave to Intervene in Proc Re Subj Facils.Asserts Petitioner Has Not Shown Interest in Proc as One Reason for Denial of Petition.Cert of Svc Encl

ML20148M836
Person / Time
Site:	05000510, 05000511
Issue date:	11/14/1978
From:	Conner T, Wetterhahn M CONNER, MOORE & CORBER
To:
References
NUDOCS 7811220159
Download: ML20148M836 (16)

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,-- UNITED STATES OF AMERICA "O\1l 6 NUCLEAR REGULATORY COMMISSION {. " , , a #,gg '4

-a In the Matter of )

GULF STATES UTILITIES COMPANY ) Docket Nos. STN 50-510

) 50-511 (Blue Hills Station, Units 1 )

and 2) )

APPLICANT'S RESPONSE TO PETITION {fbdNOO L"

OF D. MICHAEL McCAUGHAN FOR LEAVE TO INTERVENE On May 12, 1978,.the Nuclear Regulatory Commission

("NBC" or " Commission") published a notice of hearing on the application for early site review regarding the Blue Hills Station, Units 1 and 2. ~~1/ The notice stated that petitions

for leave to intervene must be filed by June 12, 1978, and j that untimely. petitions would not be entertained absent a

. 1 determination that the petition should be granted, based on the factors set out in 10 C.F.R. 5 2. 714 (a) (1) (i-v) , in addition to the matters specified in 10 C.F.R. S2.714(d). .

1 On November 3, 1978, the NRC's Docketing and Sert: e-l served on counsel for Gulf States Utilities Company (" Applicant") l a copy of a petition for " leave to intervene late" in the ,

pending proceeding submitted by D. Michael McCaughan. ~

7811220l5q 1

_/ 43 Fed. Reg. 20572 (May 12, 1978).

2 The May 12, 1978 Notice of Hearing required that any

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petition for leave to intervene be served on counsel for the Applicant. While Petitioner-indicates that he is a member of "The Environmental Task Force," there is no indication that he is seeking to intervene other than in his own right. In any event, he has not demonstrated

.that the~ named organization has any interest in this pro-ceeding or that he has any authority to represent it.

See Consumers Power Co. (Midland Plant, Units 1 and 2),

Docket Nos. 50-329, 330, Memorandum and Order at 3 (Aug-ust 14, 1978) and the caces cited therein.

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For the reasons discussed be.ow, the late-filed petition should be denied.

The Petitioner Has Failed to Demonstrate An Interest in This Proceeding and How That Interest May Be Affected By The Resultc of This Proceeding Section 2. 714 (a) (2) of 10 C.F.R. Part 2 requires that a petition for leave to intervene state the interest of the petitioner:

The petition shall set forth with particularity the interest of the

petitioner in the proceeding, how that interest may be affected by the results of the proceeding, in-cluding the reasons why' petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this section. . . .

Petitioner makes no attempt to demonstrate that he has an interest in this early site review proceeding nor is

'there any indication given as to how any interest he might have would be affected by the results of this proceeding.

The City of Houston is approximately 140 miles from the Blue _

Hills site. We are aware of no NRC decisions which have permitted intervention based upon residence at distances of greater than 40-60 miles from a facility.

a The Appeal Board in Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1 i

1150 (1977), agreed that a petitioner's interest, based on 3/

Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190 (1973).

i.

i:

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her residence 125 miles to the site which included occa-

, sional visits nearby, was " remote" and insufficient for

intervention. Even a distance of "about 50'to 75 miles" -

between petitioners' residence and a nuclear power plant site

! likewise failed to show adequate interest for intervention in i 1

, 'Dairyland Power Cooperative (Lacrosse Boiling Water Reactor),

! l l Docket 50,409, Memorandum and Order Denying Intervention Peti-1 l tion at 4 (August 14, 1978. '

This petition should be denied for=its failure to set forth with particularity the interest of the petitioner and how that interest may be affected by the results of the j proceeding.

f Untimeliness of the Petition i

i Petitioner concedes, as he must, that the petition is 1 untimely. Besides publication in the Federal Register, i notice concerning the application for early site review was i

published in the Leesville Leader, Jasper News Boy and the

, Newton News. The petition for leave to intervene'does not I i

j. even attempt to make a substantial showing of good cause for d

j. failure to file on time, i.e., June.12, 1978, nor does it

address any of the factors set out in 10 C.F.R. 52.714 for j consideration of late petitions. Specifically, Section

- 2. 714 (a) (1) (1-v) requires a balancing of five factors as a

F followsi i-j i-

-(i)- Good cause, if any, for failure to file on time.

The petition is completely silent as to why filing i

j is untimely-for more than four-months. Acccrdingly, the r j petitioner has failed to demonstrate any cause, let alone

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good cause, why the untimely petition should be considered.

In the Three Mile Island proceeding, the: Appeal Board recently discussed the burden upon a non-timely petitioner:

10 CFR 2.714(a) expressly provides that non-timely intervention petitions "will not be entertained" absent a determination by the Licensing Board "that the petitioner has made a substantial showing of good cause for failure to file on time." Ac construed by the Commission in its West valley decision two years ago [ Nuclear Fuel Services, Inc.

(West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975)], the " good cause" deter-mination is to be made on the basis of consideration of both the substantiality of the justification offered for the late filing and the four factors specifically enumerated in Section 2.714(a). See also Project Management Corp. (Clinch River Breeder Reactor Plant) , ALAB-354, NRCI-76/10 383, 388-89 (October 29, 1976). In this connection, the Commission stressed that

"[llate petitioners properly have a sub-stantial burden in justifying their tardiness.

And the burden of justifying intervention on ,

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the basis of the other factors in the rule is  !

considerably greater where the latecomer has l

no good cause." West Valley, 1 NRC at 275. 1

[ Footnotes omitted.] 4_/

The correctness of the ,Three Mile Island rule for considering untimely petitions was reiterated by the Appeal Board more 6

. 5_/

and Perkins__fproceedings.

recently in the Cherokee Here, petitioner has omitted altogether any showing of good cause for his lateness, and his burden of justifying inter-vention on the basis of the remaining four factors to be considered is therefore increased considerably.

1 4_/ Metropolitan Edi_ son Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977).

5_/ Duke Po'wer Co. (Cherokee Nuclear Station, Units 1, 2 and ,

3), ALAB-440, 6 NRC 642, 643 (1977),

f_/ 3),

Duke Power Co. (Perkins Nuclea'r Station, Units 1, 2 and ALAB-431, 6 NRC 460, 462 (1977).

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(ii) The availability of other means whereby the peti-tioner's interest will be protected. _

From the face of the matters which petitioner seeks to raise, it appears that a number of the petitioner's concerns should be addressed to other forums. For example, ..

1 Items I and XIII concern the interests of utility rate payers, whose recourse regarding rate adjustment would lie with the appropriate state or local ratemaking authority. .

, Petitioner's concerns regarding the nuclear arms race (Item IV), tax subsidies (Item XVI), and regulatory failure (Item 1

XX) are inappropriate to this proceeding and must be addressed in political forums. The validity of any " eminent domain" _/

proceedings (Item XXI) is an issue for the courts.

l (iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

Petitioner has not stated that he has any special qualifications or expertise that would assist the Board in developing a sound record. An independent examination of the matters presented likewise fails to indicate any special expertise or knowledge that would prove helpful to the Board. Nor has the petitioner furnished any other information that might othcrwise establish his qualifications by scientific 7/ Additionally, as there were no eminent domain proceedings associated with the acquisition.of the Blue Hills site, this item bears no relation to the facility in issue and must be denied. See Iowa Electric ~ Light & Power Company, et al. (Duane Arnold Energy Center), ALAB-108, 6 AEC 195,

' 196 (1973) for an example of the Atomic Safety and Licensing

-Appeal Board's affirmance of a decision rejecting contentions "which were lifted indiscriminately from petitions filed in other proceedings, since they are wholly inapplicable to the facility.under consideration here."

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or technical training and experience to offer credible as-8

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sistance to the Board.

(iv) The extent to which the petitioner's interest will be presented by existing parties.

On July 6, 1978, the State of Texas served its Notice of Participation as Interested State pursuant to 10 ,

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i C.F.R. 52.715(c) indicating it would participate fully in this proceeding. Moreover, since the NRC Staff always has the obligation of protecting the health and safety in a proceeding such as a hearing on early site review,

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there will be yet another party to protect petitioner's j l

interests. l (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

Given the stage of the proceedings, a grant of the l

petition would create inevitable dalay due to the need for discovery, additional prehearing conferences and additional hearing time. l l

j[/ Petitioner's submission does not reflect that he has studied or understands any of the publicly available information concerning the Blue Hills Station. The contentions make no reference whatever to the Applicant's Preliminary Safety Analysis Report or Environmental Report, the Staff's Environmental Statement, or its Early Site Review Report, all of which are availab.le in the Newton County Library in Newton, Texas.

9/ That notice recites the State's " vital interest in partici-pating in this proceeding to insure that the health, safety, and environmental interests of the people of Texas are pro-tected and to see that the State's future neecs for economical, dependable and efficient energy will be met."

i

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l0 ,See, e.g., New England Power Co. (NEP, Units 1 and 2),

LBP-78 9, 7 NRC 271, 279 (1978); Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489 at 9-10, 12

• l (August 21, 1978).

In sum, petitioner has altogether failed to make a substantial showing of good cause for his' untimeliness under Section 2. 714 (a) (i) and the late petitidn fails to pass muster on any of the remaining factors under subsections (ii) through (v) , especially in light of the considerably greater burden petitioner must bear for lack of good cause 11/

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for filing late.

The Petitioner Has Failed to State the Specific Aspects of the Subject Matter of the Proceeding as to Which He Wishes to Intervene

, The matters set forth in the petition are plainly deficient under the Commission's rules for intervention with regard to stating the specific aspects of the subject matter i of the proceeding as to which petitioner wishes to intervene.

Recently amended, the pleading provisions for intervention found in 10 C.F.R. CS2.714 now require as follows:

(a) (2) The petition shall set forth with particularity . . . the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

An examination of the petition shows that each item raised is a matter beyond the Commission's or the Board's jurisdiction, a matter beyond the scope of the Applicant's 11/ Discretionary intervention should also be denied, inasmuch

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as exercise of the Board's discretion is based on the same factors already considered with respect to petitioner's late filing, i.e., those set forth in 10 C.F.R. S2.714(a) and (d). See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-26-2 7, 4 NRC 610, 616 (1976). See also Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1151 n. 14 (1977)'and Tennessee Valley Authority (Watts Bar Nuclear ,

Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422-23 (1977)- .

proposed findings designated to be adjudicated' in- this early site review proceeding or otherwise inappropriate for considera-tion at the early site review stage, a prohibited challenge to the Commission's regulations, or a mere unparticularized assertion or general reference to the NRC operating statutes which fails to state the specific aspects of the 12 subject matter which petitioner wishes to intervene. --7Theno vague assertions fare no better than contentions previously rejected l 13/

as mere " oblique reference (s]" in the Clinton proceeding--

and the ones termed "conclusional . . . barren and unfocused" l

in the offshore Power Systems ~~14/ matter. I The Commission's early site review rule permits an applicant for a construction permit to obtain resolution of 1

important site-related issues well in advance of any sub-15/ I stantial commitment of resources.-- An applicant may request '

early site review prior to selection of the nuclear steam supply system or specification of ths details of facility design. Under the Commission regulations, the applicant m'ay select which issues it wishes to have adjudicated at this stage. - In the Blue Hills proceeding, the " Proposed Findings 12/ In Midland, note 2, supra, slip op. at 6, the Licensing Board held that the term " aspect" was " narrower than a general reference to our operating statutes."

13/

-~ Illinois Power Co. (Clinton Power Station, Units 1 and 2),

ALAB-340, 6 NRC 27, S1 (1977).

]j/ Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LDP-77-48, 6 NRC 249, 250-51 (1977).

J./j See "Early Site Reviews and Limited Work Authorizations" l 42 Fed. Reg. 22882 (May 5, 1977).

16/ See 10 C.F.R. 5 2.101(a-1) (1) . An applicant need only submit a range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review.

J

on the Issues of Site Suitability on Which Gulf States Utili- .

ties Has Requested Review and A Statement of the Basis and/or the Reasons for Those Findings" ("Prnposed Findings") and the Notice of Hearing on Application for Early Site Review dated -

May 3, 1978, based thereon establish the issues before the Board. Matters which petitioner attempts to raise which are beyond the designated issues at the early site review stage should not be considered.

Additionally, the petitioner may not raise matters which i

are related to the specific design details of the facility which have not yet been specified or which the Commission specifically exempted from consideration at the early site 17 /

review stage, such as financial qualifications,~~ need for power and consideration of alternatives 'to the nuclear plant.

i Turning to the proposed 22 items, each is defective for  !

the reasons discussed below.

Items I, II, XIII and XV relate to anticipated performance and increased rates that will allegedly result from construction l and operation of.the plant. As discussed above, the matter of the financial qualifications of the Applicant is beyond the issues to be considered at the early site review stage.

It is far too premature to attempt to consider the cost of the plant and the utility's ability to finance it at this time. Similarly, the reliability of a nuclear plant can only be considered after its design has been specified. The 17/ See 10 C.F.R. S2.101 (a-1) ( 2) .

, matter of utility rates raised in Item XIII is clearly beyond the jurisdiction of the NRC. Moreover, these conten- e tions must be denied inasmuch as "an economic analysis of' nuclear power as part of the licensing proceeding in order to avoid even the possibility of increased future electric rates" is foreclosed by Portland General Electric Co. (Pobble Spring Nuclear Plant, Units 1 and 2), CLI-76-21, 4 NRC 610, 18 /

614 (1976)."--

Item III is wholly nonspecific and appears to postulate a class nine accident, which the Commission has repeatedly i

stated, and the courts have affirmed, need not be considered in licensing proceedings, at least for land-based reactors, because the likelihood of occurrence "is decmed highly improbable."--19/ .

Item IV must be denied because it pertains to diplomatic and military considerations beyond the jurisdiction of this Board and, in essence, seeks to re-examine a congressional determination under the Atomic Energy Act of 1954, as amended, that nuclear power should be commercially developed. We see no relationship between this. item and the requested site approval.

Items V, VI, and VII are vagua and unsubstantiated al-legations relating to industrial security. The contentions 18 /

~~ See also Public Service Co. of Oklahoma (Black Fox, Units l and 2), LBP-77-17, 5 NRC 657, 659 (1977), aff'd ALAB-397, 5 NRC 1143, 1147 (1977).

19;/ offshore Power Systems (Floating Nuclear Power Plants),

ALAB-489 (August 21, 19 7 8 ) ( slir,; opinion at 28, 30)

(citing cases).

I

do not suggest that the Applicant will be unable to meet the enumerated' requirements of 10 C.F.R. S73 55 at the time the 2gf Applicant applies for an operating license, but constitute a prohibited attack upon such regulations. The issue of industrial security is not before this Board; clearly any consideration of these issues must be deferred until the j l

detailed design of the facility is completed at the con-  !

struction permit stage. Moreover, Item IV speaks to

" heavy water" and Item V addresses " fuel recycling plants" which are clearly irrelevant to any proceeding involving the licensing of light-water power reactors.

Petitioner alleges in Item VIII that the emergency core cooling system has not been tested. Such a contention has 1

no relation to this early site review proceeding where the nuclear steam supply system and the associated ECCS system has not been purchased. Moreover, this type of contention is invalid since it does not allege that there are no emergency core cooling systems which not meet the Commission's regulations.

The contention is, therefore, foreclosed by the Commission decision in Acceptance Criteria for Emergency Core Cooling 21/

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Systems, CLI-73-39, 6 AEC 1085 (1973)."

Items IX, X and XIV apparently concern the issue of long-term storage of radioactive wastes. However, as a 20

~~/ "A detailed security plan is not required until the time of an operating license application, in accordance with 10 C.F.R. S50.34(c)." Northern States Power Co. (Tyrone Energy Park, Unit 1) , LBP-77-30, 5 NRC 1197, 1231 (1977).

21 Public Service Co. of Oklahoma (Black Fox, Units 1 and 2),'

_/

LBP-77-17, 5 NRC 657, 661 ,(197,7).

', licensing board has only recently reiterated, citing Appeal

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Board. precedent, "the ultimate disposal of spent nuclear .

22 fuel is not a proper subject for Board consideration."--/

Item X, which states that plant operation "will add radiation" to the environment, is plainly invalid as an attack upon the regulation because 10 C.F.R. S50.34a and Appendix I only require the Applicant to keep levels of radioactive material in effluents to unrestricted areas as low as is reasonably achievable. See In re Rulemaking Hearing:

Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meet the Criterion "As Low As Practicable" for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents, CLI-75-5, 1 NRC 277 (1975).

The contention should therefore be denied as a proscribed challenge to the Commission's regulation.

Item XI, which questions NRC safety standards, as

" determined by Corporate Industry elite individuals" is i i

patently frivolous and should be denied. At most, it i I

constitutes an attack on the Commission's rules and regula- l tions that may not be maintained in licensing proceedings.

Item XII, like Item IX, merely notes the toxicity of plutonium, but raises no issue regarding the pending proceeding.

It, too, should be denied.

1 22 Duke Power Co. (William B. McGuire Nuclear Station, Units 1

/ l and 2), Docket Nos. 50-369, 50-370 (August 14, 1978) (slip opinion at 5), relying upon Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2) ,

ALAB-455, 7 NRC 41 (1978).

Item XVI which states in its entirety that "[t]ax dollars are used to subsidize this plant" is completely

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unparticularized, unsupported, and frivolous and raises no issue which this Board could consider.

Item XVII may not be considered in that it presents a prohibited challenge to the indemnification and insurance provisions of the Price-Anderson Act and the implementing 23 /

regulations contained in 10 C.F.R. Part 140. ~~

Contention XVIII, asserting a lack of adequate uranium fuel supply for the Blue Hills Station, cannot stand in light of the Appeal Board's recent decision in Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1),

ALAB-462, 7 NRC 320 (1978). There the Appeal Board sustained a finding below on uranium fuel supply sufficiency by relying 24 /

upon generic findings in the River Bend ~~ proceeding that available and probable uranium resources totalling 1,900,000 tons exceeded the requirements for the 236 existing and planned reactors. The Board noted that "[t]here is no 25 /

reason not to accept that generic determination here."~~

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10 C.F.R. SS140.15 and 140.16. The Supreme Court recently upheld the validity of the Price-Anderson Act in Duke Power l Company v. CESG, U.S. , 5,7 L.Ed. 2d. 594 (1978).  !

l 24_/ Gulf States Utilities Co. (River Bend Station, Units 1 and l 2), ALAB-317, 3 NRC 175 (1976). I l

25 /

~~ Kansas Gas and Electric Co. (Wolf Creek Generating Station, j Unit No. 1), 7 NRC at 326. It is noted that the number of existing and planned nuclear plants has dropped to 212 ac-cording to the NRC's monthly " Status of Nuclear Power Plants -

September 30, 1978." #3 fortiori, the generic determination l accepted by the Appeal Board in the River Bend and Wolf Creek l

proceedings is dispositive. i

a Given this generic determination by the Appeal Board, there is no basis for further ad hoc review intthese proceedings, and this contention should therefore be' denied. If, however, further consideration need be given to this topic, it should be deferred until at least the construction permit stage when further up-to-date information related to this facility and the supply and utilization of urar.ium is available.

Solar power as a substitute for nuclear power is suggested by Item XIX and comparisons with alternative forms of energy production suggested by Item XV are matters on which the l Applicant has not requested a finding. The comparison of 1 1

nuclear power with other means of supplying needed electricity 1

can only be considered using up-to-date information at the l construction permit stage with the question of the need for power.

Item XX relating to " regulatory failure" is frivolous, obscure and presents a generic issue inopposite to this licensing proceeding. Contention XXI must also be denied, since as discussed in fcotnote 7, supra, it bears no relation to this proceeding in that all land for the Blue Hi}ls Station was purchased without resort to eminent domain proceedings. In any event, the validity of any eminent domain proceeding is an issue for the courts.

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h Item XXII, which alleges that the Applicant has relied upon the Rasmussen report, should be denied. There is no i

showing whatsoever that Applicant relies upon this report for support of its early site review application.

Conclusion For the foregoing reasons, Mr. McCaughan's untimely petition to intervene should be denied.

Respectfully submitted, CONNER, MOORE & CORBER (1 OVW ,

Tro B.. Conner, Jr.

,LL L Mark J. Wetterhahn Counsel for the Applicant November 14, 1978 g/ Reac' tor Safety Study, WASH-1400, NUREG-75/014 (October 1973). s I

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GULF STATES UTILITIES COMPANY ) Docket Nos. STN 50-510

) 50-511 (Blue Hills Station, )

Units 1 and 2) )

_ CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Petition of D. Michael McCaughan for Leave to Intervene,"

dated November 14, 1978, in the captioned matter, were served upon the following by deposit in the United States mail this~

14th day of November, 1978.

Marshall E. Miller, Esq. Stanley Plettman, Esq.

Chairman, Atomic Safety and Orgain, Bell and Tucker Licens~ing Board U.S. Nuclear Regulatory Beaumont Savings Building Beaumont, Texas 77701 Commission Washington, D.C. 20555 Colleen P. Woodhead, Esq.

Mr. Lester Kornblith, Jr. Office of the Executive Legal Director Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Atomic Safety and Licensing Dr. Linda W. Little Board Panel Department of Environmental U.S. Nuclear Regulatory Commission Sciences and Engineering Washington, D.C. 20555 University of North Carolina Chapel Hill, North Carolina 27514 Atomic Safety and Licensing Appeal Board John L. Hill, Esq.

Attorney General of Texas U.S. Nuclear Regulatory Commission Post Office Box 12548 Washington, D.C. 20555 Capitol Station Austin, Texas 78711 Docketing and Service Section Richard Lowerre, Esq. Office of the Secretary Assistant Attorney General U.S. Nuclear Regulatory Commission Environmental Protection Division Washington, D 20555 Post Office Box 12548 .

Capitol. Station Austin, Texas 78711 < #f,'j/T/

D. Michael McCaughan 3131 Timmons Lane, Apt. 254 O g 6 '

Houston, Texas 77027 Mark . Wetterhahn e

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