ML19339C252

Response in Opposition to Prairie Alliance Petition to Intervene & Request for Hearing.Petition Failed to Raise Aspect Not Fully & Conclusively Resolved in CP Proceedings. Certificate of Svc Encl

ML19339C252
Person / Time
Site:	Clinton
Issue date:	11/10/1980
From:	Fazio P, Zabel S ILLINOIS POWER CO., SCHIFF, HARDIN & WAITE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19339C251	List: ML19339C250 ML19339C252
References
NUDOCS 8011170906
Download: ML19339C252 (8)

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UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

ILLINOIS POWER COMPANY )

SOYLAND POWER COOPERATIVE ) Docket Nos. 50-461 INC. and WESTERN ILLINOIS ) 462 POWER COOPERATIVE,_INC. )

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Operating Licenses for )

Clinton Power Station, )

Units 1 and 2 )

ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF PRAIRIE ALLIANCE, ITS MEMBERS AND CERTAIN INDIVIDUALS Illinois Power Company ("IP"), by-its attorney, Peter-V. Fazio, Jr., and pursuant to 10 C.F.R. S2.714(c) answers the Petition For Leave To Intervene and Request For Hearing (the " Petition") of Prairie Alliance, its members and Stanley Elsasser, Rebecca Elsasser, Joanne Schwart, Jean Foy, Caroline Mueller and Allen Samelson (" petitioners"), as follows:

1. As a general proposition, IP does not oppose the intervention and participation of parties who have a legitimate interest in, and who will make a valuable contribution to, these proceedings. However, because the subjects identified by petitioners as the basis for their intervention (a) fail to address issues which are the' proper subject matter of an operating

' license "roceeding, and (b) merely duplicate subjects examined in detail and resolved in the construction permit hearings, l

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IP requests that the Petition be denied. Any other result would needlessly and unjustifiably obstruct and delay the present proceedings.

2. 7.0 C.F.R. S2.714 (a) (2) . of the Rules of Practice for Domestic Licensing Proceedings sets forth the following explicit requirements which the Petition must meet:

The petition shall set forth with particu-larity the interest of the petitioner in the proceedings, how that interest may be affrated by the result of the proceeding;

'ncluaing the reasons why the petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the proceedings as to which petitioner wishes to intervene.

The Atomic Safety and Licensing Board (the " Board") has stated i that S 2.714 essentially requires a petition to state (a) a sufficient interest in the proceedings, and (b) a proper i

" aspect" of the subject matter of the proceedings as to which the petitioner wishes to intervene. See, e.g., In the Matter of Consumer's Power Company (Midland Plant, Units 1 and 2)

LBP-58-27, 8 NRC 275, 276-78 (1978).

3. IP concedes that the Petition adequately states an interest of the petitioners; however, IP submits that the Petition fails to satisfy the " aspect" requirement of the intervention rule because virtually every " aspect" relied upon by petitioners (paragraphs 3 through 10, inclusive) relates to the sufficiency of the initial project design, an issue not

properly considered at the operating license stage. The remaining aspects cited by petitioners (paragraphs 1 and 2) do not appear to raise design issues; however, for reasons presented below, these aspects also do not relate to subjects properly considered at this stage of the proceedings.

(a) 10 C.F.R. S 50.35 governs the issuance of a construction permit and, in essence, it requires the Commission to make a detailed inquiry into radiological health and safety considerations, environmental and site suitability matters and general design factors. In the present case, ex-haustive hearings were held, a voluminous record was made and detailed findings of fact and conclusions of law were rendered by the Board and affirmed on appeal, all to evaluate the project design and to assure its sufficiency as a prerequisite to granting the construction permits.

(b) At the operating license stage, the purpose and content of the Board's inquiry are understandably different and, unless circumstances have changed since the issuance of the construction permits, re-consideration of design-related isstles cannot be allowed since it would necessarily entail needless

-and expensive duplication of the exhaustive efforts of all parties at the construction permit stage.

1 This position is supported by 10 C.F.R. S 50.57 which

I prescribes P.he specifics of the Board's inquiry at this stage, and which implicitly rejects design reconsideration in examining an operating license application.

(c) Despite this dichotomy between the subjects to be examined at-the construction permit stage and the operating license stage, the Petition identi- '

fies numerous " aspects" which relate only to the sufficiency of the Clinton design. For example, petitioners repeatedly allege that IP and the NRC 4 Staff have not adequately demonstrated that the design of the Clinton plant will comply with the requirements of 10 C.F.R. Part-50, Appendices A, B and,K, which, either expressly or by obvious intent, apply only to review of construction permit applications under

S 5(.34. Moreover, the issues raised by these Apper. dices (and, thus, the. Petition) were fully

- examined and resolved at the construction permit stage. Further J.nvestigation and review at this juncture would serve no useful-purpose.

(d) The othe7; " aspects" relied upon by petitioners which do not raise design questions are similarly inappropriate to proceedings at the operating license i stage. First, petitioners contend that there has been

'nadequate i examinatien of issues raised by 10 C.F.R. Part 71, related to nuclecr fuel and waste transporation.

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What petitioners fail to note is that IP has not asked for and is not seeking a transportation license

- pursuant to Part 71 in these proceedings and, in the absence of a Part 71 application, consideration of such issues in an operating license proce2 ding is

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inappropriate. The issues which petitioners seek i

to examine under Part 71 will be fully aired when a party seeks a license under that Part to transport c

fuel and wastes to and from the Clinton plant.

The only remaining " aspect" relied upon by petitioners is that the Clinton systems were not backfitted to meet current requirements pursuant to 10 C.F.R. S 50,109. Petitioners' presentation of this aspect is so wholly lacking in detail that it, too, must be rejected. The Board has expressly ruled that to sufficiently describe'an " aspect" a petition must do more than make "a general reference to our operating statutes." Consumers Power Company (Midland Plant, Units 1 and 2) LBR-78-27, 8 NRC'275, 278 (1978). Yet, petitioners have done nothing more than make such a general reference in their backfitting

" aspect." No specific failure to backfit equipment is' mentioned in'the Petition, no direction is given to IP in determining whether any basis exists for the petitioners' claim. Ambiguity and generality of this sort is impermissible under the Commission's regulations.

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4. Even if one of the issues raised by petitioners was a proper subject for consideration at the operating permit stage, examination of any such issue in this proceeding would still be improper because it would merc ; duplicate the examination which took place at the construction permit state. The testimony, evidence and reports submitted in connection with w. i ssuance of the construction permits and the findings of fact and conclusions of law therein resolve each addressable issue raised by petitioners.

Thus, under-the principles of res judicata, which have been expressly adopted by the Commission, petitioners are precluded i

from seeking a reinvestigation in the operating license pro-ceedings, absent a showing of changed circumstances, which could not be made in this case. See, e.g., In the Matter of Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2) 1 CLI-74-12, RAI-74-3, at p. 203-204 (1974), ("In our view, an operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage.").

5. The following individuals did not file affidavits with the Petition: Joanne Schwart, Jean Foy, Caroline Mueller, and-Allen Samelson.- Because these individuals did not file affidavits indicating their belief that the representations in the P^ tit 4on were true and correct to the best of their knowledge, they may not be allowed to adopt the Petition as their own and to use the Petition as a means of intervening individually in the present proceedings.

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WHEREFORE, IP respectfully submits that the Petition fails to raise any " aspect" which is a proper subject of inquiry at the operating permit stage or any " aspect" which was not-fully and conclusively resolved in the construction _ permit proceedings.

Accordingly, the Petition must be denied.

Dated: November 10, 1970 x

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. Peter V. Fazio, Jr. N..,

One of the Attorneys for Illinois Power, Company Sheldon A. Zabel William G. Southard C' .arles D. Fox IV Schiff Hardin & Waite 7200 Sears Tower 233 South Wacker Drive Chicoago, Illinois 60606-

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CERTIFICATE OF SERVICE I hereby certify'that an original and twenty conformed copies of the foregoing document was served upon the following:

Secretary of the Commission United States Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch and that one copy of the foregoing document was served upon each of the following:

Executive Legal Director United States Nuclear Regulatory Commission Washington D. C. 20555 Philip L. Willman Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Prairie Alliance P. O. Box 2424 Station A Champaign, Illinois 61820 Jeff Urish Bloomington-Normal Prairie Alliance 703 Wilkins Normal, Illinois 61761 in each case by deposit in the United States mail at 233 South Wacker Drive, Chicago, Illinois, 60606, postage prepaid on November 10, 1980.

jl \ .'h y . y Peter V. Fazio, Jr.

Attorney for Illinois Power Company Schiff Hardin & Waite 7200 Sears Tower 233 South Wacker Drive Chicago, Illinois 60606 (312) 876-1000

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