ML20056F066

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Opposition of Gulf States Util Co to Petition to Intervene & Request for Hearing of Cajun Electric Power Cooperative, Inc.W/Certificate of Svc & Notices of Appearance
ML20056F066
Person / Time
Site: River Bend Entergy icon.png
Issue date: 08/23/1993
From: Knotts J, Souders D, Wetterhan M
GULF POWER CO., WINSTON & STRAWN
To:
Atomic Safety and Licensing Board Panel
References
CON-#393-14239 OLA, NUDOCS 9308260019
Download: ML20056F066 (49)
v • d • e


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l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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r f In the Matter of ) l GULF STATES UTILITIES COMPANY Docket No. 50-458- l

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(River Bend Station) ) ,

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i OPPOSITION OF GULF STATES UTILITIES COMPANY  !

TO THE PETITION TO INTERVENE AND REQUEST FOR A HEARING OF CAJUN ELECTRIC POWER COOPERATIVE, INC.

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Joseph'B. Knotts, Jr. l Mark J. Wetterhahn .

David M. Souders Winston & Strawn 1400 L Street, N.W. I Washington, D.C. 20005-3502 i

Counsel for Gulf States Utilities Company August 23, 1993 i 9308260019 930823 I m PDR ADOCK 05000458 p o PDR: p ) y-j

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TABLE OF CONTENTS r i

i I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 1 II. DISCUSSION . . . . . . . . . . . . . . . . . . .. . . . . 3 l

A. Factual Background and Related Proceedings . . . . . 3 ,

B. Cajun's Assertion Before the Licensing Board That a Hearing Is Mandated Before the Requested Amendments ,

Are Issued Is Misdirected . . . . . . . . . . . . . 8 ,

1. The Staff May Issue License Amendments Without l a Hearing . . . . . . . . . . . . . . . . . . 8 '
2. The Determination of No Significant Hazards l Consideration Lies Solely Within the l Discretion of the NRC Staff . . . . . . . . . 8 C. Cajun Has Failed to Satisfy the Commission's Requirements for Intervention . . . . . . . . . . . 11
1. The Economic " Injury" Alleged by Cajun Is Not Cognizable Under the Atomic Energy Act or the Commission's Regulations as a Basis for Intervention . . . . . . . . . . . . . . . . . 14
2. The Injury Alleged by Cajun Cannot be " Fairly.

Traced" to the Proposed Amendments and Is Too Speculative to Support Intervention . . . . . 17

3. Cajun Has Not, Nor Can It, Identify Any Injury to Its Members as a Result of the Issuance of the License Amendments . . ., . . . . . . . . 20
4. Cajun Has Failed to Satisfy the Requirements for Discretionary Intervention . . . . . . . . 25 1
5. Stripped Bare, Cajun's Petition for Intervention Represents an Effort to Obtain a

" Deep-Pocket" Defendant . . . . . . . . . . . 26 l III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 27 i

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TABLE OF AUTHORITIES CASES i I

Allen v. Wright, 468 U.S. 737 (1984) . . . . . . . . . . . 14 e Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-91-4, 33 NRC 153 I (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 24 l Arlincton Heichts v. Metropolitan Housina Development Corp., 429 U.S. 252 (1977) . . . . . . . . . 18 Citizens Ass'n for Sound Enerav v. NRC, 821 F.2d 725 ,

(D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . 8 i

Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 NRC 114 (1992) . . . . . . 18 Dellums v. NRC, 863 F.2d 968 (D.C. Cir. 1988) . . . . . . . . 13 Detroit Edison Company (Enrico Fermi Atomic Power Plant,  ;

Unit 2), LBP-78-11, 7 NRC 381 aff'd, ALAB-470, 7 NRC 473 (1978) . . . . . . . . . . . . . . . . 16, 19, 26 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),  ;

ALAB-825, 22 NRC 785 (1985) . . . . . . . . . ., . . . 11 ,

t Duke Power Co. v. Carolina Environmental Study Group. Inc., I 438 U.S. 59 (1978) . . . . . .. . . . . . . . . . . . . 17 Florida Power and Licht Co. (Turkey Point Nuclear j Generating Plant, Units 3 and 4),.ALAB-952, j 33 NRC 521 (1991) t

. . . . . .. . . . . . . . . 22, 23, 24 L 1 l Florida Power and Licht Co. (Turkey Point Nuclear i

j. Generating Plant, Units 3 and 4), LBP-89-15, j 29 NRC 493 (1989) . . . . . . . . . . . . . . . . . . . 9

\ \

florida Power & Licht Co. (St. Lucie Nuclear Power Plant, )

Unit 1), LBP-88-10A, 27 NRC 452 (1988), aff'd on other j crounds, ALAB-893, 27 NRC 627 (1988) . . . . . . . 9, 11 1

Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 i and 2), LBP-91-33, 34 NRC 138 (1991) . . . . . . . . . . 24' i l

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t Houston Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 16 ,

Houston Lichtina and Power Co. (South Texas Project,  !

Units 1 and 2), ALAB-549, 9 NRC 644 (1979) . . . . . . . 22 l i

t Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439 (1979), aff'd,  !

ALAB-549, 9 NRC 644 (1979) . . . . . . . . . . . . . 22, 24 i Hunt v. Washinaton Acole Commission, 432 U.S. 333 '(1977) . . 23 (

Kansas Gas & Electric Co. (Wolf Creek Generating Station,  ;

Unit 1), ALAB-424, 6 NRC 122 (1977) . . . . . . . . . . 21 Linda _R.S. v. Richard D., 410 U.S. 614 (1973) . . . . . . . . 18 i I

Long Island Lichtina Co. (Shoreham Nuclear Power Station,  ;

Unit 1), CLI-90-8, 32 NRC 201 (1990) . . . . . . . . . . 16 l Lona Island Lichtina Co. (Shoreham Nuclear Power Station,  !

Unit 1) , LBP-91-1, 33 NRC 15 modified, LBP-91-23, {

33 NRC 430 (1991) . . . . . . . . . . . . . . . 12, 17, 21 l

'l Lena Island Lichtina Co. (Shoreham Nuclear Power Station, I Unit 1), LBP-91-7, 33 NRC 179, 193 (1991) . . . . . . . 21 i

Lona Island Lichtina Co. (Shoreham Nuclear Power Station,  !

Unit 1), LBP-91-26, 33 NRC 537 (1991) . . . . . . . . . 9 l

Luian v. Defenders of Wildlife, U.S. , 112 S. Ct. l 2130 (1992) . . . . . . . . . . . . . . . . . . . . 12, 14 ]

Metropolitan Edison Co. (Three Mile Island Nuclear  ;

Station, Unit 1), CLI-83-25, 18 NRC 327 j (1983) . . . . . . . . . . . . . . . . . 12, 13, 14, 16, 19 R gississippi Power and Licht Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23, 19 NRC 1412 (1984) . .. . . . . 8, 10 1

Northern States Power Co. (Pathfinder Atomic Plant),

LBP-89-30, 30 NRC 311 (1989) . . . . . . . . . . . . . . 24  ;

1 Northern States Power Co. (Tyrone Energy Park, Unit 1),

CLI-80-36, 12 NRC 523 (1980) . . . . . . . .. . . . . . 14  ;

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Nuclear Encineerina comoany. Inc. (Sheffield, Illinois, l Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978) . . . . . . . . . . . . . . . . . . 14, 25 Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1),

LBP-91-38, 34 NRC 229 (1991) . . . . . . . . . . . . . . 18 Philadelphia Electric Company (Limerick Generating Station,  ;

Units 1 and 2), LBP-82-43A, 15 NRC 1423 (1982) . . . . . 11 Portland General Electric Co. (Pobble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 ^

(1976) . . . . . . . . . . . . . . . . . . . . . 12, 16, 26 Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976) . . . . . . . . . . . . . . . . . . . . . . . 11 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generatina Station. Units 1 and 2). ALAB-459, 7 NRC 179 (1978) . . . . . . . . . . . . . . . . . . . . . . . 17 Pucet Sound Power and Licht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC-981 ,

(1982) . . . . . . . . . . . . . . . . . . . . . . . . . 23 l l

Shoreham-Wadina River Central School District v. NRC, j 931 F.2d 102 (D.C. Cir. 1991) . . . . . . . . . . . . . 12 Sierra Club v. Morton, 405 U.S. 772 (1972) . . . . . . . . . 12 Simon v. Eastern Kv. Welfare Richts Orcanization, 426 U.S. 26 (1976) . . . . . . . . . . .~ . . . . . . 17, 22 Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977) . . . . . . 25 Vallev Force Christian Collece v. Americans United for Separation of Church and State. Inc.,

454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . 14 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838 (1987), aff'd in cart, rev'd in part, on other arounds, ALAB-869, 26 NRC 73 (1987) . - . . . . . . . . . . . . . 9 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear  ;

Power Station), LBP-87-7, 25 NRC 116 (1987) . . . . . . 11  !

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o Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear f Power Station), LBP-90-6, 31 NRC 85 (1990) . . . . . 9, 11 Washincton Public Power Supolv System (WPPSS Nuclear  ;

Project No. 1) , - ALAB-771, 19 NRC 1183 (1984) . . . . . . 27

  • Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . 17 l

STATUTES AND REGULATIONS  !

Dassim Atomic Energy Act, 42 U.S.C. 5 2011, gt sea. . . . . . .

National Environmental Policy Act of 1969, 42 U.S.C. S 4321, et sea. . . . . . . . . . . . . . . . 14 10 C.F.R. S 2.714 . . . . . . . . . . . . . . . . . . . . . . 28 i

10 C.F.R. S 2.714 (a) (2) . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. S 2.732 . . . . . . . . . . . . . . . . . . . . . . 13 10 C.F.R. S 50.58 (b) (6) . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. S 50.80 . . . . . . . . . . . . . . . . . . . . . . 1 10 C.F.R. S 50.91 . . . . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. S 50.92 . . . . . . . . . . . . . . . . . . . . . 9 51 Fed. Reg. 7744 . . . . . . . . . . . . . . . . . . . . . . 8 58 Fed. Reg. 16,246 . . . . . . . . . . . . . . . . . . . . 2

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i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD f I

t In the Matter of )

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GULF STATES UTILITIES COMPANY ) Docket No. 50-458  !

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(River Bend Station) )  ;

l OPPOSITION OF GULF STATES UTILITIES COMPANY TO THE PETITION TO INTERVENE AND REQUEST FOR i A HEARING OF CAJUN ELECTRIC POWER COOPERATIVE, INC. l I. INTRODUCTION On January 13, 1993, Gulf States Utilities Company  :

("GSU") filed two applications relating to Facility Operating License NPF-47 (" License") for the River Bend Station - Unit 1 ,

(" River Bend"). The first application sought the NRC's consent pursuant to 10 C.F.R. S 50.80 to a change of control over GSU and ,

a conforming amendment to the operating license - to reflect the change in control over the licensee (" merger application") .I' The !

l second application sought a license amendment to reflect a change i in the licensed operator of the facility from GSU to Entergy Operations, Inc. ("EOI"), a subsidiary of Entergy Corporation

("Entergy") (" operator application").2/

By notices published in the Federal Register on July 7, 1993 (58 Fed. Reg. 36,423, 36,435 and 36,436), the Nuclear Regulatory Commission ("NRC" or " Commission") provided an opportunity for interested members of the public to request a l'

See License Amendment --

Change in Ownership of Licensee, dated January 13, 1993.

7' See License Amendment -- Change in Licensed operator of the Facility, dated January 13, 1993.

i hearing and petition for leave to intervene regarding the two l

amendments to the License. In addition, the notices invited public  !

comment on the NRC Staff's (" Staff") proposed determination that {

i the license amendments involve "no significant hazards considerations." A separate Federal Register notice was issued concerning the antitrust implications of the proposed merger of GSU j and Entergy. See 58 Fed. Reg. 16,246 (1993).  !

On August 6, 1993, in response to the notices, Cajun j i

Electric Power Cooperative, Inc. (" Cajun") filed a single document ,

(hereinafter, " Cajun Petition") addressing the Staff's proposed  !

findings of no significant hazards consideration, as well as petitioning for intervention and a hearing. Except for one general l

heading and footnote 5 of its Petition, the pleading of Cajun deals  ;

i solely with the license amendment to authorize EOI to operate River 4

Bend. Therefore, the Atomic Safety and Licensing Board should consider the Cajun Petition only as a request for a hearing in the  :

operator application proceeding.I' For the reasons set forth below, the Atomic Safety and ,

, Licensing Board should deny Cajun's request for a hearing and {

l' On August 17, 1993, eleven days a- .ar the date on which .

petitions to intervene and comments were due to be filed with  !

the NRC, Cajun filed an " Amendment" to its previously filed i document. Once again, however, Cajun's arguments run only to  ;

the operator application. Moreover, as will be discussed in l a separate response to Cajun's purported amendment, the additional pleading adds nothing to Cajun's prior arguments. ,

Indeed, Cajun's amendment provides further evidence of the  !

purely economic interest Cajun is attempting to assert and  ;

shows that any purported " injury" to Cajun is not sufficient to support standing in this matter.

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t petition for intervention regarding the operator application 'l l

because Cajun lacks standing to participate in these health-and i safety proceedings. In addition, Cajun neither requested discretionary intervention, nor does it meet the criteria for such ,

intervention. Moreover, the preliminary Staff dete. 'ainations of no ,

significant hazards consideration associated with each of the l proposed amendments are not before the Board and may not be  ;

considered by the Board. Therefore, Cajun's comments on the Staff's preliminary determinations should be referred to the NRC I Staff.f' Finally, Cajun's demand for substantive relief is misdirected, premature and, in any event, without merit.

II. DISCUSSION A. Factual Backcround and Related Proceedings GSU does not dispute Cajun's description of the parties as set forth in Section III of its pleading. See Cajun Petition at 5-9. There are, however, several other points relevant to the present proceeding that must be made to give a balanced picture.

First, Cajun makes no mention of the fact that the two proposed amendments will not affect the ownership of River Bend.

GSU and Cajun will continue to own River Bend and share responsibility for the cost of the operation of the facility in proportion to their ownership shares, 70% and 30%, respectively.

i' For this reason, GSU is filing contemporaneously with the Staff its response to Cajun's comments on the Staff's finding i of no significant hazards consideration. A copy of GSU's response is attached hereto for the information of the Licensing Board.

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After the merger, GSU will no longer be a publicly owned, independent utility; rather, GSU will conduct its business as a i i'

wholly owned subsidiary of the newly reconstituted (upon consummation of the merger) Entergy Corporation, with its electric f operations fully integrated into those of the Entergy System.F In '}

addition, with the NRC's approval, EOI, a subsidiary of Entergy Corporation, will assume GSU's licensed operating role and ,

responsibility for the facility. l t

It is also important to note that River Bend is currently l operated solely by GSU pursuant to a longstanding agreement between GSU and Cajun. Under the Joint Ownership Participation and {

l Operating Agreement dated Augur,c 2E , 1979, as amended, Cajun and j GSU agreed that CSU would act, as tne agent for Cajun and that GSU

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l would have exclusive responsibility and may exercise its absolute  !

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-iudament over the construction, operation, and maintenance of River i

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J F See License Amendment -- Change in Ownership of Licensee, dated January 13, 1993, Attachment 1, at 1.

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i Bond .s' This fact is important because the license amendments will {

not -- indeed cannot -- affect Cajun's interest in River Bend.I' Moreover, it is significant, as Cajun correctly notes, that EOI, as a subsidiary of Entergy, is presently operating four (

l other nuclear units: Arkansas Power & Light Company's Arkansas 'l Nuclear One, Units 1 and 2 ("ANO"); Louisiana Power & Light Company's Waterford Unit 3 ("Waterford"); and System Energy i

Resources, Inc.'s Grand Gulf Unit 1 (" Grand Gulf"). EOI's ),

operation of these other facilities is also important because there i

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s' Article 8.2 states that: "GSU shall have plenary authority to i manage, control, maintain, and operate River Bend . . . and shall take all steps which it deems necessary or appropriate for that purpose." See Joint Ownership, Participation and Operating Agreement ("JOPOA"), at 57. Among its other delegated powers is:

The execution and filing with the NRC and other regulatory agencies having _ jurisdiction of applications, amendments, reports, and other 4 documents and filings required in connection with licensing and other regulatory matters which GSU in its absolute iudament deems necessary or appropriate, including but not limited to applications for extension or renewal of the terms of the Operating Licenses from the NRC.

Id. at 26 (emphasis added).

2/ The operating license application named GSU as'the operator i and contained GSU's technical qualifications for such a role. j The application did not seek any operational role for Cajun,  ;

which delegated operating responsibility _ to GSU and, accordingly, contained no information on the technical qualifications for Cajun. Ultimately, in issuing the operating license for River Bend, the NRC found that GSU had the technical qualifications to operate the plant,_ but, consistent with the application, made no such finding for ,

Cajun. See Operating License at 1. For this reason, only GSU l is currently authorized to operate the plant.

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l can be no question that it has the technical qualifications to operate River Bend.I' l

Also important is a proper understanding of the "other I litigation" that has been initiated by Cajun against GSU. Cajun would have this Board believe that there is no question that it will prevail in its other litigation. See, e.a. , Cajun Petition at 11 ("when Cajun prevails in the litigation . . . "). A fairer view of the "other litigation" demonstrates that, contrary to Cajun's assertions, the chance of Cajun prevailing and obtaining "at least

$1.6 billion" is entirely too speculative and remote to be of any consequence here in determining the interest of the petitioner.

Indeed, GSU is defending such suits vigorously and has in fact l counter-sued Cajun. Moreover, the first of Cajun's civil actions is not presently scheduled for trial until October 1994. See Cajun's Petition at 19. This date assumes no delay in the trial date and does not factor in the time it will take to reach a final 4 decision on the merits if either side exercises its rights to appeal from any judgment.2' l Cajun provides no evidence or reasoning to support its proposition that the NRC should assume for purposes of these l' Indeed, the Commission recently recognized the Grand Gulf facility as one with a sustained high level of safety performance. See Periodic Briefing on Operating Reactors and l Materials facilities, June 25, 1993. l l

2' l Cajun has not identified a trial date for the action filed by Southwest Louisiana Electrical Membership Corp. and Dixie l Electric Membership Corp. in the Western District of Louisiana. See Cajun Petition at 19.

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proceedings that Cajun will obtain a $1.6 billion judgment against l

GSU and/or rescission / nullification of the JOPOA.D' More importantly, as discussed below, Cajun fails to assert how GSU's merger with Entergy or the operation of River Bend by EOI will affect its pending litigation or its interest in this proceeding.  ;

Even if Cajun were fully successful in its litigation against GSU, by Cajun's own admission the most drastic consequence would be tha safe shutdown of River Bend. But whether or not River Bend continues to produce electricity is solely an economic concern and, i

affected by the outcome of the litigation, rather than by the  ; .

issuance of the requested amendments. The NRC's interest is in the l safe operation and, if necessary, the safe shutdown of the plant.

As will be discussed below, Cajun has failed to identify how its t

litigieus activities constitute an interest within the scope of those cognizable by the NRC, i.e., public health and safety and i

environmental concerns. ,

D' Certainly, Cajun cannot be asserting that GSU's statements ,

filed with the Securities and Exchange Commission alerting its shareholders and potential investors of the existence and potential ramifications of the Cajun litigation is recognition ,

by GSU that Cajun's actions have merit. See Cajun's Petition  :

at 27. GSU is only complying with legal and fiduciary disclosure requirements. Any attempt to infer from such ,

disclosure an admission that Cajun will prevail is without  :

merit. Moreover, the fact that the Federal Energy Regulatory  ;

Commission ("FERC") heard testimony, inter alia, of the potential impact of the litigation is of no consequence here as it only underscores that the agency with primary jurisdiction over economic consequences has considered the 1 potential impact of the litigation on rates and that Cajun has  !

already had a hearing on its claims. l l

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B. Cajun's Assertion Before the Licensing Board That a ,

Hearing Is Mandated Before the Requested Amendments are Issued Is Misdirected.

, 1. The Staff May Issue License Amendments Without a l

Hearinc.

j In its petition, Cajun argues that in this case a hearing l must be held in accordance with Section 189a of the Atomic Energy Act of 1954, as amended ("AEA"), 42 U.S.C. 5 2239(a), before the requested amendments are issued. Cajun Petition at 12-14. Cajun l is incorrect. Section 189a, as amended in 1983, provides that j l

"where the Commission determines that a license amendment involves l

no significant hazards consideration, the amendment 'may be issuec l and made immediately effective in advance of the holding and 1

completion of any required hearing.'" Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23, 19 NRC 1412, l

1414 (1984). See also 51 Fed. Reg. 7744, 7747, 7759 (1986), " Final Procedures and Standards on No Significant Hazards Considerations";

Citizens Ass'n for Sound Enerav v. NRC, 821 F.2d 725, 728, n.2 1

l (D.C. Cir. 1987) (the 1983 amendments to the AEA alleviated the 1

mandatory requirement for a pre-amendment hearing on an amendment to an operating license involving a no significant hazards consideration finding).

2. The Determination of No Significant Hazards Consideration Lies solely Within the Discretion of the NRC Staff.

l In its pleading, Cajun spends considerable time commenting on the Staff's no significant hazards consideration determination. Cajun's Petition at 12-26. Cajun's comments are l

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i misdirected and its request for review by the Licensing Board is inappropriate.

First, it is well-established that the issue of whether .

l a proposed amendment to an operating license involves a "significant hazards consideration," as that term is defined in 10 C.F.R. S 50.92, is a matter clearly within the discretion of the Staff and is not subject to any review by a Licensing Board. 10 l

C.F.R. S 50.58 (b) (6) ; Lona Island Lichtina Co. (Shoreham Nuclear i

Power Station, Unit 1), LBP-91-26, 33 NRC 537, 545 (1991).H' It is well-established that a Licensing Board lacks jurisdiction to  !

consider an intervenor's challenge to the NRC Staff's "no i significant hazards consideration" determination under 10 C.F.R.

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l S 50.91. See Vermont Yankee-Nuclear Power Coro. (Vermont Yankee I Nuclear Power Station) , LBP-87-17, 25 NRC 838, 844 (1987), aff'd in l part, rev'd in cart, on other arounds, ALAB-869, 26 NRC 13 (1987).

See also Vermoqt Yankee Nuclear Power Corp. (Vermont Yankee Nuclear l Power Station), LBP-90-6, 31 NRC 85, 90-91 (1990); Florida Power and Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-89-15, 29 NRC 493, 499-500 (1989); Florida Power & Licht i Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 457 (1988), aff'd on other arounds, ALAB-893, 27 NRC 627 l

E' In Shoreham, the Board labeled petitioner's attempt to take issue with the Staff's no significant hazards consideration determination " frivolous." LBP-91-26, 33 N.R.C. at 545.

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(1988).E' In short, while Cajun is entitled to submit comments to the Staff, there is no authority for Cajun to contest or otherwise request a Licensing Board to consider in a license ' amendment proceeding the Staff's determination of no significant hazards consideration.

Nor can a Licensing Board review the immediate  !

effectiveness of a license amendment issued on the basis of a "no significant hazards consideration." The 1983 amendments to the AEA I make clear that "where the Commission determines that a license i amendment involves no significant hazards consideration, the amendment 'may be issued and made immediately effective in advance of the holding and completion of any requested hearing.'" Grand Gulf, 19 NRC at 1414, citina 42 U.S.C. S 2239(a) (2) (A) .

Accordingly, to the extent that Cajun is asking for a Board hearing on the issue of- "no significant hazards consideration," there is simply no authority for holding a hearing to review the Staff's proposed --

or final --

determination.H' E' Without foundation, Cajun would have the Licensing Board add additional criteria to the "no significant hazards consideration" determination. For example, Cajun would have the NRC examine " unnecessary disruption or delay in the operation of River Bend." Cajun Petition at 15. Moreover, its argument that other approvals, such a, by FERC, are many months away is incorrect. For example, a FERC decision is expected by the end of this year.

$ Cajun is incorrect in its assertion that a hearing is necessary for full consideration of its arguments on the Staff's preliminary determination. See Cajun Petition at 25-

26. The Board's authority for the hearing after the issuance of the amendments is "to consider and take corrective action (continued...)

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i l See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985) (Licensing Boards are delegates of the Commission and "may exercise authority over only those matters that the Commission commits to them." (footnote omitted)); Public l l

Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating l Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976) (same). c C. Cajun Has Failed to Satisfy the Commission's Requirements for Intervention, i Petitioners for intervention are required by Commission regulations --

specifically, 10 C.F.R. S 2.714 (a) (2) --

to set  ;

forth with particularity in their petitions their interest in the proceeding, how that interest might be affected by the result of the proceeding, the reasons why they should be permitted to intervene, and the specific aspects of the subject matter as to which intervention is sought. Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1431 (1982), citino 10 C.F.R. S 2.714 (a) (2) . See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

LBP-87-7, 25 NRC 116, 118 (1987).

E(... continued) in any threat to the public health and safety disclosed at any subsequent hearing. " St. Lucie, LBP-88-10A, 27 N.R.C. at 457.

See also Vermont Yankee, LBP-90-6, 31 N.R.C at 89, n.6 (the subject matter of the hearing " relates to the question of  :

public health and safety of the proposed action (issuance of j the amendment)"). While not yet an issue before the Board, l GSU has addressed the public health and safety aspects of the l two amendments in its applications and in its response to the i Cajun Comments that is being filed contemporaneously with the  !

Staff. l I

. . - . . . . - ~- - .

l The Coraission has held that it will employ judicial concepts to determine whether a petitioner has sufficient interest  !

in a proceeding to be entitled to intervene as a matter of right  ;

under Section 189a. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1) , CLI-83-25, 18 NRC 327, 332 (1983), citina  !

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units  !

1 and 2), CLI-76-27, 4 NRC 610 (1976); Lona Island Lichtina Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15, 21-i 22, modified, LBP-91-23, 33 NRC 430 (1991). i 1

Judicial concepts of standing require a petitioner to show: (1) that he has personally suffered a distinct and palpable ]

harm that constitutes injury-in-fact; (2)'that the injury fairly I

can be traced to the challenged action; and (3) that the injury is-likely to be redressed by a favorable decision. Luian v. Defenders of Wildlife, U.S. , 112 S. Ct. 2130, 2136 (1992) ;H' Sierra -

Club v. Morton, 405 U.S. 772, 740-41 (1972) ; Shoreham-Wadina River M' In Luian, the Court elaborated on the three elements for standing:

First, the plaintiff must have suffered an " injury in

, fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized . . .; and (b)

" actual or imminent, not ' conjectural' or

' hypothetical,'" . . . . Second, there must be a causal connection between the injury and the conduct complained

of -- the injury has to be " fairly . . . trace [able) to the challenged action of the defendant, and not . . .

th[e] result [of) the independent action of some third

-party not before the court." . . . Third, it num. be "likely," as opposed to merely " speculative," that the t

injury will be " redressed by a favorable decision."

112 S. Ct. at 2136 (citations and footnote omitted).

I

[

I l Central School District v. NRC, 931 F. 2d 102, 105 (D.C. Cir. 1991) ;  !

Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir. 1988). See also Three j Mil.e Island, 18 NRC at 332 (petitioner must show that (a) the l I

action sought in a proceeding will cause " injury-in-fact," and (b) i tne injury is arguably within the " zone of interests" protected by statutes governing the proceeding). l In its petition, Cajun raises three purported " interests" in an attempt to satisfy its burden under 10 C.F.R. S 2.732 to  ;

i demonstrate the requirements for intervention. Cajun Petition at  !

I 10-11. For the reasons discussed more fully below, Cajun's .

purported " interests" are insufficient as a matter of law. In l short, the first two interests identified by Cajun -- specifically, the River Bend litigation and the Texas litigation -- are simply financial concerns unrelated to the two license amendments at issue here. Despite its protestations, Cajun's financial concerns do not constitute a injury that can be redressed by the NRC in a license amendment hearing pursuant to the Atomic Energy Act. The final interest, that of the "end-use consumers resid[ing) in the geographic area surrounding River Bend," is not an interest that Cajun may assert on behalf of this general class, nor has Cajun l

demonstrated any cognizable " interest" even if asserted by these unnamed consumers on their own behalf.

4 s- * -e

t i

~

f

1. The Economic " Injury" Alleged by Cajun Is Not Cognizable Under the Atomic Energy Act or the I a

Commission's Regulations as Basis for Intervention.

The interest of a petitioner sufficient to confer ,

standing in a particular proceeding is not presumed. Rather, a l proposed intervenor must demonstrate a cognizable interest that '

l will be affected by one or another outcome of the proceeding. The  ;

interest must be within the " zone of interests" protected by the AEA, the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. S 4321, e_t sea., as amended, or the Commission's ]

l regulations. Three Mile Island, 18 NRC at 327. See also Allen v.

Wricht, 468 U.S. 737, 751 (1984) (standing requires "that a plaintiff's complaint fall within the zone of interests protected by the law invoked"); Vallev Force Christian Collece v. Americans United for Seoaration of Church and State. Inc., 454 U.S. 464, 475 (1982). A petitioner must also demonstrate the real possibility that concrete harm to that interest could flow as a result of the proceeding. Nuclear Enaineerina Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, i

1 741-43 (1978). Finally, the petitioner must show that, if he prevails, the alleged injury likely will be redressed by a favorable Commission " action." Luian, 112 S. Ct. at 2136. jiee also Forthern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 526-27 (1980) (views of Chairman Ahearn and  !

Commissioner Hendrie) (economic injury to ratepayers from the 1

i e

termination of the project cannot be redressed by the Commission  ;

i because it cannot order that the plant be built).  !

Cajun's stated " interest" in this proceeding is l

" maintaining the safe and reliable operation of River Bend." Cajun  ;

Petition at 11, 17. Although giving an obligatory nod to the word

" safe," it is clear that Cajun's stated interest as a 30% co-owner l of the River Bend facility is simply in assuring the continued output of electricity from River Bend at the lowest possible cost to the co-owners.U' The threat of harm to Cajun's " interest" set '

forth in its petitica for intervention is that the outcome of the i

pending litigation, rather than the issuance of the two amendments,  ;

may force the plant to be shut down. Whether or not River Bend [

continues to produce electricity, however, is of no concern to the NRC as long as the plant, if and when it can no longer be operated j for any reason, can be shut down and maintained safely in a shut I

down condition. As the Commission held in Shoreham, "LILCO is l legally entitled under the Atomic Energy Act and our regulations to make, without any NRC approval, an irrevocable decision not to operate Shoreham. The alternative of $ resumed operation' --

or other methods of generating electricity -- are alternatives to the decision not to operate Shoreham and are thus bevond Commission D' At times, Cajun appears to be attempting to assert an interest on behalf of Entergy. See Cajun Petition at 18 (the other litigation may result in a " substantial detrimental impact on Entergy and its shareholders and ratepayers") . Of course, Cajun has no authority to represent such interests and the Board should disregard any purported attempts by Cajun to do so.

l  :

j l

I consideration." Lona Island Lichtina Co. (Shoreham Nuclear Power

, Station, Unit 1), CI I -9 0-8 , 32 NRC 201, 207 (1990) (emphasis  !

l added)). The Commission has "no authority to mandate operation of the facility." Id. at 208 n.4.  ;

i Cajun has not raised any concern as to the safe shutdota ";

I of River Bend, whether arising from the proposed license amendments l or not, such as would constitute a cognizable interest under NRC  !

regulations governing intervention. But a petitioner seeking f l'

intervention "must particularize a specific injury that it or its members would or might sustain as a result of our actions . . . .

Three Mile Island, 18 NRC at 332.

f Not only is Cajun's purely economic injury not l T

redressable by the NRC, such concerns are beyond the " zone of r

interests" protected by the Atomic Energy Act in a licensing j proceeding. It has never been successfully disputed that "the f

protected interests under the Atomic Energy Act relate to  !

radiological health and safety." Detroit Edison Company (Enrico

-l Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 385, i aff'd, ALAB-470, 7 NRC 473 (1978). See also Three Mile Island, 18 NRC at 332 (assertions of " broad public interest . . . however [

noteworthy, do not qualify [ petitioner) for intervention in [NRC]

proceedings); Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976) (an alleged

" interest" in avoiding the possibility of future rate increases is not within the zone of interest protected by the AEA); Houston [

'~

I l

Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-582, 11 NRC 239, 242 (1980) (future economic irterest in real estate does not confer standing to intervene under the AEA l or NEPA); Public Service Co. of Indiana, Inc. (Marble Hill Nuclear i i

Generating Station, Units 1 and 2) , ALAB-459, 7 NRC 179, 198 (1978) >

(Licensing Board lacked authority to exclude items from the utility's rate base as this was an economic issue for the state regulatory agency) ; Shoreham, LBP-91-1, 33 NRC at 22-23 (" economic concerns are more properly raised before state economic regulatory agencies"); id. at 30 (a stated interest in obtaining sufficient amounts of electricity at reasonable rates is insufficient to confer standing).

2. The Injury Alleged by Cajun Cannot be " Fairly Traced" to the Proposed Amendments and Is Too Speculative to support Intervention.

Another deficiency in Cajun's allegations of injury is that they cannot be " fairly traced" to the two licanse amendments l at issue here. Simon v. Eastern Kv. Welfare Richts Oro., 426 U.S.

26, 41-42 (1976). As the Supreme Court added later, "this i requirement of a ' personal stake' in the outcome, has come to be understood to require not only a ' distinct and palpable injury' to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501 (1975), but also a ' fairly traceable' causal connection between the claimed injury i

and tne cnallenged conduct." Duke Power Co. v. Carolina l ,

Environmental Study Group. Inc., 438 U.S. 59, 72 (1978), citinc l l

l

,- - .- -- ,.m--

-- - .~- -

I I

l i

i Arlincton Heichts v. Metropolitan Housinc Dev. Corp. , 429 U.S. 252, 261 (1977); Linda R.S. v. Richard D., 410 U.S. 614 (1973). j l

At bottom, Cajun asserts that if it is successful in its j "other litigation," then River Bend might. be forced to shut l down.M' But whether or not the plant is shut down does not depend on GSU becoming a wholly owned subsidiary of Entergy or EOI assuming responsibility for operation of River Bend, i.e., the issuance of the two amendments. As previously noted, the responsibility for the costs of plant operation will remain with GSU and Cajun and wi11 not be transferred to EOI.E' The two proposed amendments have no effect on that responsibility.

In addition to being unrelated to the amendments at issue, Cajun's purported injury -- i.e., plant shutdown -- is too speculative to be the basis for intervention. It is well-established that an abstract, hypothetical injury is insufficient to establish standing to intervene. Ohi,o Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229, 252 (1991). Compare Cleveland Electric Illuminatino Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 NRC 114, 123 (1992) (An alleged future injury i

1 1

M' It is ironic indeed that Cajun is suing GSU in a different forum and complaining here that a judgment entered in that  !

suit will have a significant economic impact giving rise to an interest in this proceeding.

~

E' The amendment applications make clear that EOI claims no independent financial qualifications. Under the proposed amendments, EOI is not required to have such qualifications.

. , - - _ _. - I

l

.k which is realist ically threatened and immediate, and not merely speculative, may establish standing to intervene).  ;

In this proceeding, Cajun is asserting that its future success in "other litigation" will cause injury such that the  !

i Licensing Board should recognize Cajun as having a sufficient l interest for intervention. Cajun's purported " injury" is the type i

of speculative injury that has been found inadequate to establish  !

standing. For example, allegations of cost overruns for plant j construction have been found too speculative to support l i

intervention. Enrico Fermi, 7 NRC at 392.H' See also Three Mile  !

r Island,18 NI4 at 333 (alleged injury from further participation of l a certain NRC Commissioner in the decisionmaking process for the restart of TMI-1 held to be " remote" where the approval for rest: Art  !

"may or may not be granted notwithstanding the action" of that  ;

Commissioner).

Funding for River Bend operations will remain, as it is today, tha responsibility of the owners of the facility. The ;

pr. posed amendments do not change the ownership of the facility or the capabilities of the owners to pay for the costs of operation of the unit. GSU, currently an owner of a 70% undivided interest in River Bend, will become a wholly owned subsidiary of a newly formed 1

B' Indeed, Cajun may simply lose in its other litigation. If ,

that were the case, Cajua's purported reasons for a hearing ,

would vanish. Alternatively, Cajun may be held liable on l GSU's counterclaim for damages -- an issue not even raised, l much less discussed, by Cajun. Even were Cajun to prevail, it l

, would require further speculation to postulate the shutdown of 1 the unit.  !

1

i 6

holding company to be called Entergy Corporation. Yet, GSU will continue to retain its 70% undivided ownership interest in the facility. Likewise, Cajun will maintain its 30% undivided ownership interest in River Bend. Just as today, GSU and Cajun, as owners of River Bend, will continue to be responsible for the costs l of operation of the plant after the two amendments take effect.F i

cajun fails to explain how amendments that will not change funding for the plant -- the cele concern it has raised in this matter -- i i

affect its interest or adversely impacts GSU's financial qualifications as an owner of River Bend.E Indeed, while Cajun

)

attempts to give the impression that the two proposed amendmen+.s l

  • 11srupt the financial status quo, GSU's financial qualifications j will be utterly unaffected. Therefore, the ability to safely shut

)

down River Bend and maintain it in a safe condition will not be adversely affected by the changes contemplated in the two proposed amendments.

3. Cajun Has Fe
  • Can It, Identify Any Injury to Its Membert an e asult of the Issuance of the License Amt 'm y Recognizing that it does not have standing in its own right since its injury is, at most, solely a pocketbook issue, i

l l

F In the event GSU is unable, for whatever reason, to finance i operation of the plant, Cajun has the right under the JOPOA to step in and provide-funding for continued plant operations.

JOPOA at 72-73.

U While Cajun alludes to the capitalization of EOI, this is merely a " straw man." GSU is not relying on EOI for a demonstration of financial qualification.

4 i

i Cajun attempts to assert the rights of some unnamed individual i

, consumers living near River Bend. Specifically, Cajun asserts that ,

1 the end-use consumers of Dixie Electric Membership Corporation

("DEMCO") " reside in the geographic area surrounding River Bend";

therefore, these individuals have "an interest in the continued safe and reliable operation of River Bend, as such operation would P

be adversely affected by the outcome of the Cajun litigation or the Texas litigation." Cajun Petition at 11. Cajun's logic is faulty. i i

Any " interest" asserted by local consumers of electrical power I would likewise fail as a mere allegation of potential economic harm. Shoreham, LBP-91-1, 33 NRC at 30; Shoreham, LBP-91-7, 33 NRC i

at 193;U' Kansas Gas & Electric Co. (Wolf Creek Generating l 1

Station, Unit 1), ALAB-424, 6 NRC 122, 128 n.7 (1977) (economic interest of ratepayer not sufficient since concerns about rates are not within the scope of interests protected by thn AEA). I 1

Further, to establish the requisite " injury-in-fact" for standing, a petitioner must have a "real stake" in the outcome, that is, a genuine, actual, or direct stake in the outcome.

E' Nor is Cajun entitled to any presumption that simply because an organization is, or its members are, within "close proximity" of River Bend that they are entitled to standing.

Such a presumption is only applied in cases- involving "significant amendments" relating to " operation of the reactor itself, or major alteration to the facility"'such that there is an " obvious potential" for of fsite consequences. Shoreham, LBP-91-1, 33 NRC at 22. The alleged injury here is fincncial

' loss due to a putative shutdown of the reactor. Consequently, there could not be, nor has Cajun alleged, any obvious potential for offsite radiological consequences. Accordingly, j there is no basis to presume standing under such circumstances.

i Houston Lichtina and Power Co. (South Texas Project, Units 1 and 1

2), LBP-79-10, 9 NRC 439, 447-448 (1979). An organization can meet the injury-in-fact test for standing in one of two ways. It may i

demor. strate an effect on its organizational interest that is within the zone of interests protected by the Atomic Energy Act. Or it  !

may allege that its members, or any one of them, are suffering i a

inn ediate or threatened injury as a result of the challenged action i such that the individuals themselves would have standing. Simon, i

426 U.S. at 40. l l

If the organization seeks to represent an individual's l interests in a proceeding, it must also demonstrate that it has the j 1

authority to represent that person's interest. Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2) , ALAB-549, 9 NRC 644, 646 (1979). See also Florida Power and Licht Co. (Turkey i Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, 33 NRC 521, 528-30 (1991). Cajun has failed to show organizational i

I standing on its own behalf or on behalf of its members and has even failed as a threshold matter to show authority to represent the interests of a nebulous group of unnamed DEMCO consumers.

First, Cajun cannot establish organizational standing on its own behalf because it cannot prove that the primary purpose of its organization is to raise safety issues relating to nuclear power. Indeed, in its pleading, Cajun describes itself as "a Louisiana cooperative corporation . . . engaged in the generation, .j l

transmission, distribution and sale of electricity." Cajun cannot I i

I argue that its organizational purpose includes, inter alia, the l I

raising of purported safety issues on behalf of the consumers of electrical power from DEMCO. When an organization " seeks to intervene in its own right, independent of its status as a representative of one or more of its members, . . . it must demonstrate an injury in fact to the organization within the zone of interests of the Atomic Energy Act and the National Environmental Policy Act." Turkey Point, 33 NRC at i;29 (footnote omitted)). Cajun has alleged no such injury. I Second, with respect to alleging injury to its members, ,

the " consumers" Cajun seeks to represent are not " members" of Cajun. There is no legal basis to allow Cajun to represent individuals that are, at most, members of a member.E' " Absent j express authorization, an organization may represent only its own I members in a licensing proceeding." Pucet Sound Power and Licht 1

Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP l l

74, 16 NRC 981, 984 (1982) (emphasis added).E' I l

E' It is also important to note that, unlike members of organizations who volunteer their membership, consumers of electricity are made members of DEMCO as a result of their decision to purchase electricity from the Cooperative. This fact necessitates even closer scrutiny of Cajun's proposed representation of a group of_ unnamed "end-use consumers."

D' In some instances, an organization may be specifically empowered by its members to promote certain interests, and the organization may have the authority to act as the representative of those individuals with respect to those specific interests. Skacit/Hanford Nuclear Power Proiect, at 1334. See also Hunt v. Washincton Apple Commission, 432 U.S.

333, 342-45 (1977). Thus, a member's authorization to (continued...)

i Finally, as for the " members" of Cajun, specifically ,

DEMCO, Cajun has not identified any cognizable interest of DEMCO in this proceeding. It has merely stated that River Bend is

" physically located within the service territory of one of Cajun's Members, DEMCO." Cajun etition at 11. No injury to DEMCO or its end use customers as a result of the proposed license amendments, rather than as a result of the other litigation, is even alleged.

Thus, Cajun's vague allegation of DEMCO's standing is insufficient.E When an organization seeks standing in a F(... continued) represent his interests in a licensing proceeding may be presumed when the sole or primary purpose of the organization is to oppose nuclear power in general or the facility before the licensing board in particular. Georaia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-91-33, 34 NRC -

138, 140-41 (1991). However, in such cases, the petitioning organization must still identify the members whose interests it represents and their place of residence, and describe the extent of the members activities within close proximity to the plant. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3 ) , LBP-91-4, 33 NRC 153,  ;

158 (1991). In the present proceeding, Cajun has not provided any such information. )

i

& Moreover, it is not clear that DEMCO, a corporation, even qualifies as a " member" as that term is used in analyzing ,

organizational standing. Even assuming DEMCO is a " member" <

for purposes of standing, Cajun has not discussed, much less l demonstrated, whether DEMCO has standing in this proceeding. l Houston Lichtina and Power Co. (South Texas Project, Units 1 j and 2), LBP-79-10, 9 NRC 439, 444 (1979),.aff'd, ALAB-549, 9 l NRC 64 4 (1979). Indeed, under similar circumstances, the NRC has rejected attempts by organizations to assert i representational standing on behalf of another organization  !

unless the petitioner establishes the standing for the latter l in its own right. This is because "the organization's  !

standing is essentially derivative of the member's standing." l Florida Power and Licht Co. (Turkey Point Nuclear Generating i Plant, Units 3 and 4), ALAB-952, 33 NRC 521, 530-1 (1991).

representational capacity, general interests are insufficient to "specifically answar the question, 'What is the injury-in-fact, within the zone of interests protected by the Atomic Energy Act or the National Environmental Policy Act, upon which the Requestor relies?'"). Northern States Power Co. (Pathfinder Atomic Plant),

LBP-89-30, 30 NRC 311, 314 (1989). For these reasons, Cajun has f ailed to identify any injury to its members that would result from the issuance of the two license amendments.

4. Cajun Has Failed to Satisfy the Requirements for Discretionary Intervention.

By not discussing the issue of discretionary intervention, Cajun has failed to provide any justification for permitting it to participate in a hearing, if one were held, pursuant to the Licensing Board's authority to permit discretionary intervention. The burden of persuasion in allowing discretionary intervention lies with the petitioner. Sheffield, 7 NRC at 745.

1 Hence, when an intervention petition is mute, the Board may reasonably infer that discretionary intervention is unwarranted.  ;

There are no other petitioners in this procceding and,  !

I absent Cajun, there would be no hearing on the two license l

amendments. Under such circumstances, there is a "particularly l T l strong reason why discretionary intervention should not be allowed in the absence of some clear indication that the petitioner has a

" Tennessee Valley substantial contribution to make . . . .

art;hority (Watts Bar Nuclear Plant, Units 1 and 2) , ALAB-413, 5 NRC 1418, 1422 (1977) (emphasis added). Cajun has not met this

^

standard. Its purported interest with respect to the two license amendments is not a health or safety issue, but only economic interests which lie beyond the scope of this proceeding. Interests that do not establish a right to intervention because they are not within the zone of interests to be protecced by the Commission's *l empowering statutes should not be considered in weighing discretionary intervention. Enrico Fermi, 7 NRC at 388.

l Similarly, Cajun has failed to satisfy the other factors  !

l used for determining whether discretionary intervention should be l l

allowed. See, e.a., Portland General Electric Co. (Pebble Springs j Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976);

Enrico Fermi, 7 NRC at 387-88. Specifically, Cajun's alleged injury is wholly speculative and could not, in any event, be redressed by the Commission. Further, Cajun has other fora available in which to pursue its claims of economic injury, and has in fact pursued such claims vigorously. Moreover, permitting intervention in this instance would inappropriately broaden and delay the proceedings because, without Cajun, there would be no 4 hearing on these two amendments. For these reasons, the Licensing Board should not grant Cajun discretionary intervention in this I natter.

5. Stripped Bare, Cajun's Petition for Intervention Represents an Effort to Obtain a " Deep-Pocket" Defendant.

At bottom, Cajun's petition for intervention alleges an impermissible interest -- one that is not cognizable under Atomic

t i

)

Energy Act. Indeed, it is the obvious desire of Cajun to capture a " deep pocket" in the event it is successful in any of its -

litigation against GSU. Cajun's pleading is replete with references to enhancing Cajun's ability to collect a judgment I i

against GSU by imposing financial responsibility for any judgment l on Entergy. See Cajun Petition at 16, 17, 21, 26, 29. Any doubt ,

as to the real basis for Cajun's comments is dispelled by Cajun's i

request for a license condition (Cajun Petition at 26-30) which, inter alia, would " require Entergy to extend its credit to, i indemnify and otherwise financially support GSU" to ensure payment if Cajun is successful in unrelated litigation against GSU.M' Cajun Petition at 30. The Board should not condone Cajun's efforts j to use the NRC regulatory process as a means of enhancing Cajun's )

. i chances of obtaining a settlement or perhaps a " deep pocket" to  !

satisfy a judgment.

III. CONCLUSION After a full and fair opportunity to raise its concerns, Cajun has failed to demonstrate any interest cognizable under the D' Cajun's request for affirmative relief from the- Licensing Board is premature inasmuch as license conditions may be imposed only after a hearing before the Board. Moreover, the requested relief proposes to modify the terms of the merger agreement between GSU and Entergy. There is no basis for such extraordinary relief. It is well established that the Board ,

is not to substitute its business judgment in any matter.  !

See, e.a., Washincton Public Power Supolv ' System (WPPSS Nuclear Project), 19 NRC 1183, 1190-91 (1984) ("It is not our mission to superintend utility management when it makes 4 business judgments for which it is ultimately responsible" (footnote omitted)). Cajun's demand for affirmative relief would violate this principle.

4 Atomic Energy Act and thus sufficient for intervention under 10 C.F.R. S 2.714. For this reason, the Licensing Board should deny Cajun's petition for intervention and request for hearing in its entirety.

Respectfully submitted, WINSTON W TRAWN

?

Joseph B. Knotts, Jr.

Mark J. Wetterhahn ,

1400 L Street, N.W. l Washington, D.C., 20005-3502  !

(202) 371-5700 f Counsel for Gulf States Utilities l Company l August 23, 1993

]

l

I l

WINSTON & STPuMN

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.Ew vos* omCE r4CSIMILE 12:0: F1 $950 os WrFA SmEE7 c, m itE n S D SE C' ?!s t %vt#EE A NEW vonM NY 100354991 202/371-5703 l l August 23, 1993 i

Rules Review and Directives Branch i Division of Freedom of Information '

and Publications Services Office of Administration U.S. Nuclear Regulatory Commission  ;

Washington, D.C. 20555  !

l Re: Gulf States Utilities Company Docket No. 50-458 I River Bend Station, Unit 1, 58 Fed. Rec. 36423. 36435. 36436 1

Gentlemen:

Enclosed please find the Response of Gulf States Utilities Company to the Comments of Cajun Electric Power Cooperative, Inc., on the Staff's Proposed Determination that the Requested Amendments do not Involve a Significant Hazards Consideration Within the Meaning of 10 C.F.R. S 50.92 for filing in connection with the above-referenced matter.

Please contact me if you have any questions on this filing or require any additional information.

Sincerely, i

1 '

Mark J. Wetterhahn Counsel for Gulf States  !

Utilities Company MJW:sdd i l

Enclosure l cc: _ Suzanne C. Black l

NRC Project Director

~

RESPONSE OF GULF STATES UTILITIES COMPANY TO THE COMMENTS OF CAJUN ELECTRIC POWER COOPERATIVE, INC.,

ON THE STAFF'S PROPOSED DETERMINATION THAT THE REQUESTED AMENDMENTS DO NOT INVOLVE A SIGNIFICANT HAZARDS CONSIDERATION WITHIN THE MEANING OF 10 C.F.R. E 50.92 I. INTRODUCTION On January 13, 1993, Gulf States Utilities Company

("GSU") filed two applications relating to Facil.i t'y Operating License NPF-47 (" License") for the River Bend Station - Unit 1

(" River Bend"). The first application sought the NRC's consent pursuant to 10 C.F.R. S 50.80 to a change of control over GSU and a conforming amendment to the operating license to reflect the change in control over the licensee (" merger application") .l' The second application sought a license amendment to reflect a change in the licensed operator of the facility from GSU to Entergy Operations, Inc. ("EOI"), a subsidiary of Entergy Corporation

("Entergy") (" operator application").2' By notices published in the Federal Register on July 7, 1993 (58 Fed. Reg. 36,423, 36,435 and 36,436), the Nuclear Regulatory Commission ("NRC" or " Commission") provided, inter alia, an opportunity for comment pursuant to 10 C.F.R. S 50.91 on the NRC Staff's proposed determination that the license amendments involve no significant hazards consideration.

On August 6, 1993, in response to the notices, Cajun Electric Power Cooperative,,Inc. (" Cajun") filed a single document F See License Amendment -- Change in Ownership of Licensee, dated January 13, 1993. ,

I' See License Amendment -- Change in Licensed Operator of the Facility, dated January 13, 1993.

k

(for purposes of this response " Cajun Comments") addressing the Staff's proposed findings of no significant hazards consideration,  ;

as well as petitioning for intervention and a hearing.I' For the reasons set forth below, in accordance with 10 C.F.R. S 50.92 and the Federal Register notices, the NRC Staff should make a final determination that the proposed amendments do not involve a significant hazards consideration.f' l

1 l

2' On August 17, 1993, Cajun filed a pleading titled " Cajun l Electric Power Cooperative, Inc. 's Amendment to its Previously l Filed Comments, Petition for Leave to Intervene, and Request l for Hearing and Conditions, on Notice of Consideration of issuance of Amendment to Facility Operating License, Proposed ,

No Significant Hazards Consideration Determination and Opportunity for Hearing." The untimely filing of Cajun adds nothing on the issues relevant to the Staff's no significant hazards consideration determination.

S' It is well-established that the issue of whether a proposed amendment to an operating license constitutes a "significant hazards consideration," as that term is defined in 10 C.F.R.

S 50.92, is a matter clearly within the discretion of the Staff and is not subject to any review by a licensing board. i 10 C.F.R. 50.58 (b) (6) . See also Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power Station) , LBP-87-17, 25 ,

N.R.C. 838, 844 (1987), aff'd in nart on other arounds, ALAB- l 869, 26 N.R.C. 13 (1987), reconsid. denied on other arounds, j ALAB-893, 27 N.R.C. 627 (1988). Accordingly, GSU is filing '

this response to Cajun's comments on the proposed finding of I "no significant hazards consideration" with the Staff, I separately from GSU's opposition before the Atomic Safety and '

Licensing Board to Cajun's petition to intervene and request for hearing.

i II. DISCUSSION r A. THE STAFF CORRECTLY DETERMINED THAT THE PROPOSED TWO '

AMENDMENTS DO NOT INVOLVE A SIGNIFICANT HAZARDS  ;

CONSIDERATION '

Under the Commission's regulations in 10 C.F.R. S 50.92, ,

the Staff must review a proposed amendment to an operating license for purposes of determining whether the proposed amendment involves a significant hazards consideration with respect to the operation .

of the facility. In crder to find that the amendment does not constitute a significant hazards consideration, the Staff must determine that the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of l l

safety. j In the present case, the two amendments involving the j proposed transfer of control over GSU and the authorization to transfer to EOI the responsibility for, and control over, the

, physical operation and maintenance of the facility, satisfy the three criteria. As set forth in the Amendment Applications of GSU, the proposed amendments do not change the ownership of the f acility, do not change the physical condition of the plant, do not change any operating procedures, and do not change the source of funding for plant operation.F Rather, the proposed amendments l

1 See License Amendment -- Change in Licensed Operator of the

, Facility, dated January 13, 1993, at 12-3:

(continued...)

l l

simply recognize the decision by Entergy and GSU to combine their businesses and for EOI to operate River Bend. I As explained in the applications, the proposed changes will not increase the probability of any accident previously evaluated. Under the proposed amendments, all of the Limiting Conditions for Operation, Limiting Safety System Settings, and i Safety Limits specified in the Technical Specifications will remain

  • i unchanged. Moreover, the River Bend Quality Assurance Program, Emergency Plan, Security Plan, and Operator Training Requalification Program remain unaffected by' the proposed amendments. In f act, EOI is presently operating four other nuclear power reactors,s' and thus has beer found technically qualified by l'(... continued)

The business combination and proposed amendment do not in any way alter the status uuo with respect.to )

GSU's and Cajun's ability to obtain the funds -

necessary to cover all costs for the operation, i maintenance, repair, decontamination and decommissioning of River Bend. GSU and Cajun will remain severally liable for such costs, on a pro  ;

rata basis, under the Joint Ownership Agreement. '

GSU's and Caiun's financial responsibility for River Bend and their sources of funds to support the facility will remain the same as under the i present License. (emphasis added).

Indeed, because the costs for the operation of River Bend remain the responsibility of the owners, GSU and Cajun, the financial qualifications of EOI and Entergy are not at issue here, nor is the NRC required to conduct a review of the financial qualifications of these entities pursuant to 10 C.F.R. S 50.33(f). Therefore, gratuitous statements by Cajun concerning EOI's financial status, see, e.a., Cajun Comments at 3 (EOI " thinly capitalized"), 14 at 4 (the " shaky financial underpinnings of EDI"), are irrelevant.

D' The four units are: Arkansas Power & Light Company's Arkansas Nuclear One, Units 1 and 2 ("ANO"); Louisiana Power & Light (continued...)

-4 -

the NRC to operate multiple units and will bring added experience to River Bend. See License Amendment -- Change in Licensed Operator of the Facility, dated January 13, 1993, at 11-12 (The expected benefits of EOI's operation of River Bend include, among other things, access by River Bend to a larger repository of nuclear expertise and experience, enhances perspectives on nuclear ,

i operations, and a broader base and a more competitive environment for management personnel). While EOI's experience is not essential l to the Staff's analysis, it provides additional assurance that the proposed amendments do not constitute a significant hazards consideration. It is also significant that nowhere does Cajun l i

raise any issue concerning EOI's ability to operate River Bend. j i

Similarly, these two amendments will not --

indeed,

, cannot -- create the possibility of a new or different kind of accident. The design and design bases of River Ber.d will remain the same; therefore, the existing plant safety analysis remains complete and accurate in analyzing design basis events as well as plant responses and consequences.

Finally, contrary to the comments of Cajun, the amendments do not involve a reduction in the margin of safety for River Bend. Plant safety margins are established though the Limiting Conditions for Operation, Limiting Safety System Settings, I i

F(... continued)

Company's Waterford Unit 3 ("Waterford"); and System Energy Resources, Inc.'s Grand Gulf Unit 1 (" Grand Gulf").

Importantly, the design of the Grand Gulf Unit is similar to River Bend.

m 4 -

--w .e ,

and Safety Limits specified in the Technical Specifications.2' In granting the proposed amendments, these margins will remain unchanged. In addition, there will be no change to the physical j design of the plant. Moreover, as set forth in the application for the amendment to permit EOI to operate River Bend, substantially all of the GSU employees presently dedicated to the operation of River Bend- will simply become EOI employees. See License Amendment --

Change in Licensed Operator of the Facility, dated January 13, 1993, at 5. For these reasons, the Staff's initial determination that the two amendments do not invclve a "significant hazards consideration" was correct and supported by the record.

The Staff should now finalize those initial determinations with respect to the two amendments at issue here.

B. THE PURELY ECONOMIC ISSUES RAISED BY CAJUN DO NOT CONSTITUTE A SIGNIFICANT HAZARDS CONSIDERATION

1. The " Unavailability" of Entergy Assets For Operating Expenses At River Bend is Not a Safety Issue, j

In response to the Staff's preliminary finding of no  ;

significant hazards considerations, Cajun attempts to create purely l economic issues which purportedly constitute a significant hazards consideration. First, Cajun argues that the failure of Entergy to l l

guarantee funding of EOI's operation of River Bend is such an  ;

issue. Cajun's argument is circular and without merit. The funding for River Bend operations will remain, as it is today, the j 2'

See 51 Fed. Reg. 7744, 7751 (1986), " Final Procedures and Standards on No Significant Hazards Considerations."

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l responsibility of the owners of the facility. The proposed amendments do not change the ownership of the facility.

Under the merger application, GSU, currently an owner of a 70% undivided interest in River Bend, will become a wholly owned subsidiary of a reconstituted Entergy Corporation. As a subsidiary ;

of Entergy, GSU will continue to retain its 70% undivided ownership l

interest in the facility. Likewise, Cajun will maintain its 30%

undivided ownership interest. After the two amendments take effect, GSU and Cajun, as the co-owners of River Bend, will l

continue to be responsible for the costs of operation of the plant, just as today.

Cajun fails to identify how or why amendments that will not change the funding responsibility or capability for the plant constitute a substantive issue for NRC consideration, let alone a i significant hazards consideration.

2. Cajun's Purported Significant Hazards Consideration Is Premised Upon a Misunderstanding of the Staff's Responsibility Under 10 C.F.R. E 50.92.

Cajun attempts to create an issue by formulating a new test for determining the existence of a significant hazards consideration. Rather than evaluating the three criteria set forth i

in 10 C.F.R. S 50.92, Cajun argues that the Staff should review the j proposed amendments to ensure that River Bend will continue -- for i

some indefinite and undefined period -- to generate electrical j power.5' l T See, e.a. , Cajun Comments at 4 ("EOI may be forced to shutdown the River Bend Station" (emphasis in original, footnote omitted)).

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This supposed criterion -- that River Bend continue to l produce electricity -- is not found in the regulatory scheme.

Indeed, whether or not River Bend continues to produce electricity is of no concern to the NRC as long as the plant is operated safely and, if and when it can no longer be operated for any reason, can (

be shut down and maintained safely in a shut down condition. Lg_p_q Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ,

I CLI-90-8, 3 2 NRC 2 01, 207 (1990) ("LILCO is legally entitled under the Atomic Energy Act and our regulations to make, without any NRC  !

l approval, an irrevocable decision not to operate Shoreham. The  ;

i alternative of ' resumed operation' --

or other methods of

?

9enerating electricity -- are alternatives to the decision not to  ;

operate Shoreham and are thus bevond Commission consideration."

(emphasis added)); .I_d . at 208, n.4 (the Commission has "no  !

authority to mandate operation of the f acility") . See also p_etroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-I l 78-11, 7 NRC 381, 385 ("The protected interest under the AEA relate l

to radiological health and safety") , aff'd, ALAB-470, 7 NRC 473 (1978). Even if electric power production should cease, the reactor in a shutdown state would still be in a safe condition. i Moreover, nowhere in its comments does Cajun explain how or why the proposed amendments will constitute a significant i'

hazards consideration or even why it would make shutdown of.the l  ;

unit more likely. Even if the unit were shut down, as hypothesized  ;

i e

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. by Cajun, it would be because of the Cajun litigation, not because of anything contained in the proposed amendments.2'

3. Cajun's Comments Are Simply Legal Posturing for Its Liticious Activities in Other Forums.

The Staff should recognize the obvious desire of Cajun to capture a " deep pocket" in the event it is successful in any of its litigation. Cajun's comments are replete with references to enhancing Cajun's ability to collect a judgment against GSU by imposing financial responsibility for any judgment on Entergy.8 The Staff should not accede to Cajun's efforts to use the NRC T

regulatory process as a means of enhancing Cajun's chances of obtaining a more favorable settlement or perhaps a " deep pocket" for any judgment.

These are matters that do not affect or even pertain to safety, or constitute a significant hazards consideration. The proposed amendments and the underlying business transactions that gave rise to the request for the amendments have npq adverse effect 2' Despite its attempts to belittle the GSU application as too brief on this issue, nowhere does Cajun take exception to or issue with any statement contained in either GSU's submission or, more importantly, the Staff's proposed finding of no significant hazards consideratic.... See Cajun Comments at 14.

The facts that ownership of River Bend will not change that funding capability and responsibility for the operations of the plant will not change account for the brevity of the submission by GSU.

& Any doubt as to the real purpose of Cajun's Comments is dispelled by its request for a license condition seeking, inter alia, to " require Entergy to extend its credit to, indemnify and otherwise financially support GSU" to ensure that Cajun will be paid in the event it is successful in its other unrelated litigation against GSU. See Cajun Comments at 30.

m . . _ _ . _ _ . _ -- _ _

I f

I BEFORE THE UNITED STATES NUCLFAR REGULATr'xY COMMISSION 93 tlT 24 P3 :33 ,

In the Matter of ) ,  ;

~

)

GULF STATES UTILITIES COMPANY ) Docket No. 50-458 -

)

(River Bend Station) )

NOTICE OF APPEARANCE i Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. S 2.713(b), the following information is  ;

provided:

Name -

Joseph B. Knotts, Jr.

1 Address -

Winston & Strawn 1400 L Street, N.W.

Washington, D.C. 20005-3502 Telephone Number -

Area Code 202-371-5731 j i

Admissions -

United States Supreme Court  ;

United States Court of Appeals for I the District of Columbia i Name of the Party -

Gulf States Utilities Company 350 Pine Street Beaumont, TX 77701 7 , ,/*

Joseph B Knotts, Jr[

U Winsto & Strawn Couhoel for Gulf States Utilities Company i

Dated at Washington, D.C.

this 23rd day of August, 1993' l

! i

- _ :l

l  !

1 BEFORE THE  ;

UNITED STATES NUCLEAR REGULATORY COMMISSION  !

1

'9 : '; 24 P ? :33 I In the Matter of )

)  ;

GULF STATES UTILITIES COMPANY ) Docket No. 50-458

)

(River Bend Station) )  !

i NOTICE OF APPEARANCE  !

Notice is hereby given that the undersigned attorney  ;

herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. S 2.713 (b) , the following information is J

i provided-l Name -

Mark J. Wetterhahn Address -

Winston & Strawn 1400 L Street, N.W.

Washington, D.C. 20005-3502 l l

Telephone Number -

Area Code 202-371-5703 Admissions -

United States Supreme Court United States Court of Appeals for the District of Columbia l

Name of the Party -

Gulf States Utilities Company i 350 Pine Street Beaumont, TX 77701 Pursuant to 10 C.F.R. S 2.712(b), service of correspondence and pleadings on Gulf States Utilities Company should be addressed specifically to the undersigned.

l l // / ,

Mark f/ Wetterhahn Winston & Strawn  :

Counsel for Gulf States Utilities l Company i Dated at Washington, D.C. I l this 23rd day of August, 1993 l l

i

i i

BEFORE THE l UNITED STATES NUCLEAR REGULATORY COMMISSION ,

'93 IF 2a P 33 l In the Matter of )

i

) -

GULF STATES UTILITIES COMPANY ) Docket No. 50-458 0  !

l ) i l (River Bend Station) )

i l

NOTICE OF APPEARANCE <d Notice is hereby given that the undersigned attorney I

herewith enters an appearance in the above-captioned matter. In  ;

accordance with 10 C.F.R. S 2.713 (b) , the following information is provided:  !

l Name -

David M. Souders l Address -

Winston & Strawn  !

1400 L Street, N.W.  !

Washington, D.C. 20005-3502 ,

Telephone Number -

Area Code 202-371-5712  !

Admissions -

Supreme Court, State of Missouri l i

Name of the Party -

Gulf States Utilities Company i 350 Pine Street  !

Beaumont, TX 77701  ;

l l

DaTrid M. Souders ,

Winston & Strawn ]

Counsel for Gulf States Utilities i Company Dated at Washington, D.C.

this 23rd day of August, 1993

n S

6 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) *c3 jy 24 p + 33

)

GULF STATES UTILITIES COMPANY ) Docket No. 50-458

) ~ '

(River Bend Station) )

CERTIFICATE OF SERVICE I, Mark J. Wetterhahn, hereby certify that on this 23rd day of August, 1993, I served on the following, by first class mail, postage pre-paid, copies of:

1. Response of Gulf States Utilities Company to the Petition to Intervene and Request for a Hearing of Cajun Electric Power Cooperative, Inc.
2. Notice of Appearance - Joseph B. Knotts, Jr.
3. Notice of Appearance - Mark J. Wetterhahn
4. Notice of Appearance - David M. Souders B. Paul Cotter, Jr., Esq. Docketing and Services Branch Chairman, Atomic Safety U.S. Nuclear Regulatory and Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Edwin J. Reis, Esq.

Office of the General Counsel Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission James D. Pembroke, Esq.

Washington, D.C. 20555 Duncan, Weinberg, Miller &

Pembroke, P.C.

l Dr. Peter S. Lam 1615 M Street, N.W.

i Atomic Safety and Licensing Suite 800 Board Washington, D.C. 20036 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

l.

I .

6 e I

Victor J. Elmer Robert B. McGehee, Esq.

Vice President - Operations Wise Carter Child & Caraway Cajun Electric Power 600 Heritage Building Cooperative, Inc. P. O. Box 651 l 10719 Airline Highway Jackson, Mississippi 39205 l Baton Rouge, LA 70895 j Donald W. Clements  :

Gulf States Utilities Company  !

P. O. Box 2951 Beaumont, Texas 77704 e

l 1

h l

~

/ ,

/ ~

Mark Jf)Netterhahn Y.

Winston & Strawn  :

I Counsel for Gulf States Utilities Company i August 23, 1993 1

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I I

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