ML18037A310
| ML18037A310 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 12/29/1980 |
| From: | Eric Thomas LEBOEUF, LAMB, LEIBY & MACRAE, NIAGARA MOHAWK POWER CORP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8012310294 | |
| Download: ML18037A310 (8) | |
Text
REGULATOR INFORMATION DISTRIBUTION TEM (RIDS)
ACCESSION NBR:8012310294, DOC,DATE: 80/12/29 NOTARIZED NO DOCKET FACIL'.50 220 Nine Mile Point Nuclear Station<
Unit,1~ Niagar a Powe'5000220 AUTH',NAME AUTHOR AFFILIATION THOMASeE'+BE Niagara Mohawk Power Corp'HOMAS p Ei, B' LeBoeufg Lambi Leiby 8
MacRae REC IP
>> NAME RECIPIENT AFFILIATION
SUBJECT:
Mogion-to dismiss proceeding w/respect to Allegation,B, of 801126 notice of violation, Concerns operation w/o lead cave shield 8 portable -sur,vey instrument,gequjrement of law allegedly violated is impermissibly vague, DISTRIBUTION CODE~
DS03S
.COPIES RECEIYED:LTR ~" ENCL SIZE:
TITLE: Filings (Not Orig by NRC)
NOTES'EC IP IENT ID CODE/NAME.
ACTION!
NORRIS,S
~
COPIES LTTR ENCL REC IP IENT ID CODE/NAME, POLKeP ~
COPIES LTTR EN L
INTERNAL! ASLAP I8,E REG FILE EXTERNALS LPDR TON ASLB NRC PDR PUBLIC AFFAIRS NSIC
-Jh0 5l9S).
TOTAL NUMBER OF COPIES REQUIRED:
LTTR 16 ENCL
~
e l
ip V
BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of Nec atlng& eltdA.
lay / @Cy+
)
)
Docket No. 50-22
)
@X (Nine Mile Point Nuclear Station
)
Unit Nl)
~)
r AFO Niagara Mohawk Power Corporation
("NM") hereby moves to dismiss the pending proceeding with respect to Allegation B
NIAGARA MOHAWK POWER CORPORATION MOTION TO DISMISS PROCEEDING WITH RESPECT TO ALLEGATION B OF NOTICE OF VIOLATION in the Commission's Notice of Violation, served November 26, 1980.
As grounds for this Motion, NM states:
W l.
In this Notice of Violation, the Director of the Office of Inspection and Enforcement alleged that:
"Contrary to the above the licensee operated its facility for 232 days during the period of February 1,
1980 to October 8,
1980 without a lead cave shield and without a portable gamma survey instrument installed or dedicated.
(This had the potential for aggravating an accident.
Each day this condition existed constitutes a separate violation and a Civil penalty of
$ 5,000 is proposed for each).
(Cumulative civil penalties 232 days between February 1,
1980 and October 8,
1980 232 x
$ 5y000
$ 1g160J000
)
2.
Assuming arcruendo that every statement in this Allegation is true 1/, it does not state a violation of.
any section of the Atomic Energy Act of 1954, as
- amended, 1/
Under Rule 12 of the Federal Rules of Civil Procedure, the statements made i.n a complaint are assumed to be true for the purpose of ruling on a motion to dismiss the complaint.
For that reason, NM does not take issue with the factual aspects of Allegation B in this Motion.
P
~,
V g4 I
I
~
\\
't, II
("the Act"), or any section of the Commission's regulations, or any condition of NM's license.
The Commission may not notice a" violation of anything other than a violation of the Act, the Commission's regulations, or a license condition.
10 C.F.R.
g2.201 (1980).
Since it is elementary that the Commission may not violate its own regulations, Allegation B does not state a violation as to which the Commission may assess civil penalties.
3.
The Commission
- has, in essence, alleged that NM has violated a commitment that NM allegedly made in its December 31, 1979 letter to NRC, rather than a provision of the Act, the Commission's regulations, or a license condition.
Whether that is true (although NM asserts that it is not),
the Commission may not assess civil penalties for violating a commitment in excess of any Commission requirement.
4.
In addition to the foregoing, the allegation is impermissibly vague in that it begins "Contrary to the above (Contrast that statement with Allegation A,'hich begins "Contrary to section 186 of the Atomic Energy Act of 1954.
.."). It is a basic principle of law that an alleged violation of law must provide notice
of the specific requirement of law that is alleged to have been violated.
"Contrary to the above
.." falls woefully short of such a standard.
Without such notice, NM is deprived of adequate notice of the alleged violation with which it is charged.
Accordingly, this proceeding with respect to Allegation B must be dismissed.
Respectfully submitted,
- LeBOEUF, LAMB, LEIBY a MacRAE By gene B.
Thoma Jr., Partner 1333 New Hampshire
- Avenue, N.W.
Suite 1100 Washington, D.C.
20036 (202) 457-7500 Attorneys for Niagara Mohawk Power Corporation December 29',
1980
~
~