ML18037A310

Motion to Dismiss Proceeding W/Respect to Allegation B of 801126 Notice of Violation.Concerns Operation W/O Lead Cave Shield & Portable Survey Instrument.Requirement of Law Allegedly Violated Is Impermissibly Vague

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 p Ei, B' LeBoeufg Lambi Leiby 8 MacRae Corp'HOMAS 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 I ENT COPIES REC IP IENT COPIES ID CODE/NAME. LTTR ENCL ID CODE/NAME, LTTR EN L ACTION! NORRIS,S ~ POLKeP ~

INTERNAL! ASLAP ASLB I8,E NRC PDR TON PUBLIC AFFAIRS REG FILE EXTERNALS LPDR NSIC

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TOTAL NUMBER OF COPIES REQUIRED: LTTR 16 ENCL

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BEFORE THE Nec NUCLEAR REGULATORY COMMISSION atlng& eltdA.

In the Matter of /

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NIAGARA MOHAWK POWER CORPORATION ) Docket No. 50-22

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MOTION TO DISMISS PROCEEDING WITH RESPECT TO ALLEGATION B OF NOTICE OF VIOLATION r AFO Niagara Mohawk Power Corporation ("NM") hereby moves to dismiss the pending proceeding with respect to Allegation B in the Commission's Notice of Violation, served November 26, 1980. As grounds for this Motion, NM states:

l. In this Notice of Violation, the Director of W

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.

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("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

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