ML19209B956
| ML19209B956 | |
| Person / Time | |
|---|---|
| Site: | New England Power |
| Issue date: | 08/06/1979 |
| From: | Cutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910110284 | |
| Download: ML19209B956 (8) | |
Text
08/06/79 UNIT' AMERICA "Uu EAi
~0dY COPNISSION 7
BEFORE THE af0fk SAFETY AtlD LICEtlSING BOARD In the Matter of
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NEW ENGLAND POWER COMPANY, et al.
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Docket Nos. STN 50-568
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STN 50-569
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(NEP-1 and NEP-2)
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NRC STAFF'S ANSWER IN OPPOSITION TO CCRI'S MOTION TO REQUIRE THE STAFF TO RECONSIDER THE ACCEPTABILITY OF NEPCO'S APPLICATION On July 13, 1979 Intervenors Concerned Citizens of Ehode Island, et al. (CCRI) filed a motion seeking an order requiring the NRC Staff to reconsider the acceptability of the application for construction permits in the captioned matter.S CCRI states that there is no longer any logical basis for con-sideration of the application, since the Applicants have been denied the use of the Charlestown site by a final admiIistrative decision of the General Services Administration (GSA). The Staff opposes the motion.
CCRI indicates that it chose to employ a bifurcated procedure--the motion with the Licensing Board and the request to the Director of Nuclear Reactor Regulation--
rather than simply making a motion to dismiss to the Board because this Board has previously ruled that only the Staff may determine whether an application is acceptable for docketing.
However, when previously considering the Staff's authority to determine the acceptability of the subject application for docketing, this Board not only noted i ts agreement with the Staff's position that the question of whether or.;ot an application is acceptable for docketing S
CCRI also filed with the Director of Nuclear Reactor Regulation a request for an order to the Applicants to show cause why the application for con-struction permits for NEP 1 and 2 should not be dismissed.
See Attachment I to the CCRI motion.
791014.to u +
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is a determination to be made by the Staff but also stated that the Board does not have any supervisory authority over that part of the application review process that has been entrusted to the Staff.S Furthermore, the Board held that:
[T]he Board does not have the poeer to direct the Staff in the performance of its independent responsibilities, nor would it be appropriate to exercise such supervisory functions if [it] had the power to do so. J/
As for CCRI's reargument of the reach of 10 CFR 2.718, this Board said very clearly in LBP-78-9, that "[t]his regulation is not an all-purpose delegation of the power to licensing boards to control or direct the work of the Staff in carrying out its primary responsibilities," and that it applies only to the hearing process, in conferring upon th(presiding officer all the powers necessary "to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order."S i
The Staff believes that the reasons discussed above, with nothing more, pro-vide sufficient grounds for denial of CCRI's motion.
S ew England t'ower Company (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 280 N
(1978).
Id. at 279.
U
. at 279.
Id, S
. at 279-280.
Id 1131 2,10
However, notwithstanding the clear jurisdictional basis for denial of the motion, the Staff also believes that such a motion, which in reality ultimately seeks as a remedy the dismissal of the application, is deficient on its merits.
That remedy is inappropriate in the circumstances presently existing in this case.
One of the proponents of the motion now before this Board, New England Coalition on Nuclear bower (NECNP); in the Seabrook proceeding, via motion for summary judgment under 10 CFR 2.749, sought the dismissal of an application for con-struction permits on the grounds that the application was not complete and therefore was legally insufficient under 10 CFR 2.101(a).
In support of that motion NECNP alleged that the Applicant's description of the tunnels to be used for cooling water and the ultimate heat sink was so inadequate that it did not meet the requirements of 10 CFR 50.34(a).
In addition to noting that the language of the regulation barred summary disposition on the ultimate issue as to whether the permits should issue, that Licensing Board stated its view that although an argument could be made that an Applicant can refile following a dismissal for incomplete information, a more appropriate course would involve an amendment, even a substantial amendment, of the application to cure the defect, rather than dismissal and refiling.S The Staff concurs with that view.
In support of the pending motion CCRI has claimed that the GSA Administrator's decision on disposition of the site proposed for the captioned facility is I
Public Service Comoany of New Hamoshire, et al., (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 879 (1974).
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final.
The position taken by CCRI implies that it has concluded, and wishes the Board and the Staff to conclude, that no appeal from the Administrator's decision is possible, or if possible is not likely to produce a different outcome.
The Staff believes that such a conclusion is premature at best.
Moreover, the Staff believes that, even if after all possibilities for a reversal of the Administrator's decision are exhausted the currently proposed site is denied to the Applicants, they should be given a reasonable period of time within which to select another site and amend their application or to cancel their plans for the facility and move to withdraw their application under 10 CFR 2.107.
CCRI has identified no prejudice to itself, or any Intervenor for that matter, if such a course were to be followed.
The Staff perceives no prejudice to any Intervenors other than the possibility that litigation may be resumed at a later date.
As another Board noted in considering the motion of an Applicant to withdraw its application for a construction permit for one of two units originally applied for, it would be unreasonable in the extreme to deprive the public of a needed utility service because of such an alleged
" inconvenience or burden" to Intervenors. U
- ihe Applicants have appealed the decision of the Acting Administrator of GSA concerning disposition of the proposed site for the facility.
Counsel for the Applicants in a letter dated July 30, 1979 and addressed to the trembers of this Board with copies to all persons on the Applicants' service list stated that the appeal is in the form of a civil action filed in the United States District Court for the District of Columbia and that the action is styled New England Power Comoany et al. v. Paul Goulding et al., Civil Action No. 79-1889.
- Boston Edison Comoany, (Pilgrim Nuclear Generating Station, Units 2 and 3),
LBP-74-62, 8 AEC 324, 327 (1974).
See also:
Jones v. Securities and Exchange Commission, 298 U.S. 1 (1936).
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CONCLUSION For all the reasons discussed above, CCRI's motion s,.,uld be denied.
Respectfully submitted, 4
md%%%f James M. Cutchin, IV Counsel for NRC Staff a-o Dated at Bethesda, Maryland this 6th day of August,1979
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UtlITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI0fl BEFORE THE ATOMIC SAFETY Afl0 LICEf! SING BOARD In the Matter of
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NEW ENGLAND POWER COMPANY, et al.
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Docket flos. STN 50-568
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STN 50-569 (NEP-1 and NEP-2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER IN OPPOSITION TO CCRI'S MOTION TO REQUIRE THE STAFF TO RECONSIDER THE ACCEPTABIlliY OF NEPC0'S APPLICATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of August,1979:
- Marshall E. Miller, Esq., Chainnan
- Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission
'U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
- Dr. Emmeth A. Luebke
- Atomic Safety and Licensing Atomic Safety and Licensing Board-Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.*20555
- Dr. Oscar H. Paris
- Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U 5. Nuclear Regulatory Commission Washington, D.C.
20555 hashington, D.C.
20555 Thomas G. Dignan, Jr., Esq.
Rhode Islanders for Safe Power John A. Ritsher, Esq.
c/o Ms. Emma Sacco R. K. Gad III, Esq.
Box 69 Ropes and Gray Wakefield, Rhode Island 02880 225 Franklin Street Boston, Massachusetts 02110 Ms. Katherine Spencer Doherty Aquidneck Island Ecology Box 573 Newport, Rhode Island 02840 1i31 214 O
' Richard A. Poirier, President Physicians Concerned About Rhode Island Association of Nuclear Power Conservation Commissioners c/o Robert L. Conrad
Pole 95, Stillwater Road 130 Kenyon Avenue Smithfield, Rhode Island 02917 Wakefield, Rhode Island 02879 Edmund L. Alves, Esq.
Eric D. Schneider Gorham & Gorham Claudine C. Schneider c/o Town Hall 56 Central Street Victory Highway Narraganset, Rhode Island 02882 West Greenwich, Rhode Island 02816 Trudy Coxe, Executive Director Save The Bay, Inc.
Sister Arlene Violet 154 Francis Street 3 Steeple Street Providence, Rhode Island 02901 Providence, Rhode Island 02903 Edward H. Newman, Esq.
Harrison A. Fitch, Esq.
Solicitor, Town of Richmond Peter D. Kinder, Esq.
42 Granite Str'eet New England Legal Foundation Westerly, Rhode Island 02891 110 Tremont Street Boston, Massachusetts 02108 Raymond L. Thorp, Jr.
Chairman for Intervention Philip W. Noel, Esq.
The Taxpayers and Voters of Coffey, McGovern, Noel and Charlestown Novogroski RFD 15 Westminster Street Bradford, Rhode I,sland 02808 Providence, Rhode Island 02913 James D. Thornton, Esq.
Henry J. Shelton, Director Thornton & Thornton, Inc.
Coalition for Consumer Justice Trustees of the Thomas Lyman 410 Broad Street Arnold Trust Central Falls, Rhode Island 02863 Washington Trust Building Westerly, Rhode Island 02891 John P. Toscano, Jr., Esq.
Solicitor, Town of Charlestown Dante Ionata, Esq.
23 Canal Street Sean Kelleher, Esq.
Westerly, Rhode Island 02891 State Energy Office 80 Dean Street Archibald B. Kenyon, Jr., Esq.
Providence, Rhode Island 02903 Solicitor, Town of South Kingstown 51 Tower Mill Road Wakefield, Rhode Island 02879 i13i 215
' Karin P. Sheldon, Esq.
J. Peter Doherty, Esq.
Sheldon, Harmon & Roisman Special Assistant Attorney General 172S I St., N.W., Suite 506 56 Pine Street Washington, D.C.
20006 Providence, Rhode Island 02903 Anthony J. Brosco, Esq.
R. Daniel Prentiss, Esq.
Solicitor, Town of Exeter Chief Legal Counsel 293 South Main Street Rhode Island Department of Providence, Rhode Island 02903 Environmental Management 83 Park Street Barry N. Capalbo, Esq.
Providence, Rhode Island 02903 Solicitor, Town of Hopkinton Hopkinton, Rhode Island 02883 Samuel Seeley, President Concerned Citizens of Rhode John R. Payne, Jr., Esq.
Island Solicitor, Town of flesterly Box 525 37 Main Street Charlestown, Rhode Island 02813 Westerly, Rhode Island 02891 i
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James M. Cutchin, IV Counsel for NRC Staff
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