ML19220A391
| ML19220A391 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/25/1978 |
| From: | Jarboe C AFFILIATION NOT ASSIGNED |
| To: | Johnson W, Rosenthal A, Sharfman J NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 7904170541 | |
| Download: ML19220A391 (3) | |
Text
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h CARL J. J.m20E h
3 E..Warine S t.
Mechanicsburg, Pa.
Zip 17055 January 25, 1378
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h Alan 3. Eosenthal, Iaq.
Or. V. Reed Johsaon
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Jerome 3. 3harf=an, Esq.
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q Atomic Safety and Licensing Appeal Board g 31137.3 >
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U.S. Nuclear Hegnlatory Commissien
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In the Matter of Metropolitan 3dison Company, 7 -
(Three Mile Island Nuclear Station, Unita 2 Docket No. % -320 Gentlemen:
In response to the communication of Jan. 13, 1978 by Henry J. McGurren, Counsel for the N2C Staff, I submit the following.
Mr. McGurren sentions that I twice sade 1d d ted appearance state =ents is the above-captioned proceeding. I annume he pointa this out to indicate that I have had =y day is " court" Nothiss could be further frca the truth. Indeed, as Ch'd =an Luton unequivocally stated (tr 165, 2756, 2757) "That not'd g stated by way of 14 4ted appearance constitutes evidence. It is not in any =anner saterial on wbich we can base our decision on these cases". "Mr. Jarboe, you are not a party to the proceeding. Asawers to your questions, unless they have been raised is the proper context, will indeed play no part in the rendering of our decision". As such, the whole process of the lisited appearance is a pro forma ritual, consista of nothing sore thas a shuffling of papers, and is therefere illegal.
Is Calvert Cliff's v. AIC(M9 7.2d 11C9(1971)):
" Consideration of environmental satters under NIPA of 1969 =ust be =cre than pro forma ritual and requires consideration of action to avoid adverse censequences and full exercise of substantive diacretion at every important, appropriate, and non duplicative stage of the agency's proceedings"(1110)
"....the question here is whether the Commission is correct is th4-H g that its NI?A responsibilities say be carried out in toto outside the heariss procesa",
whether it is enough that limited appearance evidence and data serely " accompany" an operating license through the review process, but receive no consideration whatever from the hearing board".(ll17)
"We believe the Ccesimaion's crabbed 1sterpretation of NIpA m.nea a sockery of the Act. What pessible purpose eculd there be is the Section 102(2)(c) requir~
ment if "accenpany" means no more thas physical prozisity - mandating no more than the physical act of passisg certatis folders and papers, unopened, to reviewisg officials along with other folders and papers?" "NIpA was meant to dn more than re g.tla t e the flow of papers in the f ederal bureaucracy". ""'he word " accompany" is Section 102(2)(c) nust not be read so narrowly as to sake the Aat ludicrcus"(1117).
at the licensing proceeding The public's exclusics fres submitting evidence is a violation of the NIpA of 1969:
"At each stage, the Ccasiasion's regulatory staff zust take the applicast's beseji,ts, report and prepare its own " detailed statement" Of enriren= ental costa s and alternatives. The statement wd then be circulated to other interested and
,4 *Q er 7904170OV/
O page c respcasible agencies and made available to the public. After co=sents are received frem those sources, the staff sust prepare a ft a1 'tetailed statement" and sahe a fisa' ----- en:2 tion on the application fer a c nstructi:n per:10 Or Operating license"(1117). (e:phasis is ' e) Chis language specifically sandates tnat the
- uclic's evidence ("tae puoli
- ", " ::=ents are received fr:= tscse scurces") be considered 10 the operatics license prec e e ding.
"'."h e sweep of NI?1 is extraordinarily bread, Oc=pelling consideration of any and all types of enrirensental i= pact of federal acti:n". "Ccccerned = embers of the public are therefore precluded fres raising a wide range of envircamental issues in order to effect particular Cc-d asion decisicas. lad the special purpose of YIFA is subverted"(1123).
I have already submitted a detailed rati:nale as to why 27 excepticas must ef",
Ixception be censidered based on the " fullest extent possible" clause da "4
No. I, to which I add the following:
"3nt the effective date of the Act does set a ti=e for agencies to begin adoptisg rules and it de= ands that they strive, "to the fullest extent pcasible",
to be prospt in the process". Calvert Cliff's v. AIO, 112C, supr a "7or we require Only an exercise of sucatantive discreti:n whi:h will pro tect the envircament "to the fullest extent possible". 'mo less is required if the grand congressional purposes underlying NIFA are to become a reality". Calvert Cliff's
- v. AIC, 1123, sucra "Cf course, all of these Section 1C2 duties are qualified by the phrase "to the fullest extent possible". "Indeed, the requirement of entirensental considera-tica "to the fullest extent posaible" sets a high standard for the agencies, a
d
- s standard which must be rigorcualy enforced by the reviewing courts". Calve +
- v. 12C,
4, supra In ALA3-237, 3 AIC 65k(Cet 21,1974), the Southern Confederatics of Con:erned Citizens were extended an cpportunity(3 weaks) to file a =e=orandus aa to wny their exceptions to a partial in?tial dec1 on is a constructics per=it proceeding should be considered by the 13L3. I have already presented a statuatory rationale is 03rief", Exception No. I, and this ccesu 1:ation as to wny my "Ixceptions" a:d "3rief" shouli be considered by the ASL2.
Is ALA3-251, 3 AIC 993(Cec. 31, 1974), Mr. Carid A. Caccia, vno had made a succitted a latter of ccncerns to the 1SLA3 about as ' d tial
' d -4 te d appe aranc e,
decision in a construction permit proceeding. *he ASLA3:
1-Considered Mr. Caccia's concerns 2-Forwarded copies of Mr. Caccia's correspcmdence to the parties invcived 3-Invited their ccm=ents 4-Hesanded the 1:1tial decimien to the ASL3 I have already sent copies of "II:epticas", "3rief", and this co=munication tc the parties and interested persons, so aaring the ASLA3 the trcuble.
In m 251, the AS1A3 also ruled that any participation by.%r.
accia would have to be is accord with the applicable r e gula tio ns. ! subsit that based en the detailed in this ::==unicatien and "Erief", that my applA-statuatory evidence
- able re gulation that does not permit evidentiary review by the AS13 :? sy a violation of the NI?A Of 1969.
"I::eptiens" ud "3ris f" are s?-v
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IS
O page 3 n eccclusion, bas e ri on the overwhe' ~' g statuatcry ev:.decc e and pas:
.cractice Of the A3;A3 in ALA3-237 L 251, I request that the initial deciaic:
in the sbeve-captioned preceeding be resanded to the ASL3 for evidentiary review of =y " Exceptions" and "3rief".
Sincerely,kua,l.sf a
Carl J. Jarboe ec:
1-Dr. Chauncy 2. Kepfted (5-Henry J. McGurres, Esq.
Or. Judith H. Jchnarud Gregory H. Fesa, Esq.
2-Karin W. Carter, Eaq.
7-Ernest L. 31ake, Iaq.
3-Edward Luton, Esq.
8-- Docketing & Service Section L Gustave A. LinenberSer 9-Director of Nuclear Reactor Regulation 5-Dr. Irnest o. salo
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