ML19220C471
| ML19220C471 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/04/1977 |
| From: | Trowbridge G SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 7905100182 | |
| Download: ML19220C471 (7) | |
Text
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9
._.a March 4, 1977 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COIMISSION Before the Atomic Safety and Licensinc Acceal Board In the Matter of
)
)
METROPOLITAN EDISON CO:iPANY,
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JERSEY CENTRAL PCNER & LIGHT CC:!PANY, )
and
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Docket No. 50-320 PENNSYLVANIA ELECTRIC COMPA'IY
)
)
(Three Mile Island Nuclear Station,
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Unit 2)
)
APPLICANTS' BRIEF IN CPPOSITION TO PETITIONER'S NOTICE OF APPEAL 1.
'4"e Environmental Coalition on Nuclear Power (Coalition) has filed a Notice of Appeal from the "Memoran-dum and Order of the Atomic Safety and Licensing Board Order, February 16, 1977" (sic).~1/
The Notice of Appeal was dated February 23, 1977, and according to the certificate of ser-vice was mailed on March 1, 1977.-2/ The Coalition's appeal contends that the Atomic Safety and Licensing Board should have allowed all of the contentions contained in the Coalition's 1/ The Memorandum and Order was actually dated February 14, 1977.
Applicants' copy oi the Memorandum and Order, how-ever, bears a stamp indicating it was docketed by the Office of t a Secretary cn February 16, 1977.
2/ The Coalition included in its mailing an additional docu-ment entitled "Intervenors Answers to NRC Staff Interrog-atories and Request for Production of Documentc, Second Set."
These answers relate to contentiens of existinc intervenors which have aircady been allowedinthp'pMhk,id-ing.
They have nothing to do with the appeal.
dd 79 05100 / f)4
Petition to Intervene dated August 14, 1976.
It follows a Notice of Appeal by Applicants, dated February 24, 1977, con-tending that none of the contentions should have been allowed.
2.
Applicants note at the outset that the Coali-tion's Notice of Appeal is an interlocutory appeal expressly prohibited by Section 2.714a and further that it was not filed within the 5 day period prescribed by that section.
Should the Appeal Board, however, decide Applicants' Notice of Appeal in favor of Applicants, the result would be that none of the Coalition's contentions would have been allowed and presumably the Coalition's~ petition to intervene would be wholly denied.
An appeal by the Coalition in that circum-stance would then not be a prohibited interlocutory appeal.
Accordingly, in the interest of time, Applicants urge the Appeal Board to accept and decide the Coalition's Notice of Appeal.
3.
It needs to be emphasised that the issue pre-sented by the Petition to Intervene and decided by the Licens-ing Board was not whether the Coalition's petition contained contentions which are allowable in NRC licensing proceedings but whether there was good cause for allowing the Coalition's petition and admitting the contentions more than two years after the time specified for intervention requests.
Accord-iagly this brief addresses only those elements of the Coali-tion's bricf which could be construed as bearing on the issue of good cause.
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/
4.
The Coalition's first allegaticn is that the Coalition seeks to raise in this proceeding energy conserva-tion or fuel cycle issues which the Coclition had sought to raise in previous AEC hearings and which had been denied, citing as examples petitions to intervene in Peach Bottom 2 and 3, Fulton 1 and 2 and Newbold Island 1 and 2.
No ex-planation of the basis for denial of the contentions in these proceedings is provided by the Coalition brief nor does the brief e:: plain whether the contentions were denied on procedural or substantive grounds.
A reading of the Licensing Board de-cision ~3/in Newbold Island (relocated and renamed as Hope Creek) and of the Licensing Board and Appeal Board decisions ~4/
in Peach Bottcm provides no explanation (Fulton was abandoned prior to a Licensing Board decision.)
In any event rulings in other proceedings adverse to the Coalition or its member organ-izations (most, if not all, of which rulings came after the date set for intervention petitions in this proceeding, judging by the dates of the other petitions referenced in footnote 1 of the Coalition's brief) do not excuse the Coalition's late-ness in seeking to intervene in this proceeding.
-3/ Public Service Electric and Gas comoany et al (Hope Creek Generating Station, Units 1 and 2) LEP-74-79, 8 AEC 745 (October 25, 1974).
-4/ Philadelchia Electric Comoany et al (Peach Bottom Atomic Power Station, Units 2 anc J)
(LEP-73-32, 6 AEC 724 (Sep-tember 14, 1973); ALAB-216, 8 AEC 13 (July 5, 1974).
o<
063 LO 5.
The Coalition's brief next construes Aeschliman v.
NRC as recuiring that all " unaddressed fuel cycle issucs" be considered in this and other proceedings and claims that Coalition's Contentions 4, 6 and 7 constitute such issues.
It ignores the fact that the Court of Appeals in Aeschliman instructed the Commission upon remand to consider waste dis-posal and other unaddressed fuel cycle issues "in accordance with NRDC v.
NRC."
The latter decision expressly approved the Commission's scheme of addressing fuel cycle environmental impacts through a generic rule and approved most of Table S-3.
It found fault only with the treatment of the environmental impacts of reprocessing and waste disposal.
The Coalition's Contentions 4, 6 and 7 are largely concerned with the dollar costs of the uranium fuel cycle and to the extent they touch on environmental impacts have nothing to do with reprocessing or waste disposal.
There is nothing in the Aeschliman decision which justifies the Coalition in raising these contentions at this late date.
6.
The Coalition's brief also misconstrues the pur-pose and intent of Table S-3 as contained in Appendix D to Part 50 and in Part 51 of the Commission's regulations.~5/
Table S-3 is indeed intended as a bar to raising new fuel cycle envi-ronmental issues in individual licensing proceedings, and it is 5/ Pursuant to Section 51.56 this proceeding is governed by Appendix D to Part 50 since the notice of hearing was pub-lished prior to August 19, 1974.
26 061 -
ot intended, as suggested by the Coalition, to serve only as a guide in the independent review of staff proposals by hearing boards.
The precise purpos the Table S-3 rule-making proceeding was to provide a sla9 e forum, with full l
opportunity for public participation, for assessing gener-ically fuel cycle environmental impacts.
Subject to the limited exceptions contained in Section 2.758 of the Rules of Practice, the intent of Table S-3 is"first, to limit consideration of the environmental effects of the uranium fuel cycle in individual licensing proceedings to the values set out in Table S-3, and second, to exclude frcm such pro-ceedings contentions that challenge these values."-6/
7.
Applicants are unable to discern in the Coali-tion's brief any other facts or arguments which could be construed as bearing on the issue of good cause.
Respectfully submitted, SHAW, P IT"'E'I, POTTS & TROWBRIDGE AMf
, /AYsk
/./
ga7rge F.
Trowcridge
/
~~
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6,/ Union Electric Connan't (.Callaway Plant, Units 1 and 2)
ALAB-347,
.R C I - 7 0 f ') 216, 210 (September 16, 1976).
See also Potcmac Electric Pcwer Concany (Douglas Point :Iuclear Generating Station, Units 1 and 2) ALAB-213, 8 AEC 79, 89 (July 15, 1974).
u UNITED STATES OF AMERICA NUCLEAR REGULATORY COICiISSION Before the Atomic Safety and Licensino Acceal Board In the Itatter of
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METROPOLITAN EDISOil COMPANY,
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et al.
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Docket No. 50-320
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(Three Mile Island NucJear
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Generating Station, Unit 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Brief in Gpposition to Petitioner's :;otice of Appeal," dated March 4,
- 1977, have been served upon each of the persons listed on the attached service list postage prepaid this 4th day of March, 1977.
J
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% AWb d
7
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Dated:
March 4, 1977 d
26 063
UNITED STA~ES OF AMERICA MUCLEAR REGULATORY CC:01ISSICM Before the Atomic Safety and Licensinc Anoeal Board In the Matter of
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METROPOLITAN EDISO:I COMPANY, )
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Docket No. 50-320
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(Three Mlle Island Nuclear
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Statica, U.it 2)
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S d,s7 7,L aA06 L-
.l-rr-Edward Luton, Esq., Chairman Henry J.
McGurren, Esq-Atomic Safety and Licensing Board Office of the Executive Legal U.S.
Nuclear Regulatory Commission Director Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gustave A.
Linenbercer Atomic Safety and Licenbing Board U.S.
Juclear Regulator; Commission Karin W.
Carter, Assistant Actorney Washington, D.C.
20555 General Office of Enforcement Dr. Ernest O.
Salo Department of Environmental Resource Profecsor, Fisheries Research 709 Health and Welfare Building Institute, Uli-10 Harrisburg, PA 17120 Universit. Of Washington Seattle, WA 98195 Atomic Safety and Licensing Board Panel Mr. Chauncey R.
Kepford U.S.
Nuclear Regulatory Commission 433 Orlando Avenue Washington, D.C.
20555 State College, PA 16801 and Atomic Safety and Licensing Appeal 2586 Broad Street Board York, PA 17404 U.S.
Nuclear Regulatory Commission Washington, D.C.
20535 Docketing and Service Section Office of the Secretary U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
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