ML19256B827
| ML19256B827 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 08/10/1979 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7909200068 | |
| Download: ML19256B827 (5) | |
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NRC PUBLIC DOGUMEd W UNITED STATES OF AMERICA 8/10/79 NUCLEAR REGULATORY COMMISSION BVORE THE ATOMIC SAFETY AND LICENSING BOARD A%
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In the Matter of
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NRC STAFF RESPONSE TO INTERVENOR MOTION FOR STAY On July 27, 1979, the intervenor State of Illinois (Intervenor) filed a motion to stay the above-captioned proceeding pursuant to 10 CFR 32.788. The motion is accompanied by a brief in support of its July 25 Findings of Fact and Con-clusions of Law (Part I thereof) and, in reliance upon the District of Columbia Circuit opinion in Minnesota v. NRC, et al.,
F.2d
, Nos. 78-1296 and 78-2032 (D.C. Cir., May 23, 1979), in support of its motion (Part II). The NRC Staff oppose.s the motion on the grounds that it is untimely, fails to,
articulate the operative c-iteria for a post-hearing stay, and otherwise rests upon a misapplication of Minnesota.
Given Intervenor's reliance upon the Minnesota opinion, rendered prior to the start of hearings in this proceeding, the motion is untimely. There is no showing why the issue sought to be introduced could not have been raised prior to or during the hearings.
In ruch event, a motion to suspend the hearings could have been interposed pursuant to 10 CFR 52.718. See Potomac Electric' Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2) ALAB-277, 1 NRC 539 (1975). A favorable ruling thereon would have saved the considerable time and expense expended on hearings in this matter.
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. Section 2.783 does not provide express authority to stay the issuance of a decision followiqg the close of the evidentiary record and the submission 1]
of post-hearing findings.
Even assuming the applicability of 10 CFR 12.738, the instant motion would be deficient for its failure to address the appli-cable considerations specified therein.
The Staff will not speculate whether a basis for the desired relief might lie under a different theory.~2/ It is incumbent upon the movant, represented here by experienced counsel, to properly frame its motion and supporting authority.
Thus, the motion requires rejection on this ground alone.
The motion is equally untenable on substantive grounds. Though not submitted directTy in connection with the stay motion, Part I of the brief constitutes a mere rehearsal of Intervenor's proposed findings respecting contentions 2(a),
(b), and (c). The Staff believes that the Intervenor's filings mischaracterize the evidentiary record on these matters and urges their rejection in favor of the Staff findings on the subject. The Intervenor's brief is replete with mischaracterizations of the record.
For example, the Intervenor contends that
"[t]he Staff's decision not to perfonn an (environmental impact statement] EIS in this proceeding was made before the (environmental impact appraisal] EIA was near completion. No careful assessment of site specific environmental impact was ever made: the decision not to perform an~ EIS was simply a rote If This regulation permits the submission of an application for a stay of the effectiveness of a licensing decision or action pending appeal.
2] The Intervenor has elected not to move to reopen the record.
Motion at 11 n.4.
The grounds for such a motion are set forth generally in Vermont Yankee Nuclear Power Coro. (Ve.mont Yankee Nuclear Power Station) ALAB-138, 6 AEC 523 (1973), reconsid. den., ALAB-141, 6 AEC.576.
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% application of Staff policy, and the EIA was essentially copied from the EIA on another rerack, proposal" (Brief at 2). Neither the Intervenor's findings nor brief cite evidence to support this allegation.
In fact, the evidence is to the contrary. Specifically, the NRC project manager who prepared the EIA herein, Mr. G. Zech, testified chat; on the basis of his environmental review of four prior spent fuel pool expansion applications, he was able to reach a preliminary determination that the instant action would not result in a sig-nificant environmental impact prior to formal completion of the Staff's review process (Tr. 657-58), that there is an intentional similarity in the format and content of Staff environmental assessments regarding spent fuel pool ex-pansion application (several of which he authored) (Tr. 658-59), that, none-theless, the Zion EIA was site-specific respecting any and all such matters (Tr. 609-12, 658-60) and that there was a sound basis for not issuing an EIS (Tr. 650-61).
Intervenor posits its stay motion upon its construction of the Minnesota opinion.
The import of this case upon the instant proceeding was briefed by. the Staff in a memorandum of law which accompanied its proposed findings dated August 3, 1979. As_ demonstrated therein, the Minnesota opinion cannot be construed to require the suspension or deferral of spent fuel expansion proceedings as 3/
the Intervenor urges in Part II of its brief.--
3/ At least one licensing board has already rejected a similarly grounded motion. Virginia Electric & Power Co. (North Anna Power Station, Units 1 and 2), Board Decisions (unpualished) (August 6,1979) (spent fuel pool proceeding).
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, l CONCLUSION Based on the above, the Staff opposes Intervenor's motion to stay.
- Respectfully submitted, N
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Steven C. Goldberg l
Counsel for NRC Staff i
Dated at Bethesda, Maryland this 10th day of August,1979 1 3. t.
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af UNITED STATES OF AMERICA NUCLEAR REGULATORY CCK4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-295 (Zion Station, Units 1 and 2) 3 50-304 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENOR MOTION FOR STAY" 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 10th day of August,1979.
Atomic Safety and Licensing Board John F. Wolf, Esq., Chairman Panel 3409 Shepherd Street U.S. Nuclear Regulatory Conmission Chevy Chase, Maryland 20015 Washington, D. C.
20555 Dr. Linda W. Little Atomic Safety and Licensing Appeal 500 Hermitage Drive Board Panel Raleigh, North Carolina 27612 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. Forrest J. Remick Docketing and Service Section 305 E. Hamilton Avenue U.S. Nuclear Regulatory Coranission State College, Pennsylvania 16801 Washington, D. C.
20555 Philip P. Steptoe, Esq.
Isham, Lincoln and Beale One First National Plaza Chicago, Illinois 60603 Susan N. Sekuler, Esq.
Assistant Attorney General Environmental Control Division 188 West Randolph Street, Suite 2315 gg gG Chicago, Illinois 60601
' Steven C.'Goldbe'rg Counsel for NRC Staff Mr. Rick Konter 617 Piper Lane Lake Villa, Illinois 60046 1224 228
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