ML19260D192
| ML19260D192 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 01/21/1980 |
| From: | Dignan T, Gad R, Gad R Maine Yankee, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002080060 | |
| Download: ML19260D192 (5) | |
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UNITED STATES OF AMERICA i
o'N d/ I NUCLEAR REGULATORY COMMISSION I., ' '
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ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Docket No. 50-309 MAINE YANKEE ATOMIC POWER COMPANY
)
(Spent Fuel Pool
)
Compaction)
(Maine Yankee Atomic Power Station)
)
)
LICENSEE'S ANS'.;ER TO INTERVENOR'S MOTION FOR ENLARGEMENT OF TIME AND FOR RESCHEDULING OF FIRST SPECIAL PRE-HEARING CONFERENCE Pursuant to 10 C.F.R. $ 2.730(c), the Licensee submits this Answer to the Intervenor's Motion for Enlargement of Time and for Rescheduling of First Special Prehearing Conference (hereinafter the " Motion"), and says that the same should be denied.
1.
Prescinding from the fact the Motion is improperly addressed to the Commission, it ought to be denied.
The Intervenor offers only two arguments that even attempt to approach " good cause".*
This first is an asserted "misrepre-sentation" by the Staff.
Motion at 2; Memorandum at 2-3 Even 1942 185 See 10 C.F.R. 5 2.711(c).
8002080 () (h()
assuming the argument to state a basis for relief," the most delay that would be warranted is two days, not three months.
Id.
The second is a generalized plea of unreadiness that goes to the heart of the NRC hearing process.
The Motion fundamentally misconstrues the proper role of an intervenor.
An intervenor is presumed to request leave to intervene because it has contentions it wants to litigate.
Generalized opposition to nuclear power plants does not legiti-mate intervention in the hope that litigable contentions can later be found.
Prior to the 1978 amendments (43 F.R. 17,801),
contentions were required to be filed with the initial inter-vention petition; the amendment deferring the time for conten-tions until 15 days before the date of the special prehearing conference was designed to afford whatever post-petition time might be required for the final framing of contentions.
See 43 F.R.
17,799.
The Commission's regulations therefore prescribe a time within which an intervenor must be prepared with his contentions in even a full-blown construction permit or operating license case, which will involve far more issues Not having been present, we do not of course know what Mr. Fairtile may have said to Intervenor's counsel (and the facts have not been "affidavited").
Compare 10 C.F.R. 55 2.730(b), 2.732.
But in all events the burden of determining what legal issues are raised in an adjudica-tory proceeding lies in the first instance on counsel, not other parties.
Indeed, the Memorandum suggests that Inter-venor did not credit, but rather immediately doubted, the correctness of Mr. Fairtile 's asserted statuaent.
Memo-randum at 3 1942 186 and require far more effort then the present matter.
A further delay must be conditioned on truly extraordinary circumstances if the Commission's rules are to be observed; generalized unpreparedness simply does not suffice.*
2.
Intervenor asserts that the 90-day delay requested will not harm the Licensee.
Memorandum at 5 Passing the lack of either an affidavit or qualifications to give one as to this proposition of fact, the logic of the argument prevails only if one assumes both (1) that hearing and decision will proceed promptly and (ii) that approval of the proposed fuel compaction will result.
Though it remains the Licensing Board's duty to see that the hearings progress without unneces-sary delay, recent events have demonstrated that promptness in the hearing, decision and review process does not always result -- and the Licensee takes little comfort in this regard from the fact that Intervenor's first post-petition filing requests a delay.
As for the outcome, Licensee believes it inappropriate to speculate.
But it it a fair inference that Intervenor will oppose approval of the proposed amendment by this Board, that it will seek review of any decision that does approve it, and that it will seek a stay of the effective-ness of any such decision pending review.
If the fuel compaction Insofar as the Intervenor complains that its counsel has not spent full-time (or as large a portion thereof as is required) on this matter, it simply reflects an election by Intervenor and counsel as to how their resources are to be expended.
The Rules of Practice authorize no special treatment for part-time intervention.
1942 187 proposed by the Licensee is not approved, then some alternative will have to be designed, documented and approved, and the process now on-going will start from scratch.
To assert that time is not of the essence, as Intervenor does, is erroneous.
,For the foregoing reasons, the Intervenor's Motion for Enlargement of Time and for Rcroheduling of First Special Prehearing Conference should be denied.
Respectfully submitted, Thomas G.
Dicnan, Jr.
Thomas G.
Dignan, Jr.
R.
K.
Gad III R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 1942 188
CERTIFICATE OF SERVICE I,
R..K. Gad IJ.I
, hereby certify that on January 21, 1980, I made service of the within document, by mailing a copy thereof, postage prepaid, to:
Robert M.
Lazo, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Cadet H. Hand, Jr.
Director, Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, California 94923 Mr. Gustave A.
Linenberger Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Henry J. McGurren, Esquire Office of the Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Stanley R. Tupper, Esquire Tupper and Eradley 102 Townsend Avenue Eccthbay Harbor, ME 04538 David Santee Miller, Esquire 213 Jorgan Street, N.W.
Washington, D.C.
20001 John M.
R.
Paterson, Esquire Deputy Attorney General Department of the Attorney General State House Augusta, ME 04333 R.
K. Gad III R.
K.
Gad III 0
1942 189