ML19261D300
| ML19261D300 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 04/19/1979 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7906020113 | |
| Download: ML19261D300 (8) | |
Text
.
iP '
,((4'i4Q[$
April 19, 1979
[IA' k
UNITED STATES OF AMERICA P gLIC l
gh p NUCLEAR REGULATORY COMMISSION f3 3
\\ @ - u[
~
BEFORE THE ATOMIC SAFETY AND LICENSIf;3 BOARD
~
In the Matter of
)
)
Dc:ket Nos. STN 50-488 DUKE POWER COMPANY
)
STN 50-489
)
STN 50-490 (Perkins Nuclear Station.
)
l Units 1, 2 and 3)
)
NRC STAFF OPPOSITION TO INTERVENORS' MOTION TO REOPEN THE RECORD AND DEFER INDEFINITELY ISSUANCE OF THE INITIAL DECISION i
On March 5,1979, Ir.terver. ors filed a motion which seeks both to reopen the record and to stay or suspend licensing activity because of the accident at the Three Mile Island Nuclear Power Plant.
For the reasons set forth below, the NRC Staff opposes the motion.
The accident at Three Mile Island is currently under investigation by the NRC in order to determine its specific causes.
Upon completion of that effort any necessary changes in NRC regulation or other requirements will be made.
Prior to that time the Intervenors' request is premature.
Further as this is a construction permit proceeding, there is adequate time for any necessary changes resulting from the investigation of the Three Mile Island dccident to be made if they are necessary.
3 oint meeting of the Nuclear Regulatory Corinission and Advisory J
Committee on Reactor Safeguards, Washington, D.
C., Thursday, April 5,1979, determined that no cessation of the operation of nuclear reactors is necessary at the present tire.
2307 144 y noo2 02 2 3
4; '
i
- The legal standards to reopen or stay a proceeding are quite specific, and are not met in the general averments filed by the intervenors.
The proponent of a motion to reopen a hearing has a heavy burden of showing either a significant unresolved safety issue or a change in facts material to the resolution of major environmental issues that could change the result of the proceeding.
Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 'lRC 33, 81-82 (1977), affirmed CLI-78-1, 7 NRC 1, (1978); affirmed sub nom. New Encland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir.1978);
Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),
ALAB-462, 7 NRC 320 (1978).
A stay of proceedings before a Licensing Board is generally governed by the four factors listed in Viroinia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.' Cir.1958), for consideration by Federal courts before the issuance of preliminary injunctions.
Allied-General Nuclear Services (Barnwell Nuclear Plant Separations Facility), ALAB-296, 2 NRC 671 (1975); Public Service of New Hamosnir_e_ (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976). These factors are:
(1) has the movant made a strong showing that it likely to prevail upon the merits of its appeal; (2) has the movant shown that, without the requested relief, it will be irreparably injured; 2307 145
i j.
i l
(3) would the issuance of a stay substantially harm other parties ii interested in the proceeding; and E
l (4) where does the public interest lie? 2_/
I The strength or weakness of anyone of these factors, determines how j
strong a showing must be made on the other factors.
Public Service Co.
j of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976). A mere showing of a possible error is not enough but there must be a showing that no ground for the decision will remain. Toledo Edison Co.
(Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621 (1977); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-158, 6 AEC 999 (1973).
More importantly, there ordinarly must be a showing of substantial irreparable injury to the movant absent the stay.
Public Service Co. of In' diana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630-632 (1977); Toledo Edison Co., supra. Although the " level or degree of possibility of success" on the merits necessary to justify a stay varies according to the tribunal's assessment of the other factors; where there is no showing of irreparable injury, the showing of likelihood of success on the merits must be overwhelming to justify a stay.
Florida Power &
Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALA3-404, 5 NRC 1185, 1186-39 (1977).
To make such a showing a movant must, of course, do more than list possible grounds for reversal.
Toledo Edison Co., supra.
2
- _/ These factors are incorporated in 10 CFR 2.788(e), caaling with stays of initial decisions.
They are similarly applicable to stays of proceeding prior to initial decisions.
2307 146
4 l
4 i
Vague generalizations about inadequate protection of the public health and safety are not enough. As stated in Vermont Nuclear Power Corp.
- v. Natural Resources Defense Council, 435 U.S. 519, 553-554 (1978):
... it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions...
Indeed administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that "ought to be" considered...
The Intervenors' motion here meets neither the test for reopening the hearing or the test for a stay. The allegations, on which the request for relief is predicated,are very general ones stating essentially that the instant facility and the Three Mile Island facility are pressurized water reactors, that they contain similar water systems potent....y subject to the same type of problems, and t"at there are unresolved generic problems similar to both facilities, and that significant other unresolved safety issues exist.
There is no threat of irreparable injury to the Intervenors in this construction permit proceeding. Even if construction permits should granted, no nuclear facility can be operated absent operating licenses.
Power Reactor Develooment Co. v. International Union of Electrical, Radio & Machine Workers, 367 U. S. 396 (1961); Vermont 2307 147
Yankee fluclear Power Corp. v. fiatural Resources Defense Council, supra.
The Duke Power Company has not yet applied for those operating licenses.
When such an application is received, an opportunity for hearing must be provided.
Ibid.
The issues the Intervenors seek to raise in this motion, even if they were otherwise proper, could not be the basis of a stay as no harm can be shown. S Intervenors' vague generalizations concerning similar water systems, generic problems, and other unelucidated safety issue likewise fail to supply a basis for reopening the Perkins record on the basis of the Three Mile Island accident.
The nearest movant comes to meeting its burden by pleading specific facts to show a connection between the accident at the Three Mile Island facility and the Perkins facility is to state that both plants contain pressurized water reactors. However, so do many other plants; and the fact that both plants contain pressurized water reactors does not show an unresolved safety issue or a change in facts that could change the result of the proceeding. See Public Service Co. of flew Hampshire, ALAB-422, suora.
Sufficient infomation is not even provided for a valid contention, let alo'ne for reopening of the re. cord.
See Vermont Yankee, supra; 10 CFF 2.714.
Moreover, the plants and their water systems, aside from both being pres-surized water reactors, have not had similarities identified by Phe Intervenors which could be the basis for re-opening the record. The 3/ showing of litigation expenses does not show irreparable injury as A
a matter of law. Toledo Edison Co. supra; Allied-General fluclear Services, supra.
2307 148
Perkins facility will have, as the evidence shows, a Combustion Engineering Co. reactor. The one at Three Mile Island has a Babcock and Wilcox Co.
reactor. No facts or basis are given to premise the vague assertions that the six generic issues are relevant to both plants because of the accident at Three Mile Island.
For example, Intervenors allege Main Steam Line Break Inside Containment and no such occurrence was involved in,the Three Mile Island accident. No basis is given for the assertion that present programs do not form a basis of resolving these issues, particu-larly since we are here concerned.with construction permits and not operating licenses. As stated, above, there is ample time to deal with specific safety issues which may develop as a result of the completion of the investigation of the Three flile Island accident at the operating license stage.
~~
~
Vague allusion to unspecified safety issues does not create an issue of fact.
It was just such vague assertions, although there relevant to environmental matters, which the Supreme Court ruled in the Vermont Yankee case, suora, do not create an issue of fact, and which here cannot be the premise for reopening the hearing.
For the reasons discussed above, the Intervenors motion should be denied.
Respectfully submitted, kh&
Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland, this 19th day of April,1979.
2307 149
UNITED STATES OF AMERICA NUCLEAR REGULATOPY COMMISSION
- EFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket Hos. STN 50-488 DUKE POWER COMPANY
').
STN 50-489 (Perkins Nuclear Station l
STN 50-490 Units 1, 2 and 3)
)
c
' CERTIFICATE ~0F' SERVICE I hereby certify that copies of "NRC STAFF OPPOSITION TO INTERVENORS' MOTION TO REOPEN THE RECORD AND DEFER INDEFINITELY ISSUANCE OF THE INITIAL DECISION" in th'e above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk by deposit 'in the Nuclear Regulatory Commission internal mail system, 'this 19th day of April,1979:
- Elizabeth S. Bowers, Esq., Chairman William A. Raney, Jr., Esq.
Atomic Safety and Licensing Board Special Deputy Attorney General U.S. Nuclear Regulatory Commission P.O. Box 629 Washington, D.C.
20555 Raleigh, North Carolina 27602 Dr. Donald P. deSylva William L. Porter, Esq.
Associate Professor of Marine Associate General Counsel Science Duke Power Company Rosenstiel School of Marine 422 South Church Street and Atmospheric Science.
Charlotte, North Carolina 28242 University of Miami Miami, Florida 33149 William G. Pfefferkorn, Esq.
P.O. Box 43 Dr. Walter H. Jordan Winston-Salem, North Carolina 27102 881 W. Outer Drive Oak Ridge, Tennessee 37830 Mrs. Mary Davis Route 4 J. Michael McGarry, III, Esq.
Box 261 Debevoise and Liberman M ocksville, North Carolina 27028 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 2307 150
~ ~
~
2-
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commissien Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Ccmmission Washington, D.C.
20555
- 0ccketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
(
Charles A. Barth Counsel for NRC Staff 2307 151
-m ew..-