ML19263E670

Requests Denial of 790427 Motion by Skagitonians Concerned About Nuclear Power.In NRC Proceeding,Aslb,Not Nrc,Grants License on Basis of Record & Board Member Personal Expertise.Certificate of Svc Encl

ML19263E670
Person / Time
Site:	Skagit
Issue date:	05/08/1979
From:	Bauser M LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7906200602
Download: ML19263E670 (8)

Text

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NP.C PULL!C DOC'J..;'..C ROOM UNITED STATES OF N4 ERICA NUCLEAR REGULATORY COMMISSION BEFOPI THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PUGET SOUND POWER & LIGHT ) DOCKET NOS. 50-522 COMPANY, ET AL. ) 50-5, j

) s.

(Skagit Nuclear Power Project, )

Units 1 and 2) ) n, g W $cf .#th,w APPLICANTS' ANSWER TO SCANP h M' g

1. C s

" MOTION TO GOVERN FUTURE PRESENTATIONS T BY APPLICANT TO STAFF OF EVIDENCE RELATING s y g e-TO CONTENTIONS ADVANCED BY INTERVENOR SCANP" On April 24, 1979, at a prehearing conference, there was distributed an unsigned and undated " Motion To Govern Future Presentations by Applicant to Staff of Evidence Relating to Contentions Advanced by Intervenor SCANP" (motion). This motion was later served formally by mail on April 27, 1979.

In the motion SCMIP seeks an order providing that With respect to any future meetings or conferences between staff and applicant, which relate in any significant way to a subject which involves a contention being raised by intervenor SCMIP in this pro-ceeding, the following procedures shall be followed:

a. The staff shall consult with inter-venors before setting the time and place of such meetings and conferences. If at all possible, any such meetings and conferences shall be held in the State of Washington, preferably in the city of Seattle or Bellevue.

2287 .10 7 9 0 6 2 0060>

b. Applicant shall make available to intervenors at the same tine it is made available to the staff any data, report, study, or other document which is furnished to staff in connection with such meeting or conference.

c. Intervenors and their experts shall have the right to be present at such confer-ences, and to participate by means of ques-tioning experts, and by offering comments, including comments of SCANP experts.

Motion, pp. 3-4. In support of its motion SCANP alleges that applicants have attended certain meetings in the past in order "to confer with the staff and U.S. Geological Survey;" that the purpose of such meetings is "to persuade the staff and the U.S. Geological Survey to subscribe to the adequacy and suffi-ciency of the geologic investigations conducted by the appli-cant;" that, although intervenors and other parties receive notice of these meetings, they are not " consulted regarding their location and timing" and neither are they " afforded the opportunity to review . . . nor respond to evidence and con-tentions advanced by the applicant at such meetings;" and finally, without any citation to NRC regulations, that the meetings are "in effect ex parte contacts" and " clearly con-trary to the rules of the Commission, and to well-accepted principles of administrative law." Motion, pp. 1-2. These statements, however, reflect a misapprehension of the nature 2287 311

3-of the NRC review process, pertinent law, and certain facts.

As a result, the motion should be denied.

Perhaps the most basic misunderstanding revealed by the motion concerns the Licensing Board's decisionmaking respon-sibility. In a Commission proceeding it is the Board, not the Staf f, that decides whether or not a license should be granted.

See 10 CFR SS 2.718, 2.721. Further, that decision must be made on the basis of the record developed in the proceeding.

10 CFR Part 2, App. A, 1 V(e) (2) . Board members may use their expert knowledge and experience in evaluating and drawing conclusions from the evidence. However, if information is not contained in the testimony, exhibits or pleadings, they may not be considered (unless, of course, official notice is taken) .

Id. at 11 V(e) (1) , V(e) (2) .

As a result of the foregoing precepts, any information simply exchanged between parties can have no effect on the outcome of a proceeding. The Board may look only to the re-cord developed before it. If the information therein is not sufficient, a favorable decision on the license application may not be issued -- regardless of any other information the Staff might rely upon in the formulation of its own position.

Accordingly, concern that information exchanged privately between parties might improperly influence the outcome of this case is unfounded.

2287 12

It is also important to note that, contrary to SCANP's assertions, meetings at which all parties are not present do not constitute improper communications. Section 2.780 of the Commission's regulations, which governs ex parte contacts, prohibits substantive, of f-the-record communications only with those performing quasi-judicial functions -- such as Commis-sioners and members of Licensing Boards -- and not with the NRC Staff. In fact, section 2.102(a) of NRC regulations gives the Staff specific authority to confer privately with any party, /

See and it is contemplated that such exchanges will occur.

Northeast Muclear Eneray Co. (Mo.:tague Nuclear Power Station),

LBP-75-19 1 NRC 436, 437 (1975). ,

f Finally, to the extent that SCANP alleges that documents provided to the Staff are not being offered on a timely basis to other parties, applicants wish to state that it has been their practice to make this information available in the past, and that they will continue to do so in the future. Such documents will either be distributed to all interested parties, or made available for inspection and copying at a mutually convenient location.

• /

- Under Staff policy, basically all meetings conducted by the NRC technical staff as part of its review of a particular domestic permit application are openSee to attendance 43 Fed.

by Reg.

all 28,058 parties in a licensing proceeding.

(1978). There is no allegation here that this policy has been violated.

2287 313

-S-In sum, based on the foregoing discussion, the motion is without merit and should be denied.

Respectfully submitted, Anaa_

Michael A. Bauser PERKIMS, COIE, STONE, LOWENSTEIN, NEWMAN, REIS, OLSEN & WILLIAMS AXELRAD & TOLL 1900 Washington Building 1025 Connecticut Avenue, N.W.

Seattle, Washington 98101 Washington, D.C. 20036 Telephone: 206/682-8770 Telephone: 202/862-8400 Dated: May 8, 1979 2287 ;14

UNITED STATES OF AMERICA NUCLEAR REGULATORY C012iISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PUGET SOUND PO!TER & LIGHT COMPANY, ) DOCKET NOS. 50-522 ET AL. ) 50-523

)

(Skagit Nuclear Power Project, )

Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that the following:

APPLICANTS' ANSWER TO SCANP " MOTION TO GOVERN FUTURE PPISENTATIONS BY APPLICANT TO STAFF OF EVIDENCE RELATING TO CONTEN-TIONS ADVANCED BY INTERVENOR SCANP" in the above-captioned proceeding has been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on May 8, 1979 with proper postage affixed for first class mail.

Dated: May 8, 1979.

MICHAEL A. BAUSER LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.N.

Washington, D.C. 20036 2287 315

Date: May 8, 1979 Valentine B. Deale , Chairman Nicholas D. Lewis, Chairman Atomic Safety and Licensing Board Energy Facility Site Evaluation 1001 Connecticut Avenue, N.W. Council Washington, D.C. 20036 820 East Fifth Avenue Olympia, WA 98504 Dr. Frank F. Hooper, Member Atomic Safety and Licensing Board Robert C- Schofield, Director School of Natural Resources Skagit County Planning Department University of Michigan 120 West Kincaid Street Ann Arbor, MI 48109 Mount Vernon, WA 98273 Gustave A. Linenberger, Menber Richard M. Sandvik, Esq.

Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission Department of Justice Washington, D.C. 20555 500 Pacific Building 520 S.W. Yamhill Alan S. Rosenthal, Chairman Portland, OR 9720^

Atomic Safety and Licensing Appeal Board F. Theodore Thomsen, Esq.

U.S. Nuclear Regulatory Commission Douglas Little, Esq.

Washington, D.C. 20555 Perkins, Cole, Stone, Olsen

& Williams Dr. John H. Buck, Member 1900 Washington Building Atomic Safety and Licensing Seattle, WA 98101 Appeal Board i

~

U.9 Nuclear Regulatory Commission Warren Hastings, Esq.

Washington, D.C. 20555 Associate Corporate Counsel  !

Portland General Electric Company Michael C. Farrar, Member 121 S.W. Salmon Street Atomic Safety and Licensing Portland, OR 97204 Appeal Board U.S. Nuclear Regulatory Commission CFSP and FOB Washington, D.C. 20555 E. Stachon & L. Marbet 19i42 S. Bakers Ferry Road Docketing and Service Section Boring, OR 97009 Office of the Secretary U.S. Nuclear Regulatory Commission Canadian Consulate General Washington, D.C. 20555 Peter A. van Brakel (Original and 20 copies) Vice-Consul 412 Plaza 600 Richard L. Black, Esq. 6th and Stewart Street Counsel for NRC Staff Seattle, WA 98101 U.S. Nuclear Regulatory Commission Office of the Executive Legal Richard D. Bach, Esq.

Director Rives, Bonyhadi, Drumnond & Smith Washington, D.C. 20555 1400 Public Service Building 920 S.W. 6th Avenue Roger M. Leed, Esq. Portland, OR 97204 1411 Fourth Ave. Bldg. #610 Seattle, WA 98101 Thomas F. Carr, Esq.

Assistant Attorney General Temple of Justice Olympia, WA 98504 2287 316

Russell W. Busch, Esq.

Evergreen Legal Services 520 Smith Tower 506 Second Avenue Seattle, WA 98104 Donald S. Means Box 277 La Conner, WA 98257 2287 317

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