ML19282A875
| ML19282A875 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/07/1979 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7903070423 | |
| Download: ML19282A875 (7) | |
Text
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UNITED STATES OF AMERIdlVT RCOy NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 30 In the Matter of
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DUKE POWER COMPANY
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Nuclear Station Spent Fuel
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APPLICANT'S OPPOSITION TO NATURAL RESOURCES gj DEFENSE COUNCIL'S REQUEST FOR AN EXTENSION OF TIME TO FILE AN APPEAL dag F On January 29, 1979, Natural Resources Defense Council (NRDC) filed a Request For Extension Of Time to File An Appeal.
Applicant opposes such request for the reasons set forth below.
The procedural maneuvering by NRDC giving rise to the subject request warrants a somewhat detailed description.
On January 9, 1979 the Atomic Safety and Licensing Board desig-nated to rule on petitions for leave to intervene (Petitions Board) -2/issued its Supplemental Order denying intervenor
-1/ Petitioner Natural Resources Defense Council's instant request reflects that such was filed with the " Nuclear Regulatory Ccmmission".
It is unclear whether this motion was filed with the Licensing Board, the Appeal Board, or indeed, the Commission itself.
Applicant is of the view that the subject matter o Petitioner's request is not be-fore the Licensing Board, but rather, the Appeal Board or the Commission.
Inasmuch as Applicant understands that the Cctmission is in the process of delegatinc authority to the Appeal Board to entertain this request and any appeals that may follow, Applicant has chosen to respond in such forum.
In the event Applicant is mistaken, it has filed a copy of its opposition with both the Licensing Board and the Ccmmission.
2/ See 43 Fed. Reg. 13197 (1978).
- status to NRDC.
Therein, the Petitions Board informed NRDC that, pursuant to 10 CFR Section 2.714a, it had 10 days within which to note an appeal and file a supporting brief.
On January 16, 1979, rather than noting its appeal, NRDC moved the Licensing Board for an extension of time to file objections to the Supplemental Order.
At the same time, NRDC requested the Appeal Board to grant it an extension of time within which to request an extension of time to file an appeal in the event the Licensing Board denied its request for an extension of time to file objections.
Applicant opposed both motions as being contrary to the Commission's rules.
Applicant maintained that the objection procedure provided by 10 CFR Section 2.751a applied to rulings made by an Atomic Safety and Licensing Board desig-nated to conduct the hearing that may be held on the subject application (Hearing Board) -3/ and not to rulings of a Petitions Board, such as the subject Supplemental Order.
On January 18, 1979 the Licensing Board, prior to the receipt of Applicant's opposition, granted MRDC's request for an extension of time within which it could file its objection.
On January 26, 1979 Applicant filed its above-referenced opposition.
Thereafter, on January 29, 1979, NRDC filed the instant request seeking an extension of time to take an appeal and file a supporting brief, such to run 21 days from the Licensing Board's ruling on its objections, or 10 days from the Commonwealth Edison's-4/ Licensing 3/ See 43 Fed. Reg. 52303 (1978).
-4/ NRDC avers that issues similar to those Jaised by the con-templated appeal have been raised by it in proceedings before a Licensing Board involving Commonwealth Edison.
- Board's ruling on intervention, whichever is later.
On February 2, 1979, the Licensing Board denied NRDC's objection on the procedural grounds advanced by the Applicant.
In addition, the Licensing Board chose to reach the merits of the Objection and denied them.
The Licensing Board went on to in-form NRDC that it would have 10 days within which to file an appeal and supporting brief.
Iu is in the light of the above procedural history, that the several reasons advanced by NRDC as grounds for its re-quest must be assessed.
NRDC maintains that 10 days does not provide a sufficient period of time within which to file an appeal and supporting brief.
NRDC's appeal and supporting brief were originally due 10 days after the Licensing Board's Supplemental Order, to wit, January 24, 1979.~5/
See 10 CFR Section 2.714a.
That MRDC, guided by experienced counsel, improperly chose to file objections pursuant to 10 CFR Section 2.751a should not inure to its benefit so as to provide it with additional time within which to file its appeal.
This point takes on added significance when one examines the October 24, 1978 prehearing conference transcript wherein NRDC's counsel strenuously objected to any Petitions Board action which would go beyond the ambit of 10 CFR Section 2.714.
See Tr. 76 wherein NRDC maintained that the Petitions Board was not established
~5/ That such was the case has been clearly demonstrated by the action of NRDC's companion Petitioner, Davidson Chaper of North Carolina Public Interest Research Group (Davidson).
Davidson was also denied intervenor status by the Licensing Board's January 9 Supplemental Order.
On January 22, 1979, Davidson filed its appeal and supporting brief.
pursuant to 10 CFR Section 2.751a, but rather derived its authority from Section 2.714 and could not perform functions elaborated under section 2.751a.
Applicant would also note the subject matter of NRDC's anticipated appeal has been that the thoroughly briefed before the Licensing Board by NRDC, NRC Staff, and the Applicant.
In addition, in light of the present Licensing Board's February 2nd ruling, NRDC has been extended to February 19, 1979 within which to file its appeal and supporting brief.
This latest Board action has provided NRDC with almost an additional month's tine within which to Accordingly, no ex-prepare its appeal and supporting brief.
tension should be granted.
NRDC also suggests that this Appeal Board await the de-terminacion by the Licensing Board in Commonwealth Edison cases, Docket No. 50-237/249/254/265.
Applicant is cognizant that the issue raised by NRDC in the McGuire proceeding has also
- however, been raised in the Commonwealth Edison proceeding; to await the Licensing Board's decision in the Commonwealth Edison's case is unnecessary inasmuch as the matter is properly before this Appeal Board and inasmuch as prompt consideration of this matter is required.
Intervenor status has been extended to several parties in the instant McGuire proceedinc.
Discovery is being conducted.
While a hearing dare is yet to be set, it is anticipated that such is likely to ccmmence early this spring.
If NRDC's anticipated appeal is not timely reached, any sub-sequent action by either this Appeal Board, the Ccmmission,
- or indeed, the Courts could impair the hearing process so as to necessitate an extension of the discovery period and/or supplemental hearings, both o. which would delay the timely resolution of Applicant's application.
For the above stated reasons, Applicant respectfully requests that NRDC's request for an extension of time to file its appeal be denied and that NRDC be required to file its appeal and supporting brief immediately, and in no event latter than February 19, 1979.
Respectfully submitte fwb J. Michael McGarry, II Of counsel:
William L.
Porter, Esq.
Associate General Counsel Duke Power Company February 7, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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DUKE POWER COMPANY
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Docket No. 70-2623 (Amendment to Materials
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License SNM-1773 for Oconee
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Nuclear Station Spent Fuel
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Transportation and Storage
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at McGuire Nuclear Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Opposition to Natural Resources Defense Council's Request for an Extension of Time to File an Appeal", dated February 7, 1979 in the captioned matter, have been served upon the following by deposit in the United States mail this 7th day of February.
Chairman, Atomic Safety and*/
Dr. Cadet H.
Hand, Jr.
Licensing Appeal Board Director U.
S. Nuclear Regulatory Bodega Marine Laboratory Commission of California Washington, D.
C.
20555 Post Office Box 247 Bodega Bay, California 94923 Mr. Samuel Chilk Secretary Mr. Jesse L.
Riley U.
S. Nuclear Regulatory President Commission Carolina Environmental Washington, D.
C.
20555 Study Group 854 Henley Place Marshall I. Miller, Esq.
Charlotte, North Carolina 28207 Chairman, Atomic Safety and Licensing Board U.
S. Nuclear Regulatory Edward G.
Ketchen, Esq.
Commission Counsel for NRC Regulatory Washington, D. C.
20555 Staff Office of the Executive Legal Dr. Emmeth A.
Luebke Director Atomic Safety and Licensing U.
S.
Nuclear Regulatory Board Commission U.
S. Nuclear Regulatory Washington, D.
C.
20555 Commission Washington, D. C.
20555
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Consistant with footnote 1 of Applicant's instant Opposi-tion, Applicant is serving three copies of the instant pleading with the Atomic Safety and Licensing Appeal Scard.
- - William L.
Porter, Esq.
Richard P. Wilson Associate General Counsel Assistant Attorney General Duke Power Company State of South Carolina Post Office Box 33189 2600 Bull Street Charlotte, North Carolina Columbia, South Carolina 28242 29201 Shelley Blum, Esq.
. Chairman,. Atomic Safety and 418 Law Building Licensing Board Panel 730 East Trade Street U.
S. Nuclear Regulatory Charlotte, North Carolina Commission 28202 Washington, D.
C.
20555 Anthony Z.
Roisman, Esq.
Chairman, Atomic Safety and Natural Resources Defense Licensing Appeal Board Council U.
S.
Nuclear Regulatory 917 15th Street, N.W.
Commission Washington, D.
C.
20005 Washington, D.
C.
20555 Brenda Best Mr. Chase R.
Stephens Carolina Action Docketing & Service Section 1740 E.
Independence Blvd.
Office of the Secretary Charlotte, North Carolina U.
S. Nuclear Regulatory 28205 Commission Washington, D.
C.
20555 Chuck Gaddy Chairperson Davidson PIRG P.
O.
Box 2501 Davidson College Davidson, North Carolina 28036
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l b%W MichaelMcGarpy, III/
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