ML19284A503
| ML19284A503 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/05/1979 |
| From: | Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7903060667 | |
| Download: ML19284A503 (8) | |
Text
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DUKE P0'.lER C0:tPANY
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(laendnent to liaterials License
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x SN:1-1773 for Oconee Nuclear Station
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NRC STAFF RE5PONSE TO
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Y NATURALRESOURCESDEFENSECOUNCIL'S?
i'OTION FOR AN EXTENSION OF TI"E TO G
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APPEAL THE PETITIONS BOARD'S SUPPLEl' ENTAL ORDEfC OF JANUARY 9,1979 AND OBJECTION TO APPLICANT'S RESPONSE'*i7'~-['.)
I.
INTRODUCTION On January 16, 1979, the Natural Resources Defense Council filed a motion for extension of time "to file a motion for extension of time pursuant to 10 CFR 52.714a with the Atomic Safety and Licensing Appeal Board
(" Appeal Board").
In part, the basis for the NRDC motion for an exten-sion of time to appeal was based on the fact that it had moved for an extension of time to object directly to the Atomic Safety and Licensing Board designated to rule on Petitions denial of its petition to intervene pursuant to 10 CFR 52.751a(d).
For the reasons stated therein, the NRC Staff has no objection to the granting of the requested time extension.
- Although the NRC Staff has no objection to NRDC's motion, it does object to the Applicant's response and requests that the Appeal Board entertain the Staff's objections as part of its response to the NRDC motion.
790306CCo67
S On January 23, 1979, the Applicant filed c response a opposi tion to f:RDC's request of the Appeal Board for a time extension in which to appcal.
Applicant asserted that 10 CFR 52.751a(d) is not available to Ni'J1: to object to the supplemental order issued by the Petitions Board.
The Applicant asserts thet NRDC's sole r:mJy at this point is an anpeal of the denial of its petition to intcrvene to the Atcmic Safety and Licensing Appeal Board pursuant to 10 CFR 52.714.
Applicant argues that the Atomic Safety and Licensing Board appointed to rule on petitions to intervene in this case was not proceeding under 10 CFR 52.751a when it held a special prehearing conference to hear argument on the petitions to intervene.
Thus, it argues that NRDC may not object to the ruling of the Petitions Board oirectly to the Petitions Board pursuant to 10 CFR 52.751a(d).
We believe that the Applicant is dead wrong in its argument in opposition to the motion and we request the permission of the Appeal Board to file this reply to Applicant's response.
NRDC may object to the supplemental order issued by the Petitions Board denying its petition to intervene directly to the Petitions Board pur-suantto10CFR52.751a(d).
_3_
A.
The 0 tober 24,1973 prehearing conference was held purauant to the
" Notice of Special Prehearing (September 22,1978)".
The notice stated in part:
"PLEASE TAKE NOTICE that a spegial prehearing conference pa" m nt to the provisions,oi s2.751e of th' Co missicm's Rules of Practice (10 CFR s2.7El(a) will bn held at 10:00 c.m.
locci time, on Tuesday, October 24, 1978...".
In pertinent part, 52.751a(a) provides:
In any proceeding involving an application for a construction permit or an operating license for a production or utiliza-tion facility, the Commission or the presiding officer will direct the parties and any petitioners for intervention, or their counsel, to appear at a specified time and place, within (60) days af ter the notice of hearing is published, or such other as the Commission or the presiding officer may deen appropriate, for a conference to:
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(3) Consider all intervention petitions to allow the presiding officer to make such preliminary or final determination as to the parties to the proceeding, as may be appropriate; and Section 2.751a(d), [10 CFR 52.751a(d)], further provides in part:
"lhe presiding officer shall enter an order which...makes a preliminary or final determination as to the parties in the proceeding,***.
Objections to the order may be filed by a party within five (5) days after service of the order,...".
-4_
5: -t!an 2. / ; t a li tu rci l;f pe rt :in o thc to e constructica inmit nrn-ceeding or to an operating license proceedi )g for a production or utilization facility.
However, Section 2.751a falls under 10 CFR k' pa rt C, "Roler of General Applicability".
Section 2.700 [10 CFR 52,700] provides that the rules of generally applicability, whici., as noted, inclue-lb CFR 52.751a, apply as well to proceedings bein 1 con-cu':t ad pursuant to 10 CF' !2.100 lacordingly,10 CFR 52.751a(d) is available to NRUC in this instance.
The Petitions Board was proceeding in this case pursuant to the notice of hearing issued under the authority of10CFR32.105.1/
In summary, the notice of special prehearing conf erence, Septenber 22, 1978, expressly provided for a special prehearing conference to be held pursuant to the provisions of 52.751a.
Section 2.751a(d) expressly provides that a preliminary or final detemination ruling on party status may be objected to directly to the Petitions Board.
Accordingly, NRDC is entitled to object directly to the Petitions Board pursuant to the Commis-sion's Rules of Practice.
In certain instances, the Commission's Rules of Practice provide alternative remedies to parties and persons seeking to participate in Commission proceedings.2_/ Moreover, there is no pro-hibition that we know of that would prohibit NRDC from using its remedies in a cumulative fashion.
Thus, if NRDC fails to obtain relief from the Petitions Board pursuant to 52.751a it still has available its appeal remeay pursuant to 10 CFR 52.714.
2/ See generally, Consumers Power Company, (Midland Plant, Units 1 a' 2),
ALAB-235, 8 AEC 645, 646 (1974).
. b.
2pr une Ligin. Cc: yv (Bcave:
'.'a l ley Poo r S ta ti on, I!ni t i:n. 1),
ALAC-109, 6 AEC, 243, 245 (1973) does not support denial of NRF;C's request for e extension of tilce to appeal.
In Seaver Vallev, sunra, the Appeal Co;ro d.: scribed the linited function of a petitions hoacd established to rule cn petitions to intervene.
In th it case, the Appeul Board allo.te:f that Petitions Board had to decide whether there was at least one contention in the petition which satisfies the requirement of 10 CFR 52.714(a).
It also said, however, that the Petitions Board had to be satisfied that the other requirements of Sec-tion 2.714, i.e., " interest", were met before the Licensing Board responsible for the hearing took over.
The Appeal Board in Beaver Valley then cited 10 CFR 52.751a as general authority for that Licensing Board to take up the remaining contentions during the course of prehearing procedu res.
Thus, the Beaver Valley Appeal Board had no occasion to deal with the procedural matter in issue in this case, i.e.,
the applica';ility of Section 2.751a to the Petitions Board's consideration of matter of standing of NRDC.
IV.
CONCLUSION The Staff opposes Applicant's opposition to NRDC's motion for an exten-sion of time before the Appeal Board in order to pursue its remedies before the Petitions Board.
Section 2.751a applies to the intervention
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partion o' this procewlin i uns -r the authority of 10 CFP, [h2.10L and 2.700, and Section 2.751a(d) allows for ::RDC to cbject directly to the Petitions t'oard that "oard's supplemental order of January 9,1979 denying HiM petition to intervene.
Respectfully Submitted,
/
/o Edward G. Ketchen
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Counsel for the NRC Staff f
Dated at Bethesda, fiaryland this 5th day of February 1979.
'" :T ED 9 TAT E" D' 5"RICI.
nua # f EEUi 'iT0i Y LO:, '.ISSION CETOLE THE I.TC:lIC SAFET" 17 LICENSIN BOARD In the Matter of
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DUKE POWER CF4PANY
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Docket No. 70-2623
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(Amendmer.t to Materials License
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SNM-1773 for Oconc o Nuclear Station 1
Spent Fuel Transportetior, and Storage )
at McGuire Nuclear 5tation)
)
CERTIFICATE OF iERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO NATURAL RESOURCES DEFENSE COUNCIL'S MOTION FOR AN EXTENSION OF TIME TO APPEAL THE PETITIONS BOARD'S SUPPLEMENTAL ORDER OF JANUARY 9,1979 AND OBJECTION TO APPLICANT'S RESPONSE *"
dated February 5, 1979, 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 5th day of February, 1979.
- Robert M. Lazo, Esq., Chairman Ms. Brenda Best Atomic Safety and Licensing Board Carolina Action U.S. Nuclear Regulatory Commission 1740 E. Independence Blvd.
Washington, D. C.
20555 Charlotte, North Carolina 28205 Dr. Cadet H. Hand, Jr., Director Anthony Z. Roisman, Esq.
Bodega Marine l aboratory Nacural Resources Defense Council University of 41i fornia 917 - 15th Street, N.W.
P.O. Box 247 Washington, D. C.
20005 Bodega Bay, California 94923 Mr. Jeremy Bloch
- Dr. Emmeth A. Luebke Safe Energy Alliance Atomic Safety and Licensing Board 1707 Lombardy Circle U.S. Nuclear Regulatory Commission Charlotte, North Carolina 28203 Washington, D. C.
20555 Shelley B lum, Esq.
W. L. Porter, Esq.
418 Law Building Associate General Counsel 730 East Trade Street Legal Department Charlotte, North Carolina 28202 Duke Power Company 422 South Church Street J. Michael McGarry, III, Esq.
Charlotte, North Carolina 28242 Debevoise & Liberman 1200 Seventeenth Street, N.I'.
Washington, D. C.
20036
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- Atomic Safety and Licensin< /.im aci L Drd Mr Charles Gaddy U.S. Nuclear Regulatory Connission P. O. Box 2501 Washington, D.C.
20555 Davidson College Davidson, N.C.
28036
- Atomic Safety and Licensing Docrd Panel U.S. iluclear Regulatory Cor.ission Washington, D. C.
20555
- Dockcting and Service Section U.S. i:oclear Regulatory C0" nissicn Washington, D. C.
20555 lir. Jesse L. Riley, President Carolina Environmental Study Group 854 Henley Place Charlotte, llorth Carolina 28207 Richard P. Wilson, Esq.
Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, South Carolina 29201
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Edward G. Ketchen Counsel for NRC Staff
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