ML19316B187

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Response in Opposition to D Springer 800415 Petition to Intervene.Intervenor Advanced Grounds That Have Been Previously Rejected in 1976-77 Petitions.Petition Untimely & Unsupported by Facts.Certificate of Svc Encl
ML19316B187
Person / Time
Site: Perkins  Duke Energy icon.png
Issue date: 05/09/1980
From: Mcgarry J
DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:
Atomic Safety and Licensing Board Panel
References
NUDOCS 8006120024
Download: ML19316B187 (6)


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In the Matter of

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DUKE POWER COMPANY

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Docket Nos. STN 50-488

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STN 50-489 (Perkins Nuclear Station,

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STN 50-490 Units 1, 2 and 3)

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APPLICANT'S RESPONSE TO PETITION TO INTERVENE On April 15, 1980, David Springer filed a Petition to Intervene 1/ in the above captioned proceeding.

By oral order this Atomic Safety and Licensing Board

(" Licensing Board")

extended the time for Applicant to file a response until May 9, 1980.

Such response is contained herein and for the reasons set forth below, Applicant urges that the Petition be denied.

1/

In his petition Mr. Springer also requested the Board to

" appoint independent Staff who will competently and with integrity develop and represent the public interest";

or, for " Chairman, NRC, after.due public hearing,

[to] appoint special staff to represent the public interest.

Applicant maintains that the appoint-ment of " independent Staff" is contrary to the Commis-sion's regulations.

See 10 CFR Part I which establishes that the regulatory staff, and not an independent entity, is to perform the duties advanced by Petitioner.

Accordingly, this aspect of Mr. Springer's pleading should be dismissed and the instant petition should be treated solely as a petition to intervene.

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<, This is not the first time Mr. Springer has sought to intervene in this proceeding.

On July 26, 1976 and April 22, 1977, well after the deadlines for such filing had expired, 2/

Mr. Springer filed petitions to intervene 3/.

This Board's denial of Mr. Springer's petitions (Order of July 15, 1977) was affirmed by the Appeal Board in ALAB-431, 6 NRC 460, (1977).

The Appeal Board in reaching its decision stated that:

[Even if Mr. Springer's interest could not be adequately protected by others in this proceeding]

[as] a matter of virtual certainty a grant of this petition at this juncture would not merely broaden the issues but, as well, bring about significant delay in the completion of this pro-ceeding.

Given the want of any justification for petitioner's extreme tardiness, the Licensing Board was quite right in declining to countenance such a result.

6 NRC at 464.

Now, over five and one-half years late, Mr. Springer again seeks leave of the Board to intervene in this pro-ceeding. Significantly, as the basis for his specific interest, Mr. Springer incorporates the grounds advanced in his previously rejected petitions.

2/

By notice of July 19, 1974 (39 Fed. Reg. 26470) the deadline for filing petitions for leave to intervene in this proceeding was August 19, 1974.

3/

In addition, on May 3, 1977, Mr. Springer filed an

" Affidavit of Basis for Contentions Raised in the Petition to Intervene and Request for Hearing on New Issues Raised by the National Energy Policy and Appalachian Power Company

v. Train."

. Moreover, Mr. Springer makes no attempt to justify the extreme tardiness of his instant petition.

In short, Mr. Springer's petition is so defective as to warrant its summary denial. 10 CPR S2.714(a).

See Perkins,. supra; Project Management Corp.

(Clinch River Breeder Reactor Project), ALAB-345, 4 NRC 383, 394-5 (1976).

In addition to the above, the substance of the instant petition does not warrant affirmative relief.

Mr. Springer alleges that the Staff misled this Board with respect to the State of North Carolina's position on use of once-through cooling.

Not only is this allegation totally unsupported, but documents circulated to all parties clearly establish the actual position of the State of North Carolina _4/.

An examination of the record reflects that the NRC Staff did not misrepresent the state's position (e.g., Tr. 3091, 3107, and 3112).

Indeed, the Assistant Attorney General of the State of North Carolina was present at the time of the Staff testimony; rather than opposir such testimony he presented testimony which supported that of the Staff.

(Tr. 2956-2957).

In sum, Mr. Springer's allegation, upon which is l

l 4/

E.g.,

letter of November 28, 1979, from the Director of the Division of Environmental Management, State of North 1

Carolina to Mr. Charles A.

Barth, NRC; and letter of October 19, 1978 from L.P.

Benton, Chief Environmental e

Operations Section, Division of Environmental Management, State of North Carolina to Mr. Charles A.

Barth, NRC.

_ ~. _ _ _ _ _ _ _

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' based the requested relief, is in' addition to being untimely, unsupported by the facts, From the above, Applicant requests that the instant petition be denied. 5/

Respectfully submitted, WWf

./

. Michael McGarry,/1II C/

/DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C.

20036 (202) 857-9800 Attorney for Duke Power Company Of Counsel:

William L.

Porter, Esq.

Associate General Counsel Duke Power Company May 9, 1980 5/

If Mr. Springer's petition is viewed as a petition to reopen the record and reconsider the evidence, Applicant maintains that his petition falls short of the stringent standards established regarding such motions.

See Metro-politan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 21-22 (1978).

In any event, it is clear that such action is only open to parties to the proceeding.

10 CFR S2.771; see Pacific Gas & Electric Company (Diablo Canyon Nuclear Station, Units 1 and 2),

ALAB-583, 11 NRC __ (March 12, 1980); Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-433, 6 NRC 469 (1977).

In that party status is a prerequisite to consideration of motions to reopen or reconsider, Mr. Springer must first establish his entitlement to such status before the issue of reopening or reconsideration can be entertained.

As noted above, Applicant maintains that Mr. Springer has failed to make such a showing.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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Docket Nos. STN 50-488 DUKE POWER COMPANY

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STN 50-489

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STN 50-490 (Perkins Nuclear Station

)

Units 1, 2 and 3)

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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Petition to Intervene," dated May 9, 1980 in the captioned matter, have been served upon the following by deposit in the United States mail this 9th day of May, 1980.

Eli 2beth S. Bowers William A.

Raney, Jr., Esq.

C, airman, Atomic Safety Special Deputy Attorney and Licensing Board General U.S. Nuclear Regulatory State of North Carolina Commission Department of Justice Washington, D.C.

20555 Post Office Box 629 Raleigh, North Carolina 27602 Dr. Donald P. deSylva Associate Professor of William G.

Pfefferkorn, Esq.

Marine Science 2124 Wachovia Building Rosenstiel School of Marine Winston-Salem, North Carolina 27101 and Atmospheric Science Universitir of Miami David Springer Miami, Florida 33149 The Point Farm, Rt. #4 Mocksville, North Carolina 27028 Dr. Walter H. Jordan 881 West Outer Drive Mary Apperson Davis Oak Ridge, Tennessee 37830 Route 4 Box 261 William L.

Porter, Esq.

Mocksville, North Carolina 27028 Associate General Counsel Duke Power Company Chairman, Atomic Safety and Post Office Box 2178 Licensing Board Panel Charlotte, North Carolina.28242 U.S. Nuclear Regulai nry Commission Charles A. Barth, Esq.

Washington, D.C.

20555 Counsel for NRC Regulatory

' Staff Chairman, Atomic Safety and.

Office of the Executive Licensing Appeal Board Legal Director U.S. Nuclear Regulatory i

U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555

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Mr. Chase R. Stephens Docketing and Service Station i

Office of the Secretary U.S. Nucle. ir Regulatory Commission Washington, D.C.

20555 I

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.' Michael McGarry/ III

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