ML19318B474
| ML19318B474 | |
| Person / Time | |
|---|---|
| Site: | 05000452, 05000453 |
| Issue date: | 06/23/1980 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8006260205 | |
| Download: ML19318B474 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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THE DETROIT EDISON COMPANY Docket Nos. 50-452
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50-453 (Greenwood Energy Center,
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Units 2 and 3)
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NRC STAFF'S RESPONSE TO CEE'S MOTION TO THE COMMISSION TO COMPEL DETROIT EDIS0N COMPANY TO WITHDRAW ITS APPLICATION AND FOR OTHER RELIEF 4
Edwin J. Reis Counsel for NRC Staff June 23,1980 O
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UNITED STATES OF Af1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of THE DETROIT EDIS0N COMPANY
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Docket Nos. 50-452
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50-453 (Greenwoo.d Ener
- Center,
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Units 2 and 3
)
NRC STAFF'S RESPONSE TO CEE'S MOTION TO THE COMMISSION TO COMPEL DETROIT EDIS0N COMPANY TO WITHDRAW ITS APPLICATION AND FOR OTHER RELIEF INTRODUCTION Intervenor, Concerned Citizens for Employment and Energy (CEE), by a motion addressed to the Commission dated June 2,1980.S asked that the Applicant, Detroit Edison Co., be ordered to withdraw its applications for construction permits for the Greenwood Energy Center, Units 2 and 3 on the ground that the Applicant does not intend to prosecute those applications.S The motion was predicated on an unidentified press release of the Applicant wherein CEE states that Applicant's Board of Directors announced cancellation of those units.
By let-ter of June 16, 1980, to the Atomic Safety and Licensing Board, the Apolicant stated:
3 Although the motion was apparently mailed on June 2,1980, it was not received by the Office of the Executive Legal Director until June 12, 1980.
S e motion also requested that Applicant be compelled to answer CEE's petition Th to intervene and that CEE be supplied with rules governing this proceeding.
The Applicant has answered CEE's oetition and the propriety of CEE's intervention has been established. See Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759 (1978). The NRC Staff is sending CEE's representative a copy of these Rules of the Commission. Thus, these matters are moot.
i Applicant is currently considering whether it is appropriate voluntarily to withdraw its application and request that this proceeding be terminated, or whether there is some benefit to keeping the applicat on on file. We anticipate i
that a final decision will be made in about two weeks.
Should the decision be made to withdraw the application, we would promptly file the necessary papers with the Atomic Safety and Licensing Board. CEE's motion would then be moot so far as Applicant is concerned.
Based upon the foregoing, it is respectfully requested that Applicant's time to respond to CEE's motion be extended until July 15, 1980.
For the reasons set out herein the NRC Staff believes that the present motion should be referred to the L1 censing Board,in the first instance, for consideration of the issues raised by this pleading.
DISCUSSION Section 2.730(a) of the Commission's Rules of Practice,10 C.F.R. 2.730(a),
governing motions in licensino proceedings, orovides that:
(a) Presentation and disnosition. All motions shall be addressed to the Commission or, when a proceeding is cending before a presiding officer, to the presidinp officer.
A Licensing Board and a presiding officer has been appointed in this proceedino.
See 38 Fed. Reg. 29908 (1973). The subject motion must first be oresented to thatBoard.2 The Commission will not ordinarily consider a motion in the first instance. See Washinoton Public Power Systems (WPPS Nuclear Project Nos. 3 & 5),
CLI-77-11, 5 NRC 71b 722 (1977).
3 e Commission, of course, has authority to review any matter before a Board in Th its discretion.
See U.S. Eneroy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 74-76 (1976); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 tiRC 503, 516-517-(1977).
Even upon appeal the Commission will not ordinarily consider matters or issues unless they were first presented below.
10 C.F.R. 2.786(b)(4)(iii) particularly provides:
A petition for review will not be granted to the extent it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Board....
10 C.F.R. 2.762(a), which governs appeals to the Atomic Safety and Licensing Appeal Board, requires a particular identification of errors below upon appeal.
As frequently stated, generally no Appeal Board or Commission consideration will be given to matters that could have been, but were not raised below. See, e.g., Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), CLI-80-17, 11 NRC (May 16, 1980); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A,18, 2A & 28), ALA8-463, 7 NRC 341, 348 (1978); Florida Liaht & Power Co. (St. Lucie Nuclear Power Plant, Units 2), 3 NRC 830, 842 n. 2J (1976); c_f_. Public Service Co. of New Hampshire, suora. Where matters are not supported by a determination below the usual approoriate course is to remand the matter for such a determination in the first instance. See Public Service Co.
of New Hampshi_re (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977).O Here this motion was Dresented to the Commis:: ion in the first instance. No con-rideration was given to the mattors set out threin below. Pursuant to 10 C.F.R.
i 2.730(a) and the usual oractice v this Commission, no basis ex1sts for the Comission's primary consideration of the subject motion. As pro se petitioners have submitted the subject motion, the Staff suaaests it be referred to the N It is noted that rulings on motions will not ordinarily be considered by the Comission upon interlocutory appeal.
10 C.F.R. 92.730(f); cf. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Staiton, ALAB-56, 4 AEC 930, 931 (1972).
This further supports the fact that motions in the first instance should not be presented to the Commission, but to the Licensing Board having jurisdiction over the preceeding.
cognizant licensing board so that the parties might address the motion there.S See Pennsylvania Power A Licht Co., supra.
O CONCLUSION O
For the above-stated reasons CEE's motion to the Commission should be referred to the Licensing Board having jurisdiction over this proceeding.
Respectfully submitted, Edwin J.
eis Assistant Chief Hearing Counsel this 23rd day of.Iune,yland Dated at Bethesda Mar 1980 D
S s indicated Applicant has stated that it is considering voluntarily A
seeking to withdraw its application and that if it took such an action the motion would be moot. The Licensino Board by order of June 18, 1980, granted Applicant's request for an extension of time until July 15, 1980, to reply to the motion. The tenor of the Staff's reoly to CEE's motion will be influenced by the Applicant's action, and the Staff intends to ask the Licensing Board for a reasonable oeriod of time after Applicant answers CEE's motion, to submit its own answer to that motion.
UNITED STATES Of AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
}
THE DETROIT EDIS0N COMPANY
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Docket Nos. 50-452
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50-453 (Greenwood Energy Center,
)
Units 2 and 3)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 52.713, 10 C.F.R. Part 2, the following information is provided:
Name
- Edwin J. Reis Address
- Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Telephone Number
- Area Code 301-492-7505 Admissions
- Court of Appeals for the State of New York District Court for the District of Columbia Name of. Party
- NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Edwin J. R s Counsel r NRC Staff Dated at Bethesda, Maryland this 23rd day of June,.1980
UNITED STATES OF AMERICA fiUCLEAR REGULATORY C07.MISSIO1 BEFORE THE C0ft1ISSIO'l In the Matter of THE DETROIT EDISON COMPAtlY Docket ilos. 50-452 50-453 (GreenwoodEnergyCenter, Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO CEE'S MOTION TO THE COMMISSION TO C0tiPEL DETROIT EDISON C0f1PANY TO WITHDRAW ITS APPLICATION AND
?'OR OTHER RELIEF" and " NOTICE nF APPEARANCE" of Edwin J. Reis in the above-caotiened proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, throuah deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of June,1980:
Alan S. Rosenthal, Esq., Chairman
- Elipbeth S. Bowers Esq., Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Soard Appeal Board U.S. iluclear Reguldtory Cor.aission U.S. iluclear Regulatory Con 11ssion Washington, D. C. 20555 Washington, D. C. 20555 Dr. Walter H. Jordan Dr. John H. Buck
- 881 W. Outer Drive Atomic Safety and Licensing Oak Ridge, Tennessee 37830 Appeal Board U. S.; uclear Regulatory Ccamission Dr. Richard F. Cole
- Washingtcn, D. C. 20555 Atenic Safety and Licensing :ard U.S. Muc'ece T4;slatory Cc;;1issicn Richard S. Salz.=n, Oq.*
Washnisce,.. C. 20555 Atomic Safety and Licensing Appeal Board Mr. Robert F. Phil?;
U.S. Nuclear Regulatory Costission 1820 Diana Drive Sanford, Michigan 48657 Washington, D. C. 20555
..a Frank G. Giambrone, Esq.
Mr. Ar'Sur Robertson Counsel for Michigan Nature 6065 t Gardner Line Association Croswell, Michigan 48422 39 Crocker Boulevard Mount Clemens, Michigan 48043 Atomic Safety and Licensing Appeal Board
- U. S. Nuclear Regulatory Commission Ms. Bertha Daubendiek Executive-Secretary Treasurer Washington, D. C.
20555 Michigan ilature Association Avoce, Michigan 48006 Atomic Safety and Licensing Board Panel
- Peter A. Marquardt Esq.
U. S. fluclear Regulatory Commission The Detroit Edison Ccapany Washington, D. C.
20555 2000 Second Avenue Detroit, Michigan 48226 Docketing and Service Section*
Office of the Secretary Mr. Robert Magnuson, Chairperson U. S. Iluclear Regulatory Commission Detroit Area Coalition for the Washington, D. C.
20555 Environment 4866 Third Street, Room 300 Dr. Robert G. Asperger Detroit, Michigan 48201 12 0.nnis Court Midland, Mi.
48640 Harry H. Voigt, Esq.
LeBoeuf, Lamb, Leiby & MacRae Samuel J. Chilk
- 1333 t!ew Hampshire Ave., N.W.
Secretary of the Commission Washington, DC 20036 U.S. Nuclear Regulatory Comnission Washington', D.C.
20555
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Edwin J. Reisf/
Assistant Chief Hearino Counsel
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