ML19323B949
| ML19323B949 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, Allens Creek  |
| Issue date: | 05/02/1980 |
| From: | Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML19323B941 | List: |
| References | |
| ALAB-590, NUDOCS 8005140447 | |
| Download: ML19323B949 (4) | |
Text
tQ UNITED STATES 40 7'
)e NUCLEAR REGULATORY COMMISSION COMI M53 g
ATOMIC SAFETY AND LICENSIN2 APPEAL PANEL 'ggpD, & yTR, f/t. 50 W, 6fo I
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!?D !!,.. S f 13 42 eg MEMORANDUM FOR:
Leonard Bickwit f
y Gene;ralLCounsel 2
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/ Alan S. Rosenthal, Chairman
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Atomic Safety and Licensing (9, t%4 Y
Appeal Panel GT #
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SUBJECT:
ALAB-590 (ALLENS CREER) on April 2'2, 1980, an Appeal Board issued a decision (ALAB-590) on the appeal taken by F. H. Potthoff, III, from the denial by the Licensing Board of his petition to inter-vene in the construction permit proceeding involving the prcposed Allens Creek' facility.
The ultimate issue on the appeal was whether, as framed, Mr. Potthoff's sixth con-tention should have been accepted by the Licensing Board as litigable.
Resolution of this issue involved, in turn, the application of 10 CFR 2.714 (b), which requires that a peti-tiener for intervention set forth the bases for each of his contentions "with reasonable specificity".
For the reasons set forth in our' respective opinions, both Mr. Farrar and I determined that the requirements of Section 2.714 (b) sd been satisfied and that Mr. Potthoff's intervention petition should have been granted on the strength of the contention in question.
On the other hand, for the
. reasons discussed in his dissenting opinion, Dr. Buck concluded that the contention was not entitled to admission to the pro-ceeding and, consequently, the. Licensing Board correctly had denied the intervention petition.
ALAB-590 was served by mail on the date of its issuance and, therefore, any petition for review of it must be filed on or before May 12, 1980.
See 10 CFR 2.78 6 (b) (.1), 2.710.
Whether either the applicant or the NRC staff (both of which
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had urged' affirmance of the denial of the petition) will seek Commission review remains to be seen.
In the event that they do not, the Commission can, of course, nonetheless elect to review ALAB-590 on its own motion.
10 CFR 2.78 6 (a).
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Memorandum for Leonard Bickwit 2-May 2, 1980 j
At the conclusion of his dissenting opinion, Dr. Buck j
took note of the possibility of Commission review and, at least by implication, suggested that it was warranted.
He
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has now asked that I transmit to the Commission, through your office, his formal request that such review be undertaken.
While recognizing the unusual nature e" r request of this kind on the part of an Appeal Board member, he believes that there exist here sufficiently extraordinary circumstances to justify it.
Most particularly, as he sees it:
The decision of the Appeal Board majority is not only in error but also, because of its likely substantial precedential effect, can be expected to have a significant and in-tolerable impact upon the conduct of future licensing proceedings.
Beyond that, the majority decision is not simply a reaffir-mation and application of principles which had been laid down in prior appeal board decisions.
Rather, as indicated in the dissenting opinion, ALAB-590 effects a marked extension of the holdings in those decisions.
Whether or not these views were ultimately to prevail, there is every reason why the Co= mission itself should undertake to address the controversy on the ground that it involves an important ques-tion of law within the meaning of 10 CFR 2.7 8 6 (b) (1).
It would be both presumptuous and inappropriate for the members of the Appeal Board majority to take a position re-garding whether their decision should be further reviewed by the commission.
In response to the foregoing, I confine my-self to noting that,.although a proper reading of Section 2.714(b) undeniably is of considerable present and future importance, I do not subscribe to Dr. Buck's thinking re-specting the merits of what was held in ALAB-590.
In this connection,'I adhere to the view that ALAB-590 does no more than to reaffirm a well-settled and sensible interpretation of Section 2.714 (b) (which dates back to at least 1973).
To this point, that interpretation seemingly has not, in practice, had mischievous consequences and I perceive no cause to think that it will in the future.
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o Memorandum for Leonard Bickwit May 2, 1980 I will appreciate it if copies of this memorandum are furnished to the Commission in connection with the transmission of the OGC's own recommendation respecting further review.
A copy of it is being sent to the Docketing and Service Branch with the request that it be served on the parties to the pro-ceeding and incorporated in the docket.*
Mr. Farrar is content to rest upon what was said in
.AIAB-590, and thus his views are not necessarily reflected in this memorandum.
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5 UNITED STATES.OT AMERICA NUCLEAR REGULATORY. COMMISSION I."
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.In the Matter of
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!M EDUST0X LIGHTING AND POYER
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Docket No.(s) 50-466 g.:
CO.'7ANY
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Es (Allens Creek Nuclear Generating )
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[.[i Station, Unit ro. 1)
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CERTITICATI 07 SERVICE I hereby certify that I have this day served the foregoing document (s) upon each person designated on the officiel service list compiled by 2
the Office of the Secretary of the Cot:::sission in this proceeding in accordance with the requirements of Section 2.712 of 10 CTR Part 2 -
Rules of Practice, of the Nuclear Regulatory Co=ission's Rules and g.
Regulations.
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Dated at Washington, D.C. this W
day of
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Office 6f* the Secretary of the /Co=ission l-
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