ML19330B052
| ML19330B052 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 07/26/1980 |
| From: | Miller D MILLER, D.S., SENSIBLE MAINE POWER |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19330B051 | List: |
| References | |
| NUDOCS 8007300127 | |
| Download: ML19330B052 (10) | |
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NITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of
)
Docket No. 50-309
)
r MAINE YANKEE ATOMIC POWER COMPANY
) (To Increase and Modify
)
(Maine Yankee Atomic Power Station),) Spent Fuel Pool Capacity
)
Applicant.) and Systems; Compaction)
ATOMIC SAFETY AND LICENSING APPEAL BOARD BRIEF IN SUPPORT OF INTERVENOR'S. APPEAL FROM
" MEMORANDUM AND ORDER ON SCHEDULING,.
Statomsnt~of Relevant Procedural ~ History This - proceeding was begun by Applicant in-a-filing on September 18, 1979,. subsequent notice being made in the' Federal Register, and a Petition for Leave to Intervene. timely filed by Intervenor on No-vember 23, 1979.
Thereupon an!AtomiciSafety and Licensing Board l
Panel was duly constRuted and appointed and Specific Contentions were scheduled'as due from Intervenor on or before January 28, 1980.
By motion filed and served January 16, 1980, Intervenor moved. for 2
an enlargement of time to prepare said Specific Contentions.
The same was granted in a conference call on or about January 25, 1980, over vigorous objections by Applicant.
Intervenor timely filed and served said Specific Contentions on April 28, 1980, responses there-to being due May 12, 1980 Applicant then moved for a thirty-day enlargement of time to file its: response, asserting current conflict-I Dr. Robert M. Lazo, Esq., Chairman; Mr. Gustave A. Linenberger, Member; ' and Dr. Cadet H. Hand, Jr., Member.
2Intervenor was joined in said Motion by the State of Maine.
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y ing demands upon Applicant's Counsel; crediting and respecting such assertions, Intervenor did not oppose said motion.
Applicant filed and served its responses on June 11, 1980, together with a motion to postpone or delay the. holding of the Special Prehearing Conference herein until after October 1, 1980 Intervenor filed and served an eight-page Opposition on June 26, 1980.
On July 2, 1980, by and through Edwin J. Reis, Esquire, Assistant Cheif Hearing Counsel, the Commission's Staff filed and served its Response to said Motion, also opposing the four-month delay sought by Applicant.
On July 14, 1980, a " Memorandum and Order.on Scheduling..." issued from the ASLB panel herein, unqualifiedly granting the delay soughf, by Applicant.
This Appeal is taken therefrom.
Argument Upon Issues Presented I.
THE DECISION APPRALED FROM IS ARBITRARY. CAPRICIOUS.
NOT SUPPORTED BY ANY CONCRETE OR CREDIBLE EVIDENCE.,
AND CONSTITUTES AN ABUSE OF DISCRETIOff:
A.
One of t,he 'more. remarkable characteristics, of the decision ap-pealed from is its self-d_emonstrating tendency to. agree with most of the objections raised by -Intervenor and 'by:NRC Staff Counsel, but to l
decide in favor 'of Applicant, despite noting the validity of such ob-jections.
s The,first of two prime examples of this characteristic occurs at I
the. bottom of page 2.in.said decision where, siter.. finding Applicant's "TMI. avoidance" to be insubstantial, the decision treats the two other
" reasons" propounded by" Applicant, referendum ard possible modification i
of proposal, noting: "These two reasons do not... constitute legal t
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4 grounds in support of a delay in holding the special prehearing con-ference." Yet despite this correct beginning, and apparently by means of extended conjecture in support of which no evidence has been offer-ed by Applicant, the decision somehow breathes life 4nto that which has already been recognized as insufficient.
Subsequently, at 4, said decision also recognizes that: "Licen-see's carefully worded statement regarding its consideration of alter-native proposals.... is heavily qualified and vague."
But anoe again, and despite its adoption of a correct premise, the decision erra in somehow validating that which has been recognized as insufficient.
B.
The error. wrought in these examples, and elsewhere, demonstrates itself upon factual caid logical examination.
The signal in'ufficiency a
of Applicant 8s motion, and consequently of the Panel's decision, is a complete lack of any real evidence whatever in support of the motion.
As developed more thoroughly below, such failure not only constitutes a thorough breach of the governing regulations, but is also simply
. rong in fact and'in law: Applicant's thin, vague, unsupported and w
immaterial assertions by counsel do not, and in law cannot, amount to the quantum of evidence necessary to support the decision rendered; in' holding for Applicant without any concrete or credible evidence in support of the motion, the decision is arbitrary, capricious, and logically un'hupportable.
One example of such " decision without evi-dance". presents 'itself on page 3 of the decision, where it is assert-ed: "It is not unusual for new circumstances to alter previous actions in a proceeding'...".
But in the case at bar Applicant has pro-pounded no evidence. of "new circumstances" - only some windy vagueries that this, that or the other occurrence may be in t e offing; any real evidence of "new circumsthnces" is conspicuous by its absence.
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C.
In addition to the demonstrated lack of any concrete evidence in support of the motion, the deci.sion also strays in the degree to which it indulges unsupported, and in fact even uninvited, conjec-ture.
Such conjecture is indulged on points of who may or may not "one day be prejudiced", on the potential success of. the unrelated referendum, and in an altogether speculative " consideration of (AP-plicant's) other proposals" - whatever they might be!
In short, lacking any real evidence from Applicant, the decision seems instead to rely upon some sort of guessing game as to what the future may hold in store; thus achieved, the decision is arbitrary, capricious, legally defective and constitutes an abuse of discretion.
D.
The. decision appealed'from also goes awry in its outright' fail-Uretortrefusal'to consider several of the issues or objections raised by Intervenor's,0pposition.
By way of example only, said Opposition contended that, on the facts and circumstances presented herein.3 Ap-plicant should be held estopped from the delay sought, especially where its motivation appears suspect - yet the decision below wholly ignores this entire issue.
E.
Last, while the response of the NRC Staff Counsel is not binding upon the 'ASLB Panel, it"ia' entitled to substantial weight and respect-which in this case ~were clearly not accorded to it.
3 From the filing of its original proposal' on September 18,1979, up to its' requested delay'on~' June 11 1979, Applicant Tigorously pur-sued all'means available to hurry,this pr'oceeding forward as fast as possible, noting a need~for " approval of this pro. posed change not later than December 3,1979" in its submission; in.its:. response to Intervenor's Petition, Applicant sought "a prehearing conference.
at the earliest practicable time"; and Applicant strenuously opposed, both;in:: writing and orally during the conference call of January 25, 1980, Intervenor's request for additional time in which to prepare its Specific Contentions. ' yet all of Applicant's past conduct is entirely ignored in the decision below.
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.T II.
IN ITS BREACH OR DISREGARD OF VARIOUS OF THIS COMMISSION'S OWN REGULATIONS. THE DECISION APPEALED FROM IS NOT ONLY DEFECTIVE. INVALID AND VOID OF l
LEGAL FORCE AND EFFECT, BUT ALSO CONSTITUTES A DENIAL OF PROCEDURAL DUE PROCESS AGAINST INTERVENOR AND AGAINST THE PUBLIC INTEREST:
A.
In rendering the decision below the ASLB Panel was of course bound by the rules and regulations of the Commission which possess the force of law, binding upon'the Commission and all parties before it.
E.g.,
Rodway v. U. S. Dept. of Agriculture, 168 U.S. App.D.C. 387, 514 F.2d 809 (1975); Accord, McKay v. Wahlenmaier, 96 U.S. App.D.C. 313, 226 F.
2d 35 (1955);(Secretary of Interior bound by own regulations); and Caeridan-Wyoming Coal Co. v. h, 84 U.S. App.D.C. 172, 172'F.2d 282, revd 338 U.S. 621, 70 S.Ct. 392, 94 -L.Ed. 393. (1949).
As developed in Intervenor's Opposition filed herein, at 2-3, Part 2 of the Commission.8s " Rules of Practice" - more specifically, 10 CFR -58 2 711, 2.730(b) and 2.732, establish clear requirements which Applicant must' satisfy'in order to gain the relief aought.
Those sec-tions deal respectively with the requisite. standard (good cause shown),
the quantum and specitiaity of evidence required, and assignment of the burden of proof and persuasion upon Applicant.
As there developed in said Opposition,and as otherwise discussed above.and herein, Applicant has altogether failed to meet the criteria required:in this Commission.'s rules of practice, 'and it follows there-from that any decision.in: breach of such requirements is defective and invalids' Stated otherwise, the ASLB Panel herein cannot ignore the legally, binding effect of this Commission's own roules of practice which, in gaining the result;below, it clearly seems to have done.
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B.
But further, and of equal import here, it is a well-established principle of law that an agency's own regulations establish a minimum
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of procedural due process protections for those influenced by its de-cisions.
See, Service v. Dulles, 98 U.S. App.D.C. 268, 235 F.2d 215, rev'd-354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957).
Thus here, where a decision has been rendered in contravention.
of the procedural requirements noted, it clearly negatives and 'fruse trates. suck minimum 1protections..asnagainst the interests of Intervenor r..
and as against-the public interest as well.
There can also be little doubt that the public interest carries a premium: "In matters of scheduling, the paramount consideration is the public interest."
Potomac Electric Power Co. (Douglas Point. Nuclear Generating Station, Units 1 &.2), ALAB-277, 1 NRC 539 (1975).
See dis-cussinntin Interrenor'scopposition,.at 2.of "Memorandua".
And thus here, where t_he decision below has been rendered in breach of the regulations noted, such public interest in prompt and timely proceedings has been altogether violated and ignored.
The decision's conjecture upon prejudice is thus beside the point: this Commission's procedural regulations have been violated, and harm to the public's
" paramount... interest" may be presumed.
III.
THE ASSERTION, RELIANCE AND CONCLUSION IN THE s DECISION APPEALED FROM THAT "THE (MAINE) REFERENDUM COULD MOOT THE'(INSTANT) PROC anING" IS ERR 0NEOUS IN FACT AND IN LAW:
A.
As developed in Intervenor's Opposition, Memorandum at 5, the proposed referendum in the State of Maine is an. unrelated proc eeding, reliance upon which 'by~ Applicant should not be credited.
- Further, substantial constitutional questions are implicit the' rein as demon-strated by recent federal decisions (United States ~ District Court, I
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California) voiding state efforts at nuclear regulation.
Equally significant, Applicant should be bound by its past pub-lic declarations, as the admissions of a party,4 that "should the referendum be successful Maine Yankee will be 1:. federal court the next morning for'a restraining order."
Thua 'in law and in fact Applicant's suggestion, and the decision's adoption, of a mootness issue, is erroneous; rather Applicant can be anticipated to protect its multimillion-dollar expenditure with all force and vigor.
IV.
THE DECISION APPEALED FROM ERR 0NEOUSLY ~ UNFAIRLY AND UNLAWFULLY PROTECTS AND PROMOTES APPLICANTfS CONTIN-UING WILLFUL VIOLATIONS OR AYOIDANCES OF THE PUBLIC'S BIGHT TO KNOW:
As developed elsewhere, the public's right to be informed concern-ing nuclear power carriea.a statutorily recognized " paramount interest".
b Such interest is clearly frustrated here where Applicant has -- thus far successfully - sought some four months' " quiet" exactly contemporaneous with the noted referendum.
The inference is all but inescapable that Applicant is primarily motivated by a desire to avoid such adverse pub-licity as might flow from the proper and timely holding of the Special Prehearing Conference.
Thus the instant decision, procedurally invalid for the reasons noted, also works the very sorry result of protecting and promoting Applicant's avoidanco of the public's right to be informed of these matters.
In all reason and fairness the scheduling decisions by and before this Commission should not be allowed so to frustrate, in fact to negative and contravene, the public's statutorily recognized right to be informed.
Just as clearly as the decision recognizes that a " delay... may never.be 'a pacing item", so.too should it be recog-NIntirvenor can, if requested, submit newspaper articles in support.
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nized that a delay should never be a hiding place by means of which a party can frustrate or altogether defeat the right of the public to be informed.
Perhaps the most illustrative quotation upon Applicant's motiva-tion has issued from Mr. John Randazza, Vice-President in Charge of Special' Projects for Central Maine Power, a major owner of Applicant:
"Unless participatory democracy is brought under some knid of control our society will come to a screeching halt."
On the facts and circum-stances presented, this Commission should not allow the wrongful appli-cation of its processes, which have here been abused and altogether misdirected.
V.
. ALL PROPER AND MATERIAL FACTORS THUS FAR DEVELOPED IN THIS PROCEEDING FAVOR THE PROMPT, TIMELY HOLDING OF THE SPECIAL PREHEARING CONFERENCE HEREIN WITHOUT ANY FUR-THER DELAY:
In its Opposition,. Memorandum at 4-5, Intervenor has already dis-cussed the propriety, and indeed the great utility, of holding the.
Special Prehearing Conference now due herein, without any further de--
lay, to which discussion Intervenor respectfully directs the attention of this Bbard.
Additionally, and in review of the foregoing Appeal and the prior Opposition, not bnly this Commission's rules of practice, but also all l
s facts and' circumstances in this case favor the prompt holding of the Sepcial Prehearing Conference in this proceeding.
Such forum presents the ideal' opportunity for both sides to propound, and the ASLB Panel to consider, whether or not the delay herein is justified, and what if any supplemental proposals are being considered by Applicant, together with such' further orders upon scheduling as may be arppropriate in fur-therance of the discussions had.
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Last, Intervenor respectfully requests that this Appeal be considered in the most expeditious manner possible, due consideration being given to Applicant's right of response.
Intervenor has taken eight days since actual receipt of the decision appealed on July 19, 1980, and it is more particularly requested that Applicant be hela to a like period in framing its reply.
Intervenor also respectfully and more particularly requests that an appeals Panel be appointed as soon as practicable to treat this matter and to resolve the same, due con-sideration being given the facts, law and circumstances herein merit-ing a prompt resolution.
s Da'vid Santee Miller Co-Counsel for Intervenor 213 Morgan Street, N. W.
Washington,(202)'638-0483 D. C.
20001 Telephone:
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7 UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of
)
Docket No. 50-309
)
MAINE YANKEE ATOMIC POWER COMPANY
)
(To Increase and Modify
)
(Maine Yankee Atomic Power Station), )
Spent Fuel Pool Capacity
)
Applicant. )
and Systems; Compaction) 9 ATCHIC SAFETY AND LICENSING APPEAL BOARD This matter having been put before the Board on the day below noted, and the Board having considered the facts, law, cir-cumstances of the case, and arguments of counsel as presented to it, it is hereby ORDERED:
1.' That the decision of the ASLB Panel appealed from ought to be, and hereby is, reversed; and 2.'
That the Special Prehearing Conference herein shall be held D
a t
e For the ATOMIC SAFETY AND LICENSING APPEAL BOARD PANEL i
I sk' t