ML19337A222
| ML19337A222 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 09/05/1980 |
| From: | Gallen K, Hiestand O DAIRYLAND POWER COOPERATIVE, MORGAN, LEWIS & BOCKIUS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SC, NUDOCS 8009090336 | |
| Download: ML19337A222 (8) | |
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NUCLEAR REGULATORY COMMISSION I dh kE%gb",;
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In the Matter of DAIRYLAND POWER COOPERATIVE
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Docket No. 50-409
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(Liquefaction)
(La Crosse Boiling Water
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(Show Cause)
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LICENSEE'S RESPONSE TO FREDERICK OLSEN'S MOT.ON TO DISQUALIFY THE LICENSING BOARD Dairyland Power Cooperative (Dairyland or DPC), the holder of Provisional Operating License No. DPR-45 for the La Crosse Boiling Water Reactor (LACBWR) and the licensee in the above-captioned proceeding, hereby submits its response in opp'osition to the motion filed by Frederick M. Olsen, III, to disqualify the Atomic Safety and Licensing Board appointed by the Commission to rule on the requests for a *> earing in this proceeding.
In' support of its position, Dairyland states as follows:
1.
As noted in Dairyland's August 28, 1980 Response to Requests For Hearing, Frederick M. Olsen, III, is a member of the Coulee Region Energy Coalition (CREC) who has, acting on his own behalf, requested that a hearing be held in this proceeding. -1/
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Ms. Ann _ Morse, who is also a member of CREC and who is acting on behalf of CREC, has likewise re. quested that a hearing be held in this proceeding.
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2.
The sole ground advance'd by Mr. Olsen in support of his motion to disqualify-the Licensing Board is that this
. Board is somehow biased because of certain evidentiary rulings which the same Board made during hearings in an earlier proceeding involving an application by Dairyland to amend the LACBWR ope ating license to expand the capacity of the spent fuel pool.
3.
It is well settled that the mere fact that a s
Licensing Board has issued a large number of unfavorable, or even erroneous, rulings with respect to a given party is not evidence of bias on the part of the Board.
See e.g.,
Northern Indiana Public Service Co.;(Bailly 1), ALAB-224, 8 AEC 244, 246 (1974).
A claim of bias is even more attenuated in situations where, as here, only a few rulings are involved and they are clearly not erroneous.
There was no need for the Board to hold hearings at all i
in the spent fuel expansion proceeding once the Board summarily disposed of all of CREC's contentions.
The fact that the Board nevertheless elected to hold hearings on the issue of the need for power from LACBWR during the period prior to a decision in the pending full term operating license (FTOL) proceeding and
. permitted CREC to participate as a full party in those hearings would suggest that, if anything, the Board was biased in favor of the'intervenor in that proceeding.
The evidentiary rulings which the Board later rendered in that proceeding and on which Mr. Olsen 4
relies ip supportaof his motion for disqualification were entirely, proper and in keeping with the limited scope of the proceeding.
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-3 While M'. Olsen may be displeased with these evidentiary rulings, r
this displeasure is actually rooted in Mr. Olsen's misperception of.the purpose and. scope'6f.the spent. fuel expansion proceeding.
In any. event, these rulings hardly constitute evidence of bias and provide insufficient grounds for disqualification.
i 4.
Moreover, Mr. Olsen was not even a party to the spent fuel pool expansion procee;ing.
Rather, he merely made a i
limited appearance in that proceeding under 10 C.F.R. 5 2.715.
Nevertheless, in his motion for disqualification and supporting t
affidavit, M. Olsen attempts to make much of the fact that during r
one of his limited appearances he urged the Board to adduce addi-tional evidence on the cost of reactor retrofits arising out of the TMI-2 incident.
Once again, Mr. Olsen appears to have mis-perceived.the actual significance of a limited appearance state-ment.
"A. limited appearance statement is not evidence" and need not be treated as such by a Licensing Board.
Iowa Electric Light
& Power-(Duane Arnold), ALAB-108, 6 AEC 195, 196, n. 4 (1973).
While a~ Licensing Board may elect to adduce additional evidence on an issue raised in a limited appearance statement, a Board is not obligated to do so -- particularly where, as here, considera-
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tion of the issue would go beyond the scope of the' proceeding, would not be necessary to a decision in this proceeding, and would involve considerable speculation on the Board's part.
In any event,.the Board's decision not to elicit additional evidence on this point clearly does.not. constitute evidence of1 bias, nor
. provide grounds for disqualification.
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-4 For all the foregoing reasons, Dairyland respectfully submits that the Licensing Board should deny Mr. Olsen's Motion to Disqualify the Licensing Board in its entirety.
Respectfully submitted.
qht,O.S.Histand Attorney for Dairyland Power Cooperative OF COUNSEL Kevin P. Gallen Morgan, Lewis & Bockius 1800 M Street, N.W.
Washington, D.C.
20036 Dated:
September 5, 1980 4
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ~
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DAIRYLAND POWER COOPERATIVE
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Docket No. 50-409
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(Liquefaction)
(La Crosse Boiling Water
)
(Show Cause)
Reactor)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In
_accordance.with 10 C.F.R. 5 2.713, the following information is provided:
Name:
Kevin P. Gallen Address:
Morgan, Lewis & Bockius 1800 M Street, N.W.
Suite 700 Washington, D.C.
20036 Telephone No.: 202-872-7661 Admission:
District of Columbia Court of Appeals Name of. Party: Dairyland--Power Cooperative Kevin P..Gallen-Attorney for Dairyland Power Cooperative.
1 Dated:
September 5,'1980 9
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-In-the Matter of
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DAIRYLAND POWER COOPERATIVE
)
Docket No. 50-409
)
(Liquefaction)
(La Crosse Boiling Water
)
(Show Cause)
Reactor)
)
NOTICE'0F APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 10 C.F.R.
S 2.713, the following information is I
provided:
Name:
0.'S.
Hiestand Address:
Morgan, Lewis & Bockius 1800 M Street, N.W.
Suite 700 Washington, D.C.
20036 Telephone No.: 202-872-5160 Admission:
Supreme Court State of Illinois Nameaof Party: Dairyland Power Cooperative, bMusk O.
S. Hiestand Attorney for Dairyland Power Cooperative Dated:
September 5, 1980 o
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UNITED STATES OF AMERICA NUCLEAR' REGULATORY COMMISSION In~the Matter of
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DAIRYLAND POWER COOPERATIVE
)
Docket No. 50-409
)
(Liquefaction)
-(La Crosse Boiling Water
)
(Show Cause)
Reactor)
)
CERTIFICATE OF SERVICE Service has on this day been effected by personal delivery or first class mail on the following persons:
Charles Bechhoefer, Esq., Chrm.
Docketing & Service Section Atomic Safety and Licensing Office of the Secretary Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Mr. Ralph S. Decker Board Panel Route.4 U.S. Nuclear Regulatory Box 190D Commission Cambridge, Maryland 21613 Washington, D.C.
20555 Dr. George C. Anderson Atomic Safety and Licensing Department of Oceanography Appeal Board University of Washington' U.S. Nuclear Regulatory Seattle, Washington 98195 Commission Washington, D.C.
20555 i
2 Steven Burns, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Karen Cyr, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard Shimshak Plant Superintendent Dairyland Power Cooperative La Crosse Boiling Water Reactor Genoa, Wisconsin 54632 Fritz Schubert, Esquire Staff Attorney Dairyland Power Cooperative 2615 East Avenue, South La Crosse, Wisconsin 54601 Coulee Region Energy Coalition P. O. Box 1583 La Crosse, Wisconsin 54601 Attn:
Anne Morse Mr. Harold Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Frederick M. Olsen, III 609 N. lith Street La Crosse, Wisconsin 54601 dhl-O. S. Hiestand a
Dated:
September 5, 1980 9
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