ML19344B028
| ML19344B028 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 08/21/1980 |
| From: | Cyr K NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8008250409 | |
| Download: ML19344B028 (4) | |
Text
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8/21/80
'O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of WISCONSIN ELECTRIC POWER COMPANY
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Docket No. 50-266 C0 (Point Beach Nuclear Plant,
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Unit 1)
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(Modification of License)
STAFF RESPONSE TO WISCONSIN ENVIRONMENTAL DECADE'S REQUEST FOR CERTIFICATION TO THE COMMISSION Wisconsin's Environmental Decade, Inc., at the prehearing conference in this matter on July 30, 1980, filed a motion in the alternative requesting either an order certifying to. the Commission the question of whether the Marble Hill 1/
decision should be precedent for this case or an order permitting an interlocutory appeal to the Comission should this Board deny its request for a hearing. Decade reiterated and elaborated on its request in a letter filed with the Atomic Safety
& Licensing Board Chainnan on August 1,1980. As noted at the prehearing conference, the Staff opposes Decade's motion.
The presiding officer in an NRC proceeding is empowered to certify questions "to the Commission" under 10 CFP H2.718(1), and refer rulings "to the Commission" under 10 CFR 52.730(f). However, the authority to rule on such requests in the first instance has been specifically delegated to the Atomic Safety & Licensing Appeal Board, 10 CFR 52.785(b)(1); Vermont Yankee Nuclear Power Coro., ALAB-56, 4 AEC 930 (1972); Consumers Power Co. (Midland Plant, Units 1&2), ALAB-382, 5 NRC (:03, 604, n.1 (1977).
Individual parties may not file certification motions directed to the Com-mission. Consumers Power Co., suora.
Consequently, the acceptance by the Conunission of a certification request in this instance would be contrary to 1/
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units l&2), CLI-80-10, 11 NRC 438 (1980).
8 0 0 82 50 M
' established Commission regulations and policy.
The Appeal Board has frequently noted that the grant of a request for directed certification is to be resorted to only in " exceptional circumstances".
Consumers Power Company, 5 NRC at 606 and cases there cited. Under the regulations, these requests are forwarded to the Commission itself only when " major or novel questions of policy, law or procedure" are involved.10 CFR 52.785(d). The Appeal Board has stated that it will exercise its authority " sparingly" and
" absent compelling reason.... decline to certify a question to the Consnission".
Vermont Yankee Nuclear Power Corporation, ALAB-421, 6 WRC 25, 27 (1977).
Decade, in the motion before this Licensing Board, cites as grounds fo; its request the change in the make-up of the Comission which resulted when Comissioner Kennedy's term expired on June 30, 1980. A change in the composition of the Comission is not an exceptional circumstance nor a major question of law or policy. The Commission functions as an ongoing body. No continuity or finality could be attributed to the action of this or any other agency if the mere change in the membership of the decisional body were sufficient basis to challenge decisions.
Moreover, as Decade states in its letter of August 1,1980, what it seeks is
" essentially a request to the Commission to reconsider" its decision. The Comission has stated, in Public Service Comoany of New Hampshire, (Seabrook Station, Units l&2) CLI-78-15, 8 NRC 1, 2 (1978), that such requests "are not favored by our regulations. Cf.10 CFR 12.786(b)(7)." E The Comission further
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" Petitions for reconsideration of Commission decisions upon review, or granting or denying review in whole or part, will not be entertained."
. t stated in the Seabrook case that there must be " extraordinary circumstances" for it to modify its judgment once it has been rendered. No such extraordinary circumstance has been demonstrated by Decade in this case.
Apart from the composition change of the Comission, addressed above, Decade also argues in support of its request in its August 1st letter, the existence of a number of safety concerns. These concerns are the same ones that were addressed in the Director's 2.206 Decision 3/ and that were before the Commission when it issued its May 12th Order in this case. Decade has not provided any new information addressing these concerns.
Finally, the Board should deny Decade's alternative request for pemission to seek interlocutory relief before the Comission should the Board deny its request for a hearing. Appeal of any denial of its request is not interlocutory.
Specific provision for appeal of such a ruling to the Atomic Safety & Licensing Appeal Board is made in the Commission's regulations. See 10 CFR 12.714a. No circumstances presented by Decade warrant by-passing the Appeal Board in the event of such a ruling by the Licensing Board.
Conclusion For the reasons stated above, the alternative requests for relief submitted by Wisconsin's Environmental Decade should be denied.
Respectfully submitted, QA4*/
Karen D. Cyr Counsel for NRC Staff Dated in Bethesda, Maryland the 21st day of August,1980
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Wisconsin Electric Power Company (Point Beach Nuclear Power Plant, Unit 1)
DD-79-22,10 NRC 728. (1979).
O I-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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WISCONSIN ELECTRIC POWER COMPANY
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Docket No. 50-266 CO (Point Beach Nuclear Plant,
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Unit 1)
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(Modification of License)
CERTIFICATE OF SERVICE I hereby certify that copies of STAFF RESPONSE TO WISCONSIN ENVIRONMENTAL DECADE'S REQUEST FOR CERTIFICATION TO THE COM'1ISSION in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regu'.atory Commission's internal mail system this 21st day of August,1980.
Herbert Grossman, Esq.*
Kathleen M. Falk, Esq.
Chairman Wisconsin Environmental Decade Atomic Safety & Licensing Board 302 East Washington Avenue, Suite 205 U. S. Nuclear Regulatory Comission Madison, Wisconsin 53703 Washington, D. C. 20555 Gerald Charnoff, Esq.
Dr. Richard F. Cole
- Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Board 1800 M Street, N.W.
U. S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 Wisconsin Electric Power Company Dr. J. Venn Leeds ATTN: Mr. Sol Burnstein, Exec. V. Pres.
10807 Atwell 231 West Michigan Street Houston, Texas 77096 Milwaukee, Wisconsin 53201 Atomic Safety & Licensing Board Panel
- Patrick Walsh, Esq.
U. S. Nuclear Regulatory Comission Assistant Attorney General Washington, D. C. 20555 State of Wisconsin Dept. of Justice 114 East, State Capitol Atomic Safety & Licensing Appeal Board
- Madison, Wisconsin 53702 U. S. Nuclear Regulatory Corrnission Washington, D. C. 20555 Docketing & Service Section*
Office of the Secretary G
U. S. Nuclear Regulatory Commission L).
Washington, D. C. 20555 Ka'reh D. Cyr
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Counsel for NRC Staff
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