ML19346A156

Answer Opposing Sunflower Alliance,Et al,810522 Motion to Stay Proceedings Until EIS & Fes Are Filed.Motion Is Contrary to Commission Practice & Announced Policies

ML19346A156
Person / Time
Site:	Perry
Issue date:	05/29/1981
From:	Churchill B CLEVELAND ELECTRIC ILLUMINATING CO., DUQUESNE LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8106050283
Download: ML19346A156 (6)

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i UNITED STATES OF AMERICA- N'Qh?)'~.*- \

NUCLEAR REGULATOEY COMMISSION Y <8.h D-* \

l_? Q.. S'. p Before the Atomic Safety and Licensing Boa Jg 0.O u q' .s.gs'3I,, O.'

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In the Matter of ) 3 l

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THE CLEVELAND-ELECTRIC ) Docket Nos. 50-440 ILLUMINATING-COMPANY, ) 50-441 DUQUESNE LIGHT COMPANY, )  ;

OHIO EDISON COMPANY, ) _

' PENNSYLVANIA POWER COMPANY, ) (Operating License .

l and THE TOLEDO EDISON COMPANY ) cpy ,. .

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l (Perry Nuclear Power Plant, Units 1 and 2)

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) 3. ! JWI f egg , p l j 4 ; . i ~ , 4,..,,, l i APPLICANTS' ANSWER TO MOTION OF .h ' SY5

'.Y SUNFLOWER ALLIANCE, ET AL. TO '.

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STAY PROCEEDINGS YQ14i W By motion dated May 22, 1981,1 and received by Applicants

! on May 25, 1981, Sunflower Alliance, g al. has asked for an l

l order " staying proceedings in this licensing proceeding until such time as the Applicant has filed its Environmental Impact l

Statement and until such time as the NRC Staff has filed its l Final Environmental Impact Statement." The motion should be denied on the grounds that it is contrary to Commission practice, cor.trary to the Commission's Rules of Practice, and contrary to the Commission's announced policies for fair and expeditious conduct of licensing proceedings. "C) Sol S

1 The motion and certificate of service were unsigned, and the date of service was not specified.

8106050 # 3 g

l The Commission's rules specifically require that the l

notice of opportunity for hearing be published in the Federal Register "as soon as practicable af ter the application has been docketed." 10 C.F.R. 52.105(a)(7). The notice triggers the requirement that petitions for leave to. intervene are to be j filed within 30 days thereaf ter,10 C.F.R. SS2.105(d)(2) and 1

2.714(a), that contentions are to b~e filed pr or to the special prehearing conference, 10 C.F.R. S2.714(b), and that a special l prehearing conference is to be held early in the p:Jceedings, 10 C.F.R. 52.751a. See also 11I(a), II(a), and VIII(a), 10 C.F.R. Part 2, App. A. The rule calling for these activities to start shortly after docketing, section 2.105(a)(7), was l instituted in 1972 as part of a major restructuring of the Commission's Rules of. Practice to cope with increasing delays that were being exper'ienced in the d6cisional process for construction permits and operating licenses. Ironically, the early publication of the notice of opportunity for hearing was added largely for the purpose of providing " potential intervenors a better opportunity for more meaningful partici-pation in the hearing process." 37 Fed. Reg. 15127, 15128 (July 28, 1972). It is this provision that Sunflower Alliance is attempting to have set aside.

Publishing the notice of opportunity for hearing as soon as practicable after an applicant has filed its application enables potential intervenors to begin their participation early in the process. At the time of the notice, the appli-cant's Final Safety Analysis Report ("FSAR") and Environmental l

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1 Report-Operating License Stage ("ER") are available for public I inspection, and there is ample information available about the ,

proposed facilities to enable a petitioner to frame contentions which meet the requirements of 10 C.F.R. 52.714(b). In this proceeding, both the FSAR and the ER were submitted last year.

Each document, as noted in the Commicsion's Notice of Oppor-i tunity for Hearing, is available for public inspection both at the Commission's Public Document Room in Washington, D.C., and at the Perry Public Library in Perry, Ohio. Thus, Sunflower Alliance is in error in suggesting that Applicants have not '

i filed environmental information for the Perry f acilities.

Sunflower Alliance's argument that the proceeding should l be stayed until the NRC Staff has filed its Final Environmental Impact Statement ("FES") is similarly misplaced. Pursuant to the Commission's rules and policies, prehearing activities are traditionally well underway by the time the FES" has been issued; it would be virtually impossible to do otherwise and not have operation of a facility delayed beyond its time of completion. If information in the FES provides good cause for an intervenor's failure to have stated contentions in a timely manner at the outset of the proceedings, the Licensing Board has the discretion to consider requests to amend the 1

intervenor's petition. 10 C.F.R. SS2.714(a)(3) and (b).

2 Sunflower Alliance relies heavily on the assertion that Applicants have not yet filed their " Environmental Impact Statement." An applicant does not file such a document, that being a requirement of NEPA imposed on the Federal agency involved, in this case the NRC. Applicants' requirements under the Commission's regulations for implementing NEPA are to submit an environmental report. 10 C.F.R. SS51.20, 51.21.

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The Commission itself long ago considered and rejected the same arguments raised by Sunflov7r Alliance here. Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2),

CLI 45, 8 AEC 928 (1974). Petitioners in that case claim that the early issuance of the notice of hearing denies them an adequate opportu-nity to prepare a petition for intervention which, as our rules require, must identify, with reasonable specificity, those conten-tions intervenors wish to pursue, as well as the basis for them. (10 C.F.R. 2.714(a)).

The petition for reconsideration asks alternatively that the Commission either withdraw its notice of hearing, permit petitioners to file only a general petition without specific contentions, or permit petitioners to file for intervention at a time subsequent to the issuance of the report of the Advisory Committee on Reactor Safeguards (ACRS), the regulatory staff's safety evaluation, and the draft envi-ronmental impact statement.

8 AEC at 928-929. The Commission explicitly denied these claims. The decision nott:d that " petitioners inexplicably

ignore the wealth of data available in the voluminous appli-l cation filed by the utilities seeking construction permits in this proceeding," 8 AEC at 929, that " leave to amend petitions for intervention will be granted where a petitioner shows thac good cause exists for the belated assertion and where such amendment will assist the Board in resolving the issues before.

it without undue delay", id., and that the petitioners' argu-ments are "in effect a challenge to the rule which provides for the early issuances of notice of hearings", 8 AEC at 929-930.

Sunflower Alliance advances no special circumstances to justify deviation from established Commission policy and

procedure in this proceeding. All of the elements of the Licensing Board's April 9, 1981 Memorandum and Order, including identification of issues, discovery plans, consolidation of ,

intervenors, hearing procedures, and rulings on the various intervention petitions, can be taken up a.t the Special Prehearing Conference on June 2 with respect to the contentions which have been proposed. .Some of these contentions, in fact, relate to environmental matters. See, for example, Sunflower Alliance's Contentions 3, 4, 5 and 9C.

Sunflower Alliance's motion to delay the proceedings until

issuance of the FES will impact adversely on the Licensing Board's ability to fairly and expeditiously conduct the hearing without causing unnecessary delay in the ultimate Commission decisons effecting the licensing of the Perry facilities'. The

, motion is directly contrary to the Commission's policy direc-tives in two recent Part 2 rulemaking proceedings directed i toward expediting the licensing process, " Expediting the NRC

Hearing Process," 46 Fed. Reg. 17216 (March 18, 1981) and "Immediate Effectiveness Rule; Commission Review Procedures for Power Reactor Operating Licenses," 46 Fed. Reg. 20215 (April 3, 1981), and in a recently adopted " Statement of Policy on Conduct of Licensing Proceedings," CLI-81-8, 46 Fed. Reg. 28533 (May 27, 1981). In all of these statements, the Commission is cc'.;erned about avniding and minimizing delays encountered in

, the hearing process for operating licenses.

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For the above reasons, Sunflower Alliance's motion should be d2nied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 1

1 By ,, _ - _

J h e W. Thurchill Jay E. Silberg 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: May 29, 1981 l

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