ML20004C274

Motion to Dismiss OL Application for Lack of Jurisdiction. Canadian Town,Erieau within 50 Miles of Plant Must Be Involved in Emergency Planning,But ASLB Does Not Have Jurisdiction Over Town.Proof of Svc Encl

ML20004C274
Person / Time
Site:	Perry
Issue date:	05/22/1981
From:	Wilt D SUNFLOWER ALLIANCE, WILT, D.D.
To:
References
ISSUANCES-OL, NUDOCS 8106020471
Download: ML20004C274 (4)

Text

a UNITED STATES OF AMERICA NUCLEAR HEGULATORY COMMIS.iION ATOMIC SAFETY AND LICENSING BUA M IN THE MATIER OF: ) DOCKET NOS. 50-440-OL

) 50-441-OL CLEVELAND ELECTRIC ILLUMINATING CO. )

ET AL May 22, 1981

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s- N NUCLEAR P0kER PLANT, UNITS ) V

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6 3 MAY 2 6 kh81 1 '

9 C::D .: ' 3 :=thry y j u n 0 1 6 g w (12 MOTION BY INTERVENORS TO DISMISS OPERATING ST. ice LICENSE APPLICATION 1

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/,N come Intervenors, by and through undersigned counsel, and move the Atomic Safety and Licensing Board for its order dismissing Applicant's operating 11cen== .pp11 cation for trie romson that the Nuclear Regulatory Commission lacks jurisdiction and authority to grant the license.

l A brief is attached in support of this Motion.

l l

l Daniel D. Wilt. Esq.

Attorney for Sunflower Alliance et s1 7301 Chippewa Rd.

Brecksville, Ohio 44141 216-526-2350 PROOF OF SERVICE The undersigned certifies that a true copy of this Motior by Intervenors to Dismiss Operating License has been sent to everyone on the attached service list by regular United States Mail on this day of May, 1981.

1. f , ,

Daniel D. Wilt, Esq.

Attorney for Sunflower Alliance et al 6000 l

a l

BRIEF

Applicant has filed for a class 103 license to operate Units One and Two of a nuclear power station known as the Perry Nuclear Power Plant (PNPP). Presumably, a class 103 license is a license authorized by 42 USC 2133 which is the codified section of 103 of the Atomic Energy Act. The l Nuclear Regulatory Commission is a creature of statute and its powers, 1

authority and limitations is set forth in the statute. Thus, the NRC l cannot act where the statute denies the right to act.

The controlling statute for a class 103 license is in fact 42 USC 2133. 42 USC 2133(d) creates an inherent limitation of the power of the NRC to grant a 103 license. The statute provides in applicable part:

1 No license under this section may be given to any person for activities which are not under or within the jurisdiction of the United States...

1 The town of Erieau, Harwich Township, Kent County, Ontario, Canada l l is within fif ty miles of PNPP. Thus, this town must be involved in the emergency planning process of PNPP which is an activity. The residents 1

of Erieau have the same right to be protected in the event of an emergecy as any other town within fifty miles of PNPP. The problem, of 1 I

course, is that Eriemu is not under or within the jurisdiction of the United States. Thus, the NRC simply does not have jurisdiction to grant a class 103 operating permit to Applicants because some of the activities of FNPP will not occur under or within the jurisdiction of the United States.

i It is anticipated that the Applicant will argue that the production l

of power will occur under the control or within the jurisdiction of the United States and this is the controlling point. This cannot be which is why the Congress placed this limitation in the statute. The Congress

of the United States has no power to impact on the lives of individuals who live in a foreign country. Emergency planning is an impact and now is considered one of the major activities of an utility that seeks to bQild a nuclear power plant. Since the utility is responsible for siting the facility, the utility bears responsibility for an erronous decision in siting not your intervenors, the public or the residents of Erieau, Ontario, Canada.

This Commission simply lacks the legal authority to issue a license where

c. any "! activity occurs in a place which is not unoer or within the jurisdiction of the United States. Therefore, the Commission has no alternative but to dismiss the operating license application.

Wherefore, your intervenors move that the operating license application filed by Applicant be dismissed.

L Daniel De Wilt Esq.

Attorney for Sunflower Alliance et al 8

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O SERVICE LIST Peter B. Bloch, Chairman Dr. Jerry R. Kline Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatoryk Comunission U.S. Nuclear Regulatory Comunission Washington, D.C. 20555 Washington, D.C. 20555 Frederick J. Shon Jay Silberg, Esq.

Atomic Safety & Licensing Board 1800 M Street N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 Charles A. Barth, Esq. Donald T. Ezzone, Esq.

U.S. Nuclear Regulatory Commission Assistant Prosecuting Attorney Washington, D.C. 20555 105 Main Street Painesville, Ohio 44077 Todd J. Kenney Jeff Alexander 31800 Creekside Drive 920 Wilmington Ave.

Pepper Pike, Ohio 44124 Dayton, Ohio 45420 Terry Lodge, Esq. Docketing & Service Section 915 Spitzer Bldg. Office of the Secretary Toledo, Ohio 43604 U.S. Nuclear Regulatory Commission

- Washington, D.C. 20555 Atomic Safety & Licensing Board Panel Atomic Safety & Licensing Appeal Board Panel U.S. Nuclear Regulatory Comunission U.S. Nuclear Regulatory Comunission Washington, D.C. 20555 Washingtou, D.C. 20555 l

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