ML20031A334
| ML20031A334 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 09/15/1981 |
| From: | Gallo J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20031A332 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8109230166 | |
| Download: ML20031A334 (5) | |
Text
9/15/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
) Docket No. 50-155-OLA
'ONSUMERS POWER COMPANY
) (Spent Fuel Pool
)
Expansion)
(big Rock Point Nuclear Power Plant)
)
LICENSEE'S MOTION TO DISMISS CONTENTION 9-1 AND TO ESTABLISH Sn.!EFING SCHEDULE i
Consumers Power Company
(" Licensee") hereby moves the Atomic Safety and Licensing Board,
(" Board") for the reasons explained below, to enter an order (i) dismissing without prejudice contention 9-1 filed by Intervenors Christa-Maria, et al.,
("Intervenors") on September 4, 1981, and (ii) establishing the briefing schedule specified below.
Intervenors in Contention 9-1 do not attempt to challenge the conclusion of the NRC Staff's Environmental Impact Appraisal ( "EIA " ), namely that the environmental impacts of the proposed licensing action are other than negligible.
Nor do they attempt to raise an unresolved conflict concerning the alternative uses of available re-souces.
Rather, Intervenors seek to challenge the adequacy I
of the NRC Staff's discusison of alternatives in the 8109230166 810915 gDRADOCK 05000135 n. ~. -... - -..
. EIA.1!
Thus, Intervenors, in Contention 9-1, assume that the long-standing disputed question of law among the parties concerning the application of Section.02(2)(E) of the National Environmental Protection Act ( "NE PA " ) to this proceeding has been decided in Intervenors' favor.
Such a determination, as explained below, has not been rendered, and accordingly Contention 9-1 should be dismissed as prematurely raised.
It has been and continues to be Licensee's position l
l that, as a matter of law, Section 102 (2)(E) does not require 1
a discussion of alternatives in this case.2/
This legal position is based on the judgment that a discussion of alternatives is not required by Section 102(2)(E) when, as in this case, (i) the environmental impacts of the proposed action are negligible and (ii) the proposed action involves 1/
Licensee understands the legal position of the NRC Staff to be in opposition to any interpretation of Section 102(2)(E) that would require it to discuss alternatives in this proceeding.
Moreover, no NRC tribunal has ordered such consideration in this case.
Hence, Li-censee is at a loss to comprehend why the NRC Staff, nevertheless, gratuitously included such a discussion in the EIA.
In any event, Licensee has objected and I
continues to object to the Staff's discussion of alter-natives in the EIA.
See Reply Brief of Consumers Power Company filed with the Appeal Board on December 22, 1980, p.
17, including fn.
9.
2/
See Brief of Consumers Power Company on Need for Power Issue, filed with the Board on March 3, 1980, pp. 14-19.
I
~
. no unresolved conflicts concerning alternative uses of available resources, i.e.,
the amount of stainless steel used for the three new spent fuel racks.
With respect to this latter issue, Licensee has concluv.ed, again as a matter of law, that the Big Rock Point Plant itself is not a "re-source" as that term is used in Section 102 (2 )(E).
The applicability of Section 102 (2)(E) to this proceeding has been previously briefed by the parties pur-suant to the Board's Order Following Prehearing Conference.
l However, the Board in its order concerning that issue stated l
that it need not reach the question because it had instead l
decided that an Environmental Impact Statement was required under Section 102(2)(C) of NEPA.1!
The Atomic Safety and Licensing Appeal Board
(" Appeal Board") in ALAB-636 also i
declined to address this issue, albeit on a different basis.
The Appeal Board stated it was " premature to decide (the Section 102(2)(E) issue] in the absence of a record upon which to base such a finding.A/
No subsequent decision of I
l 3/
Memorandum and Order on NEPA Review, LB P-8 0-2 5, 12 NRC l
355, 359 (Sepe. ember 12, 1980).
l 4/
Censumers Power Company (Big Rock Point Nuclear Plant),
l Docket No. 50-155-OLA, ALAB-636, 13 NRC 312, 331-32 l
(March 31, 1981).
1
. m -...-..
4-the Board or Appeal Board in this proceeding has dealt with this issue, and the legal question of the applicability of Section 102 (2)(E) to this proceeding remains ' extant.
If, as Licensee suspects, Intervenors are attempting through Contention 9-1 to resurrect the Section 102(2)(E) issue, the Board must first decide the underlying legal controversy among the parties.
Therefore, it is appropriate for the Board to establish a briefing schedule.
Licensee suggests the following:
(1)
The brief of Intervenors in support of the application of Section 102(2)tE) to this proceeding -- filed two weeks af ter the grant of the instant motion.
(2)
The briefs of Licensee and the NRC Staff in l
opposition -- two weeks after the filing of Intervenors' brief.
l Although other parties may desire to rest on the pleadings previously filed on this issue, Licensee desires to file a fresh brief -- one that tctes into account the guidance l
provided by the Appeal Bocrd in ALAB-636.
Moreover, the various arguments of the parties are spread over various documents, some filed with the Beard and some with the l
Appeal Board.
Thus, a fresh opportunity for briefing will l
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- present the Section 102(2)(E) issue squarely before the Board for adjudioation.
For the foregoing reasons, Licensee's Motion to Dismiss Contention 9-1 witnout prejudice should be granted, and the briefing schedule suggested here.in donld be established.
Respectfully submitted, es+b eph gallo, Esquire One of the Attorneys for Consuemrs Power Company ISHAM, LINCOLN & 3EALE Suite 325 1120 Connecticut Avenue, N.W.
Washington, C.
C.
20036 (202) 833-9730 Dated:
September 15, 1981 I
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