ML20045E952
| ML20045E952 | |
| Person / Time | |
|---|---|
| Site: | Ginna  |
| Issue date: | 07/11/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-100, NUDOCS 9307060236 | |
| Download: ML20045E952 (4) | |
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I umno neu NUCLEAR REGULATORY COMMisslON
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ADJUDICATORY ITEM COMMISSIONER ACTION"'"'"
For:
The Oc;;issiencr3 Frem:
James A. Fitzgerald Assistant General Counsel Review of ALAB-596 (In the Matter of Rochester
Subject:
Gas and Electric Corporation, et al.)
9 Facility:
Sterling Power Project, Nuclear Unit No. 1.
To inform the Commission of an Appeal Board deci-Purocse:
sien for which no petitions for review have been filed,[andwhich, in our opinion,
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Review Time Expires:
August 1, 1960 (as previously extended).
Discussion:
In ALA3-596 [ Attachment 1), the Appeal Board ter-minated all proceedings re5arding this facility, j
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vacated the Licensing Board's opinion as moot, and instructed the Director of Nuclear Reactor Regulation to revoke the outstanding construc-tion permit.
This action was taken because the
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applicant has effectively discontinued the pro-ject for all practical purposes. 2/
i on May 28, 1980, Rochester Gas anc Electric requested the Appeal Board to terminate all pre-ceedings regarding this facility.
Although the i
applicant does not intend formally to announce cancellation of this project, it has initiated the termination of contracts with vendors.
Staff believes that there is no basis to terminate the proceeding and appeals by other parties in the absence of applicant's formal request for 12 mWa in 15 : : n,.a u ;,
4 permission to withdraw its application.
[ Attach-
.gg-in v~s,;y$n Act, ekchhti FDIA V.%
The Appeal Board terminated all proceedings regarding this facility because it found no 9307060236 930317 reason to proceed in light of the current PDR FOIA GILINSM92-436 PDR 1/
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Letter cf May 28, 1983, frem Eugene 3. Thomas, Jr. to the Secretary of the Appeal Board.
". At tec htent 23
$3 Trubatch, CGC 7p236
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In addition, the Appeal Board vacated the Licensing Board decision supporting previous issuance of the construction permit and, accordingly, instructed the Director, Nuclear Reactor Regulation to revoke the con-struction permit for thi-s facility.
In the Appeal Board's view, had the proceeding simply been terminated the applicant's position would have been improved because the initial grant of the construction permit would no longer be g,$
subject to reversal pending the outcome of the y
intervenor's appeal.
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Recommendation:
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James A. Fitzgerald Assistant General Counsel Attachments:
- 1. ALAB-596
- 2. Letter Thomas to Tompkins (dated 5/28/80
- 3. Letter Reis to Rosenthal, Buck and Salzman (dated 6/6/80)
Comissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Friday, July 25, 1980.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT July 18, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Comissioners OGC OPE SECY i
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f i l: J, C, t-UNITED STATES OF. AMERICA O
NUCLEAR REGULATORY COMMISSION DoCKEND A
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ATOMIC SAFETY AND LICENSING APPEAL BOARD E
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U Alan S. Rosenthal, Chairman M
Dr. John H. Buck p
4 Richard S. Salzman to g
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In the Matter of
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ROCHESTER GAS AND ELECTRIC
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Docket No. STN-50-485 CORPORATION, et al.
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y (Sterling Power Project, Nuclear
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Unit No. 1)
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Mr. Eugene B. Thomas, Jr., Washington, D.C.,
for tne applicants, Rochester Gas and Electric Corporation, et al.
Mr. Edwin J. Reis for the Nuclear Regulatory com:u.s s a.on s ta f f.
MEMORANDUM AND ORDER June 17, 1980 (ALAB-596)
In 1977, the Licensing Board rendered an initial decision authorizing the issuance of a construction permit for the Sterling Power Project, Nuclear Unit No.1.
The following year, we affirmed that decision on all but the need for the power to be generated by the - f a-two issues:
cility and the environmental impact of radon releases arising from the mining and milling of uranium.
Jurisdiction over-D50%
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those two issues was retained.
ALAB-502, 8 NRC 383 (1978),
affirmed, CLI-80-23, 11 NRC (May 29, 1980).
Under New York law, the Sterling facility was required to obtain a certificate of environmental compatibility and public need from that State's Board on Electric Generation Siting and the Environ =ent (Siting Board).
In January 1978, the Siting Board granted such a certificate.
Several months later, however, the Board announced its intention to reexamine the matter.
On February 11 of this year, it issued an opinion vacating the certificate, denying the application and closing the proceeding.
In the wake of this development, the applicants have ini-tiated steps looking to the "tarmination of contracts with those vendors supplying Sterling project services and plant components".
Although "In)o formal announcement of project cancellation is planned", the applicants take this measure as
" effectively recogni:{ing) project discontinuance for all i
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practical purposes".
Accordingly, we are asked h; them to
" terminate all proceedings in this docket". 1I 1
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Letter, dated May 28, 1980, from Eugene B. Thomas, Jr.,
to the Secretary to the Appeal Panel.
l This relief is plainly uarranted.
There is certainly no reason to continue to pursue the remaining issues raised by the intervenor's
/ appeal from the initial decision in cir-2 cumstances where those issues have been effectively mooted by the applicants ' decision (seemingly compelled by the Siting Board action) to abandon the Sterling project.
But as the NRC staff correctly points out in its response termination request, 2/ there remains the ques-to the applicants' tion as to the status, once the proceeding has been terminated, of the construction permit which was issued by the Director of Nuclear Reactor Regulation on the strength of the initial deci-sion.
Although the applicants have sidestepped that question, its answer is dictated by considerations of fundamental fair-Had the intervenor's appeal been prosecuted to a suc-ness.
cessful conclusion, the possible consequence would have been as well, not merely the reversal of the initial decision but, the revocation of the construction permit.
Surely, the appli-cants cannot improve their position -- i.e., insu2= the reten-tion of the permit -- by having us terminate the proceeding and thus bring a halt to the appeal.
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Ecology Action of Oswego.
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Letter, dated June 6, 1980, from Edwin J. Reis to the members of this Board.
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The Supreme Court has illuminated the path which should be followed in the circumstances which confront us here.
Specifi-cally, the appropriate course is to couple the grant of the applicants' request with a vacation of the initial decision on the ground of mootness.
United States v. Munsingwear, 340 U.S.
36, 39-41 (1950).
See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-4 55, 7 NRC 41, 55 (1978), remanded on other grounds, sub nom.
State of Minnesota v. NRC, 602 F.2d 412 (D. C. Cir. 19 7 9 ).
The effect of this action will be to remove the authority underly-ing the issuance of the construction permit.
This will, in turn, call upon the Director of Nuclear Reactor Regulation to perform the ministerial duty of revoking the permit - ' i'.e.,
the same duty that he would have had to discharge in the event that our appellate review of the merits of the initial decision had led us to conclude that the Licensing Board erroneously had authorized permit issuance.
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We need add only that the applicants cannot be heard to f
complain of this result.
Apart from the factor of equity noted above, they scarcely have any further need for the permit in light of their abandonment of the Sterling project because of the action of the State Siting Board.
Indeed, although we perceive no occasion to take the additional step of directing a dismissal of the permit application, it is reasonable to i
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-S-suppose that the applicants will give thought.to the withdrawal of that application. O LBP-77-53, 6 NRC 350 (1977), is vacated on the ground _of mootness; this construction permit proteeding is terminated; and the Director of Nuclear Reactor Regulation is instructed to revoke the outstanding construction permit by reason of the vacating of i
e LBP-77-53.
It is so ORDERED.
FOR THE APPEAL BOARD bba4d C. J qn Bishop Secretary to the Appeal Board
.i In this connection, we are not here confronted with the p
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question, recently considered by a licensing board in a
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dif ferent proceeding, of the extent of the authority of such a board to order an involuntary dismissal of a con-struction permit application on the ground that the ap-plicant has clearly (but without saying so) abandoned See its purpose to build the facility in question.
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Puerto Rico Electric Power Authority (North Coast Nu-clear Plant, Unit 1), LBP-80-15, 11 NRC (May 29, 1980) (slip opinion,. p. 3).
In -an unpub1Tshed order en-l tered on June 4, 1980, we called upon the North Coast
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parties to brief that question.
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Ms. Barbara A. Tomokins
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Secretary to the Appeal Panel I'
UU Atomic Safety and Licensing Appeal Panel United States Nuclear Regulatory Commission Q'
Washington, D.C.
20555 J
Re:
Rochester Gas and Electric Corporation, et al.
(Sterling Power Project, Nuclear Unit No 71U Docket No. 5"N 50-485 4
Dear Ms. Tompkins:
Your letter to M.r. Voigt of May 6 on behalf of Mr. Rosenthal sought confirmation, in light of a Rochester Gas and Electric employee's letter to the editor of a Rochester newspaper referring to the Sterling project as
" cancelled", that the Sterling co-owners remain undecided on the continuation of the above-referenced licensing proceeding.
Although no decision of interest to the Appeal Panel was taken with respect to the project in March, Rochester Gas and Electric this month, with the concurrence of the other Sterling co-owners, is initiating the termina-tion of contracts with those vendors supplying Sterling project services and plant components.
No formal announce-ment of project cancellation is planned, but the initiating of contract terminations effectively recognizes project discontinuance for all practical purposes.
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l Ms. Barbara A. Tompkins May 28, 1980 Page Two In the circumstances, it is respectfully requested that the Appeal Board terminate all proceedings in this docket.
A similar request is being forwarded to the Commission with respect to the limited question on appeal to it in this docket.
Very truly yours, LeBoeuf, Lamb, Leiby & MacRae b
By DM Mi
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g Euge'd6 B'. Thomas,~~Jr.
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Attached Service List G
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ATTACHMENT 3 l
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t'.O u Jene 6, 1980 4
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Alan S. Rosenthal, Eso., Chaiman h;. Ahn H. Buck Atonic Safety and Licensing Atomi,cl Safety :a d Licensing Appeal Board Mppeat Board U.S. Tiuclear Regulatory Cormission
.JdS. @cleari Re latory Cocinission Nashington, DC 20535 Washirigten. DC ~ 20555 P
Richard S. Sal man, Esq.
Atomic Safety and Licensing Apoeal Board U.S. !iuclear Regu'iatory Commissien
'clashington, DC 20555 In the Matter of Rochester Gas and Electric Corporation, et al.
(Sterling power Pro.fect *!uclear Unit NETT Docket 'lo. ST'l 50-435 Gentlemen:
On May 5,1980, this Beam inquired, in light of unconfimed moorts of the cancellation of the captioned pmject, whether the co-owners of the facility had, in fact, made a decision in that ngard. The Staff is in receipt of the oermittee's reply of May 28, 1980, wnich indicated, inter alta, that "no for al announcement of Droject cancellation is planned." However, the pemittet i
also indicated that the project co-owners had taken steps to. teminate their contracts with vendors sucolying services and comoonents, and that this
" effectively recogni:es project discontinuance for all practical purposes."
Therefore, this Board was requested to "teminate all proceedings in this docket." The proceedings new pending involve an appeal by the Intervenor.
The semittee's intention is not precisely clear after reading the May 28 letter.
However, while the pemittee does not specifically request pemission to withdraw 3
the apolication, the Staff believes that absent such withdrawal the.e is no basis to ter-ninate the proceeding and the appeals by other parties. Therefort, we believe it ine:xtent on the Aeplicant to plainly set forth its intentions in this proceeding and what it proposes to do.with the outstanding-construction pemit.
Sincerely.
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Edwin J. Reis Assistant Chief Hearing Counsel Cc. See Face Iwo
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