ML20052G854

Memorandum Opposing Applicant 820514 Request for Reconsideration of Commission 820316 Decision Not to Permit Site Preparation Activities.Request Untimely & W/O Basis. Certificate of Svc Encl

ML20052G854
Person / Time
Site:	Clinch River
Issue date:	05/17/1982
From:	Finamore B, Greenberg E National Resources Defense Council, Sierra Club, TUTTLE & TAYLOR
To:	NRC COMMISSION (OCM)
References
NUDOCS 8205190075
Download: ML20052G854 (9)

Text

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5/17/82 Before the UNITED STATES NUCLEAR REGULATORY COMMISSION _ , - .

Washington, D.C. 20555 e  :

~ ' l "1 In the Matter of )

)

UNITED STATES DEPARTMENT OF ENERGY ) _

PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537 TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant) )

MEMORANDUM OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB, IN OPPOSITION TO APPLICANTS' REQUEST FOR RECONSIDERATION Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club (the "Intervenors"), submit this memorandum in opposition to the request, filed May 14, 1982, by the Department of Energy and its co-applicants, Project Management Corporation and the Tennessee Valley Authority (the " Applicants"), for reconsideration of the Commission's decision under 10 CPR S50.12 not to permit site preparation

.. activities (Order, CLI-82-4, March 16, 1982). As set forth below, Intervenors believe that such a request is untimely 0

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8205190075 820517 PDR ADDCK 05000537 G PDR

and without basis. 1/

Prom the outset, it has been Intervenors' position that Applicants' Section 50.12 request is part and parcel of the Clinch River Breeder Reactor licensing and must be treated as an adjudicatory matter. 2/ The Commission's dec'.sion of March 16, 198 2, was, in our view, a final and appealable order which fixed the rights of the parties. In such circumstances, we believe Applicants' request is un-timely and cannot be properly considered by the Commission.

The Commission's regulations provide that a party may file requests for reconsideration only "within ten (10)

I! Intervenors also object to the Commission's scheduling a meeting on the matter for Monday, May 17, one working day after filing. Under the Commission's Rules of Practice, 10 CPR S2.771(b), a party is given ten days to respond to requests for reconsideration. Even apart from this Rule, however, elementary fairness would seem to require that the Commission afford Intervenors, who have participated fully at every stage of the Section 50.12 proceeding, some reasonable time to respond.

2/ Given the hearing requirements of Section 189 of the Atomic Energy Act, the broad meaning ascribed to the term " license" by the Administrative Procedure Act , 5 U.S.C.

S551(8) (including any agency " form of permission"), and the D.C. Court of Appeals decision in Sholly v. United States Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir.),

suggestion for rehearing en banc denied, 651 F.2d 792 (D.C.

Cir. 1980), cert. granted, 451 U.S. 1016 (1981) (requiring a hearing before any significant change in facility operation is authorized), we think no other conclusion is legally sup-portable.

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l 3-l days after the date of the decision." 10 CFR S2.771(a). The purpose of this rule is to give some finality to the Commis-sion's rulings and not allow them to be relitigated at any time at the whim of a party. 3/ We do not believe that Applicants here can be permitted simply to wait until they feel the time is opportune to seek reconsideration. The Commission's rule, by its terms, precludes the filing of requests for reconsideration after the 10 day period elapses; it must be applied in this case. S/

In any event, it seems apparent that Applicants' request is precisely the kind of broad-gauged effort to reli-E/ The rule restricting a party's right to relitigate is also, we suggest, quite dif ferent from any rules relating to the Commission's ability to reconsider

' decisions on its own motion. In one case, the Commission is burdened; in the other it unburdens itself.

d! The Commission's Rules of Practice, of course, are regulations which are binding on the Commission.

E.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S.

260 (1954); Service v. Dulles, 354 U.S. 363 (1957); United States v. Nixon, 418 U.S. 683 (1974); Sangamon Valley Tele-vision Corp. v. United States, 106 U.S. App. D.C. 30, 269 F.2d 221 (1959), cert. denied, 376 U.S. 915 (1964); United States v. Heffner, 420 F.2d 809, 811-12 (4th Cir. 1969). But even if it is argued that 10 CPR S2.771 might not be directly

.. applicable, based upon the contention that the Section 50.12 proceeding is a " quasi" or " informal" adj udication to which Subpart G may not apply, the policy discussed above of establishing finality plainly warrants the Commission denying this request as untimely.

tigate decided matters which the rule is intended to avoid .

The request presents no new information -- indeed does not indicate that there is any new information to be presented --

and is stated in the most conclusory terms. More impor-tantly, on its face, it provides no justification for recon-sideration.

Applicants seem basically to be seeking to rectify the failures of their previous presentation. They want the opportunity now to present " additional public interest fac-tors, including the informational, programmatic, interna-tional, non-proliferation and national energy policy benefits associated with the grant of the request." But they had every opportunity to present these matters to the Commission in the extensive proceedings between December, 1981, and March, 1982. In fact, there can be little question that

these matters were before the Commission. E/ If Applicants did not make a presentation on a particular point (or, as seems more likely, did not say what, in hindsight, they now might like to have said), their f ailure to do so is surely no grounds for reconsideration. Indeed, should the Commission allow reconsideration on such grounds, there would never be an end to litigation.

In sum, for the reasons set forth above , Interve-nors respectfully submit that the Commission should summarily deny Applicants' request for reconsideration.

5/ For example, " programmatic" benefits were discussed in the SPAR (at 7-1) and in Applicants' oral statements. See Transcript of February 16 Hearing at 82 (statement of Mr. Davis). They were also considered by the Commissioners. See Transcript of March 1 Meeting at 29 (Commissioner PaTTadino); Transcript of March 5 Meeting at 10 (Commissioner Roberts). " Informational" benefits were likewise mentioned in written presentations, see SPAR 7-1, 7-2, and oral statements, see Transcript of February 16 Hearing at 74 (statement of Mr. Edgar), and they, too, were considered by the Commission. See, e.g., Transcript of March 1 Meeting at 18, 25-26, 28, 40, 44 (statements of Commissioners Palladino, Gilinsky and Bradford, respectively). " National energy policy" was stressed from the very beginning by Applicants, see Secretary Edwards' letter.of November 30, 1981 at 1, 3, 4, and emphasized at oral hearing. See Transcript of February 16 Hearing at 6; 87; 108 (statements of Messrs. Edgar, Davis and Kearney,

~respectively). The simple fact is that the Commission, in reaching its decision of March 16, did not ignore public interest factors other than cost. See Transcript of March 1 Meeting at 10, 12, 16 (statements of Commissioners Ahearne, Palladino and Bradford, respectively.)

Respectfully submitted, k h Eldon V. C. Greenberg ]  ;

TUTTLE & TAYLOR d 1901 L Street, N.W.

Washington, D.C. 20036 (202) 861-0666 b&h. %&

Barbara A. Finamore d W

S. Jacob Scherr Natural Resources Defense Council, Inc.

1725 Eye Street, N.W.

Washington , D.C. 20006 (202) 223-8210 Attorneys for Intervenors Natural Resources Defense Council, Inc., and the 1 Sierra Clob '

Dated:' Washington, D.C.

May 17, 1982 T

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing MEMORANDUM OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB, IN OPPOSITION TO APPLICANTS' REQUEST FOR RECONSIDERA-TION was delivered by hand this 17th day of May, 1982 to:

The Honorable Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable James K. Asselstine Commissioner U.S. Nuclear Regulatory Commission 'A ,.

Washington, D.C. 20555 VI:03 The Honorable Victor Gilinsky ..

Commissioner U.S. Nuclear Regulatory Commission '

Washington, D.C. 20555 The Honorable John F. Ahearne Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Thomas F. Roberts Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Daniel Swanson, Esquire Stuart Treby, Esquire Bradley W. Jones, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20814 R. Tenney Johnson, Esquire Leon Silverstrom, Esquire Warran E. Bergoholz, Jr., Esquire Michael D. Oldak, Esquire

.. L. Dow Davis, Esquire Office of General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W.

Washington, D.C. 20585 l

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George L. Edgar, Esquire Irvin N. Shapell, Esquire Thomas A. Schmutz, Esquire Gregg A. Day, Esquire Frank K. Peterson, Esquire Morgan, Lewis & Bockius 1800 M Street, N.W.

Washington, D.C. 20036 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555

( 3 copies)

Leonard Bickwit, Esquire Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20545 And by mail, postage prepaid, to the following :

Marshall E. Miller, Esquire Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Dr. Cadet H. Hand, Jr.

Director Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, California 94923

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Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission  ;

Washington, D.C. 20555

l Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire James F. Burger, Esquire W. Walker LaRoche, Esquire Edward J. Vigluicci Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, Tennessee 37902 F

William B. Hubbard, Esquire Assistant Attorney General State of Tennessee Office of the Attorney General 422 Supreme Court Building Nashville, Tennessee 37219 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 William E. Lantrip, Esquire City Attorney Municipal Building P.O. Box 1 Oak Ridge, Tennessee 37830 Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Mr. Joe H. Walker 401 Roane Street Harriman, Tennessee 37748 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 32219 Eldon V. C. Greenb g