ML20055F589
| ML20055F589 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 07/06/1990 |
| From: | Patricia Jehle, Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#390-10607 OLA-4, NUDOCS 9007180093 | |
| Download: ML20055F589 (11) | |
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DOCKETED USNRC i
% Ji -6 P3 Z4 UNITED STATES OF AMERICA NUCLFAR REGULATORY COMMISSIO BEFORE THE ATOMIC SAFETY AND LICENSING APPF L'Bh b ^
2n the Matter of
)
Docket Nos. 50-250 OLA-4
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50-251 OLA-4 j
FLORIDA POWER AND LIGHT
)
COMPANY
)
)
(Turkey Point Plant, Units 3
)
(P/T Limits) and 4)
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NRC STAFF RESPONSE TO MOTIONS FOR CHANGE OF LOCATION OF ORAL ARGUMENT i
Patricia Jehle Counsel for NRC Staff 1
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Janica E. Moore Counsel for NRC Staff July 6, 1990 9007180093 900706 PDR ADOCK 05000250 0
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
Docket Nos. 50-250 OLA-4
)
50-251 OLA-4 FLORIDA POWER AND LIGHT
)
COMPANY
)
)
(Turkey Point Plant, Units 3
)
(P/T Limits) and 4)
)
NRC STAFF RESPONSE TO MOTIONS FOR CHANGE OF LOCATION OF ORAL ARGUMENT i
i Patricia Jehle l
Counsel for NRC Staff i
o Janica E. Moore Counsel for NRC Staff 1
July 6, 1990 l
I
July 6,1990 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD f
In the Matter of
)
Docket Nos. 50-250-OLA-4
)
50-251-OLA-4 FLORIDA POWER AND LIGHT
)
COMPANY
)
)
4 (Turkey Point Plant, Units 3
)
(P/T Limits) and 4) i NRC STAFF RESPONSE TO MOTIONS FOR CHANGE OF LOCATION OF ORAL ARGUMENT I. INTRODUCTION On May 29, 1990, the Appeal Board ordered the consolidation of the appeals of (1) Thomas J.
Saporito, Jr. and the Nuclear Energy Accountability Project (NEAP) and (2) Joette Lorion and the Center for Nuclear Responsibility (CNR) from two Licensing Board decisions issued on January 16,
- 1990, in the above-captioned 4
proceeding.
- Order, dated May 29, 1990.
Oral argument was scheduled to take place in the NRC Public Hearing Room in Bethesda, Maryland on July 10, 1990.
Motions requesting that the location of the oral argument be changed to Miami, Florida were filed by Mr. Saporito and NEAP on June 20, 1990 and Ms.
Lorion and CNR on June 24, 1990.
" Appellant's Motion to Move Place of Oral Argument",
(June 20, 1990) (Hereinafter, Appellants' Motion);
"Intervenors' Motion for Reconsideration of Appeal Board Order Setting Oral Argument,"
(June 24, 1990) (Hereinafter, Intervenors' Motion.)
The Appeal l-l l
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- Board postponed thi ' ':1 argument until further notice and allowed the Licensee, Florida Power and Light Company, and the NRC Staff l
until July 6, 1990, to file replies to the motions.
Order, dated 1
June 25, 1990.
For the reasons cet forth below, the Staff submits that, while it is within the discretion (of the Appeal Board) to msve the oral j
argument to Miami, Florida, neither Appellants nor Intervenors have presented any arguments which should cause the Appeal Board to depart from its usual practice of holding oral arguments in Bethesda, Maryland.
II.
ARGUMENT Both Appellants and Intervenors argue that it would be financially burdensome for them to come to Bethesda to participate in the oral argument. Appellants' Motion at 1, Intervenors' Motion at 2.
In addition, they argue that the strong public interest in matters relating to the Turkey Point facility requires that the oral argument be held in Miami.
Appellants' Motion at 2;
Intervenors' Motion at 4-5.
Finally, Intervenors argue that to hold the argument in Bethesda would deprive them of due process.
Intervenors' Motion at 2-3.
Each of these arguments is addressed below.
These arguments do not present any unique circumstances which necessitate the Appeal Board's abandonment of its usual practice of holding oral arguments in Bethesda, Maryland.I' l
l' Ms. Lorion also pointed out, in n.1 of Intervenors' Motion, that i
she was unaware of an Advisory Committee on Reactor Safeguards Subcommittee on Materials and Metallurgy meeting held in West Palm (continued...)
' l Appellants and the Intervenors first argue that the cost of l
attending oral argument in Bethesda, Maryland is a burden on their l
individual and organizational finances.
Appellants' Motion at 1; Intervenors' Motion at 2.
When the Appellants and Intervanors entered the proceeding they assumed responsibility for participating in all stages of the licensing proceeding and inadequate funding is no excuse for not meeting that l
responsibility.
See generally, Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
In the 1
instant proceeding, neither Intervenors nor Appellants have provided any information concerning their financial ~ resources.
A mere allegation of a lack of financial resources is insufficient to support a motion for relief from the requirement to attend an l'(... continued)
Beach, Florida on May 24, 1990.
Intervenors' Motion at 6 n.1.
She apparently believes that she should have been informed of the meeting, and that she should have been provided with. transcripts of the meeting.
Id.
Notices of the subcommittee meeting were published in the Federal Register on March 21, 1990, April 19, 1990, May 10, 1990, and May 22, 1990.
See 55 Fed. Reg. 10557; 55 Fed. Reg. 14884; 55 Fed. Reg. 19682; and 55 Fed. Reg. 21126.
The purpose of the Subcommittee meeting was to review low Charpy upper shelf energy matters relating to the integrity of reactor pressure vessels.
Id.
This topic -was specifically excluded from consideration in this proceeding by the Licensing Board.
See Florida Power and Light Company (Turkey point Nuclear Generating Plant, Units 3 and 4) LBP-89-15, 29 NRC 493, 506 (1989).
Also to be discussed at the meeting was the status of the heavy section steel technology (HSST) program and other matters unrelated to this proceeding.
See 55 Fed. Reg. 10557; 55 Fed. Reg. 14884; 55 Fed.
Reg. 19682; and 55 Fed. Reg. 21126.
An official transcript of the Subcommittee meeting is available for review in the Commission's Public Document Room in Washington, DC.
Intervenors are not i
routinely provided with transcripts of' Advisory Committee on i
Reacto:- Safeguards meetings.
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- i oral argument.
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), AIAB-666, 15 NRC 277, 279 (1982).
Next, Intervenors and Appellants argue that the interest of the community in matters concerning the Turkey Point units requires i
holding oral argument in Miami, Florida.
Intervenors' Motion 4-5; Appellants' Motion at 2.
As a matter of policy, most evidentiary hearings are conducted in the general vicinity of the site of the facility involved. See Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-566, 10 NRC 527, 530-31 (1979).
The Commission has not, however, routinely extended this policy to the selection of a location for conducting oral arguments at either the Appeal Board or Commission level.
Neither Intervenors nor Appellants have presented any discussion of a unique public interest which would necessitate such a relocation in this instance.
Finally, Intervenors claim that due process requires that they be given an opportunity to present their position before the Appeal Board in an oral argument.
Intervenors' Motion at 2-3.I'
- However, due process does not require that participants in a licensing proceeding be given the opportunity for oral argument before an appellate body.
Oral argument is not required in all cases; it is within the discretion of the Appeal Board to schedule oral 2/ It is worth noting that, although Intervenors assert a due process right to oral
- argument, they did not request it.
Appellants, on the other hand, did make such a request.
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. l argument.
30 C.F.R. S 2.763; 10 C.F.R. Part 2, Appendix A, IX(e) ;
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC 277, 280 n.5 (1982).
Contrary to the assertions of Intervenors, the Atomic Energy Act of 1954, as amended, does not provide intervenors with the right to oral argument.
What the Act does provids is the right, in the case of a license amendment, such as the one in question
- here, to request a hearing with respect to that amendment.
42 U.S.C. $ 2239.
If an intervanor can satisfy the requirements of 10 C.F.R. S 2.714 of the Commission's regulations with respect I
to standing, and proposes at least one valid contention, that intervenor gains the right to proceed further in the hearing process.F In this prc caeding, Intervenors have participated fully in the hearing process.
They filed a written response to the Licensee's Motion for Summary Disposition and a briet egpealing the Licensing Board's order granting Licensee's Motion, Therefore, Intervenors will suffer no deprivation of due process, since their arguments have been set forth in their appellate brief.
See "The Center for Nuclear Responsibility's and Joette Lorion's Brief in Support of their Appeal of the Licensing Board Order Granting summary Disposition of Intervenors' Contention 2 and Dismissing the Proceeding," (March 5, 1990).
Included in that hearing process is the resolution of issues by summary disposition.
10 C.F.R. S 2.749.
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- Intervenors also assert that their participation in the oral argument is required to provide for a balanced administrative record.
Intervenors' Notion at 3.
Intervenors have participated in this proceeding since its inception and they have provided their j
f actual and legal arguments in their pleadings before the Licensing Board and the Appeal Board.
The administrative record is complete and is before the Appeal Board.
An appellate argument-is not the c
j proper place to submit new information or facts, if that is what
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Intervenors had in mind.
Intervenors' presence, therefore, is not required to supplement the record.
All the parties have set forth their arguments in briefs.
It will not be a violation of Intervenors' due process rights if they were. unable to reargue their position.
As was discussed above, it is not required that the Appeal Board hold oral argument in every case.
In summary, the novants have not set forth persuasive arguments to support their request that the Appeal Board abandon its usual practice of conducting oral arguments in Bethesda, Maryland.
Notwithstanding the foregoing, the decision on whether and where to conduct oral argument is, as noted above, a matter c
committed to the Appeal Board's discretion.
And, the Staff is mindful that there have been other occasions on which the Appeal Board has conducted oral argument more proximate to the facility in question.
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i III.
CONCLUSION For the reasons set forth above the Staff does not believe that it is necessary for the Appeal Board to depart from its usual practice of holding oral arguments in
- Bethesda, Maryland.
Therefore, Appellant's and Intervenors' Motions-should be denied.
Respectfully submitted,
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Patricia Jehle Counsel for NRC Staff TT P/A 0 (CQ
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Janice E. Moore Counsel for NRC Staff f
Dated at Rockville, Maryland this 6th day of July, 1990 c
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USNRC j
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 10 JL -6 P3 :44 BEFORE THE ATOMIC SAFETY AND LICENSING ADDEAlemann py g
bdCKI llNG A Sf tiVICf.
!IRANCH In the Matter of
)
Docket Nos. 50-250 OLA-4
)
50-251 OLA-4 FLORIDA POWER AND LIGHT
)
COMPANY
)
)
(Turkey Point Plant, Units 3
)
(P/T Limits) and 4)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTIONS FOR CHANGE OF LOCATION OF ORAL ARGUMENT" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internt1 mail system, this 6th day of July, 1990:
Christine N. Kohl, Chairman
- Glenn O. Bright
- Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety & Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Jerry Harbour
- Howard A. Wilber*
Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Joette Lorion 7269 SW 54th Avenue Thomas S. Moore
- Miami, FL 33143 Administrative Judge Atomic Safety and Licensing Steven P. Frantz, Esq.
Appeal Board Harold F. Reis, Esq.
U.S. Nuclear' Regulatory Commission Newman & Holtzinger, P.C.
Washington, DC 20555 1615 L Street, N.W., Suite 1000 Washington, DC 20036 B. Paul cotter, Jr., Chairman
- Administrative Judge John T. Butler, Esq.
Atomic Safety & Licensing Board Steel, Hector & Davis U.S. Nuclear Regulatory Commission 4000 Southeast Financial Center Washington, DC 20555 Miami, FL 33131-2398
t i,
i Center for Nuclear Responsibility Office of the Secretary
- 7210 Red Road # 217 U.S. Nuclear Regulatory Commission Miami, FL 33143 Washington, DC 20555 Attnt Docketing & Service Section Nuclear Energy Accountability Project Atomic Safety & Licensing Board P.O. Box 129 Panel (1)
- Jupiter, FL 33468-0129 U.S. Nuclear Regulatory Commission Washington, DC 20555 Stewart Ebneter Regional Administrator Adjudicatory File (2)*
USNRC, Region II Atomic Safety & Licensing Board 101 Marietta St.,
N.W., Suite 2900 U.S. Nuclear Regulatory Commission Atlanta, GA 30303 Washington, DC 20555 Atomic Safety and Licensing Appeal Panel (5)
- U.S. Nuclear Regulatory Commission Washington, DC 20555 i
Y a.5,4 (2du Patricia Jehle Counsel for NRC Staff k
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