ML20058J072
| ML20058J072 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 08/06/1982 |
| From: | Finamore B, Greenberg E National Resources Defense Council, Sierra Club, TUTTLE & TAYLOR |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8208090153 | |
| Download: ML20058J072 (11) | |
Text
.i 00CKETED USHRC Before the UNITED STATES NUCLEAR REGULATORY COMMISSION
' 76 Washington, D.C.
-20555 In the Matter of
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UNITED STATES DEPARTMENT OF ENERGY
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PROJECT MANAGEMENT CORPORATION
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TENNESSEE VhLLEY AUTHORITY
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Docket No. 50-537
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(Clinch River Breeder Reactor Plant
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APPLICATION OF THE NATURAL RESOURCES DEFENSE COUNCIL, INC.
AND THE SIERRA CLUB FOR STAY OF THE COMMISSION'S DECISION UNDER 10 C.F.R. S50.12 At its meeting of August 5, 1982, the Commission voted to authorize, pursuant to 10 C.F.R. S50.12, the conduct of site preparation activities for the Clinch River Breeder Reactor (the "CRBR").
Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club (the "Intervenors"), intend to file a Petition for Review of the Commission's de' cision with the United States Court of Appeals for the District of Columbia Circuit upon issuance of the Order implementing that decision.
Intervenors now respectfully apply to the Commis-sion for a stay of the Order pending judicial review, or alternatively for 30 days to allow Intervenors to seek interim relief from the Court of Appeals.
Because of the extraordinary nature of this proceed-ing, it need hardly be said that important questions of first
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. impression will be presented to the Court of Appeals.
Further, commencement of more than $80 million of site pre-paration activities for the CRBR represents a radical change in the circumstances of the project.
This situation is thus one which plainly warrants grant of a stay to preserve the status quo pendente lite.
Discussion The basic purpose of a stay is "to maintain the
' status quo ante litem' pending consideration of the merits of a case; it serves to keep the parties as far as possible in the postures they occupied when the litigation began."
Toledo Edison Company, Cleveland Electric Illuminating Company (Davis-Besse Nuclear Power Station, Units 1, 2,
and 3), Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-385, 5 NRC 621, 625 (1977).
See generally Washington Metropolitan Area Transit Commission
- v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977).
The rules with respect to the grant of stay are well-established.
Four factors must be considered:
(1) whether the moving party is likely to prevail on the merits; (2) whether the moving party will be irreparably injured unless a stay is granted;
. (3) whether the granting of a stay would harm other parties; and (4) whether the public interest supports a stay.
In re Fire Protection for Operating Nuclear Power Plants (10 C.F.R. S50.48), CLI-81-11, 13 NRC 778, 784 (1981).
See also Virginia Petroleum Jobbers Association v. Federal Power Commission, 295 F.2d 921, 925 (D.C. Cir. 1958); Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.,
559 F.2d 841 (D.C. Cir. 1977); 10 C.F.R. S2.788(e).
Consideration of these four factors leads to the conclusion 3
that a stay should be granted in this case.
(1)
Intervenors are Likely to Prevail on the Merits -- Obviously the Commission has already ruled against Intervenors on the merits.
Nonetheless, as Commissioner Asselstine has pointed out even in voting with the majority, this case is a "close one," and there are strong dissenting views within the Commission favoring Intervenors' position.
For a stay to be granted, it is not necessary that ultimate success be a " mathematical probability"; it is enough that the movant has made a " substantial case" on the merits.
In the words of the District of Columbia Circuit Court of Appeals:
Prior recourse to the initial decisionmaker would hardly be required as a general matter if it could l
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. properly grant interim relief only on a prediction that it has rendered an erroneous decision.
What is fairly contemplated is that tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and where the equities of the case suggest that the status quo should be maintained.
Washington Metropolitan Area Transit Commission v.
Holiday Tours, Inc., 559 F.2d 841, 844-845 (D.C. Cir. 1977).
In this case, not only is there, as pointed out below, a strong showing with respect to the othur factors in determining whether a stay is appropriate, but Intervenors' case on the merits is plainly " substantial".
Legal questions with respect to the nature of the procedures which must be followed on a Section 50.12 application, the applicability of Section 50.12 to the CRBR project, the effect of granting a Section 50.12 request on Intervenors' contentions, and the interpretation of the Commission's practice with respect to administrative finality and res judicata all were novel, im-portant, and hotly contested.
So, too, were questions with respect to the application of the requirements to the Nation-al Environmental Policy Act of 1969 ("NEPA") to the project.
And, in view of the fact that less than five months ago the Commission came to a precisely different conclusion with respect to the "public interest" in this proceeding, plainly e
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t there is a substantial question as to just what that "public interest" is.
(2)
Intervenors Will be Irreparably Injured Unless a Stay is Granted -- The existence of irreparable injury to a party is critical in determining whether an administrative order should be stayed.
See generally Long Island Lighting Co., New York State Electric and Gas Corp. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-521, 9 NRC 51, 52 (1979);
In re Environmental Radiation Protection Standards for I
Nuclear Power Operations, 40 C.F.R.
190, CLI-81-4, 13 NRC 298, 301 (1981).
In this case, the brute fact that the Commission's decision will allow construction to begin is of overwhelming significance.
Almost 300 acres of land,will be subject to construction activities; roughly 2-1/2 million cubic. yards of earth will be excavated; and a quarry of t
approximately 40 acres, 40 to 140 feet deep, will be required.
Access roads, railroads, parking areas, barge unloading areas, a concrete batch plant, and numerous other plant and storage buildings will be built.
Activity of this nature and scope has often been considered prima facie to be the cause of irreparable injury.
See e.g.,
Environmental Defense Fund, Inc. v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972); Scherr v. Volpe, 336 F. Supp. 882 (W.D.
Wis. 1971), aff'd, 466 F. 2d 1027 (7th Cir. 1972).
- Indeed, I
. the Commission has at least implicitly recognized that, where construction is imminent, the requisite irreparable injury should be found.
See Long Island Lighting Co., N3w York State Electric and Gas Corp. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-521, 9 NRC 51 (1979).
(3)
Issuance of a Stay Would Not Substantially Harm Other Interested Parties -- In allowing Applicants to proceed with site preparation activities, the Commission appears to have determined not so much that further delay would harm Applicants as that early start-up of site preparation
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activities would provide certain benefits both to the CRBR project and to the LMFBR program as a whole.
In any event, the CRBR is a long-term project which is part of a long-term LMFBR program.
The asserted benefits of the early start up f
of site preparation activities for the most part will not be felt until the 1990's, and, even then, substantial uncertainties exis't concerning the real benefits to be obtained.
We do not believe, therefore, that stay of the l
Commission's mandate during a limited period of expedited judicial review would cause significant harm to other interested parties.
Further, any such harm would essentially be die _ minimis, if the mandate of the Commission were only
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. stayed for a period long enough to allow Intervenors to seek interim relief from the Court of Appeals, i.e., 30 days.
(4)
The Public Interest Favors Grant of a Stay --
Consideration of the "public interest" factor brings one full circle, back to the merits of this case.
Not only does this case raise important and "close" questions with respect to the nature and scope of the Commission's licensing function, but the grant of an exemption, as Commissioner Asselstine has pointed out, necessarily impacts on the integrity of the licensing process.
Further, a stay is essential to protect against any ultimate prejudice to the NEPA process.
Otherwise, even if Intervenors are successful on appeal, it may be too late to avoid the foreclosure effects of, site preparation activities.
Conclusion For all the reasons set forth above, Intervenors l
respectfully request that the Order implementing the Commission's decision of August 5 be stayed pending judicial review.
Alternatively, Intervenors ask that such Order be stayed 30 days to allow the Court of Appeals to consider l
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1 1 whether a judicial stay is appropriate.
We would hope that the Commission would decide whether to grant a stay before or in conjunction with issuance of its Order, thereby facilitating scheduling on review.
Respectfully submitted, b
Eldon V. C. Greenberg TUTTLE & TAYLOR 1901 L Street, N.W.
Washington, D.C.
036 (202) 861-0666 A. Fn(a,n Barbara A. Finamore
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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 tne Sierra Club Dated:
August 6, 1982 Washington, D.C.
C0f.KET,ED t'st'Po CERTIFICATE OF SERVICE g tft --6 P/4 07 I hereby certify that a copy-of the foregoing APPLICATION CLUBi",G i
FOR STAY OF THE COMMISSION'S DECISION UNDER 10 C2 ?.R.INC. ALD THE SIERR OF THE NATURA'L RESOURCES DEFENSE COUNCIL, 550.12 l
was delivered by hand this 6th day of August, 198. to:
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The Honorable Nunzio J.'Palladino Chairman U.S. Nuclear Regulatory Commissios Washington, D.C.
20555 The Honorable James K. Asselstine s
. Commissioner U.S. Nuclear Regulatory Commission (
Washington, D.C.
20555 1
The Honorable Victor Gi'linsky Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 The Honorable Jo_hn 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. Bergholz, 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 I
O I
t im_
. 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 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 William B.
Hubbard, Esquire Assistant Attorney General State of Tennessee Of fice 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 Rid'e, Tennessee 37820 g
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. Greenberg 3