ML20058J678

Motion Opposing NRDC & Sierra Club Request for Stay of Commission 820805 Decision Authorizing Commencement of Site Preparation Activities.Nrdc Remedy Must Reside in Courts Not Nrc.Certificate of Svc Encl

ML20058J678
Person / Time
Site:	Clinch River
Issue date:	08/09/1982
From:	Edgar G, Silverstrom L EDGAR, G.L., ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:	NRC COMMISSION (OCM)
References
NUDOCS 8208110160
Download: ML20058J678 (11)

Text

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4 DOCMETED U.5.'iP:

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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"e-In the Matter of

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ST' UNITED STATES DEPARTMENT OF ENERGY

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PROJECT MANAGEMENT CORPORATION

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Docket No. 50-537

)

-(Section 50.12 Request)

TENNESSEE VALLEY AUTHORITY

)

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(Clinch River Breeder Reactor Plant)

)

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t APPLICANTS' OPPOSITION TO APPLICATION OF THE NATURAL RESOURCES DEFENSE COUNCIL, INC.

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AND THE SIERRA CLUB l

FOR STAY OF THE COMMISSION.'S DECISION UNDER 10 C.F.R. S 50.12

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In requesting a st'ay of the Commission's Ausust 5, 1982, j'

decision to grant Applicants' request to commence site prepara-tion activities, NRDC wholly ignores the fact that the Com-mission's decision was predicated on the ground that further delay of the Clinch River Breeder Reactor Project is contrary to the public interest.

stay of that decision will serve only to cause further delay, with no corresponding benefit to the public.

Moreover, in granting' Applicants' request under Section 50.12, the Commission must necessarily have made findings which are l

directly contrary to the findings necessary for the issuance of a stay.

In granting Applicants' request, the Commission must have found that, (1) Applicants have prevailed on the merits of their request for authorization to commence site preparation activities, (2) the environmental effects of site preparation 8208110160 820809 PDR ADOCK 05000537 DS 3

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. activities are redressable and thus no irreparable harm could occur, (3) no alternatives will be forec'losed and thus the rights of j

third parties will be unaffected, and (4) further delay is contrary to the public interest.

Because the four factors under Section 50.12 are, in this case, co-extensive with the factors to be con-sidered in granting or denying a stay, a favorable decision under Section 50.12 necessarily precludes the grant of a stay.

NRDC's Application For A Stay Should Be Denied A party seeking a stay of Commission action has a par-ticularly heavy burden to sustain under the applicable Nuclear Regulatory Commission ("NRC") regulation, 10 C.F.R.' 5 2.788(e).

That section provides in pertinent part:

In determining whether to grant or deny an application for a stay, the Commission...

will consider 1.

Whether the moving party has made a strong showing that it is likely to prevail on the merits; 2.

Whether the party will be irreparably injured unless a stay is granted; 3.

Whether the granting of a stay would harm other parties; 4.

Where the public interest lies.

In light of the extraordinary nature of a stay, a party, in meeting its burden under these four factors,cannot rely on

. conclusory allegations, but must demonstrate with particularity its entitlement to a stay.

Fire Protection For Operating Nuclear Power Plants (10 C.F.R.

S 50.48), CLI 81-1, 13-IUu: 788 (1981).

NRDC has clearly failed to sustain its burden.

NRDC has done little more than make conclusory allegations under the four factors, misstated the applicable legal principles and thus failed to demonstrate with the requisite degree of particularity, its entitlement to a stay.

1.

NRDC Has Failed To Establish A Strong Likelihood Of Success On The Merits In arguing that it has made a " substantial c,ase" on the merits, NRDC does nothing more~than list a broadside of arguments,,

which it raised before the Commission.

For example, NRDC states:

... 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 r4s judicata all were novel, important and hotly contested.

This mere recapitulation of NRDC's previous arguments hardly demonstrates a " substantial case" on the merits much less a

" strong showing" of likelihood of success.

In fact, the issues raised by NRDC were fully considered by the Commission and correctly resolved against NRDC.

There is nothing " novel" about these issues nor has anything new been added to these arguments.

Accordingly, there is no doubt that they were correctly a

. resolved by the Commission.

The mere fact that these issues were " hotly contested" by NRDC hardly supports the conclusion that NRDC has made a substantial case on the merits.

In short, NRDC has simply failed to demonstrate either a strong showing

~ likelihood of success on the merits or even a

" substantial case" on the merits.

2.

Intervenors Will Not Suffer Irreparable Harm It is difficult to understand the basis for NRDC's claim of irreparable injury in light of the Commission's findings under the Section 50.12 factors.

In considering Applicants' request under those factors, the Commission found that the environmental impacts of site preparation activities were redressable and that the Applicants were committed to such redress in the event a construction permit was not issued.

Thus, the Commission must have found that the conduct of the proposed activities would not result in irreparable injury.

For its part, NRDC did not seriously challenge before the Commission the conclusion in Applicants' Site Preparation Activities Report that the proposed activities were redressable.

Yet, in requesting a stay, NRDC makes the unsupportable state-ment that the type of activity which Applicants intend to under-take (i.e.,

site preparation activity which is redressable)

. "has often been considered prima facie to be the cause of irreparable injury," citing 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) and Long Island Lighting Co.,

New York State Electric and Gas Corp. (Jamesport Nuclear Power

~

Station, Units 1 and 2), ALAB-521, 9 NRC 51 (1979).

NRDC's assertion to the contrary notwithstanding, none of these decisions support the bald conclusion that the start of activities like site preparation "has often been considered prima facie to lua the cause of irreparable injury."- In both Environmental Defense Fund, supra and Scherr v. Volpe, supra, the court found irreparable injury because of the permanent nature of the activities in question.

In each case the court took into account -- as the Commission must under Section 50.12 -- whether -

it was possible "to restor'e the area in question to its previous environmental status."

Scherr v. Volpe, supra at 886 (quoted in Environmental Defense-Fund, supra at 1183). 1/

1/

In Long Island Lighting, supra, the Appeal Board did not even consider the issue of irreparable injury.

Rather, they declined to grant a stay because construction could not go forward until a state permit was issued.

They concluded, therefore, without reaching the merits of the request, that a stay should not issue because there wts nothing to stay.

. In this case Applicants demonstrated, NRDC did not seriously challenge, and the Commission must have found that the environ-mental impacts of the activities were redressable.

Thus, the conduct of those activities cannot in any way cause NRDC irrepar-able harm.

3.

Issuance Of A Stay Will Cause Applicants Substantial Harm The Commission granted Applicants' request to begin site j

preparation activities because of the real and immediate adverse effects which would result in the event the Project were further delayed.

NRDC ignores this fundamental fact, however, and contends that further delay will have little or no effect on either the Project or the public' interest.

As the record demonstrates and the Commission is already aware, this Project has already been delayed to the point that the CRBRP is not out of optimum synchronization with the Department of Energy's overall LMFBR Program.

Further delay at this juncture will impact not only the Program, but will contravene the national policy of proceed-ing with Clinch River as expeditiously as possible.

NRDC's claim that no harm will occur is contradicted by the entire record in this proceeding and should be rejected.

4.

The Public Interese Clearly Demands That NRDC's Application For A Stay Be Denied The Commission, in granting Applicants' request, gave careful consideration to the public interest factor of Section 50.12 and must have concluded that the public interest favored

. grant of the request.

NRDC does not, in its request for a Stay, dispute that the public interest is best served by the immediate start of site preparation activities.

Rather, NRDC claims that a Stay is in the public interest because of the " foreclosure effects of site preparation activities."

The issue of foreclosure of alternatives was expressly considered by the Commission under the Section 50.12 factors.

Based on its review of the activities and their cost, the Com-mission concluded that conduct of the proposed activities would not foreclose any alternatives,. including abandonment.

That finding was clearly correct.

The investment in site preparation activities is a relatively small percentage of total project

^

cost.

Finally, the Applicants are committed to redress the site..

in the event a construction permit it not ultimately issued.

In summary, contrary to NRDC's argument, no alternatives are fore-closed, nor is the NRPA benefit / cost analysis affected by com-mencement of site prepsration.

NRDC has failed to show any adverse effects on the public interest, and any basis for a stay.

l f

CONCLUSION l

l As shown qbove, NRDC has failed to sustain its burden of demonstrating that a stay should issue under any of the l

factors under 10 C.F.R. S 2.788(e).

NRDC's remedy must reside in the courts.

Accordingly, Applicants respectfully 4

. request that NRDC's Application for a Stay be denied in connection with the Order granting Applicants' Section 50.12 request.

Respectfully submitted, Mj

&sorg 6 Ed(ar p Attorney for Project Management Corporation de,~nSilverstrom o

Attorney for the Department of Energy

'e DATED:

August 9, 1982 9'

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09.ETET

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""C' DISTRIBUTION LIST

• [.*_ ;3'j 10

• The Honorable Nunzio J. Palladino

[0 Eb'b S$RS Chairman BRANCH U. S. Nuclear Regulatory Commission Washington, D. C. 20555

• The Honorable James K. Asselstine Commissioner U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• The Honorable Victor Gilinsky Commissioner U. S. Nuclear Regulatory C6mmission Washington, D. C.

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• The Honorable Thomas F. Roberts Commissioner U. S. Nuclear Regulatory Commission '-

Washington, D. C.

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• Marshall E. Miller, Esquire Chairman Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.

20545 I

Dr. Cadet H. Hand, Jr.

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• Mr. Gustave A. Linenberger Atomic Safety & Licensing Board l

U. S. Nuclear Regulatory Commission Washington, D. C.

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Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C.

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• • Dr.

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Natural Resources Defense Council, Inc.

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Tuttle & Taylor 1901 L Street, N.W.,

Suite 805 Washington, D. C. 20036 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 37219 Leon Silverstrom, Esq.

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Warren E. Bergholz, Jr., Esq.

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U. S. Department of Energy Room 6-B-256 -- Forrestal Building 1000 Independence Avenue, S.W.

Washingten, D. C. 20585 (2 copies)

Dated: August 9, 1982 h

y Georg q. Edg'ar~ g AttMey for Proj ect Management Corporation

• /

Denotes hand delivery to 1717 "H" Street, N.W.

• • / Denotes hand delivery to indicated address.

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