ML20080C602

Brief in Support of Appeal of ASLB 840120 Order Re NRDC Motion to Intervene

ML20080C602
Person / Time
Site:	Clinch River
Issue date:	02/06/1984
From:	Finamore B HUNTON & WILLIAMS, National Resources Defense Council
To:
Shared Package
ML20080C605	List: ML20080C602 ML20080C612 ML20080C641
References
NUDOCS 8402080149
Download: ML20080C602 (7)

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Feb garg 6_,5 1 8401 rE -:cw UNITED STATES OF AMERICA UCC$iFd Mt -

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:

Gary J. Edles, Chairman Dr. W. Reed Johnson Howard A. Wilber

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In the Matter of )

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UNITED STATES DEPARTMENT OF ENERGY )

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

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(Clinch River Breeder Reactor Plant) )

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NATURAL RESOURCES DEPsWSE COUNCIL, INC.

BRIEF IN SUPPORT OF APPEAL This orief is filed in support of the Natural Resources Defense Council, Inc. (NRDC) notice of appeal of the CRBR Licensing Board's January 20, 1984 Order Regarding NRDC Motion to Intervene.O BACKGROUND On June 29, 1983, NRDC and the Sierra Club, intervenors in the CRBR construction permit (CP) proceedings, requested withdrawal of their CP contentions because limited resources N This order was served upon NRDC by mail on January 24, 1984.

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prohibited their continued full participation in the CP evidentiary hearings. Transcript of Conference With Counsel, j June 29, 1983, at 7307. Intervenors did not, however, request withdrawal as parties from the CRBR proceeding, since the issues raised in the ongoing LWA appeal could af fect the validity of both the Limited Work Authorization (LWA) and the CP. Id,. at 7308-09. The Licensing Board nevertheless dismissed Intervenors as parties to the construction permit proceeding, but held that the dismissal was "neither with prejudice nor without prejudice." Id,. a t 7 3 32- 33.

In October, 1983, Congress refused to appropriate any further funds for the CRBR, and Applicants began CRBR termination proceedings in November.2/ Based on these new circumstances, NRDC filed a Motion to Intervene in the CP proceedings on November 23, 1983. In its Motion, NRDC demonstrated that termination of the CRBR Project constituted good cause under 10 C.F.R. $2.714(a)(1) for allowing NRDC's renewed intervention to raise the issue of the effect of the CRBR termination upon the CP proceedings.3/

2/ The CRBR project has since been completely terminated.

Notification Concerning Project Termination, December 27, 1983.

3/ NRDC also filed with the Appeal Board on November 23, 1983 a Motion of Intervenors to Terminate Appeal Proceedings, Vacate Partial Initial Decision, and Authorize Revocation of Limited Work Authorization, which was granted in part and denied in part on December 15, 1983.

s s, In response, Applicants admitted that the CP proceeding was moot, withdrew their request for a CRER construction permit, requested instead that the Licensing Board issue a Partial

- Initial Decision, and claimed that NRDC had no cognizable interest in how the Board resolved the issues in the Partial Initial Decision.S In its reply, NRDC reiterated its interest in the CP proceedings and in the requested Partial Initial Decision. NRDC noted that termination of the CRBR LWA appeal proceedings (which raised many issues closely related to the CP proceeding), while allowing issuance of the CP decision itself, would place Applicants in a better position than they would otherwise have been, and wculd irreparably harm NRDC 5[ NRDC suggested that the CRBR proceedings be teeminated as moot before issuance of an opinion, since the standard for issuance of an advisory opinion

-- the existence of "the most compelling circumstances" -- was not met.S/ In the alternative, NRDC requested that the Licensing

. Doard grant its motion to intervene in order to consider the impacts of the issues raised by NRDC on the propriety of issuing a Partial Initial Decision in a proceeding that is admittedly moot.2[

$! Applicants' Response to Motion of Natural Resources Dcfense Council, Inc. to Intervene, December 5, 1983.

5/ Reply of Natural Resources Defense Council, Inc. to Applicants ' and Staf f 's Response to Motion to Intervene, December 12, 1983, at 3-4, 7-8.

f S/ Id at 2-6.

2/ Id at 8.

On January 20, 1984, the Licensing Board denied NRDC's Motion to Intervene.8/ The sole reason given by ths Licensing Board for its denial was that NRDC's attempt to re-intervene after withdrawing its remaining CP contentions is "not conducive to orderly practice," and that " parties cannot be permitt'ed to float in and out of proceedings at will."S/ The Board explicitly refused to determine whether NRDC's motion to intervene meets the late filing criteria set forth in 10 C.?.R. $ 2.714(a). Id.

On the same day, the Licensing Boe ld issued a so-called Memorandum of Findings (Construction Permit Phase), containing its analysis and conclusions regarding the issues raised in the CRBR Construction Permit proceedings. The Licensing Board refused to determine whether "the most compelling circumstances" exist to justify an advisory opinion, claiming that it was not issuing an:advicory opinion. Yet the Board admitted that its

" memorandum" does not constitute a license or license authorization, but is instead issued only "for whatever assistance it may provide to the NRC now or in the future."1S/

The Appeal Board had vacated the February 28, 1983 CRBR Limited Wbrk Authorization Partial Initial Decision (LBP-83-8, 17 NRC 158 (1983)) on December 15, 1983, over a month before the Licensing Board issued its Memorandum of Findings. Yet the S/ Order Regardina NRDC's Motion to Intervene, January 20, 1984.

9/ Id,at 5.

AS/ Id. at 2, 4-5.

Memorandum of Findings cites to the vacated LWA decision as evidence that the CRBR is environmentally acceptable, and that it meets the site suitability criteria of 10 C.F.R. $50.10(e) and Part 100. Id_. at 73, 158-59. The Memorandum of Findings also reached conclusions regarding Whether core disruptive accidents should be considered design basis accidents, which now stand as precedent, without any mention of Intervenors' LWA arguments to the contrary, Which were based on Applicants' and staff's own probability estimates.

ARGUMENT As stated above, the only reason given by the Licensing Board for denying NRDC's motion to intervene is that it would "not be conducive to orderly practice," since "(p)arties cannot be permitted to float in and out of proceedings at will."11/ In support of this ruling, the Licensing Board cites three NRC cases,12/ none of which is apposite here. In Prairie Island, an intervenor forfeited party status with respect to future proceedings on the issues of steam generator tube integrity because he had not participated in several earlier evidentiary 11/ Order Regarding Motion to Intervene at 5.

12/ Northern States Power Co. (Prairie Is',and Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975);

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 269 (1978); Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB- 358, 4 NRC 558, 560 (1976).

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=i hearings or Board rulings on the tube integrity issue.12/ s Similarly, in Marble Hill, intervenors were excluded from addressing on remand the issue of a State boundary dispute, since ,

at the initial hearing they had submitted no contentions, .;

evidence, findings of fact or conclusions of law respecting the 1 ~d boundary's location.1d/ Finally, in River Bend, the Appeal Board dismissed the intervention of one party Who had originally been i

_e granted intervenors status on the basis of his residence's =

proximity to the facility, but who had since moved across the country and had never participated significantly in the [

proceeding.15/ --

In the first two cases, intervenors were not permitted to  : _

address a cartain issue in later proceedings, when they had ii

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declined to address tts identical issue when it was raised in numerous earlier proceedings. These cases cannot be read to -]

prohibit a former intervenor from raising entirely new gr;

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contentions based on extraordinary circumstances Which arose after the intervenor was originally dismissed, Unlike the is. f intervenors in the cited cases, NRDC has demonstrcted a present -

interest in the proceeding, and has raised contantions Which meet _ ;_ [ _

E the late filing criteria of 10 C.F.R. 2.714(a), on issues which l _

were never considered previously by any party or the Licensing _

12/ 2 NRC at 390-393. -

Ad/ 8 NRC at 268-69. ]

15/ 4 NRC at 558-560.

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Board. The need for orderly practice should not serve as a pretext for completely barring NRDC from participation under any circumstances, especially since the Board 's dismissal of NRDC's original intervention was not with prejudice.

Thus the Board 's reason for denying intervention is without merit, and, as a result, the Board has erred in completely failing to address the question whether NRDC's motion meets the 10 C.F.R. $2.714 late filing criteria. NRDC's motion and reply demonstrate that these criteria have been inet, and that intervention should be granted.

CONCLUSION For reasons stated above and in NRDC's Motion to Intervene and Reply to Applicants' and Staf f 's Response to NRDC 's Motion to Intervene, NRDC's Motion to Intervene should be granted.

Respectfully submitted, p arbara A. Finamore S. Jacob Scherr Attorneys for Natural Resources Defense Council, Inc.

Dated: February 6, 1984

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