ML20082M540
| ML20082M540 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 12/05/1983 |
| From: | Edgar G, Luck W ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8312060178 | |
| Download: ML20082M540 (12) | |
Text
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12/5/83
.' DOCKETED UIGC
'83 DEC -5 P3:05 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , .
Fc s , , . g , ;19J In the Matter of )
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UNITED STATES DEPARTMENT OF ENERGY )
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PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537
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TENNESSEE VALLEY AUTHORITY )
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(Clinch River Breeder Reactor Plant) )
APPLICANTS' RESPONSE TO MOTION OF NATURAL RESOURCES DEFENSE COUNCIL, INC.
TO INTERVENE The United States Department of Energy and Project Management Corporation hereby file their Response to Motion of Natural Resources Defense Council, Inc. to Intervene, dated November 23, 1983 [hereinaf ter "Intervenors' Motion") . In support of this response, the Applicants state the following:
- 1. The Applicants concede that Congress has not appropriated funds for project continuance and that there is no reasonable likelihood that such funding will be appropriated.
- 2. The Applicants concede that the project participants have taken steps,,to reach agreement to terminate the project, but I
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state that the agreement to terminate the project (Attachment C to Intervenors' Motion) has not been executed by all partici-pants. That will not occur until the Tennessee Valley Authority (TVA) Board of Directors meets and approves TVA's execution of the agreement. This is expected to occur within the next few -
weeks, and the Applicants will so notify the Licensing Board.
- 3. The Applicants concede that the project cannot now satisfy the Commission's regulations governing issuance of a Construction Permit (CP) and that it is not now reasonably likely that the project will satisfy all of its programmatic objectives. In light of this, Applicants do not intend to seek issuance of a CP by the Commission.
- 4. Intervenors' Motion is in reality a de novo Petition for Leave to Intervene. Aside from the fact that it is formally insufficient,' it should be denied since: a) Intervenors' interest in the outccme is moot; b) the issues which the petition seeks to place in controversy are moot; and c) the petition fails to meet the criteria applicable to untimely petitions. In addi-
- tion, the Applicants believe that the circumstances here are sufficiently ccmpelling that the Board should issue a Partial Initial Decision, subject to the conditions set forth in paragraph 8 telow.
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s For example, there is no showing that any of NRDC's members now live within the prescribed distance from CRBRP, and there is no subscribed oath or affirmation for the contentions.
- 5. Intervenors Interest -
Intervenors state that they would be adversely af fected by the Board's decision to issue a CP since if that were done, the Applicants might not perform site redress, and they would be irreparably harmed. Intervenors' Motion at 3-4. Intervenors cannot be adversely affected for the following reasons:
- a. The grant of a CP neither adds to no: subtracts from the Applicants' existing authority to conduct site preparation activities or their obligations regarding redress. The grant of a CP can have no effect on the interest stated by Intervenors. ,
- b. The Applicants will develop an appropriate plan for redress, and will seek review and approval of the NRC ,
l S taf f. The Board should not presume that the Applicants will fail to fulfill their obligations, or the Staff will fail to fulfill its responsibilities.
- c. The Applicante do not intend to seek a CP, nor under present circumstances is there any basis under NRC's regulations for the Director of Nuclear Reactor Regulation to issue a CP.
- d. The Licensing Board's February 28, 1983 Partial Initial j, Decision authorized issuance of an LWA for the conduct of site preparation activities. Intervenors' parallel Motion to the Appeal Board argues that the LWA issues
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are moot, and on those grounds, moved to terminate that proceeding. Applicants have conceded the point that the iscues are moot, and Applicants have not objected to an order vacating the LWA decision. If the Appeal Board vacates the LWA decision, a CP cannot issue, and Intervenors' stated. interests cannot be adversely affected by any ac' tion of the Licensing Board in the CP proceeding. '
- e. Intervenors withdrew and were dismissed from the CP' proceedings, and failed to file Proposed Findings of Fact pursuant to the Board's August 11, 1983 Order, thus waiving any and all rights they might have had in the CP proceeding.
- 6. Intervenors' Contentions -
Contention 1 seeks to establish that the project cannot satisfy NhC criteria for grant of a CP, while contention 2 seeks to establish that-the project cannot meet all of its programmatic objectives. Since Applicants concede both propositions, both are moot _and the contentions could not place in issue matters giving i
rise to a justiciable controversy. Moreover, if the Appeal Board vacates the.LMA decision, a CP cannot be issued, and there is likewise no'need for the Board to reach either of NRDC's moot contentions. -
- 7. ihe Late Filing Criteria -
InterYenors have failed to sustain their burden as to .
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each of the applicable factors, for the following reasons:
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- a. Good cause - Intervenors allege that they could not l have filed their two new contentions in a timely f ashion because Congress' actions did not occur until recently. Intervenorn contentions merely take issue -
with the ultimate conclusion in these proceedings.
Intervenors would have this Board believe that they could not reasonably have advanced these contentions in a timely fashion. Congress' action was not a surprise to Intervenors. Intervenors participated actively in opposing the project before the Congress and have done so since its inception. It is simply incredible that Intervenors could not have formulated these two new contentions through the exercise of reasonable
! diligence.
- b. Other Means Available to Protect Petitioners' Interest -
For the reasons stated in paragraphs 5 and 6, Intervenors have no cognizable interests to protect.
Intervenors chose to drop out of the CP decision and l sought relief before Congress. Now that.they have that relief, there is simply no reason to allow them back for another bite of a moot apple. In addition, Intervenors attempt '.o bootstrap their readmission as
! parties on the grounds that the Licensing Board has primary authority "to order appropriate site restora-tion, and to order the NRC Staf f to oversee site
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restoration efforts". The CP decision will neither add to nor subtract from the authority to conduct site preparation under the LWA decision and the Commission's Section 50.12 decision, or the Applicants' obligations in regard to redress. Thus, the question of redress does not give rise to an interest which Intervenors could protect in these proceedings. In addition, the 1
Applicants intend to develop an appropriate plan for site redress, and to obtain review and approval of the Staff. The Applicants have no objection to the Board's formalizing that obligation in an Order, and thus Intervenors' stated interest will be fully Pected even if their M; tion is denied.
- c. Development of a Sound Record -
Since there are no issues in dispute, there is no need for a record.
- d. Representation of NRDC's Interests -
Intervenors have no cognizable interests which need representation. A CP is not sought by Applicants, nor is there any basis for issuance of a CP.
- e. Delay and Broadening the Proceedings -
I n'ter venor s' contentions are not and cannot be in controversy. Allowing Intervenors to litigate moot issues would, by definition, delay and broaden the proceedings.
- 8. While for the reasons stated above, Intervenors' Motion should be denied, Applicants believe that the following compelling circumstances exist for the Board to issue its Partial Initial Decision, subject to the condition stated in subparagraph
- e. below .
- 2. The parties and the Board have expended substantial effort and resources in development of the CP record.
- b. The technical issues to be addressed by the Partial Initial Decision are fundamental to LMFBR design, and the long-term future of advanced reactor development.
The Board's resolution of the issues will provide formal documentation and a reference point for direction of longer-term efforts on advanced reactor development. This will serve as future gaidance for the NRC licensing process, and advance the compelling l
public interest considerations which have been embodied in the CRBRP application 2J See United States Department of Energy (Clinch River Breeder Reactor Jb/ See Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB 455, 7 NRC 41, 54 (1978); Tennessee Valley Authority (Hartsville Nuclear Plants, Units lA, 2A, 1B , and 2B) , A LAB-467, 7 NRC 459, 465 (1978).
Plant), 16 NRC 412, 429-433 (1982) [Hereinaf ter "Section 50.12 decision")
- c. The additional resources necessary for issuance of a decision, while substantial, are not.large in regard to the investment of resources already incurred by the i
Board and parties.
- d. Intervenors itave no cognizable interest whatever in how the Board will rerolve the issues in the Partial Initial Decision. Intervenors withdrew and were dismissed from the proceedings, and by failing to file Proposed Findings pursuant to the Board's August 11, 1983 Order, they have waived all rights and interest in those issues.
- e. The Applicants will not seek a CP, and will accept a condition that nothing in t!'e Partial Initial Decision
- shall authorize the Director of Nuclear Reactor Regula-tion to issue that permit. Upon issuance of the Deci-sion, the Applicants will move to, or the Board may sua sponte dismiss the Application on grounds of mootness, subject to the condition that an appropriate redress plan will be reviewed and approved by the NRC Staf f.
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be advanced by issuance of the PID are those involving information flow to the LMFBR base program and to a future cooperative project agreement. Section 50.12 Decision, 16 NRC at 431-432.
9-Accordingly, for the reasons stated above, Intervenors' Motion should be denied, the Board should issue an Order incorporating the foregoing terms and conditions, and the Board should proceed to issue the CP Partial Initial Decision.
Respectfully submitted,
."dg s r ' -Y G W ge Attor for Project Management Corporation DATED: December 5, 1983 *f Y O l' William D. Luck
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Attorney for United States Department of Energy 0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 VALLEY AUTHORITY )
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(Clinch River Breeder Reactor Plant) )
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CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first class mail to the following:
Marshall E. Miller, Esquire Chairman Atomic Safety and Licensing Board Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 (2 copies by hand)
Dr. Cadet H. Hand, Jr.
Director Bodega Marine Laboratory University of California West Side Road Bodega Bay, California 94923 Mr . Gustave A. Linenberger
, Atomic Safety & Licensing Board Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 (by hand)
Gary J. Edles Chairman Atomic Safety & Licensing Appeal Board Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 (by hand)
Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 (by hand)
Howard A. Wilber Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 (by hand)
- Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C. 20555
- Docket & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission ,
Washington, D. C. 20555 (3 copies)
Stuart Treby, Esquire Sherwin E. Turk, Esquire Elaine I. Chan, Esquire Geary S. Mirtno, Esquire Office of Execetive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road Bethesda, Maryland 20814 (2 copies by hand)
William M. Leech, Jr., Esquire William B. Hubbard, Esquire Michael D. Pearigen, Esquire State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37830 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire James F. Burger, Esquire Edward J. Vigluicci, Esquire Tennessee Valley Authority Office of the General Counsel 400 West Summit Hill Drive Knoxville, Tennessee 37902 (2 copies)
s Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 ,
William R. Lantrip, Esquire Attorney for the City of Oak Ridge Post Office Box 1 Oak Ridge, Tennessee 37830 Leon Silverstrom, Esquire William D. Luck, Esquire U.S. Department of Energy 1000 Independence Avenue, S,W.
Room 6B-256 Washington, D. C. 20585 (2 copies by hand)
Commissioner John L. Parish Tennessee Department of Economic and Community Development Andrew Jackson Building Suite 1007 Nashville, Tennessee 37219 Barbara A. Finamore, Esquire S. Jacob Scherr, Esquire Natural Resources Defense Council, Inc.
1725 Eye Street, N.W., Suite 600 Washington, D. C. 20006 Teo . Edgar /
A y for P ject Manag ment Corporation DATED: December 5, 1983
- / Denotes hand delivery to 1717 H Street, N. W. , Washingte n . D.C.
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