ML20082S454
| ML20082S454 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 12/12/1983 |
| From: | Finamore B FINAMORE, B.A., National Resources Defense Council |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20082S450 | List: |
| References | |
| NUDOCS 8312140148 | |
| Download: ML20082S454 (12) | |
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UNITED. STATES OF. AMER Tl NUCLEAR REGULATORY COMMISSIOERANCy ATOMIC SAFETY AND LICENSING ~ BOARD Before Administrative > Judges:
Marshall E. Miller, Chairman Gustave A..Linenberger Dr. Cadet H.' Hand, Jr.
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In the Matter of
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-UNITED STATES DEPARTMENT OF. ENERGY
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PROJECT MANAGEMENT CORPORATION
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Docket'No. 50-537 TENNESSEE VALLEY AUTHORITY
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(Clinch River Breeder Reactor Plant)
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i REPLY OF NATURAL RESOURCES DEFENSE COUNCIL, INC.
-TO APPLICANTS' AND STAFF'S RESPONSE TO MOTION TO INTERVENE 1
In Applicants' Response to Motion of Natural Resources I
Defense Council, Inc. to Intervene (December 5, 1983) i (hereinafter " Applicants' Response"), Applicants conceded that this Construction Permit proceeding is moot.
(See Applicants' Response at 1-2', 8).
Applicants also conceded that this project i
cannot now satisfy the Commission's regulations governing issuance of a Construction Permit, and stated that Applicants no longer-seek' issuance of a CP.
Id.
Given those facts, the appropriate course is for the Licensing Board to terminate these proceedings immediately on grounds-of mootness, before it issues 8312140148 831212 PDR ADOCK 05000537 0
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W a Partial Initial Decision.
In the alternative, the Licensing Board should grant NRDC's Motion to Intervene for purposes of considering NRDC's contentions as they affect the proposed issuance of a CP Partial Initial Decision.
A.-
The Licensing Board Should Terminate the CP Proceedings Immediately on Grounds of Mootness The Licensing Board should terminate the CP proceedings on grounds of mootness in order to conform these proceedings with the probable termination of the CRBR LWA appeal proceedings by the CRBR Atomic Safety and Licensng Appeal Board.
On the same date NRDC filed its Motion to Intervene, NRDC also moved the ASLAB'to terminate the CRBR LWA appeal proceedings, vacate the LWA partial initial decision, and authorize revocation of the limited work authorizationl/.
Neither Applicants nor Staff opposed the motion to terminate the proceedings and vacate the LWA PID / and there is no reason to treat the Construction Permit 2
proceedings differently.
To the contrary, having the Appeal Board terminate the CRBR LWA appeal proceedings, while allowing the closely-related CP decision to be issued, would place 1/
" Motion of Intervenors to Terminate Appeal Proceedings, Vacate Partial Initial Decision, and Authorize Revocation of Limited Work Authorization" (November 23, 1983).
2/
See " Applicants' Response to Motion of Intervenors to Terminate the Appeal Proceedings, Vacate Partial Initial Decision, and Authorize Revocation of Limited Work Authorization" (December 5, 1983), and "NRC Staff's Answer to Intervenors' Motion to Terminate Appeal Proceedings, Vacate PID and Authorize Revocatin of LWA" (December 8, 1983).
4 Applicants in a better position than they would otherwise have been, and would irreparably harm NRDC.
To give one example, throughout the CRBR proceedings, NRDC maintained that the CRBR should not be licensed since the NRC Staff's site suitability source term analysis was deeply flawed (Intervenors' Contention 2(a) through (d)).
NRDC argued that even if one assumed that the CDA should be a design, basis accident, the site was not suitable under 10 CFR 100 3/
The Licensing Board refused to conduct a full inquiry into this contention at the LWA stage, claiming that such an inquiry must await the CP stage.
Order Following Conference With Parties, April 22, 1982, at 5-6.
Yet in a CP prehearing order, the Licensing Board removed Contention 2(a) through (d) as an issue to be litigated in the CP proceeding, claiming that it had already been covered at the LWA stage.
Order Following May 13, t
1983 Conference With Parties at 2.
NRDC pursued its appeal of i
Contention 2 to the CRBR Appeal Board, requesting that the Appeal Board, inter alia, order additional adjudicatory hearings on those issues.
Transcript of Oral Argument, Sept. 28, 1983, at 20-22.
If successful, NRDC's appeal would have precluded issuance of a CP Partial Initial Decision until such hearings
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were held, since the issues raised in that contention are j
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3/
Intervenors' Brief in Support of Their Exceptions to the Atomic Safety and Licensing Board's Partial Initial Decision (Limited Work Authorization) of February 25, 1983) (dated May 18, 1983) (hereinafter "Intervenors' Brief") at 26-29, 30-31, 32-35.
inextricably intertwined with CP issues regarding design adequacy, containment limits, site suitability _and design basis adequacy.
Similarly, NRDC argued in the LWA proceeding that Applicants' and Staff's own probability estimates demonstrate that the CDA should be considered a design basis accident.
Intervenors' Brief at 19-22.
Neither Applicants nor Staff revised these probability figures during the CP stage of the proceedings.
- See, e.g.,
Applicants' Proposed Initial Decision (Construction Permit) at 21 (Aug. 15, 1983).
Therefore, if the Appeal Board agreed with NRDC that Applicants' and Staff's current probability figures demonstrate that CDAs should be within the design basis, then any CP finding to the contrary would be invalidated.
If the Appeal Board terminated the CRBR appeal while the Licensing Board issued the CP Partial Initial Decision, the Applicants would be in a better position than if the appeal had continued, since all challenges to the CP Partial Initial Decision that were made through the LWA appeal would have been removed.
Considerations of fundamental fairness dictate that all' proceedings be terminated on grounds of mootness, not just the proceedings potentially unfavorable to Applicants.
See Rochester Gas & Electric Corporation (Sterling Power Project, Nuclear Unit No. 1), ALAB-596, 11 NRC 868-69 (1980).
The position taken by Applicants and Staff before the Licensing Board is totally inconsistent with that taken before the Appeal Board.
Both parties claim that " compelling
' ' ' circumstances" dictate issuance of a CP Partial 1 Initial Decision, but'make no such claim regarding issuance of an LWA appeal decision.
If issuance of a CP Partial Initial Decision is necessary "to serve as future guidance for the NRC licensing process" (Applicants' Response at 7), a claim which NRDC strongly
~ contests, then issuance of the closely related LWA decision on appeal would also be necessary.
Applicants cannot pick and choose which CRBR licensing decisions should be on the books.
In any case, both Applicants and Staff concede that the termination of the CRBR turns any CP Partial Initial Decision into a purely advisory opinion, and they misstate the applicable limits on the Licensing Board's power to issue such a decision.
Contrary to the claims of Applicants and Staff, Commission case law establishes that Licensing Boards should not issue advisory opinions in the absence of "the most compelling considerations."
Tennessee Valley Authority.(Hartsville Nuclear. Plants, Units lA, 2A, 1B and 2B), ALAB-467, 7 NRC 459, 463 (1978) (emphasis added);
see Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 54 (1978).
It is abundantly. clear that the facts surrounding the CRBR's termination fail to present "the most compelling circumstances" justifying issuance of such an opinion.
To begin with, the fact that the parties and the Board have expended some effort in developing the record and preparing a decision can hardly be called " compelling circumstances" at all, let. alone circumstances of such magnitude to justify an exception
w F from the' usual proscription against advisory opinions.
- Second,
~the claim that a CP Partial Initial Decision will serve as
" future guidance".for the NRC licensing process is more wishful thinking than concrete justification.
It is true that in Prairie Island, supra at 54-59, the Appeal Board rendered an opinion on a moot issue related to the application of the "ALARA" concept, i
when it found that the issue "almost inevitably" would recur (id.
at 59), and "might very well be of importance in the disposition of a number of present and future licensing proceedings" (pi. at 55).
In contrast, it need hardly be mentioned that there are currently no license applications for breeder reactors pending before the Commission, nor are any. contemplated for the foreseeable future.
As Applicants conceded, there is no.
1 reasonable likelihood that Congress will appropriate funds for the CRBR.
Under these circumstance, any claim that the issues
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raised in the CRBR CP proceeding "almost inevitably" will recur is simply nonsense.
l Furthermore, without resolution of the LWA. appeal issues, any l
l Partial Initial Decision on the remaining CP issues that the I:
L Licensing Board could issue ^would be so fragmented and incomplete Las to be virtually useless as a licensing precedent.A./
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Similarly, as Applicants have conceded, they can no longer establish that the CRBR Project will satisfactorily resolve
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j all of its unresolved safety questions, nor that it will supply any missing technical or design information which may be required to complete the safety analysis.
In addition, Applicants concede that they can no longer establish that the CRBR is reasonably likely to meet its programmatic objectives of technical performance, reliability, j
footnote cont'd i
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& result, even if one assumes, arguendo, that at some time in the future another breeder reactor may apply for a license, any CRBR CP Partial Initial Decision would be of little, if any, use.
B.
NRDC's Interest in This Proceeding Although NRDC withdrew its contentions (other than Contention 2,
which was denied) from the CP proceedings in June 1983, it 4
requested permission to remain as an Intervenor in order to protect its remaining interest in the CP issues then on appeal to the ASLAB.
The Licensing Board held, however, that whatever NRDC interest remained in the CP proceedings was protected by the filing of an appeal in the related LWA proceeding.
See Transcript of Conference with Counsel, June 29, 1983, at 7307-7333.
As stated above, however, the termination of the LWA appeal _ proceeding without the concomitant termination of the CP proceeding would irreparably harm NRDC's interest in tne outcome of the CRBR licensing process.
The Board's dismissal of NRDC as an intervenor in the CP proceeding was neither with prejudice nor without prejudice.
Transcript of Conference with Counsel, June 29, 1983, at 7333.
Therefore, on November 23, 1983, after the CRBR termination maintainability, and economic feasibility.
Given these facts, the Licensing Board could at most issue a Partial Initial Decision on part of the relevant CP issues.
Moreover, Applicants' claim that the additional resources necessary for issuance of a decision are not large (Applicants' Response at 8) is greatly undercut by the probability that the Licensing Board would have to rewrite its draft opinion substantially in order to account for these new circumstances.
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- process. began, NRDC moved to introduce two new contentions into the CP proceedings in order to protect its interests in both site redress and in the outcome of the CRBR proceedings.
Applicants' subsequent concessions, rather than removing these issaes from controversy, have placed the question of mootness squarely before the Board.
Contrary to Applicants' assertions, however, the issues raised by NRDC are directly relevant not only to whether a
.CP should be issued, but also to whether a Partial Initial Decision should be issued as well.
As such, they have a direct impact on the outcome and timing of these proceedings.
If the Licensing Board does not act immediately to terminate the CP proceedings on grounds of mootness, it-should therefore grant NRDC's 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,5/
5 If the Board should choose to act on NRDC's motion, it should bear in mind that NRDC has been an intervenor in the CRBR proceedings since 1975, and that the Board's dismissal of NRDC as an intervenor was neither with nor without prejudice.
Any claim by Applicants or Staff regarding perceived inadequacies in the instant motion to intervene should be dismissed in light of NRDC's numerous past demonstrations of adequate interest in these proceedings.
In addition, the fact that Applicants have now committed to a site restoration plan does not remove NRDC's other interests in the outcome of the CRBR proceedings, as fully explained above.
Applicants' attempt to oppose NRDC's motion on the grounds that NRDC should have known in a timely fashion (i.e. in 1975), that Congress would terminate the project, is patently without merit.
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Respectfully submitted, r
- ,.]wbra Fl t.rnut "
Barbara A. Finamore
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S. Jacob Scherr
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Attorneys for Natural Resources Defense Council, Inc.
Dated:
December 12, 1983 4
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O 00LKETED USNRC CERTIFICATE OF SERVICE
'83 DEC 12 PS:08 I hereby certify that copies of NATURAL RESOURCES DEFENSE COUNCIL'S REQUEST TO REPLY TO APPLICANTS 2CAND; STAFF'S RESPONSE TO MOTION TO INTERVENE and RE' PLY OF NATIWiKIfI Y ~ ~ NdE5-DEFENSE R
COUNCIL, INC. TO APPLICANTS' AND STAFF'S N NSE TO MOTION TO INTERVENE were served this 12th day of December 1983 by hand
- or by first class mail upon:
Marshall E. Miller, Esq.
Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th floor Bethesda, MD 20014 Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th floor Bethesda, MD 20014 Gary J. Edles, Chairman Atomic Safety & Licensing Appeal Board 4350 East West Highway, Bethesda, MD 20014 Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board 4350 East West Highway, Bethesda, MD 20014 Howard A. Wilbe'r Atomic Safety & Licensing Appeal Board 4350 East West Highway, Bethesda, MD 20014 Sherwin E. Turk, Esq.
Stuart Treby, Esq.
Geary S. Mizuno, Esq.
Elaine I.
Chan, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, MD 20014 Indicates hand delivery.
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a Cortificato of Sarvico - 2 2
Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission 1717 H Street, NW, Room 1121 Washington, D.C.
20555 Docketing & Service Section Office of the Secretary d
U.S. Nuclear Regulatory Commission 1717 H Street, NW, Room 1121 Washington, D.C.
20555 (3 copies)
R. Tenney Johnson, Esq.
Leon Silverstrom, Esq.
Warren E. Bergholz, Jr., Esq.
William D. Luck, Esq.
Office of General Counsel U.S. Department of Energy 1000 Independence Ave., SW, Rm. 6-B-256 Washington, D.C.
20585 George L. Edgar, Esq.
Thomas A. Schmutz, Esq.
Newman and Holtzinger, P.C.
1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Dr. Cadet H. Hand, Jr.,
Director Bodega Marine Laboratory University of California P.O. Box 247 West Side Road Bodega Bay, CA 94923 (Federal Express Mail)
Herbert S. Sanger, Jr., Esq.
Lewis E. Wallace, Esq.
James F. Burger, Esq.
W. Walker LaRoche, Esq.
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Edward J. Vigluicci, Esq.
Office of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, TN 37902 l
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Certificato of Scrvico - 3 William M. Leech, Jr., Esq.,
Attorney General William B. Hubbard, Esq.,
Chief Deputy Attorney General Michael D.
Pearigen, Esq.
State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, TN 37219 Lawson McGhee Public Library 500 West Church Street Knoxville, TN 37902 William E.
Lantrip, Esq.
City Attorney Municipal Building P.O. Box 1 Oak Ridge, TN 37830 Oak Ridge Public Library Civic Center Oak Ridge, TN 37830 Joe H. Walker 401 Roane Street Harriman, TN 37748 Commissioner John L. Parish Tennessee Department of Economic and Commun*ty Development Andrew Jackson Building, Suite 1007 Nashville, TN 37219 i
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%L M Mi ?.5" l
Barbara A. Finamore l
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