ML20086G639
| ML20086G639 | |
| Person / Time | |
|---|---|
| Site: | 05000463, 05000464 |
| Issue date: | 01/07/1984 |
| From: | Johnsrud J YORK COMMITTEE FOR SAFE ENVIRONMENT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8401120324 | |
| Download: ML20086G639 (4) | |
Text
ENVIRONMENTAL COALITISN CN NUCLEAR POWER Co Directors: Ms. Phyllis Zitzer-Box 761, Pottstown, P119464 215-326-9122 Dr. Judith Johnsrud-433 Orlando Avenue, State Colleh Pa.y801814-237-3900 uw:r UNITED STATES OF AMERICA 4 JM 11 A10:48 NUCLEAR REGULATORY COMMISSI0ft Before the Atomic Safety and Licensing Boar 5hgi-y N HCM In the Matter of
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PHILADELPHIA ELECTRIC COMPANY Docket Mos. 50-463 (Fulton Generating Station , )
50-464 Units 1 and 2) )
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INTERVENORS' RESPONSE TO OBJECTIONS OF NRC STAFF AND APPLICANT TO PROPOSED DECISION AND ORDER OF THE LICENSING 30ARD By its Order dated December 14, 1983, the reconstituted Licensing Board in this proceeding stated that, absent objection from the parties, its Proposed Decision and Order dismissing the application of the raila-delphia Electric Company (PE) with prejudice would be issued as the final initial decision in this case. ,These Intervenors, the York Committee for a Safe Environment, et al . , (Inte5enors), while less than satisfied with the extremely limited definition of the 1 imitation on PE's future activities with respect to the Fulton site, filed no objection to the Board's Proposed Decision and Order. By so doing, the Intervenors were in fact expressing their support for this severely restricted interpretation of " dismissal with prejudice" as the Board's rightful choice to indicate its displeasure with the length, inconclusiveness, and waste of public and private resources that have characterized this proceeding.
The NRC Staff and Applicant have, however, filed objections that now require yet another response from these Intervenors. The Intervenors move the Board to reject the Staff and Applicant objections and to publish its Proposed Decision and Order as the Initial Decision i7 this case, so that after more than ten years the Intervenors and residents may be free o f this ever-unsettled matter. Ue concur hehrtily with the Coard that " All litiga-tion must come to an end sometime." We agree also with the Board that the resources of the Intervenors and of the participating governmental entities and NRC cannot be recouped as a result of PE's long-delayed unilateral decision to withdraw. The arbitrary and capricious action of the Applicant should not be permitted to go entirely unnoticed by the licensing authority.
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. , - The Staff argues in its Objection dated December 29, 1983, that a dis-missal with prejudice is not supported by the record, and "could be construed improperly in other Commission proceedings." This Board and its predecessor have found otherwise with respect to the proceedings that have dragged on for these many years. As for the decision being misconstrued in other pro-ceedings before the agency, it may at least equally be stated that the Com-mission could improperly construe a dismissal without prejudice as meaning that the Licensing Boards will allow an applicant to file and maintain a frivolous application for endless years with no serious intent, nor evenza serious financial capability, to carry out its pipedream of a pair of reactors, even, as in this instance, when there is no company to supply them. The Commission is deserving, as is the public, of assurance that the regulatory authority is able to recognize a lack of seriousness of intent and arbitrary decision-making by a regulated utility, and that the Licensing Boards will take action as is here warranted to signal an applicant of its dim view of the applicant's disregard of the consequences of its arbitrary and capricious actions upon other affected parties. At this stage of the Lommission's his-tory, it would be well advised to err on the side of the interests of both the public and effective governmental regulation.
The Staff further argues, at page 3, that a dismissal with prejudice in some unspecified manner signifies an unfavorable disposition on the merits.
In this instance such dismissal with prejudice would properly signify that the Board intends that an applicant pursue its applications before the agency with diligence and certainty of proceeding or else withdraw promptly. The Applicant has failed, since the cancellation of the reactors in 1975, to do either. Declining sales of electricity in these intervening eight years, the lack of a reactor vendor to supply the plant, construction and particular-ly fina'ncial delays in the Applicants' two units at Limerick, culminating in the 1983 orders of the pennsylvania Public Utility Commission with respect to continued construction of Limerick Unit 2, and the safety reviews stemming from the 1979 accident at Three Mile Island all combine to provide forceful evidence that this applicant was well aware that the application in issue could not and would not go forward to completion. Surely the Applicant's l refusal under these combined circumstances to withdraw quickly and completely its nonviable application does constitute an improper conduct that this Board
- cannot sanction. pursuit of an Early Site Review under these circumstances in which the Applicant had every reason to know that the plant would not be built also constitutes unreasonable, arbitrary, and capricious behavior.
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m As for harm to public or private interests that has resulted from the Applicant's persistence in this frivious application, the Staff and Applicant would have the Board believe that none has been done. However, in the case of the Staff, resources have clearly been wasted long after it became evident that the project would not go forward. Intervenors have expended substantial sums of time, effort, and money in maintaining their involvement in this pro- ,
ceeding over a ten year period. The Applicant would have the Board believa that none of the Intervenors has an interest at stake, when in fact, members of the intervening groups are indeed owners of property in the near vicinity of the Fulton site. Moreover, the Applicant points to the silence of the other intervening parties with respect to the motion of the York, et al. ,
Intervenors for dismissal with prejudice and to their lack of participation in these long dragged out filings. The Board should, therefore, be made aware that one of the principal intervenors , a site-boundary property owner, is now and for more than a year has been seriously disabled by a partially paraly2.ing stroke, has been unable to work, and has been forced by this calamitous event to withdraw from his long-standing active participation in activities relating to the environmental protection of his property and his many other public-interest a,ffairs. This Board should be made aware of the stress-related circumstances oIhis disability. And, when he was made .
aware of the reconstituted Board's Proposed Decision, this heretofor active Intervenor said that at long last he and his family could rest secure in _
their own home, without the threat and uncertainty darkening their lives any longer. He futher expressed his appreciation for and support of the
! motion by Dr. Kepford for the Intervenors for dismissal with prejudice.
The Applicant objects, at page 2, that the Board and Appeal Board dis .
agree. The Appeal Board in ALAS-657 remanded the matter to this Board. This .
Board sees fit to concur with its predecessor. Is the Applicant to be given i endless opportunity to complain because the decision is not precisely to its l speci fications ? Intervenors would join the Board in disallowing such a cir-cumstance. As for the burden of proof, in an application before an NRC l Licensing Board, the Commission's rules are clear that the burden of proof l lies with the Applicant.
A second objection appears to be that the termination can take place with certain conditions attached, rather than with prejudice (no matter how mild and ineffectual that term may be in this instance). Are the Board, i
Staff, and Intervenors then to be dragged through yet another endless series l
of motions , objections , briefs , hearings , appeals , and remands until all
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conditions that the Applicant may desire are tret by its regulators? We think not, and suggest to tne Goard that it is precisely this insistence on the part of this Applicant that all matters relating to this case be resolved precisely to the Applicant's satisfaction that constitutes a con-tinuing evidence of the Applicant's improper conduct. Such a request is in fact yet additional justification for the Board's decision to dismiiss with prejudice.
With regard to the Applicant's objection at page 3 that a dismissal with prejudice could be construed as reflecting adversely on PE's " manner of purssit of its Early Site Review application," the Applicant provides no reason or justification other than a " desire to avoid." While the delicacy of the Applicant's concern for its good name is clear, that explanation is hardly a reason for this Board to accede to the Applicant's demand that it be permitted essentially to do as it pleases with total disregard for other parties or the public.
The Intervenors urge the Board to proceed instead immediately with its Proposed Decision and Order as it stands. In particular, the Intervenors urge the Board to reject altogether the moo? fications proposed by the Appli-cant at page 3 of its Objection 'and-Motion for Modification. Such modi fica-tions make a mockery of the Board's judgment and authority.
Respectfully Submitted, lpd21/ Nl&$HY Dr. Judith H. Johnsrud, for i
Dr. Chauncey Kepford, Representative c
for the York, et al . , Intervenors l
Dated this 7 } day 7 -
! 433 Orlando Avenue of January,1984 State College, Da.16803 (please note change of zip code) l i
Certi ficate of Service I
p I hereby certify that copies of this pleading have been served on the j parties in this proceeding by deposit in the U.S. Mail, first class , postage l paid.
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