ML20086K047
| ML20086K047 | |
| Person / Time | |
|---|---|
| Site: | 05000463, 05000464 |
| Issue date: | 01/23/1984 |
| From: | Irwin D PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 76-300-01-CP, 76-300-1-CP, ISSUANCES-CP, NUDOCS 8401260195 | |
| Download: ML20086K047 (7) | |
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g'YD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the At'omic Safety and Licensing Board 4 Jof25 h '30 hffg3fCRQAgu "A
BRA!CH In the Matter of ) ASLBP Docket No. 76-300-01 CP
)
PHILADELPHIA ELECTRIC COMPANY ) (NRC Docket No. 50-463-CP
) 50-464-CP)
(Fulton Generating Station, )
Units 1 and 2) )
PHILADELPHIA ELECTRIC COMPANY.'S REQUEST FOR LEAVE TO REPLY, AND REPLY, TO INTERVENORS' RESPONSE TO OBJECTIONS OF NRC STAFF AND APPLICANT TO PROPOSED DECISION AND ORDER OF THE LICENSING BOARD Philadelphia Electric Company (PE) hereby requests the Board's leave to file the following reply to the York Interve-nors' January 7, 1984 Response to PE's and the Staff's December 29, 1983 filings. Good cause for this reply is shown by the fact that the York Response does not controvert PE's December 29, 1983 papers in any relevant and material way, and thus reinforces PE's motion for summary dismissal without prejudice, i
- as moot.
l In its December 29, 1983 papers, PE not only stated its I reasons for opposing dismissal of the Fulton application with l
prejudice, but also stated a prima facia case for dismissal as moot, without prejudice. PE's arguments, as required by the Commission's regulations, were supported by a statement of 8401260195 840123 PDR ADOCK 05000463 G PDR
material facts and affidavit attesting to them. The York Intervenors' Response is untimely as a response to the Licens-ing Board's proposed decision. As a response to PE's December 29 papers (despite its caption, it includes matters beyond the scope of PE's Objection and covered in its Motion for Sammary Decision),1/ it fails to controvert PE's arguments in any mate-rial fashion.
The York Response possesses the following significant characteristics:
- 1. It never alleges any legally cognizable harm to any of its members. The York Response refers only to nearby residents but never alleges that_any of its members live or own property on or near the Fulton site; and certainly its membership list of record in this proceeding, showing only geographically, dis-tant members, has never been amended. Thus PE's assertions as to the distance of the York coalition's memberships remain undisputed. See 1 1 of PE's verified Statement of Material Facts, December 29, 1983. The York'Intervenors lack standing to assert any claims of harm to individuals other than their members. None of the other intervenors, whose members do own 1/ Even if the York Intervenors were to be seen as having 20 days to reply to PE's December 29 filings since they include material-in the nature of a summary disposition motion
($ 2.749(a)), that' time has now run and the January 7 York papers must be taken as their only response to PE's December 29 filings.
property on or near the Fulton site, sought dismissal with prejudice, either in 1980 or now.
- 2. The unnamed intervenor who "for more than a year has ,
been seriously disabled by a partially paralyzing. stroke" (York Response at 3).is not alleged to be a member of the York coali-tion. Even if he were or if York otherwise had standing to assert a claim on his behalf (which it does not), his disabili-ty, by York's own admission, occurred in 1982 or 1983 -- fully two or three years after PE filed its papers to withdraw the Fulton application. Thus Fulton's pendency could not have any relationship to this unnamed person's unfortunate disability.
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- 3. The York Intervenors' reference to recent history (York Response at 2) in places merely parrote PE's recitation of factors which led PE to withdraw the Fulton application in 1980. In others, it refers to events (e.g., the Pennsylvania PUC's 1983 proceedings regarding Limerick) that occurred after Fulton's withdrawal in 1980 and are thus definitionally irrele-vant to the timing of PE's determination to withdraw the appli-cation. To the extent that it claims, albeit totally without
, specificity or documentation, extensive efforts and exertions occasioned by Fulton's pendency (York Response at 3), those assertions are fri.volous. Since the cancellation of the HTGRs 4
in 1975, the York Intervenors' participation of record has con-sisted of attending one meeting in Bethesda in 1978 and filing,
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between 1980 and 1984, four brief, unverified papers disputing PE's attempts to bring this case to an end. See 11 4, 9, 12, 13 of PE's verified Statement of Material Facts, December 29, 1983.
- 4. The York Response does not directly dispute any of the verified factual assertions in PE's papers. To the extent that e it even addresses the factually related issues raised by PE's papers, its allegations are generalized and unverified.
The Appeal Board in Fulton, ALAB-657, 14 NRC 967 (1981),
pointed out that dismissal with prejudice required both a find-4 ing of bad-faith prosecution and a finding of legally cogniz-able harm to parties or to the public. It also found that the record before-it contained no such evidence. The Appeal Board j subsequently emphasized, in the North Coast case, 14 NRC 1125 (1981), that allegations sufficient-to give rise to the need for hearings potentially leading to dismissal with prejudice must not only be " serious but also supported by a showing, typ-l ically through affidavito or unrebutted pleadings, of suffi-cient weight and moment to cause reasonable minds to inquire
- further." 16 NRC at 1133-34. The York Intervenors have not i
alleged any injury to private interests sufficient to meet this high standard. The NRC Staff, institutionally charged with representing the public interest in matters affecting the agen-cy, supported PE's motion for dismissal without prejudice, as
. o moot. In short, the York Intervenors have made only allega-tions which are neither sufficiently supported nor sufficiently grave to trigger the further proceedings that would have to-precede and underlie any findings justifying dismissal with prejudice.
PE agreec with York Intervenors on one matter: no further proceedings are necessary to dispose, finally, of this case.
PE's motion for summary dismissal as moot, without prejudice, should be granted.
Respectfully subm :ted, s
Donald P. Irwin Counsel for Philadelphia Electric Company Of Counsel:
Eugene J. Bradley, Esq.
Philadelphia Electric Company 2301 Market Street Philadelphia, PA 19101 DATED: January 23, 1984 i
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UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION Before the Atomic Safesty and Licensing Board
+
J In the Matter of ) ASLBP Docket No. 76-300-01 CP
).
PHILADELPHIA ELECTRIC COMPANY ) (NRC Docket No. 50-463-CP
) 50-464'CP)
(Fulton Generating Station, )
Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that-I have served copies of PHILADELPHIA ELECTRIC COMPANY'S REQUEST FOR LEAVE TO REPLY, AND REPLY, TO INTERVENORS' RESPONSE TO OBJECTIONS OF NRC STAFF AND APPLICANT TO PROPOSED DECISION AND ORDER OF THE LICENSING BOARD on the following persons by U.S. mail, first class, postage prepaid, or by hand (*) or by Federal Express (**), this date:
P. Paul Cotter, Jr., Esq., Chairman
- Dr. Donald P. deSylva**
Atomic Safety and Licensing Associate Professor of Marina Board Science U.S. Nuclear Regulatory Rosentiel School of Marine and Commission Atmospheric Science East-West Towers University of Miami (West Tower), 4th Floor Miami, FL 33149 4350 East-West Highway l Bethesda, MD 20814 Sherwin E. Turk, Esq.*
Counsel for NRC Regulatory Mr. Gustave A. Linenberger* Staff Atomic Safoty and Licensing Office of the Executive Board Legal Director
( U.S. Nuclear Regulatory j U.S. Nuclear Regulatory l Commission Commission East-West Towers Maryland National Bank Bldg.
(West Tower), 4th Floor 7735 Old Georgetown Road 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 l
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Atomic Safety and Licensing Theodore A. Adler, Esq.
Board Panel Widoff, Reager, Selkowitz U.S. Nuclear Regulatory & Adler Commission P.O. Box 1547 Washington, DC 20555 Harrisburg, PA 17105 Atomic Safety and Licensing Executive Director Appeal Board Panel Susquehanna River Basin U.S. Nuclear Regulatory Commission Commission
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1721 N. Front Street Washington, DC 20555 Harrisburg, PA 17102
-Docketing and Service Section (7) Susquehanna Valley Alliance Office of the Secretary P.O. Box 1012 U.S. Nuclear Regulatory Lancaster, PA 17604 Commission Washington, DC 20555 George L. Boomsma Save Solanco Environment Eugene J. Bradley, Esq.** Conservation Fund Philadelphia Electric Company P.O. Box 64 2301 Market Street Quarryville, PA 17566 Philadelphia, PA 19101 Paul K. Allison, Esq.
Marianne D. O'Brien, Esq. Allison & Pyfer Assistant Attorney General 128 N. Lime Street, Box 1588 Department of Natural Resources Lancaster, PA 17604 Tawes State Office Bldg., C-4 580 Taylor Avenue Gilbert G. Malone, Esq.
Annapolis, MD 21401 Ports, Beers, Feldmann & Malone 145 East Market Street Lawrence Sager, Esq. York, PA 17401 Sager & Sager Associates i
45 High Street James A. Humphreys, III, Esq.
Pottstown, PA 19464 Barley, Snyder, Cooper & Barber "
115 E. King Street York Committee for a Safe Lancaster, PA 17602 Environment Dr. Chauncey R. Kepford 433 Orlando Avenue State College, PA 16801
.d Donald P. Irwin Counsel for Philadelphia Electric Company DATED: January 23, 1984 L_