ML20086T014
| ML20086T014 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 03/05/1984 |
| From: | Edgar G, Luck W ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | |
| References | |
| CP, NUDOCS 8403060082 | |
| Download: ML20086T014 (4) | |
Text
T i 3/5/84 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
. BEFORE THE COMMISSIONERS Cf(%h3 In the Matter of ) '84 MR -5 P 1:30
)
UNITED STATES DEPARTMENT OF ENERGY )
) 1' PROJECT MANAGEMENT CORPORATION ) Docket No.~50.537CP-TENNESSEE VALLEY AUTHORITY )
) l (Clinch River Breeder Reactor Plant) ) l l
)
l APPLICANTS' PETITIOM FOR REVIEW OF FEBRUARY 29, 1984 APPEAL BOARD MEMORANDUM AND ORDER READMITTING INTERVENORS TO THE PROCEEDINGS I
Pursuant to 10 C.F.R. $ 2.786 b) and the Commission's
[ inherent supervisory authority, 1/ the United States Department of Energy and Project Management Corporation (the Applicants), 2/
hereby petition for review of the February 29, 1984 Appeal Board Memorandum and Order Readmitting Intervenors, Natural Resources Defense Council, Inc. (NRDC) and the Sierra Club, to the Proceedings.
I, , ISSUE PRESENTED WHETHER THE APPEAL BOARD ERRED IN READMITTING INTERVENORS INTO THE CONSTRUCTION PERMIT PROCEEDINGS EVEN THOUGH INTERVENORS HAD: 1) WITHDRAWN FROM THE PROCEEDINGS IN JUNE OF 1983, 2) PRE-VIOUSLY SOUGHT AND OBTAINED DISMISSAL OF THEIR LWA APPEAL, AND
- 3) FAILED TO' SUSTAIN THEIR NOVEMBER 23, 1983 MOTION TO INTERVENE AGAIN IN THE PROCEEDINGS.
II.
SUMMARY
OF THE DECISION FOR WHICH REVIEW IS SOUGHT On February 29, 1984 the Appeal Board issued a Memorandum and Order ( ALAB-761) which: a) vacated the Licensing Board's s
-1/
United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant) , CLI-76-13, 4 NRC 67, 74-76 (1976).
'2/
Co-applicant Tennessee Valley Authority has not joined in
.this petition.
8403060002 840305 M>D3, PDR ADOCK 05000537 pm v 9
- w. .. .. . . . . ..
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'e determination to limit Intervenors' participation in the pro-ceedings as inconsistent with ALAB-755; and b) denied NRDC's 9- ;
appeal insofar as it sought reversal of the Licensing Board's denial of Intervenors' November 23, 1983 Motion to Intervene.
ALAB-761 at 14.
4 The Appeal Board's action allowed Intervenors to do indirectly that which it refused to allow directly - gain readmission to the proceedings now pending before the Licensing Board. In what follows the relevant circumstances leading to
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the Appeal. Board's February 29, 1984 decision are briefly summarized.
Intervenors were a party in the LWA phase of the proceed-ingc before the Licensing Board. Interveners never raised any contentions related to the environmental impacts of site prepara-tion activities or redress of those impacts, nor did their appeal of the Licensing Board's February 28, 1983 LWA decision raise any such issues. ALAB-761 at 14. -
On June 24, 3983, the Licensing Board granted Intervenors' June 21, 1983 Motion to Withdraw from the pending radiological health and safety phase of the proceedings, and dismissed them as parties to the proceedings. ALAB-761 at 3. Intervenors never appealed their dismissal. Id. Hearings in the uncontested proceedings were completed in August of 1983. Id.
In October, 1983 Congress declined to appropriate further funds for the Clinch River project, and in light of the pending project termination, Intervenors filed a Motion with the Appeal Board seeking to: a) terminate the Appeal; b) vacate the
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4 Licensing Board's February 28, 1983 P. ;ial Decision (PID) ; and c) revoke the LWA. ALAB-76. In seeking to
. revoke the LWA, Intervenors did not atten,t to raise any issue concerning redress of the impacts of site preparation activities.
ALAB-761 at 14. Without objection, the Appeal Board terminated the appeal aad vacated the PID. ALAB-755 at 3-4. The Appeal Board declined to revoke the LWA, but instead noted that the Licensing Board still retained jurisdiction over the pending construction permit application, and anticipated " ... that the Board will determine if any conditions to ameliorate the er .ron-mental impacts of site preparation activities are needed". Id.
ALAB-755 nowhere indicated that the Appeal Board had remanded the LWA appeal to the Licensing Board. See, Memorandum of Secretary, Docket No. 50-537, January 25, 1984.
On November 23, 1983 Intervenors also filed a Motion to Intervene with the Licensing Board which sought, in light of the pending termination, readmission to the proceedings to raise two contentions: a) a. Construction Permit could not be granted; and b) the project would not meet its programmatic objectives. 3/
In its Motion to the Licensing Board, Intervenors expressed a desire to participate on matters of site redress. i! On January 20, 1984 the Licensing Board issued an Order denying Intervenors' Motion on the grounds that the two stated contentions were moot.
3/ Motion of Natural Resources Defense Council, Inc. to Intervene, November 23, 1983 at 5-7.
4/ Id. at 4.
3
. In ALAB-761, the Appeal Board affirmed this action of the Licensing Board. ALAB-761 at 10-13.
On January 20, 1984 the Licensing Board issued a Notice of Conference with Parties which noted the Appeal Board's statements concerning site redress and, inter alia, authorized former Intervenors in the proceeding, such as NRDC and the Sierra Club, to participate in the conference by way of limited appearance.
Intervenors appealed this Motice of Conference with Parties, alleging that it improperly limited their right to participate as a full party on matters relating to amelioration of the impacts of site preparation activities.
After receipt of February 21, 1984 responses oppesing Intervenors' appeal from the Applicants and NRC Staff, on February 29, 1984, the Appeal Board issued ALAB-761, which vacated the Licensing Board'c determination to limit Intervenors' participation "as inconsistent with ALAB-755" since: 1) nothing in ALAB-75S was intended to alter Intervenors' status in the LWA portion of the case, and 2) redress is a matter with which ,
Intervenors are concerned. ALAB-761 at 7, 9. One Appeal Board member dissented on the grounds that the Licensing Board's June 29, 1983 dismissal extinguished all of Intervenors' rights in the proceedings except as to LWA matters they had expressly raised on appeal, and since Intervenors had manifested no interest in redress before the Licensing Board in the LWA proceedings or before the Appeal Board seeking to revoke the LWA, they had no rights to readmission into the proceedings before the Licensing Board in regard to redress. ALAB-761 at 14-15.
III. MATTERS PREVIOUSLY RAISED BEFORE T!iE APPEAL BOARD Applicants' February 21, 1984 Answer to Intervenors' Appeals presented to the Appeal Board all matters raised 3a Lthis petition.
IV. THE APPEAL BOARD'S DECISION WAS ERRONEOUS
- In deciding to vacate the Licensing Board's determination that Intervenors' participation in the proceedings should be by way of limited appearance, the Appeal Board committed clear error. Intervenors had appealed the Licensing Board's Notice of Conference with. Parties, ins 6far as it permitted them, as former parties, to appear by way of limited appearance. The Appeal Board vacated this " determination" on the grounds that:
- 1) nothing-in their." remand" order (ALAB-755) was designed to alter their status as Intervenors in the LWA portion of the
(
-case (ALAB-761 at 7-8); and 2) redress is a matter with which Intervenors are concerned (ALAB-761 at 9) .
As to the first' ground, it should be emphasized that ALAB-755 nowhere mentions a remand to the Licensing Board. The Appeal Board obviously knows how to " remand" a case, and it simply.did not use that word. Whatever the Appeal Board's unexpressed intentions may have been, it did not remand the
'LWA Appeal'back to the Licensing Board in ALAB-755. Rather, it merely noted that the , Licensing Board had retained juris-diction over the Construction Permit proceedings, and observed that:"[w]e anticipate that the Board will determine if any
. conditions to ameliorate the environmental impacts of site preparation activities are needed." ALAB-755 at 4.
- The Appeal Board not only did not remand the LWA decision
.~ to the Licensing Board, but as to matters relating to site redress, it could not have done so. When the LWA appeal was taken from the Licensing Board's February 28, 1984 Partial Initial Decision, the Licensing Board lost all jurisdiction over the LWA decision and retained jurisdiction only as to Construction Permit matters. b! Moreover, as expressly recognized by the Appeal Board dissent, and at least implicitly by the Appeal Board majority, the Intervenors' interest in and the Appeal Board's jurisdiction over the LWA' decision were confined to those issues expressly raised by h~ Intervenors in the LWA appeal. 'ALAB-761 at 15, 10, note 18; 10 C.F.R. SS 2.718 and 2.714 (e) (f) . Of course, none of the issues raised by Intervenors in the LWA appeal involved the impacts of site preparation activities or redress of those impacts, and thys they had no interest in such matters. ALAB-761 at 14.
When Intervenors were dismissed from the Construction Per-met proceedings and did not appeal that dismissal, they forfeited all remaining right and interest in any matters then within the Licensing Board's jurisdiction, b! Since the matters raised by Intervenors in the LWA appeal did not relate to the impacts of site preparation activities or redress of those impacts,
-even if the Appeal Board remanded, it could not thereby create a new interest for Intervenors on site preparation impacts or 5/ See, Metropolitan Edison Company (Three Mile Island Nuclear Etation, Unit No. 1), ALAB-699, 16 NRC 1324, 1326 (1982).
6/
Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 159-60 (1980); Consumers Power Company (Midland Plant, Units 1 and 2) , ALAB-684,16 NRC 162, at 165 N. 3 (1982).
redress. Contrary to the Appeal Board's suggestion, 1! nothing in the Licensing Board's June 29 ruling dismissing Intervenors de-prived them of a right to pursue LWA issues on appeal. Rather, Inter-venors' own actions in failing to raise any issues as to site preparation or redress before the Licensing or Appeal Boards resulted in a waiver of any rights they might have had in those irsues.
The Appeal Board properly observed that in failing to appeal the Licensing Board's decision dismissing them from the procoedings, Intervenors assumed the risk that the Licensing
-Board might eventually take some action on non-LWA matters in-
' consistent with their interests. ALAB-761 at 10. More impor-
- tantly, in failing to raise any issues concerning the environ-mental impacts of site preparation activities or redress of those impacts before either the Licensing Board or the Appeal Board, Intervenors assumed the risk that upon dismissal of the i
LWA appeal they would have no right to participate as to those issues. ,
Intervenors obviously knew'that their rights to participate were limited. In their Motion to dismiss the LWA appeal before the Appeal Board, they urged that the LWA decision not be remanded back to the Licensing Board, ! and in asking that the LWA be revoked, they did not express any interest in raising the rp 7/ ALAB-761 at 7.
-8/ Motion of Intervenors to Terminate Appeal Proceedings, Vacate
. Partial: Initial Decision, and Authorize Revocation of Limited Work Authorization, November 23, 1983 at 9.
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issue of redress. Intervenors, however, sought through their
- November 23, 1983 Motion to Intervene to gain readmission to the proceedings 1before the Licensing Board in regard to redress. E!
That Motion was properly denied by the Licensing Board, and that denial was upheld by the Appeal Board.
-The Appeal Board's decision refused Intervenors readmission directly, and having done so, it would not allow readmission
-indirectly. Simply stated, the Appeal Board did not remand the LWA decision, the Appeal Board could not have remanded the LWA decision on matters concerning the impacts of site preparation and redress of those impacts, and consequently, Intervenors i had no cognizable interest in those issues in the remaining pro-l I ceedings before the Licensing Board. Accordingly, the Appeal Board's decision to readmit Intervenors was clearly erroneous and it must be vacated.
, VI. WHY COMMISSION REVIEW SHOULD BE EXERCISED The Commission should review the decision-of the Appeal Board because it involves: 1) an important procedural issue of significance to the stability of its adjudicatory process; and
- 2) an important public policy question of significance to the
. efficient utilization of public. resources. 10 C.F.R.
S 2.786(b) (4) (i) .
As to both the procedural issue and the public policy question, the Commission's 1981 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454, is worthy of note:
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9/ Motion of-Natural Resources Defense Council, Inc. to Inter-vene, November 23,1983 at 4.
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fullfil the oblis4tions imposed by and in accordance with applicable law and Commission regulations. While a Board should endeavor to conduct the proceeding in a manner that takes account of the special circum-stances faced by any participant, the fact that a party may have' personal or other obligations or possess fewer resources than others to devote to the proceeding, does not relieve that party of its
-hearing obligations. When a participant fails to meet its obligations, a Board should consider the imposition of sanctions against the offending party.
In this case, the basic question is whether Intervenors will be held responsible for the direct consequences of their own actions.
They chose not to raise contentions as to the environmental impacts of site preparation activities or redress of thoso impacts before the Licensing Board or to raise such issues in the LWA appeal. They chose to withdraw from the Construction Permit proceedings before the Appeal Board. They sought and failed to gain readmission to LWA appeal, and did not seek to raise the issue of redress before the Appeal Board. They shough and failed to gain readmission to the Licensing Board proceedings, and the Appeal Board affirmed. In these circumstances, it can fairly be said that Intervenors assumed the risk that their participation before the Licensing Board on redress issues would be limited.
The Appeal Board's decision, in allowing Intervenors to gain readmission indirectly when they cannot do so directly,
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sends out a clear signal of instability in the Commission's adjudicatory process in contravention of the Commission's Policy Statement. The credibility of the Commission's procedures, policy and process compels the Commission to review and summarily vacate the Appeal Board's decision insofar as it allows readmission of Intervenors.
f As a matter of public policy, the closing language of the Appeal Board dissent rings clear in this case "I see no public purpose to be served by their participation on the redress issue above and beyond that allowed by the Licensing Board". ALAB-761 at 15. While Applicants are at a loss to understand Intervenors' belated interest in redress, the ultimate effect of their par-ticipation seems predictable enough. Their participation will further protract a proceeding which has been underway for almost a decade, for a project which is now terminated. The additional expense to both DOE and NRC will be absorbed by the taxpayer.
We submit that sound public policy would hold Intervenors responsible for their actions and compel the Commission to summarily vacate the Appeal Board's readmission of Intervenors.
V. _ CONCLUSION For the reasons stated in the foregoing, the Commission should accept review, and after consideration of any answer that Intervenors might file within 10 days,1S[ should summarily vacate the Appeal Board's decision in ALAB-761 insofar as it readmits Intervenors to the proceedings.
Respectfully submitted V _
org Eg Attorney for Pro c.t Manage 'en Corpora ion DATED: March 5, 1984 I/ . b4// 7 ,
William D. Luck Attorney for U.S.
Department of Energy
_1_0' 10 C.F.R. S 2.786 (b) (3) .
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
. C0r?E TED BEFORE THE COMMISSION "NC
~84 MR -5 P4 :30
.s- . .
dSitiI,isNg.r In-the Matter of ) '
} 3RANC9 UNITED STATES DEPARTMENT OF ENERGY )
)
. PROJECT MANAGEMENT CORPORATION ) Docket No. S0-537
)
TENNESSE" VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor Plant) )
)
CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first class mail to the following:
~
Mr. Nunzio J. Palladino Chairman United States Nuclear ~
Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555 (by hand)
Mr. James K. Asselstine Commissioner United States Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555 (by hand)
Mr. Thomas M. Roberts Commissioner United States Nuclear
' Regulatory Commission 1717.H Street, N.W.
Washington, D.C. 20555 (by hand)
Mr. Frederick-M. Bernthal Commissioner United States Nuclear Regulatory Commission 1717 H Street, N.W.
Washir.gton, D.C. 20555 (by hand) l
~
gr L
Mr. Victor Gilinsky Commissioner United States Nuclear p
Regulatory Commission l
1717 H Street, N.W.
Washington, D.C. 20555 (by hand)
Marshall E. Miller, Esquire Chairman Atomic Safety and Licensing Board Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 Dr. Cadet II. 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 Gary J. Edles Chairman Atomic Safety & Licensing Appeal Board Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 Howard A. Wilber Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission
-4350 East-West Highway Bethesda, Maryland 20814
- Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
(
- 1 i .
- Docket & Service Section i Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (original, 3 copies, and date/ time copy for I return)
Stuart Treby, Esquire Sherwin E. Turk, Esquire Elaine I. Chan, Esquire Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetcwn Road Bethesda, Maryland 20814 (2 copies)
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)
Lawson McGhee Public Library 500 West Church Street Knowville, 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 y
1000 Independence Avenue, S.W.
Room 6B-256 Washington, D.C. 20585 (2 copies by hand)
C l
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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 (by hand) y /
& /+ ' &M h George-L. Edgay 7,/
Attorney for i.
Project Management Corporation DATED: March 5, 1984 L
N.W., Washington, D.C.
- / Dr.r.otes hand delivery. to 1717 H Street,
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