ML20087F470

Answer to Applicant Petition for Review of ASLB 840229 Memorandum & Order Re Crbr LWA Proceedings on Site Redress Plan.Intervenors Main Concern Is That Redress Be Rapid & Effective.W/Certificate of Svc

ML20087F470
Person / Time
Site:	Clinch River
Issue date:	03/15/1984
From:	Finamore B National Resources Defense Council, Sierra Club
To:	NRC COMMISSION (OCM)
References
NUDOCS 8403190120
Download: ML20087F470 (10)

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00CMETED US*RC UNITED STATE OF AlbI&W 15 P5:05 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION,ERS-; ,; , ,

UCCUg J .

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In the Matter of )

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UNITED STATES DEPARTMENT OF ENERGY )

PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537 TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant) )

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ANSWER OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB, TO APPLICANTS' PETITION FOR REVIEW Pursuant to 10 C.F.R. l2.786(b)(3), Intervenors Natural Resources Defense Council, Inc. and the Sierra Club, hereby submit an answer in opposition to Applicants' petition for review of the February 29, 1984 Appeal Board Memorandum and Order, insofar as it vacated the Licensing Board's determination to limit Intervenors ' participation in the Clinch River Breeder Reactor (CRBR) Limited Work Authorization (LWA) proceedings on remand. .

I. ISSUE PRESENTED 1

. The issue presented is very straightforward: whether the l

Appeal Board was correct in holding that, by remanding to the Licensing Board the LWA issues of revocation of the CRBR LWA and j associated site redress, it did not intend to alter Intervenors' l

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8403190120 840315 l PDR ADOCK 05000537 C

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longstanding status as intervenors in the LWA portion of the ,

Case.

II.

SUMMARY

OF THE DECISION FOR NHICH REVIEW IS SOUGHT Despite Applicants' attempts to burden the record, the decision can be stated very concisely. On November 23, 1993, .

Intervenors Natural Resource Defense Council, Inc. and the Sierra Club ("Intervenors"), n'ho have been full parties to the CRBR Limited Work Authorization proceedings.since 1975, filed with this Appeal Board a Motion of Intervenors to Terminate Appeal Proceedings, Vacate Partial Initial Decision, and Authorize Revocation of Limited Work Authorization. On December 15, 1983, the Appeal Board issued an order which terminated the appeal proceedings and vacated the LWA' Partial Initial Decision. The Appeal Board, however, remanded to the Licensing Board Intervenors' request for revocation of the LWA.1./ The Appeal Board anticipated that the Licensing Board would determine if any conditions for LWA revocation were needed to ameliorate the environmental impacts of site preparation, ..

On remand, the Licensing Board on January 20, 1984 issued a Notice of Conference With Parties, which scheduled a conference to discuss revocation of the LWA and appropriate measures for l site redress. Inexplicably, however, the Licensing Board stated that Intervenors Natural Resources Defense Council and the Sierra i

i 1/ ALAB-755 at 3-4; ALAB-761 at 4.

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r Club would only be permitted to participate in the conference by making limited appearance statements in accordance with 10 C.F.R.

$2.715. This ruling has the effect of wholly denying NRDC and

. the Sierra Club the right to participate in the LWA conference as full party intervenors.

Intervenors appealed the Licensing Board's relegation of Intervenors to limited appearance status on February 6, 1984. On February 29, the Appeal Board vacated the Licensing Board's determination as inconsistent with ALAB-755.2/ The Appeal Board stated that nothing in their remand order was designed to alter Intervenors' status as full parties in the LWA portion of the case, noting that intervenors have been active participants in the LWA proceedings, that they have demonstrated interest in site redress issues, and that no public purpose is served in circumscribing their participation at this stage.2/

III. MATTERS PREVIOUSLY RAISED BEFORE THE APPEAL BOARD Applicants argue that the Appeal Board did not remand and could not have remanded the LWA decision to the Licensing ..

Board.A/ These matters were not previously raised before the Appeal Board.

2/ ALAB-761 at 7, 14.

2/ Id. at 7-9.

d/ Applicants' Petition for Review at 5-8.

l IV. THE APPEAL BOARD'S DECISION IS CLEARLY CORRECT The Appeal Board's decision is clearly correct. The Appeal Board stated that in remanding Intervenors' motion to revoke the CRBR LWA to the Licensing Board to allow consideration of site redress issues, the Appeal Board did not intend to strip Intervenors of party status with respect to that motion. Surely the Appeal Board's interpretation of its own recent decision must be given deference as cpposed to Applicants'-interpretation of that decision.

That the Appeal Board had full power to remand LWA issues to the Licensing Board has never been disputed by the Licensing Board or any party. To the contrary, Applicants, NRC Staff, and the Licensing Board have expressly recognized the possibility of such remand and the rights of Intervenors to participate fully on any such remand.5/

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Applicants' argument that Intervenors have not demonstrated interest in site redress issues is clearly incorrect. When the issue first arose in connection with Applicants ' requested emergency exemption under 10 C.F.R. $50.12, Intervenors argued ,,

repeatedly that the environmental impacts of site preparation could be significant and that Applicants' site redress plans were inadequate.5/ Intervenors also appealed the $50.12 exemption to 5/ See ALAB-761 at 7-8, n. 12.

5/ Memorandum of Intervenors in Opposition to Applicants' Request to Conduct Site Preparation Activities (Dec. 15, 1981); Comments of Intervenors In Opposition to Applicants' l

Exemption Request Under 10 C.F.R. $50.12 (Jan. 18, 1982);

footnote cont'd

a federal court largely on grounds concerning site preparation impacts.2/ And as the Appeal Board noted, the issue of site redress has come before the Board for the first time as a result of the project's termination. Given Intervenors' demonstrated interest in site redress, the Appeal Board properly found no pu'olic interest purpose in circumscribing their participation at this stage.

V. THIS PETITION RAISES NO IMPORTANT QUESTIONS TO JUSTIFY COMMISSION REVIEW Applicants' claims that this petition for review raises important procedural issues and public policy questions is of the purest gossamer. Intervenors have actively participated without fail in all aspects of the CRBR LWA licensing proceeding since 1975, and no important procedural question is raised by allowing them to continue that participation during the final stage of the LWA process.

As a matter of public policy, Applicants are simply incorrect in their claim that Intervenors' continued participation will delay the proceedings. As their earlier submissions demonstrate, Intervenors' main concern is that site redress be rapid and effective. In contrast, Applicants have Supplemental Comments of Intervenors In Opposition to Applicants' Exemption Requst Under 10 C.F.R. 550.12 (Jan.

! 28, 1982); Brief of Intervenors In opposition to Applicants' Exemption Request Under 10 C.F.R. {50.12 (July 22, 1982).

2/ Natural Resources oefense Council,.Inc. v zeller, i No. C-82-1830A (N.D.Ga).

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proposed to delay the start of site redress activities for over a year.8./ Given Intervenors' expertise as environmental protection organizations, Intervenors submit that the sound course is to permit their assessment of Applicants' site redress plan to be heard.

Respectfully submitted, h M Birbara A. Finamore S. Jacob Scherr Natural Resources Defense Council 1725 I Street, N.W., Suite 600

! Washington, D.C. 20006 (202) 223-8210 ATTORNEYS FOR PLAINTIFFS a

I 8./ CRBR Site Redress Plan at 12 (March 5, 1984).

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I DXKETED U7GC CERTIFICATE OF SERVICE

'84 MAR 15 P5:05 I hereby certify that copies of ANSWER 0F INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL AND E- SIERRAy. CLUB TO APPLICANTS' PETITIONFORREVIEWweresbrVdgMT{,5 T5th day of March 1984 by hand

• or by first class mail upon: .

• Mr. Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

• Mr. James K. Asselstine Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

• Mr. Thomas M. Roberts Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

• Mr. Frederick M. Bernthal Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

• Mr. Victor Gilinsky Commissioner U.S. Nuclear Regulatory Commission-1717 H Street, N.W.

Washington, D.C. 20555 .

Marshall E. Miller, Esq.

Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th floor Bethesda, MD 20555

• Indicates hand delivery.

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j Certificate of Service - 2 Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th floor Bethesda, MD 20555 Gary J. Edles, Chairman Atomic Safety & Licensing Appeal Board 4350 East West Highway, Bethesda, MD 20555 Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board 4350 East West Highway, Bethesda, MD 20555 ,

Howard A. Wilber

~ Atomic Safety & Licensing Appeal Board 4350 East West Highway, Bethesda, MD 20555

• 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 20555

• 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 U.S. Nuclear Regulatory Commission 1717 H Street, NW, Room 1121 Washington, D.C. 20555 (3 copies)

a certificato of Service - 3

• 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 Herbert S. Sanger, Jr., Esq.

Lewis E. Wallace, Esq.

James F. Burger, Esq.

W. Walker LaRoche, Esq.

Edward J. Vigluicci, Esq.

Of fice of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, TN 37902 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 i William E. Lantrip, Esq.

l City Attorney Municipal Building i P.O. Box 1 l Oak Ridge, TN 37830 l

.. 1 Certificate of Service - 4 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 Community Development Andrew Jackson Building, Suite 1007

' Nashville, TN 37219 M m. C T rbara A. Tihamore 1

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