ML20112C955
| ML20112C955 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/10/1985 |
| From: | Mcgarry J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO. |
| To: | Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM) |
| References | |
| CON-#185-035, CON-#185-35 OL, NUDOCS 8501110489 | |
| Download: ML20112C955 (5) | |
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d L AW OFFICES Or BIS H O P, LI B ER M AN COO K, PU RC ELL & R EYN OLDS 120 0 S EVE NTC E NTH ST R C CT, N.W.
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WAS HINGTON, D.C. 2OO3 6 e:SMOP LIBERM AN & COON (202)857-9800
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- GH Chairman Nunzio J. Palladino Commissioner Thomas M.
Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal" Commi'ssioner Lando W. Zech, Jr.
U. S. Nuclear Regulatory Commiesion Washington, D.C.
20555
Subject:
Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2),
Docket Nos. 50-413 and 50-414 e/
Gentlemen:
Duke Power Company is in receipt of a communication to you from Palmetto Alliance and Carolina Environmental Study Group (Palmetto /CESG) dated December 27, 1984.
That document indicates that counsel for Palmetto /CESG has requested permission from the commission to present comments to you during your immediate effectiveness review for the Catawba Nuclear Station.
Duke Power Company opposes any such oral argument.
The Commission's regulations (10 C.F.R. $2.764(f)) provide that "the parties may file brief comments with the Commission pointing out matters which, in their view, pertain to the immediate effectiveness issue." (emphasis added).
Rather than file comments) Palmetto /CESG
[ submit a substantive pleading (e.g., simply provided a laundry list of conc ize as a summary of the comments which counsel for Palmetto /CESG "has asked to present to you in person" during your immediate effectiveness review.
We recognize that authorization of oral argument'is discretionary. 10 C.F.R.
$2.763..However, Palmetto /CESG should not be permitted to proceed with oral argu-ment when they have provided such a non-informative / inadequate I
document.~
A reading of the immediate effectiveness regulation makes clear that oral argument is not contemplated ("the parties may file brief comments").
Moreover, the Statement of Consider-See 46 ations fails to disclose an opportunity for oral argument.
Fed. Reg. 47764.
Further, based on our experience in the 'first litigated case to come before the Commission under the immediate 8501110489 850110
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' i effectiveness review provision (Duke's McGuire Nuclear Station) i oral argument was not permitted.
We are aware that the Com-mission did permit oral presentations in the Diablo Canyon case, however, most of those presentations were directed to non-contested issues involving enforcement matters, late allegations l
a'nd the like.
Palmetto /CESG have sought stays on four occasions thus far i
l from the Licensing Board, the Appeal Board (twice) and the U.S.
Court of Appeals for the District of Columbia Circuit.
1 Palmetto /CESG have filed two substantive stay requests (their l
December 10 motion to the Appeal Board and their January 2 motion f
to the U.S.
Court of Appeals); neither of these tribunals accorded Palmetto /CESG an opportunity for oral argument.
Nor should this Commission.
Further, it should be assumed that Palmetto /CESG have pro-j vided in their written motions to the Appeal Board and Court of j
Appeals a full exposition of the reasons they advance to support a stay of operation.
The Commission is privy to those files.
It.
j does not appear that their December 27 document departs from those stay requests.
No new matters have been raised.
There-l fore, the Commission has sufficient information regarding Palmetto /CESGs' December 27 gocument and does not need to hear further from falmotto/CESG,14---of -course,. should Palmetto /CESG seek to raise new matters before the commission, it certainly is disingenuous of them to ask this Commission to consider matters j
kept from the Licensing and Appeal Boards and the U.S. Court of Appeals.
i i
Duke also wishes to raise one other procedural point con-carning the effectiveness of a favorable Commission decision.
l-Duke's current schedule calls for escalation to power levels above 5% on or about Thursday, January 17, 1985.
We are aware i
that in the Diablo Canyon case the Commission, in granting full j
power authorization, stayed the effectiveness of its order "to allow orderly processing of any-request for expedited judicial l
' administrative stay should be entered in this case.
As noted, review." 20 NRC 267, 269 (1984).
We do not feel that ruch an Palmetto /CESG have already sought four stays.
Their positions l
are well-known and have been set forth in extensive pleadings.
All parties have been on notice of the Commission's upcoming review of full power authorization and it should be expe' ted that c
a each party has been preparing.itself for actions to be taken after the completion of the Commission's review.
To this and we are attaching a letter filed with the Chief Deputy Clerk of the 1
1/
The existence of Palmetto /CESGs pleadings with the Appeal Board and U.S. Court of Appeals also indicates that the matters encompassed in those documents could have been addressed to the Commission in proper written form, and their i
i is no warrant for.the Commission to hear oral argument on j
those points.
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Court of Appeals today which would call for Palmetto /CESG U.S.
filing a stay request within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of the Commission's vote:
If the Court the other parties would file 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> thereafter.
feels it needs addtional time to consider the matter it can take appropriate action.
Accordingly, in the event the Commission authorizes full power operation of Catawba, Duke requests that such take effect immediately.
Respectfully submitted, Michael McGarry,/III
/
SHOP, LIBERMAN, 000K, P CELL
& REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 Albert V.
Carr, Jr.
DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2470 Attorneys for Duke Power Company, et al.
cc:
All Parties Enclosure 4
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LAW Orrsecs Or BIS H OP, LIB ER M AN. COOK, PU RCELL & R EYNOLDS
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?.dANCH January 10, 1985 Honorable Robert A.
Bonner Chief Deputy Clerk United States Court of Appeals for the District of Columbia Circuit Washington, D.C.
20001 Re Palmetto Alliance, et al. v. United States Nuclear ReguTatory Commission, et al.,
Docket No. 84-1590
Dear Mr. Bonner:
This is to advise you the.t the Nuclear Regulatory Commission has scheduled a public meeting for 2:00 p.m.,
Tuesday, January 15, 1985, to vote on whether or not Duke's Catawba Nuclear Station will be authorized to operate at full power.
In the event such authorization is granted, Petitioners have indicated an intent to seek a stay of the NRC's action.
Under the cir-cumstances, we think it is important to establish a schedule for the filing of documents arid suggest the following.
Petitioners should file (hand-deliver) with the Court and the parties their -
Motion for Stay within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of the Commission's approval of f
full power operation; the government and Duke should file (hand-deliver) within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after receipt of Petitioners pleadings.-
t i
In the event the Commission authorizes full power operation of Catawba on January 15, under the above schedule all pleadings would be before the Court by January 17, 1985.
Criticality was achieved on Monday, January 7, 1985 at 8:00 p.m.
Pleadings filed by Duke'with this Court (the affidavit of Warren Owen attached to our January 4, 1985 opposition to Petitioners stay motion) indl-cate a need to go above 5% power 13 days after going critical, i.e., January 20, 1985.
However, current indications are that Duke is ahead or.'chedule and that it will be in a position to l
ascend above 5% power on Thursday, January 17, 1985.
Accord-ingly, in Duke's view, the above schedule is imperative.
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Duke recognizes that the Court might be hard pressed to resolve Petitioners' Stay Motion consistent with Duke's schedule.
As the affidavit of Warren Owen points out, ascension to full power is gradual and will not occur for several months.
Indeed ascension to a power level above 20% will not occur for more than a week after power levels of greater than 5% are authorized.
Sincerely, I
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J. Michael McGarry, III cc:
All Parties 0
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