ML20133Q307

Response to NRC 851011 Motion to Terminate Proceeding.Motion Should Be Granted.Certificate of Svc Encl

ML20133Q307
Person / Time
Site:	Humboldt Bay
Issue date:	10/28/1985
From:	Locke R PACIFIC GAS & ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-991 OL, NUDOCS 8511010485
Download: ML20133Q307 (6)

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! 1 UNITED STATES OF AMERICA 00 b i 6\ DO b l 2 NUCLEAR REGULATORY COMMISSION $\ #43h '

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4 I 5 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l 6 7 In the Matter of )

) Docket No. 50-133 O L 8 PACIFIC GAS AND ELECTRIC COMPANY ) License No. DPR-7 Humboldt Bay Power Plant )

9 Unit No. 3 )

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10 11 RESPONSE OF PACIFIC GAS AND ELECTRIC COMPANY 12 TO MOTION TO TERMINATE PROCEEDING l 13 l

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15 INTRODUCTION 16 On October 11, 1985 the NRC Staff filed a motion 17 with the Licensing Board seeking an order dismissing this 18 proceeding. In its motion the NRC staff argued that (1) the 19 matter was moot because the Licensee had sought to withdraw 20 its application for a license amendment which was the 21 subject of this proceeding and had submitted an application 22 for decommissioning pursuant to which the staff had recently 23 amended the operating license to authorize " possession only" 24 of the facility and (2) the Board did not have jurisdiction 25 to consider the decommissioning application, but rather a 26 separate proceeding and opportunity for a hearing on the 0511010485 851020 P DP.

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1 1 decommissioning woul6 be available when the staff noticed 2 for consideration the decommissioning application.

3 For the reasons set forth below, Pacific Gas and 4 Electric Company (PGandE) believes that termination of the 5 proceeding is warranted and that, accordingly, the motion 6 should be granted.

7 II 8 DISCUSSION 9 A. Background.

10 PGandE agrees with the essential facts set forth 11 as pages 2-6 of the staff's motion and, thus for the 12 purposes of this motion and in the interests of brevity will

, 13 not repeat them.

14 B. The Proceeding Is Moot.

, 15 As the staff noted in its Brief, PGandE has 16 decided not to seek resumption of power operations at l

17 Humboldt Unit 3. Instead, PGandE has sought to withdraw its l

18 application for a license amendment to delete the conditions 19 of paragraph E of the Staff's Order of May 21, 1976 and, in 20 addition, filed an application to decommission the Unit 21 using the Safstor Plan. These actions clearly evidence 22 Licensee's intention not to seek resumption of power 23 operation. Indeed, as part of the proposed EAFSTOR method 24 of decommissioning, PGandE sought and was granted an 25 amendment of its license to " possession only" of the plant.

26 Taken together these actions compel the conclusion that the l

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l 1 issues originally raised by PGandE's application for a 2 license amendment to resume power operation are moot.

3 Puerto Rico Power Authority (North Coast Nuclear Plant, 4 Unit 1) ALAB. 605, 12 NRC 153, 154-155 (1980).

5 This conclusion is further buttressed by the fact 6 that the only admitted contention (paragraph G(7))

7 concerned the adequacy of the Safe Shutdown Earthquake (SSE) 8 for the plant. Since future power operation is not 9 contemplated, this contention (or any related amended 10 contentions) need not be considered. Since the Notice set i

11 the scope of the matters to be considered -- in this case 12 deletion of paragraph E to permit resumption of power 13 operation -- it restricts the scope of the proceeding and 14 the Board's authority. Pacific Gas and Electric C_o .

15 (Stanislaus Nuclear Project, Unit No. 1), ALAB-400, 5 NRC 16 1175, 1177-88 (1977). Again, the passage of time and events 17 have rendered the issues and this proceeding moot.

18 Accordingly, the Board should grant the pending Licensee 19 Motion to withdraw its amendment application and dismiss the 20 proceeding as moot.

21 C. The Board Lacks Jurisdiction To Consider Decommissioning Of Humboldt Bay Unit 3.

22 23 While, as noted above, the license amendment 24 request and related contention (s) have become moot, the only 25 potential issue that could remain involves the 26 decommissioning of the Unit. However, that issue is not one l

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1 which this Board is empowered to consider under the notice 2 of opportunity !.or hearing pursuant to which this Board was 3 convened (42 Fed. Reg. 31847, June 23, 1977). That notice 4 only concerned an amendment to the license which ". . .

5 would delete requirements relating to seismic upgrading of 6 safety related equipment and resolution of geologic / seismic 7 concerns, based on satisfactory of these requirements, and 8 allow for restart of Humboldt Bay Power Plant Unit No. 3."

9 42 Fed. Req. 31847. Obviously, this notice dealt with 10 issues for resuming power operation not those related to 11 decommissioning. As such, the Board has no power to I

12 consider issues not contained in the Notice of hearing which 13 effectively limits its jurisdiction. Commonwealth Edison 14 Co. (Zion Station Units 1 and 2), ALAB-616, 12 NRC 419, 426 15 (1980); Portland General Electric Co., ALAB-534, 9 NRC 287, 16 289-290 (1979).

17 D. Conclusion.

18 With PGandE's decision to decommission Humboldt 19 Bay Power Plant Unit No. 3, the issues raised in the Notice 20 of Hearing have been rendered moot. Since no other basis ~

21 for continued jurisdiction of this Board exists the 22 ///

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1 proceeding should be terminatr.d. Accordingly, the NRC 2 Staff's motion to terminate should be granted.

3 Dated: October 28, 1985 4 Respectfully submitted, 5 ROBERT OHLBACH PHILIP A. CRANE, JR.

6 RICHARD F. LOCKE 7 ,

8 By < k RICHARD F. _

LOCKE 9

Attorneys for 10 PACIFIC GAS AND ELECTRIC COMPANY 4

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-133

) License No. DPR-7 (Humboldt Bay Power Plant, Unit No. 3) )

)

CERTIFICATE OF SERVICE The foregoing document of Pacific Gas and Electric Company has been served today on the following by deposit in the United States mail, properly stamped and addressed:

Linda J. Brown, Esq. Robert M. Lazo, Esq., Chairman 100 Van Ness Avenue, 19th Floor Atomic Safety and Licensing San Francisco, CA 94102 Board Panel a U.S. Nuclear Regulatory Commission 20555 rMitzi Young, Esq. Washington, D.C.

Office of Executive Legal Director Mr. Gustave A. Linenberger, Member BETH 042 Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 washington, D.C. 20555 Secretary Dr. David R. Schink U.S. Nuclear Regulatory Department of Oceanography Commission Texas A & M University Washington, D.C. 20555 College Station, TX 77840 Attn: Docketing and Service Section Michael R. Sherwood, Esq.

Sierra Club Legal Defense Fund, Inc Gretchen Dumas, Esq. 2044 Fillmore Street California Public Utilities San Francisco, CA 94115 1 Commission 350 McAllister, Room 5243 Bruce Norton, Esq.

San Francisco, CA 94102 Norton, Burke, Berry & French, P.C.

2002 East Osborn P. O. Box 10569 Phoenix, AZ 85064 Dated: October 28, 1985 By / /(( Richard O[ F. Locke d' Attorney for Pacific Gas and Electric Company

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