ML20211Q522
| ML20211Q522 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 07/23/1986 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-080, CON-#386-80 OL, NUDOCS 8607250065 | |
| Download: ML20211Q522 (7) | |
Text
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s July 23, 1986
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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION N
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BEFORE THE COMMISSION M4l8@g In the Matter of
)
)
CAROLINA POWER & LI'GHT COMPANY
)
and NORTH CAROLINAiEASTERN
)
Docket No. 50-400 OL MUNICIPAL POWER AGi:3NCY
)
)
(Shearon Harris Nu,' clear Power
)
)
Plant)
AMPLICANTS' ANSWER IN OPPOSITION TO l CASH MOTION FOR EXTENSION OF TIME TO FILE BRIEF l
I.
Introduction f
i In a Memoiandum and Order issued July 11, 1986, the Atomic l
Safety and Lidensing Appeal Board denied a petition for leave to t
intervene filjad by the Coalition for Alternatives to Shearon Harris (CASH, and also denied what the Appeal Board determined I'
to be a "jo:/nt motion for a stay of the license authorization for i
the Shearorf Harris facility filed by CASH and Wells Eddleman."
/
Memorand0mland Order at 1 (July 11, 1986).
OnJ$ly21,1986, CASH filed with the Commission a " Notice I
lf Th5 filing with the Commission is signed by Mr. Steven P.
Katz, vjhom Applicants believe to be a member of CASH, but not an attornsy.
While Mr. Katz purports to have filed on behalf of (in additi'on to CASH) Mr. Eddleman, a pro se intervenor, and other individuals (Patricia Miriello, Calvin Ragan et al.) who are not part$es, under Commission regulations he has no authority to rep-resent Mr. Eddleman or the other individuals.
See 10 C.F.R.
S 2./713(b); Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-82-25, 15 N.R.C.
715, 726 (1982).
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s of Appeal and Request for Review" of the Appeal Board Memorandum and Order and a " Motion for Extension of Time to File Brief." !
Pursuant to 10 C.F.R.
S 2.730(c), Applicants Carolina Power &
Light Company and North Carolina Eastern Municipal Power Agency file this answer in opposition to the motion for "a ten day ex-tension of time in which to file a brief in support of the Notice
+
)
of Appeal and Request for Review."
II.
Denial of the Intervention Petition Implicit in the CASH motion is the assumption that CASH has a right to obtain Commission review of the Appeal Board's denial of the CASH intervention petition by the mere filing of a notice of appeal and a supportive brief.
While the CASH motion cites no regulation, it appears to be based upon 10 C.F.R. 5 2.714a.
CASH has misread the Commission's Rules of Practice.
A licensing board's denial of a petition to intervene may be appealed to'the Atomic Safety and Licensing Appeal Board within j
ten days after service of the order by filing a notice of appeal and accompanying supporting brief.
10 C.F.R. 5 2.714a(a).
- Here, however, the intervention petition was denied in the first in-stance by the Appeal Board.d!
2/
Applicants' copy of the notice and motion was not accompanied by the required proof of service.
See 10 C.F.R.
S 2.712(e).
3/
As the Appeal Board stated, "[a]ll operating license pro-ceedings before the Licensing Board pertaining to the Shearon Harris facility have been completed.
Memorandum and Order at 2 (July 11, 1986)..
~
Applicants are not aware of another proceeding in which an intervention petition was filed so late that the licensing board had completed its adjudicatory responsibilities -- requiring an Appeal Board ruling on the petition.
There is no basis in the language of section 2.714a, however, upon which to create a right to Commission review.
Rather, CASH must seek Commission review of the Appeal Board's holding denying intervention by filing a petition for review pursuant to 10 C.F.R. 5 2.786.1/
Cf. Florida Power & Light Co. (St. Lucie Plant, Unit No. 2), CLI-78-12, 7 N.R.C. 939 (1978) (on petition, discretionary Commission review is available for Appeal Board decision on the appeal, under sec-tion 2.714a, of a licensing board order on intervention).
It is only if the Commission, in its discretion, grants the petition d
for review that the filing of appropriate briefs may be directed by the Commission.
See 10 C.F.R. 5 2.786(b)(6).
Accordingly, the CASH motion for an extension of time to i
~
file its brief is premature and should be denied.
III.
Denial of the Stay Motion i
l Certainly 10 C.F.R.
S 2.714a does not provide the vehicle for seeking Commission review of an Appeal Board decision denying a stay.
The Commission has held that if a party is aggrieved by 4/
Analogously, the Commission's normal practice for review of an Appeal Board decision (i.e., a review petition is required per section 2.786) applies even when an Appeal Board has conducted evidentiary hearings.
Pacific Gas and Electric Co. (Diablo Can-yon Nuclear Power Plant, Units 1 and 2), CLI-81-21, 14 N.R.C.
595
-(1981). _.
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an Appeal Board decision denying a stay, that party should apply i
l to the Commission for a stay under 10 C.F.R. S 2.788. !
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-78-1, 7 N.R.C.
1, 30 n.44 (1978), aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir.
j 1978); Metropolitan Edison Co. (Three Mile Island Nuclear Sta-
}
tion, Unit No. 2), CLI-78-3, 7 N.R.C.
307, 308 n.2 (1978).
Thus, a motion for extension of time to file a brief in sup-l port of a notice of appeal is misplaced and should be denied.
}
Respectfully submitted, i
i
w
l Thomas A.
- Baxter, P.C.
SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1090 Richard E. Jones Dale E.
Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated:
July 23, 1986 5/
CASH, however, "is not a proper party to seek a stay of any Licensing Board action in this operating license proceeding."
Appeal Board Memorandum and Order at 3-4 (July 11, 1986).
Nei-ther may Mr. Katz, who filed the motion for CASH, seek a stay on behalf of Mr. Eddleman.
See n.1, supra..
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i July 23, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
and NORTH CAROLINA EASTERN
)
Docket No. 50-400 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant)
)
CERTIFICATE OF SERVICE i
I hereby certify that copies of " Applicants' Answer in Oppo-sition to CASH Motion for Extension of Time to File Brief" were served this 23rd day of July, 1986, by hand delivery to the par-ties identified with one asterisk, and by deposit in the U.S.
mail, first class, postage prepaid, to the other parties on the attached Service List.
hw Thomas A.
- Baxter, P.C.
s n
UNITED STATES OF AMERICA NUCLEAR RECULATORY COMMISSION In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
and NORTH CAROLINA EASTERN
)
Docket No. 50-400 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant)
)
SERVICE LIST Chairman Lando W.
Zech, Jr.
Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Thomas M. Roberts Mr. Howard A. Wilber U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 James L. Kelley, Esquire
?
i Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Glenn O. Bright Thomas S. Moore, Esquire Atomic Safety and Licensing Board Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission Dr. James H. Carpenter Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 4
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OCharles A. Barth, Esquire Dr. Richard D. Wilson 729 Hunter Street Janice E. Moore, Esquire Of fice of the General Counsel Apex, North Carolina 27502 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Wells Eddleman 812 Yancey Street 0 Docketing and Service Section Durham, North Carolina 27701 Office of the Secretary U.S. Nuclear Regulatory Commission Richard E. Jones, Esquire Washington, D.C.
20555 Vice President and Senior Counsel Carolina Power & Light Company Mr. Daniel F. Read, President P.O. Box 1551 Raleigh, North Carolina 27602 CHANGE P.O. Box 2151 Raleigh, North Carolina 27602 Dr. Linda W.
Little Governor's Waste Management Board 513 Albemarle Building Bradley W. Jones, Esquire 4
U.S. Nuclear Regulatory Commission 325 North Salisbury Street Raleigh, North Carolina 27611 Region II 101 Marrietta Street Atlanta, Georgia 30303 H. A. Cole, Jr., Esquire Special Deputy Attorney General Mr. Robert P. Gruber 200 New Bern Avenue Executive Director Raleigh, North Carolina 27601 Public Staff - NCUC P.O. Box 991 Joseph Flynn, Esquire Raleigh, North Carolina 27602 Federal Emergency Management Agency 500 C Street, S.W.,
John D. Runkle, Esquire Washington, D.C.
20740 Conservation Council of North Carolina Steven Rochlis, Esquire 307 Granville Road Regional Counsel Chapel Hill, North Carolina 27514 Federal Emergency Management Agency 1371 Peachtree Street, N.E.
M. Travis Payne, Esquire Atlanta, Georgia 30309 Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605 Coalition for Alternatives to Shearon Harris (CASH) 604 W. Chapel Hill Street Durham, North Carolina 27701 w--,w--.--w
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