ML20214K733
| ML20214K733 | |
| Person / Time | |
|---|---|
| Site: | Marble Hill |
| Issue date: | 08/19/1986 |
| From: | Dattilo T DATTILO, T.M., SAVE THE VALLEY - SAVE MARBLE HILL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-379 OL, NUDOCS 8608220067 | |
| Download: ML20214K733 (9) | |
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IHITED STATES OF AMERICA 1
NUCLEAR REGULA'IORY CorNISSION S g es n BEFORE 'IHE A'IOMIC SAFETY AND LICENSING BOARD y 0F .3hYr \CI.
IN 'IHE MATTER OF O
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PUBLIC SERVICE COMPANY OF )
DOCKET NOS. 50-54750-546 d h ,V INDIANA, INC. )
WABASH VALLEY POWER )
ASSOCIATION, INC. )
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(MARBLE HILL NUCLEAR CENERATING b ,
STATIONS, UNITS 1 AND 2) ')
SAVE '1HE VALLEY'S RESPONSE TO APPLICAWJ'S FILING OF JULY 2, 1986 AND NRC STAFF FILING OF JULY 21, 1986 AND SAVE THE VALLEY 'S RESPONSE 'IV BOARD'S ORDER OF MAY 30, 1986 Counsel for Save the Valley (hereinaf ter called STV) has considered the Applicant's Supplement To Motion To Terminate Proceedings filed July 2, 1986 and has labored over the July 21, 1986 NRC Staff Response To Memorandtrn And Order of May 30, 1986.
Prior to this Board deciding whether it has jurisdiction to even entertain the ministerial act of terminating the operating licensing proceeding, a clarification of the factual posi. tion of both NRC Staff and AIplicant would seen to be in order.
Staff initially stated on pages 6 & 7:
In a Memorandtzn and Order issued on June 30, 1983, the Board ruled that only STV demonstrated standing to intervene.
". . ., the status of the proceeding as of the date the Applicant announced they could not complete construction of Marble Hill was: 1) a Licensing Board had been established to rule on petitions for leave to intervene, but no such petitions had been granted (underlining mine), and 2) the proceeding had not progressed to the stage where any notice of hearing could be issued. Since that date, the status of the proceeding has not changed insofar as petitions for leave to intervene and a notice of hearing are concerned."
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.O Time does not_ permit a complete study of the record; the Staff suggests but does not directly state that STV was given intervention i .
status in the' operating license proceeding by the June 30, 1983 Order of.
the Atomic Safety And Licensing Board herein. Even if this' June 30, 1983 Order does not directly grant intervention status g se to STV, there would seem to be no logical reason denying STV's intervention status because of the Order itself and because of their prior active construction
.- o permit intervention in this proceeding *. Further, for Applicant to state in its July 2,1986 Supplement that "both PSI and NRC raised questions concerning whether safety-related concrete work for Marble Hill was being properly performed" neatly and, in the undersigned's opinion, without
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factual basis negates the STV substantial forefront efforts in bringing these concrete defects to light; said STV intervention resulted in a U. S. ,
House of Representatives Subcomittee Hearings on Construction Problems at Marble Hill, November 27 & 29, 1979 and probed, in the undersigned's opinion, whether Applicant and Staff were properly overseeing the quality of the construction at Marble Hill.
On January 10, 1984, PSR informed the Office Of Nuclear Reactor Regulation that it had suspended construction at Marble Hill. The Atomic l Safety And Licensing Board had already ruled that STV demonstrated standing to intervene and was proceeding to rule on STV's Provisional Contentions filed October 21, 1983.
i Applicant inv'oked the jurisdiction of this Atarnic Safety And Licensing Board by comencing the operating license proceeding for Marble Hill.
Notice of a proposed action and opportunity for hearing pursuant to 10 C.F.R. Section 2.105 was issued; it is STV's position that once Applicant i
invoked the operating license procedure that said 10 C.F.R. Part 1 and the I
l Administrative Adjudication Act under Title 5 U.S.C., Sections 551-558 l
2.
grant the Atomic Safety And Licensing Board jurisdiction to act under said ;
rules and jurisdiction to order the Marble Hill site restored, or, in the least, grant said Board authority to order Applicant to make known its specific intentions and plans for the Marble Hill site so that varying degrees of restoration of the site need be performed by Applicant.
Staff suggests on page 12 of its Response that under 10 C.F.R. Section 2.197(a), where such notice has not been issued, it is the Commission (or its delegated staff) that has authority- to impose obnditions upon the withdrawal of application. If STV had foreknowledge that the comnission or Staff would impose conditions that included restoration of the Marble Hill site, possibly this effort of STV and the ruling of the Board may not have been necessary.
Section 2.718 - Power of presiding officer states:
A presiding officer . . . has all powers necessary to . . .,
(e) regulate the course of the hearings and the conduct of the participants, . . .,
(j) reopen the proceedings for the receipt of further evidence at any time prior to initial decision, (k) appoint special assistants from the Atomic Safety And Licensing Board Panel pursuant to Section 2.722, (1) issue initial decisions, and l (m) take any action consistent with the Act, this Chapter l arrl Sections 551-558 of the United States Code.
Title 5 U.S.C., Section 551, Subchapter II - Administrative Procedure
- Definitions, states:
(2) Person includes an individual, partnership, corporation, i
associates or public or private organization other than an agency, l . . . ,
l (3) Party includes a person or agency adniitted as a party or properly seeking or entitled to as of right to be admitted as a party, or an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes; . . ,
3.
(8) license includes the whole or part of an agency, permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission; (12) agency proceeding includes the whole or part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or the failure to act; . . . .,
Title 5 U.S.C. Section 558 - Imposition of sanctions; determination of application for licenses; suspension, revocation and expiration of licenses, states: , ,
(a) This section applies, . . ., to the exercise of a power or authority.
(b) A . . . substantive rule or order (may not be) issued except within jurisdiction delegated to the agency and is authorized by law . . . .
When the licensee has made timely and sufficient application for a renewal of a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the law . . . .
Title 5 U.S.C. Section 559, Effect on other laws, states:
Each agency is granted the authority necessary to comply with the requirements of this Subchapter (5 U.S.C. Sections l 551, g n ) through the issuance of rules or otherwise.
Section 2.197 - Withdrawal of application, states:
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i (a) 'Ihe comnission may permit an applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.
Section 2.299 of Subpart B prescribes the procedures to inpose requirements on a licensee to modify, suspend or revoke a license, or for such actions as may be proper.
Section 2.294 - Order for modification of license suggests commission may notify a licensee by issuing an amendment on notice to the licensee and then speaks to whether or not a hearing may be held thereon.
Section 2.206 - Requests for action under this subpart suggests that any person may file a request to the Director 4.
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et al to institute a proceeding pursuant to Section 2.202 NRR,dTf5,suspendorrevokealicenseorforsuchactionasmay to mo' be proper.
4 Staff suggests that all of the cases involving termination of s uc d ing subject to site restoration conditions 5.re distinguishable from the Marble Hill case. Those cases incitrie Davis-Besse, Bailly and Black Fox. Staff also distinguishes the Clinch River case in which the licensing board " approved site redress plan which was,_in essence, a site str.bilization plan preserving the Clindt River site fotl some undetermined future industrial use". Staff Response at page 14 Counsel for STV concedes that the cases cited by the Board, Audubon and STV, do no: stand for the proposition that full restoration of the site is always required. But certainly in the cited cases there is some restoration implicit rather than no restoration as it is being promulgated by Applicant and accepted, in the undersigned's opinion, by Staff pursuant to its Affidavits of Dr. Robert B. Samworth.
STV agrees with Staff's note 34 at page 16 of its Response when it states that "such activities, which can be likened to site preparation (as opposed to construction), are, therefore, nore amenable to restoration than for the building or near completion of a nuclear power plant.
Counsel for STV suggests that we have a semantical logjam created by the actions of PSI.in attempting to surrender the construction permits for the Marble Hill facility and by the belated argtnents of Staff that 10
, C.F.R. Part 1 simply grants this Board the right to perform the ministerial act of accepting Applicant's termination of the operating
. . license proceeding. Further, Staff suggests that it intends to do nothing further than stand on the Affidavit of Dr. Robert B. Samworth. All of the above citations of 10 C.F.R. Part 1 and the Administrative Adjudication 5.
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---. l Act under Title 5 United States Code suggest that due consideration be given by the Comission, its delegated staff and/or the Atomic Safety And Licensing Board as the protector of the safety and well-being of the populus adjacent to the nuclear site; the letter and spirit are violated, in the undersigned's opinion, of said 19 C.F.R.. subpart 1 and the Administrative 7djudication Act when Staff refuses to respond affirmatively. .- ,
Under Appendix A - Statement of general policy and procedure, el g , of Section 2.117, the C.F.R. outlines in detail the procedures which the Atomic Energy Comission expects to be followed by Atomic Safety and Licensing Boards in the conduct of proceedings relating to issuance of construction permits for nuclear power and test reactors and other production or utilization facilities for which a hearing is mandatory under Section 189A of the Atomic Ibergy Act of 1954. Further, Section 191 of the Atomic Energy Act of 1954 authorizes the comission to establish one or more Atomic Safety And Licensing Boards to conduct public hearings and make intermediate or final decisions in administrative proceedings relating to granting, suspending, revoking or amending licenses issued by the comission.
'Ihe footnotes of Appendix A supra, state: "In the event of any conflict by the proviaions of this Appendix and any section of this part, the section governs".
Appendix A, supra, sugguests, in the undersigned's opinion, that all proceedings relating to the issuance of construction permits for nuclear power or utilization facilities, which Applicant attempts to distinguish, and also all proceedings for the issuance of operating licenses for such facilities, are to be conducted by the Atomic Safety and Licensing Boards, 6.
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which were established by the Comission to make decisions relating to
- granting, suspending, revoking or amending. licenses issued by the Cormnission. An operating license proceeding was cois.-ctd by Applicant; Staff was involved; STV was involved as an intervenor; the Atomic Safety And Licensing Board had cu.w c d to act in the operating licensing
.- 1 proceeding, had ruled on STV finding specifically that STV had standing.
An agency's action must be dependent'on its own findings and determinations and not on subsequent legal arguments of counsel. Hess v.
, Clark Division of Rhodia, Inc., v. Food t Drug Administration, 1974, 495 F.2d 975, 161 U.S. App. D.C. 395. The precedent, in counsel's opinion, of .
varying restoration of sites in Davis-Besse, Bailly and Black Fox need be seriously considered by the Board. The Clinch River esse provides a framework for this Board to order Applicant to make public its intentions and specifics of future plans regarding this Marble Hill site.
Applicant cannot, in the undersigned's opinion, invoke the jurisdiction of the NRC and its agent, the Atomic Safety And Licensing Board, without accepting the jurisdiction of the Atomic Safety And Licensing Board and any and all conditions imposed thereon by said Board in terminating Applicant's license.
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RESPECITULLY SUB4ITTED, SAVE 'IHE VALLEY, INTERVDIOR I h l
BY: komm h 7
'IHOMAS M. DATTIID, AT'IORNEY FOR SAVE THOMAS M. DA'ITIto '1HE VALLEY i
ATIORNEY AT [AW 311 EAST. MAIN STREET MADISON, IN. 47250 l
PHONE: 812-265-6355 l 7.
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J UNITED STATES OF AMERICA l NUCLEAR REGULA'!ORY COP 9(ISSION BEFORE '1HE A'10MIC SAFETY ' AND LICENSING BOARD IN 'lWE MATTER OF )
) DOClGTP NOS. 50-546 PUBLIC SERVICE 00MPANY OF INDIANA, ) 50-547 4
INC., WABASH VALLEY POWER )
ASSOCIATION, INC. )
)
(MARBLE HILL NUCLEAR GENERATING )
STATION, UNITS 1 AND 2) '),- e CERTIFICATE OF SERVICE I hereby certify that copies of "SAVE '1HE VALLEY'S RESPONSE 'IO APPLICANT'S FILING OF JULY 2, 1986 AND NRC STAFF FILING OF JULY 21, 1986 AM) SAVE 'INE VALLEY'S RESPONSE 'ID BOARD'S ORDER OF MAY 30, 1986" in the above-captioned proceeding have been served on the following by depositing same in the United States mail, first class, this 14th day of August, 1986.
Ivan W. Smith, Esq., Chairman Mr. Gustave A. Linenberger A&ninistrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U. S. Nuclear Regulatory Comnission U. S. Nuclear Regulatory Comm.
Washington, DC 29555 Washington, DC 29555 Dr. Oscar H. Paris Harry H. Voigt, Esq.
Administrative Judge I4Bouef, Lamb,Iaiby & MacRae Atomic, Safety & Licensing Board 1333 New Hampshire Ave., N.W.
U.S. Nuclear Regulatory Comnissien Washington, DC 20036 Washington, DC. 29555 l John D. Noland, Esq. Myron Karman, Esq.
Public Service Co. of Indiana Office of Executive IAgal Director l 1999 E. Main Street -
U. S. Nuclear Regulatory Comn.
l Plainfield, IN. 46168 Washington, D.C. 20555 Docketing & Service Section Atomic Safety & Licensing Bd. Panel Office of the Secretary U.S. Nuclear Regulatory Comn.
U.S. Nuclear Regulatory Comnission Washington, DC 20555 Washington, DC 20555 Atomic Safety & Licensing Appeal Board Panel Mr. Fred Hauck U.S. Nuclear Regulatory Comnission P. O. Box 397 Washington, DC 20555 Shelbyville, KY. 40065 Mr. Robert Gray Mr. Tom Zeller, Vice Pres.
R. R. # 1 Valley Watch, Inc.
Hanover, IN. 47243 .
P. O. Box 2262 Evansville, IN. 47714 8.
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Indiana Sassafras Audubon Society Mr. Harold Cassidy, Ph.D.
c/o Mary Kay Moody Save %e Valley 6620 East State Road 45 605 West Second Street Bloomington, IN. 47401 ' Madison, Indiana 47250 Mr. Edward P. Martin Wabash Valley Power Association, Inc.-
P. O. Box 24700 722 North High School Road Indianapolis, Indiana 46224 , ,
Marjorie Ulman Rothschild NRC Staff,0.S. Nuclear Regulatory Comnission Washington, D.C. 20555 O
lbneaL-d%bC THOMAS M. DATTIID, ATTORNEY EUR SAVE THE VAILEY, INTERVENOR t
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