ML20246P295

Notice of Withdrawal & Motion to Terminate Proceeding.* Withdraws 880122 Petition to Intervene & Requests Termination of Proceeding,Per Agreement Between Parties Re Licensee Commitment to Take Actions.W/Certificate of Svc

ML20246P295
Person / Time
Site:	Peach Bottom
Issue date:	06/29/1989
From:	Mather R PENNSYLVANIA, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#389-8858 88-569-06-OLA, 88-569-6-OLA, OLA, NUDOCS 8907200155
Download: ML20246P295 (8)

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89- Jtt _ aA11 :05 Before the Atomic Safety and Licensine Board E

In the Matter of )

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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277 & 50-278"j (Peach Bottom Atomic Power ) ASLBP No. 88-569-06-OLA Station, Units 2 and 3) )

NOTICE OF WITHDRAWAL AND MOTION TO TERMINATE PROCEEDING For the purpose of terminating this proceeding, petitioner Commonwealth of Pennsylvania

(" Commonwealth")

hereby withdraws its petition to intervene (dated Jan. 22, 1988), withdraws its Supplement to Petition and Statement of Contentions (dated August 24, 1988) (including all the proposed contentions advanced therein), and moves the Atomic Safety and Licensing Board (the " Licensing Board") to enter an Order terminating this proceeding.

In support of this motion, the Commonwealth states as follows:

1.

On December 23, 1987, the Nuclear Regulatory Commission (the "NRC" or the " Commission") published a Notice of Opportunity for Hearing with respect to its 8907200155 890629 i PDR ADOCK 0500gg{7 g o -

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' I-proposed issuance of amendments to licenses held by PECo for operation of the Peach Bottom Atomic Power Station, Unit Nos. 2 and 3 (" Peach Bottom"). Sgg 52 Fed. Reg. 48593 (1987). As requested in'PECo's application for amendment (dated November 19, 1987), the proposed amendments are to modify the Technical Specifications for the facility to reflect a new corporate organizational structure, a revised composition of the Plant Operations Review Committee, and-several administrative changes.

2.-

On January 22, 1988, the Commonwealth peti-tiened for leave to intervene and for a hearing in this proceeding. In response, the Commission referred this matter to the Chairman of the Atomic Safety and Licensing Board for appointment of a Licensing Board to consider if and on wnat issues the Commonwealth would be entitled to a hearing. (Order (dated April 1, 1988), p. 3.)

3.

The Licensing Board activated this proceeding by an order dated April 8, 1988, which required the Common-wealth to file its proposed contentions by April 25, 1988.

4. Through a series of consent motions for extension of time, the Commonwealth's deadline for filing' 2

, eg proposed' contentions was extended to August 24, 1988. Seven proposed contentions were filed on that date'.

5.

The deadline for PECo's responses to the Commonwerith's proposed contentions was extended several times (agg, e.a.,

Order (dated February 21, 1989)), and ultimately was stayed. (Eng Memorandum and Order (dated March' 27, 1989.)) At this time, none of the Commonwealth's proposed contentions have been admitted.

6. By this filing, the Commonwealth withdraws its Supplement to Petition and Statement of Contentions of the Commonwealth of Pennsylvania (dated August 24, 1988)

(including all the proposed contentions advanced therein),

withdraws its petition to intervene, and requests the termination of.this proceeding.

7.

The Commonwealth takes this action because 1

after discussions between the Commonwealth and PECo which _{

were previously reported to this Licensing Board (Egg, e.a.,

i PEco's Consented-To Motion to Stay Responses (dated March 24, 1986)), the parties have entered into settlement agree-i ments under which PECo is committe<1 to take various actions d regarding Peach Bottom and to allow representatives of the 1 3

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l Commonwealth access to information regarding operations at Peach Bottom.

8.

The Commonwealth has been authorized to state that neither counsel for the Philadelphia Electric Company nor counsel for the NRC has any objection to the withdrawal of the Commonwealth's petition to intervene and its proposed contentions or to the termination of this proceeding.

Further, after a review process previously reported to the 1 Licensing Board (see, e.c., NRC Staff Status Reports (dated March 31, April 28, and June 1, 1989)), counsel for the NRC has advised that the NRC staff has no objections to the terms of the settlement agreements.

9.

Given these circumstances, NRC precedents dictate that this proceeding should be dismissed. For example, in Pacific Gas and Electric Co. (Humboldt Bay Power Plant, Unit No. 3), LBP-88-4, 27 N.R.C. 236, 238-39 (1988),

a Licensing Board granted a " motion to dismiss contentions and to terminate a proceeding" concerning a licensing amendment, noting that i where . . .

contentions are withdrawn, the matter becomes uncontested since there are no longer any matters which the parties wich to resolve in the proceeding and there is no need for further hearings.

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In the instant proceeding, the stipulation which provides for the withdrawal of all . . .

l contentions, effectively ends (interveners') ,

status as a party, and removes all matters in j l

controversy, in this adjudicatory proceeding. j Consequently, the Board has approved the stipula-tion and herein below enters an order dismissing -l j

the adjudicatory proceeding and authorizing the '

Staff to issue the requested amendment.

Id. (citations omitted).

10.

This same principle has been consistently applied in other cases where parties withdrew their peti-tions to intervene or contentions at the pre-hearing stage.

See, e.c.,

Portland General Elec. Co. (Trojan Nuclear Plant), ALAB-796, 21 N.R.C. 4, 5 (1985) ("[T]he only issues to be decided by a licensing board are those contested by '

the parties. . . .

Once those issues are no longer in dispute, whether before or af ter the :. earing, the proceeding should be dismissed."); Rochester gas and Elec. Corn. (R.E.

Ginna Nuclear Plant, Unit No. 1) , LBP-84-34, 20 N.R.C. 769, 770 (1984) ("The withdrawal of the only intervenor removes both the need and the occasion for evidentiary hearings in this proceeding. There are no longer any matters which the parties wish to resolve in this proceeding and, consequent-ly, there is no issue to be heard by the Board.); Public Serv. Elec. and Gas Co. (Hope Creek Generating Station),

)

LBP-85-6A, 21 N.R.C.

468 (1985); Metropolitan EdiS9H.C2-5

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- 34 4 yd ,

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(Three Mile- Island 11uclear ' Station, Unit i), 13P-95-44, :2 -

II.R.C. 816i 317 (.1985).

For all of the icregoing reasons, the Commonwealth' r

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l respectfully recuests that the Board enter an Crder:

\

a.

confirming the, Commonwealth's.-withdrawal of .;

its petition to . intervene' and its proposed contentions: and .

b .-

terminating the proceeding.

Respectfully submitted, f'1

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m j, f., ' '7fL n .<

RICHARD P. MATHER

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Assistant Counsel Room 505 Executive House P. O. Box 2357 Harrisburg, Pennsylvania.17101 (717) 787-7060 Counsel for the Commonwealth of Pennsylvania DATED: June \! , '989 6

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i mz'_________________._.__________ , _ _ _ _ . . _ _ _ _ _ _ _

p 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION J Q'-

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PHILADELPHIA ELECTRIC COMP.ANY )

Docket NosC50--277 OLA

) *80-278 OLA (Peach Bottom Atomic Station )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of Notice of Withdrawal and Motion to Terminate Proceeding in the above-captioned proceeding have been served on the following by deposit class, this 29th day of June, 1989: in the United States mail, first Richard F. Cole Atomic Safety and Licensing Board George C. Freeman. Jr., Esq.

U.S. Nuclear Regulatory Commission Donald P. Irwin, Esq.

Washington, D.C. 20555 Fenton & Williams 707 East Main Street e

Docketing and Service Section P.O. Box 1535 Office of the Secretary Richmond, Virginia 23212 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 William T. Coleman, Esq.

John H. Beisner, Esq.

Attomic Safety and Licensing O'Melveny & Myers Board Fanel (1) 555 13th Street, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20004 Washington, D.C. 20555 Jay Gutierrez, Esq.

degional Counsel Atomic Safety and Licensing USNEC, Region I Appeal Panel (5)

U.S. Nuclear Regulatory Commission 475 Allendale Road Washington, D.C. 20555 King of Prussia, PA 19406 l

E. G. Bauer, Jr., Senior Vice Adjudicatory File President and General Counsel Atomic Safety and Licensing Bos Philadelphia Electric Company U.S. Nuclear Regulatory CommisE 2301 Market Street Washington, D.C. 20555 Philadelphia, Pennsylvania 19101 John H. Frye, III, Chairman Joseph Rutberg Atomic Safety and Licensing Boa Deputy Assistant General Counsel U.S. Nuclear Regulatory Commiss U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i Washington, D.C. 20555

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• 4 Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 N -

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Richard P. Mather Assistant Counsel Counsel Pennsylvania for the Commonwealth of-

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