ML19289D131

Motion for Order Dismissing NRDC Programmatic Impact Statement Contention as an Issue Due to Nrdc'S Failure to Comply w/780801 ASLB Order Filing a Motion by 790129.Related Papers & Certificate of Svc Encl

ML19289D131
Person / Time
Site:	Atlantic Nuclear Power Plant
Issue date:	02/06/1979
From:	Cowan B, Daugherty T, Kenrick J OFFSHORE POWER SYSTEMS (SUBS. OF WESTINGHOUSE ELECTRI
To:
Shared Package
ML19289D132	List: ML19289D131
References
NUDOCS 7902230043
Download: ML19289D131 (13)

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UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION  ;

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of  :

OFFSHORE POWER SYSTEMS  : Docket No. STN 50-437

(Manufacturing License for  :

Floating Nuclear Power Plants)  :

APPLICANT'S MOTION FOR ORDER DISMIdSING THE NRDC PROGRAMMATIC IMPACT STATE'ENT CONTENTION AS AN ISSUE IN THIS PROCEEDING _

Offshore Power Systems (" Applicant") respectfully moves this Atomic Safety and Licensing Board (" Board") to dismiss as an issue in controversy in this proceeding the Natural Resources Defense Council, Inc. ("NRDC") prog c1-matic impact statement contention.

In support of this Motion, Applicant regrasents as follows:

1. The Board in its First Prehearing Conference Order in this proceeding dated April 15, 1974 admitted as an issue in controversy the sole contention set forth by NRDC in its " Petition for Leave to Intervene" dated Janu-ary 9, 1974 and supplemented by the " Amendment of NRDC's Petition for Leave to Intervene" dated February 26, 1974.

As described by the Board in its April 15, 1974 Order, the NRDC contention alleged as follows:

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"The sole content;on advanced by NRDC is that the environmental impact statement being prepared by the Staff will not be a ' programmatic' impact statement and therefore will not meet the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq."

2. Applicant as early as August, 1977, and sub-sequent thereto, had sought Board orders requiring briefing

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' the NRDC programmatic impact statement contention prict

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to the publication by the Staff of FES Part III. NRDC had opposed Applicant's motions in this regard, c ntending that the briefing and disposition of this contention should not occur until after the Staff published FES Part III. The Board ruled in NRDC's favor with regard to those earlier motions of the Applicant. Subsequently the Board noticed a July 27, 1978 Prehearing Conference to establish,. inter alia, a schedule for disposition of the NRDC programmatic impact statement contention. Prior to that Prehearing 1

See " Applicant's Motion for Summary Disposition and Request to the Board to Establish a Briefing Schedule on Natural Resource Defense Council, Inc.'s Contention on Programmatic Impact Statement" dated August 30, 1977 and " Applicant's Motion (#8) to Establish Schedule" dated April 24, 1978.

2 See " Response of Intervenor Natural Resources Defense Council, Inc. to Applicant's August 30, 1977, Motion for Summary Disposition and to Establish a Briefing Schedule" dated September 20, 1977 and " Natural Resources Defense Council Response to Applicant's Motion (48) to Establish Schedule" dated May 4, 1978.

3 See Board Orders dated October 11, 1977 and May 18, 1979.

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Conference Applicant had proposed a briefing schedule on the NRDC contention similar to that ultimately contained in the Board's Order of August 1, 1973, discussed infra (see "Appli-cant's Statement Concerning Future Hearing Schedule" dated July 19, 1978). In response to Applicant's ctatement, NRDC had advised the Board that it was "in agreement with the Applicant's proposed schedule for briefing the NRDC conten-tion, with one minor exception (relating to the timing of the NRDC reply brief] . " (See " Natural Resources Defense Council Statement Concerning Future Hearing Schedule" dated July 21, 1978).

3. After the July 27, 1978 Prehearing Conference, the Board issued an Order dated August 1, 1978 establishing a briefing schedule with regard to the NRDC programmatic im-pact statement contention. Paragraph 1 of that Order pro-vided in pertinent part as follows:

"With cegard to its contention that the Environmental Impact Statement will not be a programmatic impact statement required by NEPA, NRDC will file its mo-tion for summary disposition thirty (30) days from the date of the Staff's issu-ance of FES, Part III."

4. The NRC Regulatory Staff (" S taf f") issued FES Part III on December 29, 1978. NRDC was served with a copy of that document as is evidenced by the service list at-tached to Mr. Ronald L. Ballard's transmittal letter dated December 29, 1973, a copy of which is attached heretos

5. Pursuant to the Board Order of August 1, 1973,

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NRDC was required to file its motion for summary disposition no later than January 29, 1979.

6. To date, Applicant has not been served with a copy of any motion for summary disposition filed by NRDC.

Moreover, Applicant has checked by telephone on February 6, 1979 with the Docketing and Service Section of the Commis-sion and was informed that NRDC has not filed any motion for summary disposition with that Section.

7. In view of the fact that (1) NRDC was ordered by the Board on August 1, 1978 to file its motion for sum-mary disposition on its programmatic impact statement con-tention within 30 days after the publication of FES Part III, (2) NRDC did not oppose the briefing schedule set forth in the August 1, 1978 Order, (3) NRDC has been aware for more than a year that any motions and briefs in support of its contention would be due soon after publication of FES Part III, and (4) NRDC at no time after issuance of the August 1, 1978 Order sought to change the briefing schedule set forth therein or otherwise notified the Board of its intentions, Applicant submits that NRDC's failure to comply with this Board's August 1, 1978 Order and file a motion for summary disposition by January 29, 1979 mandates dis-missal of the NRDC programmatic impact statement contention.

WHEREFORE, Applicant respectfully moves the Board for an order dismissing as an issue in controversy in this proceeding the NRDC programmatic impact statement contention

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which was originally admitted as an issue in this proceeding in the First Prehearing Conference Order dated April 15, 1974.

Respectfully submitted, btw 2. C6wm/d*t

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L\2. <d oun el for Applicant, Offshore aer Systems Dated: February 6, 1979

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