ML19343D146

Response Opposing Carolina Environ Study Group 810302 Request for Certification or Referral.Request Unnecessary Since Commission Has Specifically Addressed Issue. Certificate of Svc Encl

ML19343D146
Person / Time
Site:	Mcguire, McGuire
Issue date:	04/06/1981
From:	Mcgarry J, Porter W DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8104090601
Download: ML19343D146 (5)

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, . o ITNITED STATES OF AMERICA f 9 NUCLEAR REGULATORY COMMISSION /; ca.cy To

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 71981

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In tha Matter of ) ,'N -

) -4 DUKE POWER COMPANY ) Docket Nos. 50-369 x 'ils.

) 50-370 O ' g & # . f ro (William B. McGuire Nuclear )

Station, Units 1 and 2) ) /P b 2

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A {C APPLICANT'S RESPONSE TO CESG'S ~~1

~1  % o49& y7 t REQUEST FOR CERTIFICATION OR REFERRAL M 8

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'1 A By its "... Objection to Memorandum and Order of Ty/7bruary o 17, 1981 and Motion for Certification or Referral to thed Com15 mission," dated March 2, 1981, Carolina Environmental Study Group ("CESG"), Intervenor herein, has requested this Board to endorse an interlocutory appeal to the Cummission from the subject Memorandum and Order, which denied CESG's attempt to have litigated certain additional contentions. The Board, during the recently concluded evidentiary hearings, trally extended the time within which Applicant and Staff could respond, to ten days after the record was closed. The record was closed during the March 25, 1981 conference call between the Board and parties. Applicant Duke Power Company hereby responds in opposi-tion to CESG's motion.

There is, of course, no interlocutory appeal as of right from an order declining to admit one or more contentions, short of a total denial of a petition to intervene. 10 CFR S2.714a 1/

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The rule is explained and the authorities reviewed in Gulf States Utilities Cc=pany (River Bend Station, Units 1 and

2) ALAB-329, 3 NRC 607, 610 (1976). For more recent Footnote continued on next page.

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. Applicant is: cognizant however.that 10 CFR 52.730(f)fdoes provide for.suchEappeal when."necessary to-prevent detrimentL to the public-interest." Applicant. submits that'the Commission's:

Statement of; Interim' Policy regarding Class-9~ Accidents 2/qwas' promulgated' pursuant to the' National Environmental Policy Act-and the Atomic Nergy Act and thus-it cannot-be said that the public interest has not:been-adequately considered. In'the:

. Interim Policy Statement-the Commission ~has'egempted applica -

tions, such as McGuire, from its requirements. Inasmuch as the Commission has specifically-addressed this matter, certifica-tion or referral is unnecessary.

'It should be noted that Intervenor has-had an opportunity to raise the issue, for..the Commission has provided'a forum upon the showing of special circumstance. .The pleadings in the instant case and tha Board'sidecision clearly d'emonstrate that Intervenor has made no such showing. This failure must weigh heavily against its request for certification or referral.

s Footnote continued from p:evious page.

decisions to the same effect, see the two related decisions in Houston Lighting and Power Company (Allen's Creek Nuclear Generating St.ation, Unit 1) ALAB-5 8 5 and ALAE -3 86, ll-NRC 469 (1980) and 11 NRC 172 (1980), respectively.

-2/ See Commission Statement of Interim Policy entitled " Nuclear Power Plant Accident Considerations Under the National Environmental' Policy Act of 1969," 45 Fed. Reg. 40101, June 13, 1980.

For the above stated reasons, Applicant requests Inter-venor's motion be' denied.

Respectfully submitted,

,s .

' /&A/ 10'a/ ng J.' Michael McGarry, MI ,/

DEBEVOISE & LISEPM M l200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9800 ,

Of Counsel  ;

William L. Porter Associate General Counsel DUKE POWER COMPANY April 6, 1981

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a UNITED STATES OF M{ ERICA NUCLEAR REGULATORY COMMISSICN BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of  ;

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UUKE POWER COMPANY ) Docket Nos. 50-369

) 50-370

(*Jilliam B. McGuire Nuclear )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response TJ CESG's Request ~For Certification Or Referral" dated April 6, 1981 in the captioned matter, have been served upon the follow-ing by deposit in the United States mail this 6th day of April, 1981.

Robert M. Lazo, Esq. Edward G. Ketchen, Esq.

Chairman, Atomic Safety and Counsel for NRC Regulatory '

Licensing Board Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory.

Commission Dr. Emmeth A. Luebke Washington, D.C. 20555 Atomic Safet y and Licensing Board William L. Porter, Esq.

U.S. Nuclear Regulatory Associate General Counsel Commission Duke Power Company Washington, D.C. 20555 Post Office Box 33189 Charlotte, North Carolina 28242 Dr. Richard F. Cole

-Administrative Judge Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Acomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission Washington, D.C. 20555 Washington, D.C. 20555 Jesse L. Riley Diane B. Cohn President William B. Schult:

Carolina Environmental Public Citizen Litigation Group Study Group Suite 700 854 Henley Place 2000 P Street, N.W.

Charlotte, North Carolina 28207 Washington, D.C. 20036 J

Chairman, Atomic Safety Shelly Blum, Esq.

and Licensing Appeal Board 1402 Vickers Avenue U.S. Nuclear Regulatory Durham, North Carolina 27707 Co::r.lssion Washington, D.C. 20555 Chase R. Stephens Docketing and Service.Section Dr. John M. Barry Office of the Secretary Department of Environmental U.S. Nuclear Regulatorv ~

Health Commission

-(.ecklenburgCounty Washington, D.C. 20555

.200 Blythe Boulevard Charlotte, North Carolina 28203 A

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