ML20147C785

Forwards NRC Staff'S Comments in Response to Subj Facil'S to the Appeal Bd.Recommends Deferring the Covening of a Lic Bd Until an Appl Is Docketed & a Notice of Hearing Is Issued

ML20147C785
Person / Time
Site:	05000451, 05000450
Issue date:	11/30/1978
From:	Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Mike Farrar, Johnson W, Salzman R Atomic Safety and Licensing Board Panel
References
NUDOCS 7812180405
Download: ML20147C785 (3)

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4 M  % UNITED STATES

.7 t NUCLEAR REGULATORY COMMISSION

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,j WASHINGTON, O. C. 20555 VRC PUBLIC DOCUMENT ROOM t

.u..'j November 30, 1970 Michael C. Farrar, Esq., Chairman Richard S. Salzman, Esq.

Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission -

Washington, D.C. 20555 Washington, D.C. 20555 g

Dr. W. Reed Johnson E ~

Atomic Safety and Licensing s Appeal Board pf U.S. Nuclear Regulatory Commission g Washington, D.C. 20555 t 4j:;i,@g%y r

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q f(. 3 In the Matter of Delmarva Power & Light Company 5 gk 9 Philadelphia Electric Company b *g i (Summit Power Station, Units 1 and 2)

Docket Nos. 50-450 and 50-451 Gentlemen:

Pursuant to the opportunity afforded by the Appeal Board's letter of November 1, 1978, the NRC Staff offers the following comments in response to Delmarva Power & Light Company's (DP&L) letter of October 25, 1978 to the Appeal Board. In its letter, DP&L requested the Appeal Board to take the following three actions:

1. Dismiss the pending request for a stay of the limited Work Authorization (LWA) filed by three private organizations, who were not parties to the NRC licensing proceeding,as moot; -

2. Dismiss the State of Maryland's appeal from the Partial Initial Decision (PID) 1,/ as moot; and

3. Set aside the effectiveness of the PID and the Supplement thereto 2/ without prejudice to possible summary reaffir-mation oT portions of the PID in subsequent proceedings for an early site approval.

1/ LBP-75-43, 2 NRC 215 (1975).

2_/ LBP-75-44, 2 NRC 251 (1975).

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DP&L also requested the Appeal Board to remand the application to a j licensing board for further prcceedings.

For the following reasons, we agree that the stay request should be 4

dismissed as moot. As long ago as January 24, 1976, .the Staff and DP&L

! entered into a stipulation providing, inter alia, that (1) DP&L would -

restrict its construction activities at the Summit site to those reason-l ably necessary to protect the site againtt environmental degradation and i to maintain the physical security of the site and (2) all further force i and effect of.the LWA would be stayed. DP&L has, therefore, already j voluntarily' agreed to a stay equivalent to that requested. Furthermore, 3 DP&L states that it has voluntarily relinquished the Delaware permits

which the movants sought to test in State court. The request for a

stay has, therefore, clearly been mooted by subsequent events.

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Turning to the request that Maryland's appeal be dismissed as moot, we note the State's response that, while it would be appropriate to vacate the PID, it would not be appropriate to dismiss the appeal as moot. We concur. While the introduction of additional data on striped bass entrain-

ment collected by DP&L may affect' Maryland's intentions as to its appeal,

that result is by no means assured. It would, thcrefore, be premature to 4

dismiss Maryland's appeal at this time as moot.

As indicated above, we da believe the effectiveness of the PID should be set aside. Sinc~e DP&L plans to submit substantial new information on -

striped bass entrainment, and perhaps other issues, the record underlying the PID cannot be relied upon as providing the necessary bases for that i decision. The Staff recognizes the possibility that parts of the PID may not need significant supplementation and some form of " summary reaffir-

mation" may be appropriate. The approach of amending the application 3 presently of record (i.e., that for construction permits for twin high j temperature gas cooled reactors) to make it an application for early  ;

approval of the Summit site would facilitate such future developments. .

The Staff has,.therefore, supported this approach. The vacation of the PID should, accordingly, be without prejudice to possible' summary reaffir-i mation of portions of the PID as part of an early site approval proceeding. _

k DP&L has also requested that the application be remanded to a licensing board. There is, however, at present no early site approval application

, to place before a licensing board. Until such an application is docketed i and a notice of hearing issued pursuant to 10 CFR 62.604, there would be j nothing pending before such a board. We believe, therefore, that it is ,

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1 preferable to defer the convening of a licensing board until the above events occur.

Sincerely, 1

- At h. ht.p7 Stephen H. Lewis l

l Counsel for NRC Staff cc: Edward G. Bauer, Jr., Esq.

Thomas Smith, Esq.

George C. Freeman, Esq.

Malecim Cobin, Esq.

E. Dickinson Griffenberg, Jr., Esq.

Mark L. First, Esq.

Michael J. Scibinico, II, Esq.

Dr. Wallace F. Walters Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Board Panel Docketing and Service Section I

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