ML19312E929

Reply in Opposition to Skagitonians Concerned About Nuclear Power 800508 Motion to Dismiss Application W/Prejudice Due to Lack of Diligent Pursuit.Applicants Are Engaged in Extensive Program to Locate Suitable Site

ML19312E929
Person / Time
Site:	Skagit
Issue date:	05/23/1980
From:	Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19312E930	List: ML19312E929 ML19312E932
References
NUDOCS 8006180181
Download: ML19312E929 (5)

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UNITED STATES OF AMERICA p NUCLEAR REGULATORY COMMISSION CA BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Mctter of )

PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

)

(Skagit Nuclear Power Project, ) May 23, 1980 Units 1 and 2) )

APPLICANTS' REPLY IN OPPOSITION TO SCANP'S MOTION TO DISMISS THE APPLICATION By its motion dated May 8, 1980, intervenor SCANP requested

the Board to " dismiss this application with prejudice" for the reason that " applicant is not pursuing its application dili-gently". The motion should be denied on both legal and factual grounds.

SCANP has failed to cite any authority in support of its notion that licensing boards are empowered to dismiss construc-tion permit applications upon motion. Moreover, even if this Board were empowered to dismiss this application upon motion, no factual ground for doing so has been shown, nor does any

such ground exist.

f On the question of a licensing board's power to dismiss an application upon motion, we agree with the conclusion reached by the licensing board in_the Pilgrim proceeding. There, in 8006180M

dismissing a " request" that the application "be denied" or "be i dismissed", the board said:

4 On substantive grounds, it is clear that, in the face of Section 189 of the Atomic Energy Act of 1954 as amended, and the Commission's pertinent regulations affecting mandatory hearings on applications for construction of nuclear power plants, there is no procedure (short of withdrawal by the Applicant) for the disposition of such an application without a hearing, as apparently requested by the Cleetons in this regard (See 42 USC Section 2.239 10 CFR Section 2

2.104). (footnote omitted)

Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2),

1 1 NRC 419, 420 (1975). Simply put, in a construction permit proceeding, the Act and the Commission's regulations provide that, absent withdrawal of the application, the licensing board

will proceed to the issuance of an initial decision after

hearing. 10 CFR 2.760. No provision is made for entertaining

a motion by an intervenor to dismiss the application, as SCANP has attempted here.

]

As to possible factual grounds for SCANP's motion (if it i

1 were legally proper, which it is not), no ,such grounds have

! been shown and none exist. The ground alleged by SCANP is that

" applicant is not pursuing its application diligently". If t

l Even if SCANP's motion were to be treated as a motion ,

for summary disposition pursuant to 10 CFR 2.749, it would not J be proper because SCANP's motion requests that the application  !

be dismissed "with prejudice", an action tantamount to denial of the application. This would be contrary to 10 CFR 2.749 (d) ,

which prohibits determination of the ultimate issue in a l construction permit proceeding by summary disposition. See l Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3) 2 NRC 565, 568 (1975).

l l

diligence is the test, what constitutes diligence should be determined by the Board in the exercise of its discretionary power to control the scheduling of this proceeding. In making that determination in the present context, the observation of the licensing board in the Greenwood proceeding is pertinent:

We perceive no legal requirement for an Applicant to proceed with the processing of its application in accordance with any set time scale.

Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3),

2 NRC 565, 567 (1975).

By any reasonable standard, Applicants are pursuing their application here with diligence. As evidence of this, see the attached affidavit of James E. Mecca. In paragraph 2, Mr. Mecca describes Applicants' on-going efforts with respect to the Skagit site. These include preparation of a new report on the seismic profiles lines in the Northern San Juan Islands, as well as field work by Applicants' geologists.

Concurrently with their efforts with respect to the Skagit site, Applicants are engaged in an extensive program (on which they have expended more than $1.8 million since the first of the year) attempting to locate a suitable site for the Skagit units on the Hanford Reservation. These efforts are 2F or a number of reasons, including last November's zoni.:g reversal by Skagit County, Applicants believe that it may be possible to bring these two urgently needed units on line sooner at a site on the Hanford Reservation than at the proposed Skagit site.

described in paragraph 3 of Mr. Mecca's affidavit. If these efforts are successful, it is probable that Applicants will amend their application in this proceeding to change the pro-posed site to Hanford. Applicants now anticipate that they will be in a position to make a decision on this matter by the end of June.

SCANP alleges that Applicants are "taking no steps whatso-ever" to pursue their application.4 To the contrary, as we have shown, Applicants are pursuing this application with a considerable expenditure of time, money and effort -- even at two sites, for the moment. Given the ever more urgent need for additional generating resources in the Pacific Northwest, 3S ee our letter report to the Board of April 14, 1980.

There is precedent for such an amendment, e.g. Public Service Electric and Gas Co., et al. (Hope Creek Generating Station, Units 1 and 2), 8 AEC 745, 746-48 (1974).

4SCANP also alleges that the pendency of this application inflicts " massive irreparable injury" upon the citizens of Skagit County. We don't doubt that the pendency of this application troubles many people. We suggest, however, that its dismissal would also trouble many people and, indeed, inflict injury upon them in the form of insufficient and more costly electrical energy throughout the service territories of the four applicants.

~ .

Applicants simply must pursue this application with diligence; there can be no question that they are doing so. SCANP's motion must be denied. 10 CFR 2.732.

DATED May 23, 1980.

Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WILLIAMS By "' "

O F. Theodore Thomsen Attorneys for Applicant 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 Of Counsel:

Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 l

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