ML18086A518

Answer Opposing AC Coleman 810504 Request for Stay of Initial decision,LBP-80-27,pending Appeal.Request Untimely & Fails to Meet Requirements for Issuance of Stay. Certificate of Svc Encl

ML18086A518
Person / Time
Site:	Salem
Issue date:	05/15/1981
From:	Wetterhahn M CONNER, MOORE & CORBER, Public Service Enterprise Group
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OLA, LBP-80-27, NUDOCS 8105190351
Download: ML18086A518 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I

the Atomic Saf et and Licensin Appeal Board the Matter of )

)

PUBLIC SERVICE ELECTRIC AND ) Docket No. 50-272 OLA GAS COMPANY, et al. ) (Proposed Issuance of

) Amendment to Facility (Salem Nuclear Generating ) Operating License No-<\~

Station, Unit 1) ) DPR-70)  ;: ~\\>-! ~~

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LICENSEE ' S ANSWER TO REQUEST FOR STAY BY -- M/J, y '

MR. AND MRS. ALFRED C. COLEMAN, JR. 1 tJ lD :- *2 \;

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Introduction ~ cg~~;;g~~Aro1<1* . _i)

On October 27, 1980, the Atomic Safety and LiC~

Board ("Licensing Board") issued its Initial Decision in the 1/

captioned proceeding,~ authorizing the NRC Staff to issue an amendment to the operating license to permit the requested replacement of spent fuel storage racks at Salem Unit 1.

Exceptions to the Initial Decision were filed by the two intervenor parties, Lower Alloways Creek Township ("LACT")

and niir. and Mrs. Alfred C. Coleman, Jr. ("Colemans").

Briefs were filed by the Colemans, LACT, the Licensee, and the NRC Staff and oral argument was held before the Atomic Safety and Licensing Appeal Board ("Appeal Board") on

_y April 30, 1981.

LBP-80-27, 12 NRC 435 (October 27, 1980) ("Initial Decision").

A full statement of the facts and background to the appeal is contained in Licensee's Response to the Briefs. in Support of Exceptions of Lower Alloways

• creek Township and Hr. and Mrs. Alfred c. Coleman, Jr. (February 17, 1981).

9 8115190351

. Before the Appeal Board, the Colemans orally requested a stay of the Initial Decision pending appeal. Chairman

_]/

Kohl stated that such an application be made in writing.

By letter dated May 4, 1981, the Colernans sought a stay from Harold Denton, Director, Nuclear Reactor Regulation. If treated as being filed before the Appeal Board, the request is untimely and fails to meet the four criteria for issuance

_!/

of a stay. The application should therefore be denied.

Argument I. The Application For* A Stay Is Untimely.

Pursuant to 10 C.F.R. §2.788(a} a movant for a stay must file his request within 10 days after service of the decision or action sought to be stayed. Accordingly, the app*lication by the Colemans is now almost six months late.

Noncompliance with the procedural requirements of 10 C.F.R.

§2.788 can alone justify denial of a request for a stay.

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2}, CLI-77-27, 6 NRC 715 (1977). In Seabrook, the Commission stated: "In the future we will expect com-App. Tr. at 7.

Although directed to Mr. Denton, the Appeal Board has sole jurisdiction over the matter of a stay.

While the Colemans are now pro ~ litigants, it is clear that their one sentence motion for a stay is totally deficient. To protect the record, however, this answer is being filed. Nonetheless, we continue to be perturbed by the gratuitous and totally un-founded allegations concerning the Licensee's conduct in this proceeding.

e e pliance with 10 C.F.R. §2.788 from any party seeking a stay 5/ -

from us."- The Colemans have made no effort to explain their extreme tardiness. For this reason, the stay request should be denied.

II. The Colemans Have Failed To Satisfy The Requisites For Issuance Of A Stay.

The instant applica_tion for stay is governed by the provisions of 10 C.F.R. §2.788, which state the prerequisites for a stay of a decision of an atomic safety and licensing board. This rule provides, inter alia, as follows:

(e) In determining whether to grant or deny an application for a stay, the Commission, Atomic Safety and Licensing Appeal Board, or pre-siding officer will consider:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be ir-reparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties, and (4) Where the public interest lies. _ii See generally, Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2) , CLI-78-3, 7 NRC 307 (1978); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2}, CLI-77-27, 6 NRC 715 (1977};

21 6 NRC at 716 n.l.

_ii These are the four factors contained in Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.c.- Cir. l958), later approved by the Supreme Court in Sampson v. Murray,- 415 U.S. 61, 84 (1974}.

Public Service Company of Oklahoma (Black Fox Station, Units 1 and* 2), ALAB-508, 8 NRC 559 (1978).

The Colemans' application does not discuss, let alone satisfy, any of the four criteria for issuance of a stay.

Under similar circumstances the Appeal Board has stated that "intervenors' failure even to attempt to demonstrate" satisfaction of these prerequisites "leaves us no choice but

_1/

to deny * *

• their request for a stay. " As the Appeal Board stated in the Midland proceeding, "a general broad-side" attack based on the "record thus far developed" at the. hearings is clearly insufficient:

Such arguments are patently in-adequate. At the least, one

. seeking a stay bears the burden of marshalling the evidence and making the arguments which demon-strate his entitlement to it. It is hardly a novel proposition that, like general principles, unsupported assertions do not decide concrete cases. For this reason alone we would be compelled to deny relief. ~

Likewise, the Appeal Board in the Marble Hill pro-ceeding held that the applicant for a stay had failed to satisfy the burden of persuasion for failing to discuss any of the four criteria and denied the stay, stating:

In the course of this litigation we have previously called Save the Valley's attention expressly to

_1/ Black Fox, ALAB-508, 8 NRC at 561.

_y Consumers Power Company (.Midland Plant, Units l and 2), ALAB-395, 5 NRC 772, 785 (1977) (footnote omitted).

those prerequisites for a stay.

Nevertheless, its present motion papers discuss none of them. It does not even elucidate the key question of its own injuries, much less demonstrate that ~hey would be irreparable. We should not have to guess at matters peculiarly within a litigant's own knowledge. Intervenor has similarly failed to alert us to its.position on the other three factors. These circumstances give us little choice other than to deny the motion for a stay. _J_j And in the Wolf Creek proceeding, the Appeal Board noted that the applicant for stay had attempted to address only one of the four criteria, holding that, in these circum-10/

stances, the relief sought must be denied.~

Even if the Appeal Board were to examine the four factors, the exceptionf? and briefs on appeal as supplemented by oral argument demonstra'te that the Colemans have not made a strong showing that they are likely to prevail on the merits of their appeal. No .showing of substantive or pro-cedural error on the part of the Licensing* Board has been made. As the Appeal Board stated in a proceeding related to the resumed operation of the Trojan facility, "there is no perceivable reason" why the Licensing Board's authorization of interim activities should be stayed absent some showing that the Board's findings are flawed. In denying a stay in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 270-71 (1978) (footnote omitted).

Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-412, 5 NRC 1415, 1416 (1977).

.. that case, the Appeal Board stated: "Far from making a reasonably convincing showing of Licensing Board error, 11/

neither movant has made any showing at all."- Nor has any showing at all been made in the instant case.

Further, the Colemans have failed to show any*irrepa-rable injury to them by virtue of the reracking undertaken by the licensee. A showing of irreparable harm to.themselves is an indispensable condition to interim relief. Rochester Gas and Electric. Corp. (Sterling Power Proj*ect, Nuclear Unit No. 1), ALAB-507, 8 NRC 551, 556-58 (1978).

On the other hand, considerations of possible harm to the licensee and the public clearly ~aver the continuance of reracking during the pendency of the appeal. In reliance upon the issuance of the amendment to the Technical Specif i-cations and the fact that no stay request was filed within the time allotted by the Commission's Rules of Practice, the Licensee began the replacement of racks. To stop work now would be extremely disruptive, and additional cleanup and startup costs would be incurred. If the stay were not lifted prior to the next scheduled refueling, additional costs arid difficulties would be encountered.

It may be that the Colemans are confused as* to applica-tion of Appendix B. to 10 C.F.R. Part 2, which creates an automatic 60-day stay period before the Appeal Board and an 11/ Portland General Electric Company (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 69 (1979).

additional 20-day period before the Commission prior to the effectivenss of an Initial Decision authorizing the is-suance of a construction permit or operating license. As to operating license amendments, however, the "immediately effective" provisions of 10 C.F.R. §2.764 are still applicable.

Thus, the Colemans are correct in stating that the burden is upon the movant in these circumstances to show why the Initial Decision of the Licensing Board below should not become immediately effective. For the reasons discussed above, however, the Colemans have failed to make any such showing.

Conclusion For the reasons discussed above, the application for a stay should be denied.

Respectively submitted, CONNER & MOORE Mark J. Wetterhahn Counsel for the Licensee Of Counsel:

Richard Fryling, Jr., Esq.

Public Service Electric and Gas Company 80 Park Plaza Newark, New Jersey 07101 May 15, 1981

___j

<L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

PUBLIC SERVICE ELECTRIC AND GAS ) Docket*No. 50-272 COMPANY, et al. ) (Proposed Issuance of

) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70)

CERTIFICATE OF SERVICE I hereby certify that copies of "Licensee's Answer to Request for Stay by Mr. and Mrs. Alfred C. Coleman, Jr.,"

dated May 15, 1981, in the captioned matter, have been served upon the following by deposit in the United States mail this 15th day of May, 1981:

Christine N. Kohl, Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Member, Atomic Safety and hppeal Board Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. W. Reed Johnson Dr. James C. Lamb-, III Member, Atomic Safety and Member, Atomic Safety and Licensing Appeal Board Licensing Board Panel U.S. Nuclear Regulatory 313 Woodhaven Road Commission Chapel Hill, N.C. 27514 Washington, D.C. 20555 Chairman, Atomic Safety and Mr. Thomas S. Moore Licensing Appeal Board Panel Member, Atomic Safety and U.S. Nuclear Regulatory Licensing Appeal Bo.ard Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Chai.orian, Atomic Safety and Licensing Board Panel Gary L. Milhollin, Esq. U.S. Nuclear Regulatory Chairman, Atomic Safety Commission and Licensing Board Washington, D.C. 20555 1815 Jefferson Street Madison, Wisconsin 53711 Janice Moore, Esq.

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

Richard Hluchan, Esq. Mr. Alfred c. Coleman, Jr.

Deputy Attorney General Mrs. Eleanor G. Coleman Department of Law and 35 "K" Drive Public Safety Pennsville, New Jersey 08070 Environmental Protection Section Carl Valore, Jr., Esq.

36 West State Street Valore, McAllister, Aron Trenton, N.J. 08625 & Westmoreland Mainland Professional Plaza Richard Fryling, Jr., Esq. P. o. Box 175 Assistant General Solicitor Northfield, N.J. 08225 Public Service Electric and Gas Company Off ice of the Secretary 80 Park Place Docketing and Service Section Newark, N.J. 07101 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 June D. MacArtor, Esq.

Deputy Attorney General Tatnall Building P. o. Box 1401 Dover, Delaware 19901