ML19352A838

Response,In Form of Special Prehearing Conference Brief,To ASLB 810409 Order.Proceedings Should Be Stayed Until EIS Filed.Commission Must Determine Jurisdiction to Issue Class 103 License.Proof of Svc Encl

ML19352A838
Person / Time
Site:	Perry
Issue date:	05/22/1981
From:	Wilt D SUNFLOWER ALLIANCE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8106020200
Download: ML19352A838 (5)

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UNITED STATEL 0F M'.ERICn ,

NUCLEAR REGULATORY (X)!HIS. ION ATOMIC SAFETY AND LICENSING BOARD IN THE MATIER OF;

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< O MAY 2 61981 s C'I k,q[j\M ] '/ 3 S?ECIAL PREHEARING CONFERENCE BRIEF ch,n , ., y S

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A , e iatervenors, in response to this Board's order of April 9,1981, 9 W this brief, to the extent and only to the extent, that the order of April 9th can be followed. Your intervenors reserve unto themselves and an)- proposed intervenors to file amendments if and when the Final Environment Impact Statement is filed by the NRC staff and if and when the Applicant files its own environmental impact statement. Further, your intervenors and proposed intervenors reserve unto themselves the right to further amend their petition in the event new information is learned from whateve source which would affect these proceedings. 7tnally, to the extent that legal issues are raised elsewhere but which would af fect l

these proceedings, your intervenors reserve unto themselves and the proposed intervenors the right to amend their petitions.

This brief is i.eing filed on behalt of the following admitted intervenors:. Evelyn Stebbins, Richard sering, David Nash, Gail Caduff l l

Nash, Linda Qualls, David Qualls, bes Gerlosky, Margaret Gerlosky and i William Brotzman and on behalf of the following proposed intervenors:

James McIntyre of the Sunflower Alliance, Christopher F. Hagan of the North Shore Alert, and 'Inomas Kim Hill of Citizens for Safe Energy.

G 810602s200 91O 6F l

s The preliminary contentions raised by intervenors with the construction, safety, financial, and emergency aspects of the PNPP. Environmental concerns will be 'tained af ter the filing of the EIS. This board is required by the Commissions rules to make the following findingst (1) That construction of the facility has been substantially completed, in conformity with the construction permit and the application as amended, the provisions of the Act, and the rules and regulations of the Commission; (ITThat the facility will operate in conformity with the application as amended, the provisions

, of the &cu, and the rules and regulations of the f:samission; (3) There as reasonable assurance (i) that the activities authorized by the license can be-conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the regulations; (4) That the applicant is technically and financielly qualified to engage in the activities authorized by the operating license; (5) That the issuance of the license will not be inimical to the common defense and security or to the health and safety of the public; (6) That the Commission has jurisdiction to issue the operating license at all; The legal authority for iters' (1) through 45) is found in 10 CFR Section 50.57 and the authority for item (6) is 42 USC 2133(d). Each of the conter.tions raised to date are supported by 10 CFR Section 50.57 and thus must be considered at the hearing which is to be held.

Your intervenors and proposed intervenors will engage in discovery to obtain information relevant to each of the contentions raised. Further, your intervenors and proposed intervenors reserve unto themselves the right to conduct further discovery after the EIS has been filed. The exact nature of the material to be requested will be determined at a later date.

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You? intervenors and proposed intervenors intend to file a series of interrogatories; requests for admissions; and to file a request for production of documents. The timing of discovery is difficult to assess at this time due to the fact that the EIS has not been filed nor for that matter have the Intervenors been finally determined. A decision as to the taking of depositions will be made af ter the material produced in accordance with the above has been evaluated. The Board should also take into consideration the delay that may be caused by any legal challenges to discovery ,

The undersigned would not agree to consolidating his case with that of any other intervenors. Mr. Kenney, who is a party to this proceeding, is not represented by counsel. Proposed interv.nor, Ohio Citizens for Responsible Energy, is likewise not represented by counsel. Thus, the Commission must take. additional steps to preserve their rights and respect their desire to remain independent intervenors. At the time of the Special Prehearing Conference, all parties can discuss, with the Board, any methods which would assist in the coordination of the cases.

The undersigned offers the following general plan to resolve and present the various issues in this case:

(1) The proceedings should be stayed until the EIS is filed. It seems absurd to proceed without the EIS being filed as individuals could intervene when the EIS is filed. The PNPP is no where near completion and thus any delay will not prejudice the Applicant. Compliance with this Board's April 9th order cannot be reasonably expected until after the EIS is in fact filed.

(2) The Commission will have to determine whether it has jurisdiction under 42 USC 2133(d) to isaue a class 103 license to Applicant in view of the fact that not all of Applicant's activities will be under of within the jurisdiction of the United States.

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-4 (3) Af ter the EIS is filed and a determination made whether the Commission has jurisdiction under 42 USC 2133(d) to proceed, another

.Special Prehearing Conference can be called to review all of the issues and a discovery schedule agreed to.

(4) Af ter discovery has been completed, the issues can be narrowed, if warranted, and the hearing may start.

Respectfully submitted, l

Daniel D. Wilt, Esq.

Attorney for Sunflower Alliance er. al 7301 Chippewa Rd.

Brecksville, Ohio 44141 216-526-2350 PROOF OF SERVICE The undersigned certifies that he. has sent a true copy of the Special Prehearing Conference Brief to everyone on the attached service list by regular United States Mail on this day of May, 1981.

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Daniel D. Wilt, Esq.

Attorney for Sunflower Alliance et al I

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l SERVICE LITT Peter B. Bloch, Chairman Dr. Jerry R. Kline Atomic Safety & Licensing Board Atomic Safety & Licensing Board  !

U.S. Nuclear Regulatoryc Commission U.S. Nuclear Regulatory Commission I Washington, D.C. 20555 Washington, D.C. 20555 Frederick J. Shon Jay Silberg, Esq.

Atomic Safety & Licensing Board 1800 M Street N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 Charles A. Barth, Esq. Donald T. Ezzone, Esq.

U.S. Nuclear Regulatory Commission Assistant Prosecuting Attorney Washington, D.C. 20555 105 Main Street Painesville, Ohio 44077 Todd J. Kenney .

Jeff Alexander 31800 Creekside Drive 920 Wilmington Ave.

Pepper Pike, Ohio 44124 Dayton, Ohio 45420 Terry Lodge, Esq. Docketing & Service Section 915 Spitzer Blds. Office of the Secretary Toledo, Ohio 43604 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety & Licensing Board Panel Atomic Safety & Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Reg'ilatory Commission Washington, D.C. 20555 Washington, D.C. 20555 e

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