ML20151X853

Advises That Commission Regulations Do Not Authorize Appeals from 2.206 Denials,Per 880321 Appeal for NRC to Enter 48 H Housekeeping Stay of Authorization for NRC to Issue Full Power License for Unit.Appeal Denied

ML20151X853
Person / Time
Site:	South Texas
Issue date:	03/22/1988
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Condit R, Garde B GOVERNMENT ACCOUNTABILITY PROJECT
Shared Package
ML20151X541	List: ML20151X853
References
2.206, NUDOCS 8805040268
Download: ML20151X853 (2)

Text

UNITE D STATES

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NUCLEAR REGULATORY COMMISSION Q AS HIN 3t oev.04. 20H4 Airch 22, 1988 oPFICE of THE S4CRETARY Billie P. Garde Esq. l Richard E. Condit Esq. l Government Accountability Project l 25 E Street, N.V., Suite 700 l l

Washington, D.C. 20001

Dear Ms. Garde and Mr. Condit:

This letter responds on behalf of the Coenission to your letter and appeal dated March 21, 1988. That filing purports to appeal the denial by the Director of the Office of Nuclear Reactor Regulation of a i 2.206 petition filed by the Government Accountability Project ("GAP"). <

Furthemore, it requests the Comission to enter a t8 hour housekeeping stay of its authorization for the NRC Staff to issue a full power operating license to the South Texas Nuclear Project, Unit 1.

The Comission's regulations do not authorize appeals from i 2.206 denials (although such denials are reviewed sc3 spente by the Comission). 10CFRi2.206(c)(2). Moreover, your request for a stay does not even attecnpt to meet the standards necessary in order to obtain such relief.

With regard to the necessary showing of a likelihood of success on the merits, you fail to even address certain significant obstacles to your prevailing on any challenge to the Director's Decisicn. In the first instance, GAP challenges the licensing of South Texas not as a party to the licensing proceeding, but rather as a requtster for NRC enforcement action. As such, its legal rights to appeal to the Comission and to the courts stand on a far different footing than those of a party.

Indeed, recent Supreme Court precedent makes clear that agency refusals to institute enforcement action are presumptively not judicially reviewable. Heckler v. Chaney, 470 U.S. 821 (1985). Moreover, to prevail on your judicial challenge you would not only have to convince a reviewing court that the Director s Dental is reviewable, but also you would have to show error th the technical judgrent of the NRC that the South Texas facility is designed and constructed, and will be operated l so as to provide reasonable assurance that the public health and safety I will be protected.

Additionally, you have made no showing to suggest that irrtparable harm will occur to GAP or anyone else absent the entry of a housekeeping s tay. The Coemission believes that the public interest favors prompt agency action, where, as here, the necessary statutory and regulatory findings can and have been made.

Finally, to the extent you are asserting that there is a lack of time for you to review the Staff's work in handling your allegations or for you to prepare a court challenge to a result with which you are 8805040268 880429 PDR ADOCK 05000498 C PDR i, b

.' 4 Ms. Garde a.id Mr. Conduit 2 March 22, 1988 displeased, you must recognize that to a large degree, if not entirely, these are problems of your own making. fou purportedly had the allegations which the Staff has now reviewed since at least January 1987, yet you refused to provide the Staff with those materials until November, 1987. The confidentiality protections afforded by the NRC to those who complained to GAP of South Texas safety problems were precisely the same as the protections which were available under Comission policy and practice had you cene forward eleven months earlier.

In sum the Comission is denying your requested appeal and your request for a 48 hour5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> housekeeping stay. Your filing is being referred to the Staff to determine whether it raises anything that would cause the Director +o reconsider his March 18 denial of your i 2.206 petition.

aSincerefr.

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Secretary the Comis on

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