ML20071M319

Notification of Pending Litigation Re NRDC 821001 Motion to Expedite Consideration of Emergency Motion to Amend Us District Court of Appeals Remand & to Review EPA Regulations.Certificate of Svc Encl

ML20071M319
Person / Time
Site:	Clinch River
Issue date:	05/27/1983
From:	Edgar G, Luck W ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:
References
NUDOCS 8305310188
Download: ML20071M319 (11)

Text

5/27/83

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g

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ATOMIC SAFETY AND LICENSING BOAR)

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In the Matter of

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UNITED STATES DEPARTMENT OF EMERGY

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PROJECT MANAGEMENT CORPORATION

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Docket No. 50-537

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TENNESSEE VALLEY AUTHORITY

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(Clinch River Breeder Reactor Plant)

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APPLICANTS' NOTIFICATION CONCERNING PENDING LITIGATION The United SMtes Department of Energy (" DOE") and Proj ect Management Co rporation ("PMC"), for themselves and on behalf of the Tennessee Valley Authority (the Applicants),

hereby file this Notification Concerning Pending Litigation.

The Applicants are providing this Notification for the purpose of keeping the Board currently informed as to matters poten-tially affecting the above-captioned proceeding, as follows:

1.

Section 50.12 Case - On August 19, 1982, NRDC and the Sierra Club ("Intervenors") filed, in the United States l

Court of Appeals for the District of Columbia Circuit, a l

Petition for Review and an Application for Stay of the Com-mission's August 17, 1982 Order granting Applicants' July 1, 1982 request to conduct site preparation activities pursuant to 10 C.F.R. S 50.12.

As of August 30, 1982, all responsive pleadings concerning the Application for Stay had been filed 8305310188 830527 PDR ADOCK 05000537 1

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with the court.

On October 4, 1982, the court issued a tempo-rary stay of the Commission order under review in order to afford the court an opportunity to more fully consider the pending Application for Stay and responses thereto.

Site preparation activities were halted as a result of the tempo-rary stay.

On October 6, 1982, the court issued an order deny-ing the Application for Stay, and establishing an expedited schedule for review on the merits.

On December 2, 1982, the court issued its opinion remanding the cause to the Commission for the conduct of an adjudicatory hearing and reconsideration of its August 17, 1982 decision before February 4, 1983.

The court further ordered that site preparation activities could continue under the Commission's August 17, 1982 Order.

On December 7, 1982, the court, sua sponte, withdrew its December 2 opinion, and remanded the case to the Commission:

(1) to reconsider the availability of Section 50.12 under the or (2) to Commission's own interpretation of that provision, proceed with the LUA hearings.

On December 10, 1982, the Com-mission issued an order calling for supplemental statements addressing the issues raised on remand.

The Commission deter-mined that there was no reason to stay construction pending completion of the remand proceeding initiated by the order, and directed that the LUA proceedings should continue.

In response to the December 10, 1982 order, Applicants filed a supplemental statement on December 15, 1982, NRDC filed a reply on December 21, 1982, and Applicants filed a rebuttal

on December 28, 1982.

On January 6, 1983, the Commission issued an Order affirming its August 17, 1982 decision.

On February 28, 1983, the Board issued its LUA-1 Partial Initial Decision (PID).

On March 1, 1983, the court ordered the Commission to file the LWA-1 decision with the court, and to advise when it would become effective.

On March 28, 1983, the Commission filed the LWA-1 decision with the court.

On May 5, 1983, the Commission issued and filed ith the court an Order denying Intervenors' Motion fe a Stay v.

the LWA-1 decision and rendering the PID effective.

On May 19, 1983, the NRC Staff issued the LWA-1.

On May

.9, 1983, the court issued an Order dismissing Intervenors' Petition for Review as moot (copy attached).

2.

40 C.F.R.

S 122.66(c)(4)(1) Agreement Case - On August 23, 1982, Intervenors filed suit in the United States District Court for the Northern District of Georgia against DOE, DOE's CRBRP Prcject Office, and the Environmental Pro-tection Agency (" EPA"), alleging that an Agreement, executed by EPA and the CRBRP Project Office under 40 C.F.R.

5 122.66 (c)(4)(1) to allow site preparation activities, violated NEPA and the aforementioned EPA regulation.

On September 3, 1982, the District Court issued an injunction restraining DOE from undertaking site preparation until the FES Supplement is com-pleted and the final NPDES permit is issued for CRBRP.

NRC contemplates issuance of the Final FES Supplement on November 1, 1982, and EPA contemplates issuance of the final permit on

December 13, 1982. 1/

On September 7, 1982, PMC and the Federal defendants filed Notices of Appeal in the District Court and filed Motions for Expedited Appeal in the United States Court of Appeals for the Eleventh Circuit.

These Motions requested that briefing be completed by September 15, 1982, oral argument be held on September 17, 1982, and that a decision be rendered on the merits by September 18, 1982.

On September 8, 1982, the Eleventh Circuit issued an Order grant-int PMC's Motion, requiring completion of briefing on September 14, 1982, and scheduling oral argument for September 15, 1982.

On September 21, 1982, the Eleventh Circuit issued a decision finding that the Agreement complied with EPA regulation 40 C.F.R.

5 122. 66 (c) (4 ) (i), reversing the District Court, dis-solving the injunction, and taxing costs against URDC.

There-after, site preparation activities commenced.

On October 8, 1982, NRDC filed a request for rehearing, which was denied by I

the court on October 29, 1982.

On October 21, 1982, the govern-ment filed a Motion to Dismiss the case in the U.S.

District Court for the Northern District of Georgia.

On December 14, 1982, the District Court issued an Order dismissing the case, and entered a Judgment for Defendants for costs of the action.

3.

LMFBR Program Statement Case - On September 22, 1982, NRDC filed a complaint, seeking declaratory and injunctive 1/

The permit was issued by EPA on December 17, 1982.

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relief against DOE in the United States District Court for the District of Columbia and alleging a failure to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C.

S 4321 et seq., with respect to DOE's LMFBR Program Environmental Statement.

NRDC seeks to enjoin all LMFBR Pro-gram commercial domenstration activities, including construction of CRBRP, until completion of an adequate LMFBR Program Environ-mental Statement.

On March 11, 1983, the government filed a Motion for Summary Judgment as to all of NRDC's stated claims for relief.

On May 13, 1983, NRDC responded in opposition to the government's Motion and filed a Cross-Motion for Summary Judgment.

Responses to NRDC's Cross-Motion will be due on June 22, 1983.

4.

Consolidated Permit Regulation Case - On October 1, 1982, NRDC filed with the United States Court of Appeals for the District of Columbia Circuit a Motion to Expedite Considera-tion of Emergency Motion, an Emergency Motion to Amend the Court's Remand and to Review EPA Regulations, and a Brief on j

the EPA Construction Frohibition in NRDC v. EP,A, No. 80-1607 2/

(and consolidated cases).

In this regard NRDC sought:

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These cases, which have been pending before the D.C. Cir-cuit since the summer of 1980, involve Petitions for Review filed by~ numerous parties, including NRDC, in connection with EPA's promulgation of the so-called " consolidated NPDES permit regulations."

See 45 Fed. Reg. 33290 (May 19, 1980).

The con-solidated NPDES permit regulations include 40 C.F.R.

$ 122.66 (c)(4)(i).

(a) modification of the D.C. Circuit's August 6, 1982 Order which, inter alia, remanded 40 C.F.R. $ 122.66(c)(4)(1) back to EPA for implementation of a June 7, 1977 settlement agree-ment which would eliminate the 40 C.F.R.

5 122.66(c)(4)(i) prohibition on construction prior to issuance of an NPDES permit; and (b) expedited review and a decision concerning the validity of EPA regulation 40 C.F.R. S 122.66(c)(4)(i) as interpreted by EPA and the United States Court of Appeals for the Eleventh Circuit.

Responses to the NRDC Motions were filed on October 7, 1982 and NRDC's Motions have remained pending before the court since that time.

Inasmuch as the EPA water permit for CRBRP was issued on December 17, 1982, and became final and effective on February 17, 1983, the validity of the 40 C.F.R. S 122.66(c)(4)(1) Agreement for CRBRP is of no consequence to continuation of site preparation activities.

i Respectfully submitted, 1

,&M George 4?C Edgar Attorney for Pro et Management Corporation 110 William D. Luck

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l Attorney for the l

Department of Energy l

DATED:

May 27, 1983 I

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FOR T HE DISTRIC1 of COLUMG! A CIFICUIT NC. 82-1962 Se eder Term %

Jmted btates Court of Appea for th 0:s r;ct of cchmtia cirewr -

Natural Resources Defense Council, In-and the Sierra Club, Petitioners, HLED MAY 191983 v.

United States Nuclear Regulatory Commission GEORGE A. FISHER

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and the United States of America, Respondents, Project Management Corporation and the Tennessec Valley Authority, Intervenors.

Before: MacKINNON, MIKVA, and EDWARDS, Circuit Judges.

ORDER This case came before the Court for consideration on petitions to review an order of the Nuclear Regulatory Commission (NRC or Commission) issued pursuant to 10 C.F.R. S 50.12 (1982).

That section provides that the NRC may, upon consideration of certain factors, grant exemptions from its regulations under 10 C.F.R.

S 50.10, which require a hearing.

The order granted such an exemption to the Department of Energy (DOE) and the Project Management Corporation and the Tennessee Valley Authority (intervenors), allowing them to commence site preparation activites prior to the issuance of a construction permit under section 50.10.

On December 7, 1982 we remanded the record to the NRC "either (1) to reconsider the availability of section 50.12 under the Commission's own interpretation of that provision or (2) to proceed with its adjudicatory hearing pursuant to section 50.10 to determine if site preparation activities may continue."

NRC filed a supplemental record on January 6, 1983 identifying what it considered to be exigent circumstances and reaffirming its decision l

to grant an exemption pursuant to section 50.12.

See CLI-83-1.

l Our review of that decision has been cut short, however, by the decision of the Atomic Safety and Licensing Board to grant DOE and intervenors a limited work authorization (LWA-1) under section 50.10 (e) (1), which became effective on May 5, 1983.

The Atomic Safety and Licensing Board made this decision after a series of full adjudicatory hearings, and their granting of the LWA-1 allows the DOE and intervenors to continue the site preparation j

activities.

This decision has effectively foreclosed any relief open to petitioners, the National Resources Defense Council and the Sierra Club.

Upon consideration of the foregoing, it is I

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i ORDERED, by the court, that the petitions in. Appeal No.

82-1962 are dismissed as moot.

And it is FURTHER ORDERED, by the court, that the Clerk shall issue the

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mandate herein on the seventh day following entry of this order.

Per Curiam

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For the Court l

, Qt C.W George A.

Fisher Clerk O

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of

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UNITED STATES DEPARTMENT OF ENERGY

)

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PROJECT MANAGEMENT CORPORATION

)

Docket No. 50-537

)

TENNESSEE VALLEY AUTHORITY

)

)

(Clinch River Breeder Reactor Plant)

)

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CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first-class mail to the following:

Marshall E. Miller, Esquire Chairman Atomic Safety & Licensing Board U. S. Nuclear Regulatory Co= mission East-West Towers 4350 East-West Highway Bethesda, Maryland 20014 (2 copies by hand)

Dr. Cadet H. Hand, Jr.

Director Bodega Marine Laboratory University of California

' West Side Road Bodega Bay, California 94923 Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission East-West Towers 4350 East-West Highway Bethesda, Maryland 20014 (by hand)

Stuart Treby, Esq.

Sherwin E. Turk, Esq.

Elaine I. Chan, Esq.

Geary S. Mizuno, Esq.

. Office of Executive Legal Director U. S. Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20014 (2 copies by hand)

• Atomic Safety & Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• Docketing & Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C.

20555 (original, 3 copies, and return copy)

William M. Leech, Jr., Attorney General William B. Hubbard, Chief Deputy Attorney General Michael D. Pearigen, Assistant Attorney General State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37830 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire James F. Burger, Esquire Edward J. Vigluicci, Esquire Office of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902 (2 copies)

Dr. Thomas Cochran Barbara A.

Finamore, Esquire Natural Resources Defense Council 1725 Eye Street, N.W., Suite 600 Washington, D. C.

20006 ( 2 copies by hand)

Ellyn R. Weiss, Esquire Harmon & Weiss 1725 Eye Street, N.W., Suite 506 Washington, D. C.

20006 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 William E. Lantrip, Esquire Attorney for the City of Oak Ridge Municipal Building

,t, Post Office Box 1 Oak Ridge, Tennessee 37830 Leon Silverstrom, Esquire Warren E. Bergholz, Jr., Esquire William D. Luck, Esquire U. S. Department of Energy 1000 Independence Avenue, S.W.

Room 6B-256--Forrestal Building Washington, D. C.

20585 (4 copies by hand)

Eldon V. C. Greenberg, Esquire Galloway & Greenberg 1725 Eye Street, N.W., Suite 601 Washington, D.

C.

20006 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 37219 4

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Ge5rge y'. Edgar

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AttorMy for Proj ect Management Corporation DATELS: May 27, 1983 I

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Denotes hand delivery to 1717 "H"

Street, N.W., Washington, D.C.

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