ML20083J435

Response to NRDC Reply Per ASLB 831228 Order.Contentions Raised in NRDC Motion to Intervene Moot.Motion Should Be Denied.Certificate of Svc Encl

ML20083J435
Person / Time
Site:	Clinch River
Issue date:	01/09/1984
From:	Edgar G, Luck W ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8401100149
Download: ML20083J435 (9)

Text

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• 1/9/84 4

- BEFORE THE DCLMETED UNITED STATES OF AMERICA UUBE NUCLEAR SAFETY AND LICENSING BOARD ~

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UNITED STATES DEPARTMENT OF ENERGY ).

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5%CH PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537CP

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TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant) )

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APPLICANTS' ANSWER TO NRDC'S REPLY PURSUANT TO THE BOARD'S DECEMBER 28, 1983 ORDER The United States Department of Energy and Project Management Corporation (hereinafter " Applicants") hereby file their Answer.to NRDC's Reply Pursuant to the Board's December 28, 1983 Order. In support of their Answer, the Applicants state the following:

1. Applicants' Notification Concerning Project Termin-ation, dated December.27, 1983 indicates that the project has been terminated. It will not, therefore, be built. On NRDC's own Motion, the Appeal Board has terminated the LWA appeal, and the LWA decision has been vacated. United States Department of

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Energy (Clinch River Breeder Reactor Plant) , ALAB-755, 17 NRC__,

Slip Op., December 15, 1983. Thereforo, a CP cannot be issued, I and CRBRP cannot meet all of its programmatic objectives. Both of the contentions raised in NRDC's Motion to Intervene are, i

therefore, moot and its Motion to Intervene should be denied as 8401100149 840109 moot. PDR ADOCK 05000537 0 PDR

2. NRDC's Reply presents four basic arguments seeking to forestall issuance of a Construction Permit (CP) Partial Ini-l tial Decision (PID) by the Licensing Board: 3

! c 77 ] 0

a. Given the Appeal. Board's termination of the LWA appeal, issuance of a CP PID by the Licen .-

sing Board would unfairly improve Applicants' position, and irreparably harm NRDC.

b. The position taken by Applicants and Staff be-fore the Appeal. Board is inconsistent with their position here.

c. The circumstances here are not appropriate for issuance.of a CP PID, and issuance of a CP PID would be useless as precedent.

d. Issuance of a CP PID would adversely affect NRDC's interests.

3. Improvement of Applicants' Position and Harm to NRDC - NRDC argues that a Partial Initial Decision resolving the issues before the Board in the CP proceedings would improve NRDC's position Applicants' position, and irreparably harm NRDC.

is without merit for the following reasons:

a. NRDC's withdrawal and dismissal from CP pro-ceedings, coupled with their failure to file Proposed Findings pursuant to the Board's August 11, 1983, Order, resulted in an irre-trievable waiver and forfeiture of any rights or interest which NRDC might have had in the resolution of the issues before the Board in the CP proceedings.

b. NRDC speculates that if they had pursued their LWA appeal to conclusion, they would have been I

successful, and a CP PID would be precluded.

They' ignore the fact that they sought and we'r'e~

granted termination of the LWA appeal, and that accordingly, the LWA decision was dis-missed on grounds of mootness. A dismissal on ground of mootness carries no implicati~on of success or failure on the merits of-the LWA decision. It is neutral and it simply pre-serves the rights of all the parties as to the LWA issues. Contrary to NRDC's assertion (see Reply at 4), the LWA appeal dismissal is neither favorable nor unfavorable to Appli-cants. United States v. Munsingwear, 340 U.S.

36 (1950).

c. It does not follow that dismissal of the LWA decision can have any effect on whether the Board should issue the pending CP PID. The alleged " improvement" in Applicants' position, if it exists at all, would occur if the Board resolved in Applicante' favor those issues be-fore the Board in the CP hearings. In that regard, the Applicants are merely seeking a resolution of the issues in which they have invested substantial resources and energy, and if that is an improvement, it will not carry with it the authority or means to construct the CRBRP. In marked contrast, NRDC's asser-

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t tion that they will be irreparably harmed is simply' fatuous. Incredibly, they argue that '

issuance of a CP PID would be useless as pre-cedent (Reply at 6-7), while at the same time they assert that it would be harmful to them.

They elected to" forfeit all rights in the is-sues before the Board in the CP proceedings.

They elected to terminate the LWA appeal.

They sought for years to stop construction of the CRBRP, and they have now received complete relief. NRDC, however, has no cognizable right to forestall the Board's resolution of very issues that they have long since abandoned.

4. Inconsistent Positions. NRDC asserts that Appli-I I

l cants' advancement of compelling circumstances for issuance of a PID is somehow inconsistent with its having made no such claim with respect to the LWA appeal before the Appeal Board. As NRDC would have it, Applicants "cannot pick and choose what licensing

! decisions should be on the books". Reply at 5-6. While Appli-(

l cants registered no oppositioT to NRDC's Hotion to terminate the LWA appeal, that in no way precludes Applicants from seeking a Board resolution of the CP issues in which so much of the Appli-cants', Staff's and the Board's time and resources were invested.1!

1/ NRDC has forgotten that it moved to terminate the LWA appeal, and that the Appeal Board granted that unopposed motion. Ap-plicants did not pick or choose. They merely registered no opposition to NRDC's choice. It hardly seems productive of (continued)

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5. The Circumstances for Issuance of a CP PID - NRDC

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argues that thIe CP PID'should not be issued because, in their view, breeder license applications are not. contemplated in the foreseeable future. Moreover, NRDC argues that such a PID would ,

be essentially useless as precedent. Reply at 6-7. In making this argument, NRDC at least concedes that there is no prohibi-tion on issuance of the PID, and that issuance of the PID is a matter for the Board's discretion. Three points warrant emphasis here. First, the efforts invested by the Board, Applicants, and Staff in development of the record were substantial, and in light of their withdrawal and dismissal, NRDC's were not. Second, NRDC's withdrawal, and their own assertion that a PID would be useless as precedent, conclusively demonstrates that issuance of

' a PID would be entirely harmless to NRDC. Third, while CRBRP has been terminated, the LMFBR base program has not, and the guidance embodied in the PID will be of considerable value in providing program direction. The public interests inherent in that program have been previously recognized by the Commission

- itself as compelling circumstances, and they are equally compel-ling here. See United States Department of Energy (Clinch River Breeder Reactor Plant), 16 NRC 412, 429-433 (1982).

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6. NRDC's Interests - NRDC persists in its argument Although their that issuance of a PID will harm its interests.

assertion that the PID would be useless as precedent cannot be this Board's time to delve into what NRDC believes that the Applicants should or should not have done before the Appeal Board.. What was done is done, and the matter is now conclu-ded by the Appeal Roard.

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squared with their claims of harm, judging from the shrill tone of NRDC's Reply, it is -doubtless true that NRDC does not want a '

CP PID which resolves the issues before the Board in Applicants' favor. But the controlling question here is whether there is an interest which NRDC has a legal right to protect. The simple answer is no. NRDC forfeited all' rights in regard to the'CP is-sues before the Board when it withdrew and was dismissed, and when it failed to file Proposed Findings in disregard of the Board's August 11, 1983 Order. The Board's dismissal of NRDC did not include a ruling as to its legal effect. The Board al-lowed it to have whatever legal effect it might have. Trans-cript June 29, 1983 at 7732-33. Unfortunately, for NRDC, the effect it has here is terminal. NRDC has no cognizable interest in the PID, and its Motion to Intervene must be denied.

Accordingly, for the reasons stated above and in Appli-cants' December 5, 1983 Response to Motion of Natural Resources Defense Council, Inc. to Intervene, NRDC's Motion to Intervene

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p should be denied, and the Board should proceed to issue the CP PID.

Respectfully submitted, .

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C age Lh Edgar Attorney for Project Management Of Counsel: Corporation Newman & Holtzinger, P.C. ,

1025 Connecticut Ave., N.W. ., 9

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Washington, D.C. 20036 -7,,f 2 Telephone: (202) 862-8400 a

William D. Luck Attorney for United States De-partment of Energy Dated: January 9, 1984 l

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

In the Matter of )

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UNITED STATES DEPARTMENT OF ENERGY ) '

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- PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537CP

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TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant)))

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

j Marshall E. Miller, Esquire Chairman Atomic Safety and Licensing Board Nuclear Regulatory Commission 4350 East-West Highway .

Bethesda, Maryland 20814 (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 and Licensing Board Nuclear Regulatory Commission l 4350 East-West Highway Bethesda, Maryland 20814 (by hand)

Mr. Gary J. Edles Chairman Atomic Safety and Licensing Appeal Board Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814

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Dr. W. Reed Johnson i

Atomic Safety and Licensing Appeal Board ' ' - ~

U.S. Nuclear Regulatory Commission -

4350 East-West Highway Bethesda, Maryland 20814 Mr. Howard A. Wilber l Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Docket & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (original and 3 copies delivered by hand)

Stuart Treby, Esquire Sherwin E. Turk, Esquire Elaine I. Chan, Esquire Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road Bethesda, Maryland 20814 (2 copies by hand) l William M. Leech, Jr., Esquire William B. Hubbard, Esquire Michael D. Pearigen, Esquire State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 Oak Ridge Public Library l

Civic Center Oak Ridge, Tennessec 37830 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire James F. Burger, Esquire Edward J. Vigluicci, Esquire Tennessee Valley Authority Office of the General Counsel 400 West Summit Hill Drive (2 Knoxville, Tennessee 37902 copies)

Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902

- b William R. Lantrip, Esquire Attorney for the City of Oak Ridge . , . , _

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

Room 6B-256 Washington, D.C. 20585 (2 copies by hand)

Commissioner John L. Parish Tennessee Department of Economic and Community Development Andrew Jackson Building Suite 1007 Nashville, Tennessee 37219 Barbara A. Finamore, Esquire S. Jacob Scherr, Esquire Natural Resources Defense Council, Inc.

1725 Eye Street, N.W., Suite 600 Washington, D.C. 20006 Attorney for Profettff George L M dgar Management Corporation Newman & Holtzinger 1025 Connecticut Avenue, N.W.

Suite 1200 Washington, D.C. 20036 Telephone: (202) 862-8459 Dated: January 9, 1984

• / Denotes service by hand at 1717 "H" Street, N.W.

Washington, D.C.

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