ML042320445
| ML042320445 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 08/18/2004 |
| From: | Poole B NRC/OGC |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-336-LR, 50-423-LR, ASLBP 04-824-01-LR, LBP-04-15, RAS 8365 | |
| Download: ML042320445 (6) | |
Text
RAS 8365 DOCKETED 08/19/04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR CONNECTICUT, INC. ) Docket Nos. 50-336-LR, 50-423-LR
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(Millstone Power Station, Units 2 & 3) ) ASLBP No. 04-824-01-LR NRC STAFF ANSWER TO NOTICE OF APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE Brooke D. Poole Counsel for NRC Staff August 18, 2004
August 18, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR CONNECTICUT, INC. ) Docket Nos. 50-336-LR, 50-423-LR
)
(Millstone Power Station, Units 2 & 3) ) ASLBP No. 04-824-01-LR NRC STAFF ANSWER TO NOTICE OF APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE INTRODUCTION Pursuant to 10 C.F.R. § 2.311(a), the Staff of the Nuclear Regulatory Commission (Staff) herein answers the Notice of Appeal (Appeal) of the Connecticut Coalition Against Millstone (CCAM).1 In its Appeal, CCAM asserts that the Commission should undertake review of and reverse LBP-04-15, in which the Atomic Safety and Licensing Board (Licensing Board) denied CCAMs petition for leave to intervene and request for hearing in this license renewal proceeding for failure to submit an admissible contention.2 However, CCAM simultaneously filed a motion for reconsideration of LBP-04-15 before the Licensing Board.3 For the reasons set forth below, the Staff submits that CCAMs Appeal should be dismissed, without prejudice to its being resubmitted following the issuance of a Licensing Board ruling on the pending motion for reconsideration.
1 See Notice of Appeal, dated July 9, 2004.
2 See Dominion Nuclear Conn., Inc. (Millstone Power Station, Units 2 & 3), LBP-04-15, 60 NRC __ (July 28, 2004). In LBP-04-15, the Board also denied two motions for stay filed by CCAM on June 27 and June 30, 2004. In its Appeal, CCAM does not seek review of those denials.
3 See Connecticut Coalition Against Millstone Motion for Reconsideration and Request for Leave to Amend Petition, dated July 9, 2004.
DISCUSSION CCAM submitted a petition for leave to intervene and request for hearing in this proceeding (Petition), concerning Dominion Nuclear Connecticut, Inc.s (DNC) applications to renew the operating licenses for Millstone Power Station, Units 2 and 3. In its Petition, CCAM proffered six proposed contentions. In response to DNCs and the Staffs arguments that CCAM had neither demonstrated standing nor proffered an admissible contention, CCAM filed, on June 15 and June 16, 2004, a motion for leave to file an amended petition, an amended petition accompanied by supporting affidavits, a motion for leave to file a reply, and the reply, which provided new material in support of CCAMs standing and contentions. On July 28, 2004, the Licensing Board issued its decision in LBP-04-15, in which it denied CCAMs Petition on the ground that none of CCAMs proffered contentions satisfied the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1).4 Thereafter, on August 9, 2004, CCAM simultaneously filed (1) the instant Appeal; and (2) a motion seeking reconsideration of LBP-04-15, and requesting leave to further amend the Petition by providing still more support for its proposed contentions.
The Staff respectfully submits that the instant Appeal should be denied, in view of the fact that CCAM has filed a motion for reconsideration of LBP-04-15 before the Licensing Board, while simultaneously appealing that decision to the Commission. The Commissions regulations and case law disfavor the filing of appeals from a Licensing Board ruling while a motion for reconsideration of that ruling is pending before the Licensing Board. E.g., 10 C.F.R. § 2.341(b)(6);5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001) citing International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-97-9, 4
Because CCAM failed to proffer an admissible contention, the Licensing Board did not rule on the issue of CCAMs standing. See LBP-04-15, slip op. at 18 n.79.
5 That section provides: A petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration.
46 NRC 23, 24-25 (1997) (The Commission disapproves of the practice of simultaneously seeking reconsideration of a Presiding Officers decision and filing an appeal of the same ruling, Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-630, 13 NRC 84, 85 (1981), because taking that approach would call for rulings on the same issues at the same time from both a trial and appellate forum.). Accordingly, CCAMs Appeal should be dismissed in view of its pending motion for reconsideration. Inasmuch as CCAMs Appeal is impermissible until the Licensing Board acts upon the motion for reconsideration, the merits of the Appeal are not addressed herein.6 CONCLUSION For the reasons set forth above, the Staff respectfully requests that CCAMs Appeal from the Licensing Boards decision in LBP-04-15 be dismissed at this time, without prejudice to its being resubmitted following the issuance of a Board decision on CCAMs pending motion for reconsideration of LBP-04-15.
Respectfully submitted,
/RA/
Brooke D. Poole Counsel for NRC Staff Dated at Rockville, Maryland this 18th day of August 2004 6
Should the Commission decide to hold the Appeal in abeyance, the Staff requests that it have the opportunity to respond to the Appeal in full when it becomes ripe for Commission consideration.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR CONNECTICUT, INC. ) Docket Nos. 50-336, 50-423-LR
)
(Millstone Power Station, Units 2 & 3) ) ASLBP No. 04-824-01-LR CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF ANSWER TO NOTICE OF APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE, in the captioned proceeding have been served on the following through electronic mail and with copies by deposit in the NRCs internal mail system, or through electronic mail with copies by deposit in the U.S. Postal Service as indicated by an asterisk, this 18th day of August, 2004:
Dr. Paul B. Abramson, Chair Office of the Secretary Atomic Safety and Licensing Board ATTN: Rulemaking and Adjudications Staff Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: pba@nrc.gov E-mail: HEARINGDOCKET@nrc.gov Dr. Richard F. Cole Office of Commission Appellate Administrative Judge Adjudication Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: rfc1@nrc.gov Ann Marshall Young Lillian M. Cuoco, Esq.*
Administrative Judge Senior Nuclear Counsel Atomic Safety and Licensing Board Millstone Power Station Mail Stop: T-3F23 Building 475/5 U.S. Nuclear Regulatory Commission Rope Ferry Road (Route 156)
Washington, DC 20555-0001 Waterford, CT 06385 E-mail: amy@nrc.gov E-mail: Lillian_Cuoco@dom.com
David R. Lewis, Esq.* Nancy Burton, Esq.*
Shaw Pittman, LLP 147 Cross Highway 2300 N St., NW Redding Ridge, CT 06876 Washington, DC 20037-1128 E-mail: nancyburtonesq@aol.com E-mail: david.lewis@shawpittman.com Paul B. Eccard*
First Selectman, Town of Waterford 15 Rope Ferry Road Waterford, CT 06385-2886 E-mail: selpbe@waterfordct.org
/RA/
Brooke D. Poole Counsel for NRC Staff