ML060330660

Commission Memorandum and Order (CLI-06-06)

ML060330660
Person / Time
Site:	Monticello
Issue date:	02/02/2006
From:	Annette Vietti-Cook NRC/SECY
To:
Byrdsong A T
References
50-263-LR, ASLBP 05-841-02-LR, CLI-06-06, RAS 11137
Download: ML060330660 (7)

Text

UNITED STATES OF AMERICA RAS 11137 NUCLEAR REGULATORY COMMISSION DOCKETED 02/02/06 COMMISSIONERS SERVED 02/02/06 Nils J. Diaz, Chairman Edward McGaffigan, Jr.

Jeffrey S. Merrifield Gregory B. Jackzo Peter B. Lyons In the Matter of Docket No. 50-263-LR Nuclear Management Company, LLC (Monticello Nuclear Generating Plant)

CLI-06-06 MEMORANDUM AND ORDER Before the Commission is an appeal by petitioner North American Water Office (NAWO), of the Atomic Safety and Licensing Boards (Board) ruling on standing and contention admissibility.1 That ruling denied NAWOs petition to intervene in the application of the Nuclear Management Company, LLC (NMC) to renew the operating license for its Monticello Nuclear Generating Plant (MNGP) in Monticello, Minnesota. NAWO describes itself as an organization formed to educate people about environmental concerns, notably electric utility waste.2 On November 11, 2005, NAWO submitted a document to the Board entitled Appeal of the North American Water Office to the November 1, 2005 Order of the Atomic Safety and Licensing Board Denying Standing and Rejecting Contentions of the North American Water Office in the Above Captioned Matter (Appeal). In the document, less than two pages long, 1

LBP-05-31, 62 NRC __, slip op. Nov. 1, 2005.

2 See Request for a Hearing and Petition for Leave to Intervene by the North American Water Office (July 9, 2005), at 1.

NAWO stated that it appealed the Boards November 1, 2005 order, but addressed the Board and asked it to reconsider. Thus, it was not clear whether the document was intended as a motion for reconsideration by the Board or an appeal to the Commission.

On December 14, 2005, the Board issued a Status Report noting that NRC rules require that a petitioner must first obtain leave from the presiding officer to file a motion for reconsideration.3 The Board stated that in its view the document must be considered, if anything, an appeal of the Boards decision.4 The Board referred the matter to the Commission for whatever action we deemed appropriate.5 The Boards underlying ruling found that NAWO had no standing and that it had not offered an admissible contention. Thus, an appeal would have to convince us that NAWO both has standing and has presented at least one litigable contention. We conclude that the appeal states no grounds for the Commission to overrule the Board, for the following reasons:

1. NAWOs document does not conform to our procedural regulations governing appeals, which provide that a notice of appeal be accompanied by a brief.6 NAWOs appeal is devoid of legal argument and includes no citation to the record.7 The lack of a brief is sufficient 3

Status Report (Dec. 14, 2005), at 1.

4 Id.

5 Id. at 2.

6 See 10 C.F.R. § 2.311(a). We conclude that no further pleading is forthcoming from NAWO. The time for filing an appeal of LBP-05-31 expired on November 14, 2005. Even if NAWOs appeal were intended as a motion for reconsideration, NAWO would have had 10 days from the Boards ruling on its motion (e.g., the status report) to file an appeal. That deadline has also passed.

7 Both the NRC Staff and NMC declined to submit any substantive response to the arguments in NAWOs appeal. See Letter of David R. Lewis to Administrative Judges informing them that NMC does not intend to respond further (Nov. 22, 2005); Letter of Michael A. Woods to Administrative Judges informing them that the NRC staff does not intend to respond further (Nov. 22, 2005).

reason, without more, to reject NAWOs appeal.8

2. NAWOs appeal does not contend that the Board misapplied NRC rules relating to standing. Instead, it argues that the standards the Board used were rules designed to deny standing and disenfranchise those with legitimate interests. 9 The NRC generally follows judicial concepts of standing in its own proceedings.10 The Board found that NAWO had not shown that it, or any of its members, would suffer any concrete or particularized harm from the proposed license renewal. A review of the Boards decision shows that its standing analysis was based on U.S. Supreme Court precedent and was consistent with this agencys practice with respect to standing.11 Nothing in NAWOs appeal suggests that the Board misapplied applicable law relating to standing.

3. Similarly, the appeal does not provide the Commission any reason to question the Boards ruling on NAWOs proposed contentions. NAWO does not specify which of its proposed contentions it is pursuing on appeal, but it appears that only proposed Contention 4 (Reactor Aging Problems Will Escape Detection Until Too Late) relates to its argument.12 The appeal states in conclusory fashion that NAWO brought forward a whole new category of 8

See Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI 10, 37 NRC 192, 198 (1993), citing Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-92-3, 35 NRC 63, 66 (1992).

9 Appeal at 2.

10 See, e.g., U.S. Dept. of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 363 (2004); Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47, 56 (1992).

11 See LBP-05-31, 62 NRC __, slip op. at 6-8.

12 NAWO has evidently abandoned the remainder of its proposed contentions, which related to: the no-action alternative, radiation monitoring, security, drinking water safety, the effects of global warming on reactor operations, and severe accident mitigation analysis.

reactor components that had escaped scrutiny in [the] aging management program.13 It further argues that the fact that the NRC staff issued a Request for Additional Information (RAI) to the applicant concerning some of these components is irrefutable evidence of a genuine contention.14 The Board reasonably held that the proposed contention was vague and speculative, and lack[ed] expert opinion, documents, or sources to support it; that it present[ed] nothing more than an unsupported conclusion;15 and that insofar as the contention related to routine inspections, it fell outside the scope of a license renewal proceeding.16 Furthermore, we have held repeatedly that the mere issuance of a staff RAI does not establish grounds for a litigable contention.17 NAWO offers no other argument in defense of its contention, while the Boards reasoning appears correct on its face.18 13 Appeal at 2.

14 Id.

15 LBP-05-31, 62 NRC at __, slip op. at 23. See also 10 C.F.R. § 2.309(f)(1)(v).

16 LBP-05-31, 62 NRC at __, slip op. at 23.

17 See, e.g., Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 336-37 (1999).

18 It should be noted that the use of intemperate and disrespectful rhetoric such as that in NAWOs appeal has no place in filings before the Commission or its Boards. See, e.g.,

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746, 748-49 (1978); La. Power & Light Co. (Waterford Steam Electric Station, Unit 3) ALAB-121, 6 AEC 319, 320 (1973). Ad hominem attacks do nothing to advance the petitioners interests or the orderly administration of the Commissions adjudicatory processes, and will not be tolerated.

For the foregoing reasons, NAWOs appeal is rejected, and the Boards decision is affirmed.

IT IS SO ORDERED.

For the Commission

/RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland This 2nd day of February, 2006

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

NUCLEAR MANAGEMENT COMPANY, LLC ) Docket No. 50-263-LR

)

)

(Monticello Nuclear Generating Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-06-06) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U S mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Lawrence G. McDade, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: lgm1@nrc.gov Administrative Judge Administrative Judge William M. Murphy Richard E. Wardwell Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wmurphy@csuchico.edu E-mail: rew@nrc.gov Michael A. Woods, Esq. David R. Lewis, Esq.

Office of the General Counsel Pillsbury Winthrop Shaw Pittman LLP Mail Stop - O-15 D21 2300 N Street, N.W.

U.S. Nuclear Regulatory Commission Washington, DC 20037-1128 Washington, DC 20555-0001 E-mail: david.lewis@pillsburylaw.com E-mail: maw2@nrc.gov

2 Docket No. 50-263-LR COMMISSION MEMORANDUM AND ORDER (CLI-06-06)

George Crocker Jonathan Rogoff, Esq.

Executive Director General Counsel North American Water Office Nuclear Management Company, LLC P.O. Box 174 700 First Street Lake Elmo, MN 55042 Hudson, WI 54016 E-mail: gwillc@nawo.org E-mail: jonathan.rogoff@nmcco.com

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 2nd day of February 2006