ML072770155
| ML072770155 | |
| Person / Time | |
|---|---|
| Site: | Erwin |
| Issue date: | 10/04/2007 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 07-857-01-CO-BD01, 70-143-CO, RAS 14240 | |
| Download: ML072770155 (5) | |
Text
1 Sierra Club Reply to Licensees Answer to Request for Hearing of the Sierra Club National Radiation Committee (Sept. 26, 2007) at 1.
2 The Sierra Clubs submission did not reply in any way to NFSs Answer, it exclusively asked the the Licensees Answer be struck from the record.
3 Sierra Club Reply at 1.
UNITED STATES OF AMERICA DOCKETED 10/04/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED 10/04/07 Before Administrative Judges:
Lawrence G. McDade, Chair Dr. Richard F. Cole Dr. Peter S. Lam In the Matter of Nuclear Fuel Services, Inc.
Special Nuclear Facility (Confirmatory Order)
Docket No. 70-143-CO ASLBP No. 07-857-01-CO-BD01 October 4, 2007 ORDER (Denying Motion to Strike Licensees Answer)
On September 26, 2007, the Sierra Club, National Radiation Committee, Jonesborough, TN (Sierra Club) filed a Reply to the Licensees Answer to the Sierra Clubs Request for Hearing.1 While this pleading was identified as a Reply to the Licensees Answer, it was in substance a Motion to Strike Licensee's Answer.2 In its Motion, the Sierra Club argued that the Licensee's Answer to the Sierra Club's hearing request should be stricken because it was not timely filed.3 However, as will be explained below, the Answer filed by Nuclear Fuel Services, Inc. (NFS or the licensee) was timely.
4 10 C.F.R. § 2.309(h)(1).
5 10 C.F.R. § 2.306.
6 Sierra Club Request for Hearing (Aug. 20, 2007) at 3.
7 See 10 C.F.R. § 2.306.
- 8. Licensees Answer to Request for a Hearing of the Sierra Club National Radiation Committee (Sept. 19, 2007) at 21.
NRC Regulations allow the licensee twenty-five days within which to file an answer to a request for hearing, which period of time begins to run from the date of service of the request.4 However, the NRC Regulations further provide that when a "notice or paper is served... by first class mail, five (5) days are added to the prescribed period."5 According to the Certificate of Service which accompanied the Sierra Clubs Request for Hearing, NFS was served with the Sierra Clubs Request for Hearing via the US Postal Service on August 20, 2007.6 There is no indication that the Request for Hearing was sent via Express Mail.7 Accordingly, pursuant to NRC Regulations NFS had 30 days from the date on which the Sierra Club mailed its Request for Hearing (until September 19, 2007) within which to file its Answer (25 days pursuant to Section 2.309(h)(1) and an additional 5 days pursuant to Section 2.306). Since NFS filed and served its Answer to the Sierra Clubs Request for Hearing on September 19, 2007,8 its Answer was timely filed.
9 I also note that the Sierra Club failed to certify that it had consulted with NFS prior to filing its Motion to Strike. See 10 C.F.R. § 2.323(b). This failure alone would be an adequate basis on which to deny the Sierra Clubs Motion to Strike. Furthermore, if the Sierra Club had consulted with NFS prior to filing its Motion to Strike it would have been able to resolve its misunderstanding regarding the due date for NFSs Answer without the submission of pleadings by the parties or an Order by the Board. It is the avoidance of such wasted effort which is the raison dentre for the certification provision in Section 2.323(b). All parties should anticipate that the Board will, in almost all instances, not consider the merits of motions which do not comply with the provisions of Section 2.323(b).
10 Copies of this Order were sent this date by Internet electronic mail transmission to: (1) counsel for NFS and (2) counsel for the NRC Staff. Copies of this Order were also sent to the Sierra Club via fax at (423) 753-9697 and via FedEx at 266 Mayberry Road, Jonesborough, TN 37659.
Therefore, the Sierra Clubs Motion to Strike Licensees Answer is denied.9 It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD10
/RA/
Lawrence G. McDade, Chair ADMINISTRATIVE JUDGE Rockville, Maryland October 4, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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Docket No.
70-143-CO NUCLEAR FUEL SERVICES, INC.
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Special Nuclear Materials Facility
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(Confirmatory Order)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (DENYING MOTION TO STRIKE LICENSEES ANSWER) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Peter S. Lam Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Bradley W. Jones, Esq.
Michael J. Clark, Esq.
Jody C. Martin, Esq.
Tison A. Campbell, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Daryl M. Shapiro, Esq.
John H. ONeill, Esq.
Blake J. Nelson, Esq.
Stefanie M. Nelson, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037
2 Docket No.70-143 LB ORDER (DENYING MOTION TO STRIKE LICENSEES ANSWER)
Kenneth Silver, Assistant Professor East Tennessee State University Department of Environmental Health P.O. Box 70682 Johnson City, TN 37614 R. Feher 489 Arnold Road Jonesborough, TN 37659 Linda C. Modica, Chair Sierra Club Radiation Committee 266 Mayberry Road Jonesborough, TN 37659 John and Wanda Sue Kelley 123 Rolling Hills Rd.
Erwin, TN 37650 Barbara A. ONeal 173 Roy Duncan Lane Erwin, TN 37650 A. Christine Tipton 312 New Ave.
Erwin, TN 37650 Ann M. Ward, Esq.
General Counsel Nuclear Fuel Services, Inc.
1205 Banner Hill Rd.
Erwin, TN 37650
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 4th day of October 2007