ML082490082
| ML082490082 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 08/25/2008 |
| From: | Burton N Connecticut Coalition Against Millstone |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-423-OLA, ASLBP 862-01-OLA-BD01 | |
| Download: ML082490082 (7) | |
Text
-DOCKETED.
USNRC August,25,2008 (3:36pm)
OFFICE OF SECRETARY AND UNITED STATESOF AMERICA RULEMAKINGS ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION (ATOMIC SAFETY AND LICENSING BOARD PANEL)
In the Matter of Docket No. 50-423-OLA Dominion Nuclear Connecticut, Inc. ASLBP No. 862-01-OLA-BDOI (Millstone Nuclear Power Station, Unit 3) August 25, 2008 CONNECTICUT COALITION AGAINST MILLSTONE.AND NANCY BURTON'S RESPONSE TO ATOMIC SAFETY AND LICENSING BOARD PANEL'S MEMORANDUM AND ORDER DATED AUGUST 14, 2008 REQUESTING LEGAL BRIEFS AND REQUEST FOR CONTINUING WAIVER OF E-FILING REQUIREMENTS The petitioners, Connecticut Coalition Against Millstone and Nancy Burton (collectively, "petitioners" or "CCAM"), herewith respond to the Atomic Safety and Licensing Board Panel's Memorandum and Order dated August 14, 2008 by which it directed the petitioners, the applicant, Dominion Nuclear Connecticut, Inc. ("Dominion"),
and U.S. Nuclear Regulatory Commission ("NRC")staff to file legal briefs on four issues to assist the Board with its consideration of the petitioners' pending motions 1 to submit new and revised contentions.
The petitioners further request a continuing waiver of electronic filing requirements and incorporate by reference herein their pending motions requesting such continuing The motions are: "Revised Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information and for Continuing Waiver of Electronic Filing" (August 7, 2008); "Motion for Leave to File 'Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information Nunc Pro Tunc and for ContinUing Waiver of Electronic Filing"' (July 31, 2008); and "Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information" (July 18, 2008).
i waiver insofar as the asserted facts and circumstances in support of such waiver have not changed.
The petitioners respond as follows:
- 1. At what stage in the licensing process does the record close such that a new contention requestmust also meet the requirements of 10 C.F.R. § 2.326?
Petitioners' Response:
The record in an administrative proceeding does not close until a final judgment is rendered by the administrative agency.
To date, no final judgment has entered in this administrative proceeding.
On August 11, 2008, the Secretary of the Commission issued the following order
("Secretary's Order"):
Pursuant to my authority under 10 C.F.R. § 2.346(i), the "Connecticut Coalition Against Millstone and Nancy Burton Motion for Leave to File Their 'Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information' Dated July 18, 2006, Nunc Pro Tunc, and for Continuing Waiver of Electronic Filing," is referred to the Board for any action it deems appropriate.
Any further pleadings related to this motion should be directed to the Board.
In this case, the petitioners' three pending motions to file new and/or amended contentions, and the Secretary's Order were all filed prior to August 13, 2008, the date when the Commission affirmed the Panel's decision in LBP-08-09 and denied the petitioners' appeal. CLI-08-17, 67 NRC , (slip op. at 18)(August 13, 2008).
Ordinarily, the Commission's issuance of a decision denying an appeal from an ASLB Panel's decision would constitute the "final judgment" for appeal purposes, assuming no further pleadings directed to the judgment have been filed.
2
However, by referring the petitioners' motion to the ASLB Panel "for any action it deems appropriate," the Commissi6h Secretary acted to keep the record open notwithstanding the Commission's denial of the petitioners' appeal. 2 Thus, the final judgment in this matter by which the record will be closed has been held in abeyance by virtue of the Secretary's order; therefore, the ASLB Panel is empowered and authorized to consider the petitioners' motions.
- 2. Is the answerto (1) the same for cases where contentions are admitted rather than cases where there are no admitted contentions? See, e.g., Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-06-4, 63 NRC 32 (2006).
Petitioners' Response:
The answer is the same because otherwise a petitioner would be unable to submit admissible contentions as expressly allowed by 10 C.F.R. § 2.309(f)(2), which does not distinguish between cases where contentions are admitted rather than cases where there are no admitted contentions.
- 3. Do not the Commission's regulationscontemplate an opportunity to file new or amended contentions provided that the circumstances under section 2.309(0(2) have been met?
Petitioners' Response:
The clear and explicit language of 10 C.F.R. § 2.309(f)(2) 2 The petitioners are of the view that the Commission's denial of their appeal given the pendency of the matter before the ASLB Panel by its own order was premature.
3
("... contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that (i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the new or amended contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
makes clear that new or amended contentions meeting the criteria of 10 C.F.R. § 2.309(f)(2) must be allowed.
- 4. If the licensingprocess is ongoing and new or amended contentions arise, under what circumstances would a motion to reopen be required in addition to a motion under 10 C.F.R. § 2.309(0(2)?
Petitioners' Response:
If a licensing process is ongoing, the record has by definition not yet been closed; hence, there is no need for a 10 C.F.R. § 2.326 motion to reopen which only applies to cases in which the record has been closed ("§ 2.326(a) A motion to reopen a closed record to consider additional evidence...").
In this case, because the licensing process is ongoing, a motion to reopen is not required and would not be appropriate.
4
P Respectfully submitted, CONNECTICUT COALITION AGAINST MILLSTONE NANCY BURTON
[Signed in original]
Nancy Burton 147 Cross Highvay" Redding Ridge CT 06876 Tel. 203-938-3952 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION (ATOMIC SAFETY AND LICENSING BOARD PANEL)
In the Matter of Docket No. 50-423-OLA Dominion Nuclear Connecticut, Inc. ASLBP No. 862-01-OLA-BDOI (Millstone Nuclear Power Station, Unit 3) August 25, 2008 CERTIFICATE OF SERVICE I certify that copies of the "CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTON'S RESPONSE TO ATOMIC SAFETY AND LICENSING BOARD PANEL'S MEMORANDUM AND ORDER DATED AUGUST 14, 2008 REQUESTING LEGAL BRIEFS AND REQUEST FOR CONTINUING WAIVER OF E-FILING REQUIREMENTS" was transmitted on August 25, 2008 by email and by U.S. Mail, First Class, postage pre-paid to the individuals and offices as indicated below:
Office of the Secretary Office of Commission Appellate Attn: Rulemaking and Adjudications Staff Adjudication U.S. Nuciear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Mail Stop: O-16G4 Washingtun DC 20555-0001 Washington DC 20555-0001 HearingDocket@nrc.gov OCAAMAIL@nrc.gov Secy@nrc, gov (Original + 2 copies)
Administrative Judge William J. Froelich, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear regulatory Commission Washington DC 20555-0001 wjfl@nrc.gov Administrative Judge Administrative Judge Dr. Paul B. Abramson Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Mail Stop - T-3 F23 Panel 6
U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington DC 20555-0001 U.S. Nuclear Regulatory Commission pba@nrc.gov Washington DC 20555-0001 mfk2@nrc.gov Lillian Cuoco, Esq.
Dominion Resources Services, Inc.
Lloyd Subin, Esq. 120 Tredegar Street, RS-2 David Roth, Esq. Richmond VA 23219 Office of the General Counsel Lillian.Cuoco@dom.com U.S. Nuclear Regulatory Commission Washington DC 20555 OGCMailCenter@nrc.gov Ibs@nrc.gov david.roth@nrc.gov David Lewis, Esq.
Stefanie Nelson, Esq.
Matias Travieso-Diaz, Esq.
Pillsbury Winthrop Shaw Pittman LLP Maria Webb, Paralegal 2300 N Street NW Washington DC 20037-1122 david.lewis@pillsburylaw.com stefanie.nelson@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com maria.webb@pillsburylaw.com
[Signed in Original]Z.
Nancy Burton 147 Cross Highway Redding Ridce CT 06876 NancyBurtonCT@aol.com 7
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