ML20029D930
| ML20029D930 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 05/06/1994 |
| From: | Mcgarry J LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#294-15026 ML, NUDOCS 9405130016 | |
| Download: ML20029D930 (24) | |
Text
" /goM 00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 74 MAY -9 P4 :20 0FFICE OF SECRETARY In the Matter of
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DOCKETING & CEPViCE
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BRANCH LOUISIANA ENERGY SERVICES, L.P.
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Docket No. 70-3070-ML
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(Claiborne Enrichment Center)
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APPLICANT'S ANSWER OPPOSING INTERVENOR'S APRIL 21, 1994, MOTION TO CONSOLIDATE HEARING ISSUES I.
INTRODUCTION Pursuant to 10 C.F.R.
S 2.730(c), Louisiana Energy Services, L.P.,
(" Applicant") submits this response opposing Citizens Against Nuclear Trash's ("Intervenor's") Motion to Consolidate, served on Applicant April 21, 1994.1#
Applicant hereby moves the Licensing Board to issue an order denying the Motion.
II.
BACKGROUND On May 7, 1992, the Atomic Safety and Licensing Board established a separate hearing schedule for safety and environmental issues.2' According to the May 7 Licensing Board II
" Motion by Citizens Against Nuclear Trash (' CANT') to Consolidate for Hearing Contention B (Decommissioning Funding Plan Deficiencies) and Contention Q (Financial Qualifications) With NEPA Issues," April 21, 1994
(" Motion").
E' Memorandum and Order (Memorializing Prehearing Conference),
May 7, 1992.
9405130016 940506 0
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pon
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Order, the safety hearing is scheduled 19 weeks following i
j issuance of the SER and encompasses Contentions B, H, I (areas 8-i 11),
L, M and Q.
The environmental hearing is scheduled 17 weeks i
following issuance of the Final Environmental Impact Statement i
(FEIS) and encompasses Contentions I (areas 1-7), J and K.
Idz According to the Parties' Joint Progress Reports, submitted 3
to the Licensing Board every two months, discovery has been 4
scheduled to end (and has ended) on March 25, 1994, and the safety hearing has been scheduled for June 10, 1994, since service of the July 15, 1993 report.
On April 7, 1994, the Atomic Safety and Licensing Board for this proceeding was reconstituted, and Administrative Law Judge Thoma, S.
Moore was appointed Chairman.
During a telephone conference with the parties on April 19, 1994, Judge Moore stated i
his intention to reschedule the safety hearing, tentatively to the week of July 18, 1994, as a result of schedule conflicts and to afford an opportunity to familiarize himself with the history of the proceeding.
On May 5, 1994, during a telephone conference with the parties, the Licensing Board scheduled the safety j
hearing for the weeks of July 18 and July 25, 1994.
Against that background, Intervenor submitted its Motion to consolidate issues on April 21, 1994.
Intervenor moves to shift l
Contentions B and Q to the environmental hearing, leaving Contentions H, I (areas 8-11),l' L and M for the safety hearing.
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In the May 5, 1994, telephone conference, Intervenor stated it would not oppose Applicant's Motion for Summary(continued...)
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DISCUSSION l
Summary Intervenor has moved the Licensing Board to reschedule the hearing on Contentions B (Decommissioning Funding Plan Deficiencies) and Q (Financial Qualifications) to coincide with the environmental hearing currently scheduled for December 27, 1994.
In support of its Motion, Intervenor alleges the existence of " inextricably intertwined" issues (Motion at 3) which will involve testimony on the same subjects by the same experts; conflicting testimony and res iudicata problems because of ongoing discovery and repetitive testimony; and a need to conserve Intervenor's resources.
In summary, Applicant maintains that the issues of 1
Contentions B and Q (which are related to decommissioning funding and financial qualification) are distinct from the issues of Contention J (which relate to environmental costs).
Safety hearing testimony which may be relevant to the environmental hearing, if any, will be part of the record of the proceeding and reed not be repeated.
Hence there is no danger of " conflicting" tastimony.
Nor must witnesses be recalled to repeat testimony--
Intervenor's intent to call witnesses for more than one issue is neither unusual nor noteworthy.
The crux of the matter is that F(... continued)
Disposition of Contention I (areas 8-11).
After discussion with the Licensing Board and parties, Intervenor stated it would withdraw Contention I (areas 8-11) and would immediately formalize this in a motion to the Board.
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Intervenor.has not aggressively pursued discovery on these matters, has not identified witnesses for some of these issues, and now seeks to burden the Licensing Board and parties with a I
last-minute hearing delay on these issues, based on a Motion that I
could have been filed almost two years ago in response to the Licensing Board's May 7, 1992, scheduling Order.
Such a delay would impose an unwarranted and unnecessary hardship on Applicant.
Intervenor's untimely Motion should, therefore, be denied.
Contentions B, O And J Are Not " Inextricably Intertwined" l
Intervenor argues that Contentions B, Q and J are so
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" inextricably intertwined" that they "will involve the presenting of evidence on many of the same factual issues."
Motion at 3.
l To the contrary, these contentions involve issues which overlap little, if at all.
Summary of Contention B Contention B, as admitted by the Licensing Board in its Memorandum and Order (Ruling on Contentions)d# "is admitted insofar as it challenges the reasonableness of LES' l
decommissioning funding plan."
Id. at 337.
"[T]he decommissioning funding plan does not contain reasonable l
1 estimates for decommissioning nor does it adequately describe the i
d' Louisiana Enercy Services, L.P.
(Claiborne Enrichment Center), LBP-91-41, 34 NRC 332 (1991). - -
e underlying decommissioning strategy.
Bases one, four and five adequately support the contention."
Id at 338.
1 In Contention B, Basis 1, CANT alleges that there is no realistic basis for LES' estimate of $9.5 million for disposal of depleted UF6 ("DUF ")
because "LES does not currently have a plan 6
for offsite disposal of tails."
CANT's Contentions at 5.E' Basis 1 also discusses complications of mixed waste; however, the Licensing Board excluded mixed waste disposal as an issue.
34 NRC at 339-340.
In Contention B, Basis 4, CANT alleges that LES has provided no details about how the decommissioning costs were arrived at.
CANT's contentions at 6.
In Contention B, Basis 5, CANT alleges that the decommissioning cost summary does not identify the facilitie.s that may be decontaminated and/or dismantled.
Summary of Contention J The Licensing Board admitted Contention J, Bases 3, 4,
6 and 9.
34 NRC at 349-353.
In Contention J, Basis 3, CANT alleges that LES has provided insufficient basis for its decommissioning cost estimate, and incorporates Contention B by reference.
CANT's contentions at 34-35.
E'
" Citizens Against Nuclear Trash's Contentions on the Construction Permit / Operating License Application for the Claiborne Enrichment Center," October 3, 1991.
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In Contention J, Basis 4, CANT alleges that LES must evaluate the need for the CEC (Id at 35), and the Licensing 2
Board asks the legal question, "What, if any,' consideration must be given to the need for the facility in fulfilling NEPA 1
responsibilities?"
34 NRC at 351.
In Contention J, Basis 6, as restricted by the Licensing Board in 34 NRC at 352, CANT alleges that the Environmental I
Report ("ER") does not contain a complete and adequate assessment l
of the potential environmental impacts on the present.and possible future surface and groundwater drinking water supply.
In Contention J, Basis 9, CANT alleges that "[t]he ER does not demonstrate any attempts to avoid or mitigate or [ sic] the disparate impact of the proposed plant on this [ Forest Grove or j
Center Springs] minority community."
CANT's Contentions at 40-41.
Summary of Contention O As admitted by the Licensing Board, Ccintention Q alleges "that LES has not demonstrated that it is f.t.nancially qualified to build and operate the CEC because partnr.rs are not committed to fund the building and operation of the facility.
34 NRC at 358.
Comoarison of Contentions B and J Contention B and Contention J, Basis 3, are essentially the same contention because of the incorporation by reference. :
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l Intervenor commented that " Contention B also has a significant l
overlap with Contention J, and in fact, Contention B is incorporar;4 into Contention J as one of its bases (basis # 3)."
Motion t 4.
However, in its March 19, 1993, Answers to Applicant's Interrogatories,5' Intervenor distinguishes between the safety and NEPA issues involved in Contentions B and J-3, which leads to the conclusion that they are not inextricably intertwined.
Contention J concerns NEPA's required benefit-cost analysis which must be performed with respect to the CEC facility in general, and basis 3 of Contention J concerns that NEPA analysis as it pertains to decommissioning costs in particular.
In
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contrast, bases 1, 4,
and 5 of Contention B i
concern safety issues and NRC requirements as l
they pertain to decommissioning.
Intervenor's March 19, 1993, Supplemental Answers at 5.
Thus, by Intervenor's own admission, Contention J, Basis 3, can be resolved into a NEPA component, which would be the environmental costs associated with decommissioning, and a safety component, which would be the safety and regulatory requirements pertaining to decommissioning.
Intervenor also asserts, in its Motion at 4, that:
LES's failure to provide adequate information on decommissioning costs is a factual issue which must also be litigated in relation to Contention J, because without this information no meaningful assessment can be made of the costs and benefits of the operation, as required by NEPA.
5'
" Supplemental Answers to Applicant's Interrogatories to Citizens Against Nuclear Trash Regarding Citizens Against Nuclear Trash's Contentions B, J,
K and Q," March 19, 1993. l
b This assertion is belied by Intervenor's Supplemental Answers quoted above.
In any event, to the extent i
decommissioning costs need to be factored into the environmental i
i assessment (if at all) they will be established in the safety j
hearing and can be referred to in the environmental hearing, j
Comparison of Contentions J and O j
i In its Motion at 3, Intervenor asserts that "[b]oth of these contentions (J and Q) involve the factual question of whether I
l there is a market or need for the enriched uranium to be produced by the CEC."
Intervenor then provides a number of reasons to support this assertion, some of which raise new issues to which Applicant objects as not being matters in controversy in this proceeding, as discussed below.
Intervenor claims the factual issue of the "need for the i
facility" is relevant to Applicant's ability to obtain financing and to the weight given to the environmental benefits of the facility described in the ER, and intends to explore this issue in both contexts.
Applicant does not agree that "need" is relevant to financial qualification.
With respect to " financial qualifications," 10 C.F.R. SS 70.22 (a) (8) focuses on the
" applicant's financial qualifications to engage in the proposed activities in accordance with the regulations in this chapter In other words, such information would seek to establish whether the applicant has access to (and will continue to have access to) adequate financial resources to complete the
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facility and to operate and decommission that facility according to the terms of the license.
This type of financial information, which concerns the apolicant, is clearly distinguishable from the financial information concerning the enrichment facility that has been considered by the NRC as part of the NEPA cost-benefit analysis for the CEC.
The financial qualification of the applicant is not a NEPA concern and may be litigated in a separate hearing.2#
As a general matter, Applicant is unaware of a requirement for an analysis of the "need for the facility" under NEPA.
The "need" to which Intervenor is referring appears to derive from NRC power reactor licensing case law which substitutes "need for power" for the benefit side of the cost-benefit analysis required by CEQ regulation 40 C.F.R. S 1502.23.
The Atomic Safety and Licensing Appeal Board in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 405 (1976),
discussing how to balance environmental costs against expected benefits under the National Environmental Policy Act, stated that
"[a] nuclear plant't? principal ' benefit' is of course the electric power it generates.
Hence, absent some 'need for power,' justification for building a facility is problematical."
2' One needs only to examine the numerous NRC reactor licensing cases where need and financial matters are treated as two separate and distinct issues.
See e.c.,
Duke Power Company (Catawba Nuclear Station, Units 3 and 2), CLI-74-14, 7 NRC 307 (1974) and Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-74-22, 7 NRC 559 (1974), where financial issues related to antitrust were considerate separate from environmental issues related to need for power.
Interpreting the "need for power," which is a commercial nuclear power plant licensing matter, as a separate requirement to identify a "need for the CEC" independent of the " benefit" side of the NEPA cost-benefit analysis introduces an unnecessary element into the NRC's analysis.
Therefore, Applicant maintains that any analysis of "need" is related to NEPA issues, and should l
be confined to weighing the benefits to be provided by the CEC.
j Accepting Intervenor's premise (that need is an issue common j
to the safety and environmental hearings) for the sake of argument does not lead to a conclusion that litigating this issue will give rise to a need for repetitive and potentially l
l conflicting testimony, as Applicant will discuss further below.
Rather, the issue can be litigated (if necessary) in the safety hearing, and testimony and findings from the safety hearing can support findings in the environmental hearing.
The rea sons precented by Intervenor for "need" being a common factual issue are as follows.
1.
Intervenor asserts a need to evaluate the "need for the facility" to support the benefit side of the NEPA cost-benefit l
analysis, "[i]f there is no need for the facility, then there is l
l no benefit which could outweigh its significant costs."
Motion l
at 4.
Reason number 1 relates solely to the NEPA cost-benefit l
I analysis and Contention J basis 4, and thus should be limited to the environmental hearing.
Intervenor's reason has no relationship to Applicant's financial qualification to construct and operate the facility. l
2.
Intervenor asserts that "[n]eed must also be evaluat?o in terms of the long-term financial viability of the project:
if the CEC is not competitive because of limited or nonexistent marketability of enriched uranium, and/or because the project has not been financed adequately and therefore has problems i
associated with poor construction or operation, this may also affect the cost-benefit equation."
Motion at 4.
This reason is a
not related to either Contention J or Q.
The question of "need" as it relates to safety of operation and environmental costs is a new issue, and as such is not a matter in controversy in this proceeding.I' Thus, this reason does not support Intervenor's position.
3.
Intervenor asserts that "if the plant is inadequately financed to assure safe construction or operation, it may be subject to an increased accident risk, which would also affect the cost-benefit balance."
Motion at 4.
Much like reason number 2 above, this reason relates neither to Contention J nor Q.
The question of "need" as it relates to safety of operation and environmental costs is a new issue, and as such is not a matter la controversy in this proceeding.
Thus, this reason does not support Intervenor's position.
I' The hearing focuses on matters put into controversy by the parties (contested issues).
10 C.F.R.
S 2.760a; 10 C.F.R. Part 2, Appendix A.V; Consolidated Edison Comnany of N.Y..
Inc. (Indian Point, Units 1, 2&3), ALAB-319, 3 NRC 188, 189-190 (1976).
Contested issues are identified under 10 C.F.R.
S 2.714.
"Need," as it relates to safety of operation, has not been identified under S 2.714 as a contested issue, and is, therefore, outside the scope of matters in controversy in this proceeding.
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Intervenor asserts that "if the project [is]
t uncompetitive and therefore has low revenues, it may affect.the I
quality of work done at the plant, as well as LES's ability to i
attract and retain investors needed to assure the financial i
viability of the project."
Motion at 3.
This reason is given as an issue arising under Contention Q.
Applicant disagrees.
Under j
Contention Q Applicant must show that it is able to fund the l
building and operation of the facility, not that a "need" exists.
Moreover, the portion of reason number 4 regarding the quality of 3
work is not related to Contention Q or any other matters in controversy in this proceeding.
The Potential For Conflictina Testimony is Minimal 1
Intervenor asserts that it:
1 intends to use the same witnesses to testify j
regarding Contentions B and Q that it will use for several bases supporting Contention i
J.
No useful purpose would be served by litigating these issues separately, and in fact it could hinder the development of a sound record in this case by causing factual conflicts between testimony gathered for the
[ safety hearing and environmental hearing].
Hotion at 5.
Intervenor's suggestion that its use of the same witnesses to testify for more than one contention will necessarily result in " factual conflicts" between the safety and environmental hearing testimony is illogical.
As shown above, Contentions B, J
and Q constitute three clearly distinct issues.
(If the l
Licensing Board had not concurred in this judgment, it would not 4
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have admitted them as three separate contentions.)
It follows t
that the Intervenor's witnesses will proffer different factual testimony to support each of these contentions.
The fact that one witness may testify on more than one matter in the hearing (a practice that is not uncommon) does not mean that the substance of his or her testimony will be the same for all of those matters.
Nor does the fact that a witness may testify on more than one issue necessarily imply that testimony on those issues will be conflicting.
In any event, it is not the Licensing Board's responsibility to configure a proceeding to ensure that Intervenor's witnesses cannot contradict themselves.
Consistent and factually correct testimony is Intervenor's, and the witnesses', responsibility.
As in any hearing, the finder of fact must take any conflicts into consideration when making a decision.
To prevent " unnecessary delays or an unnecessarily large record," presiding officers in NRC licensing proceedings are authorized to (a) " limit the number of witnesses whose testimony may be cumulative; and (b) strike repetitious, cumulative, or irrelevant evidence 10 C.F.R. S 2.757(a)-(b).
It is the Commission's policy that, once an issue is resolved in a licensing proceeding, it need not be relitigated in that proceeding (absent new information determinative of the issue or a material difference in the matter in issue).2/
This policy is 2'
For example, in the Seabrook emergency planning proceeding, public Service Co. of New Hamnshire. et al. (Seabrook (continued...) -
supported by the principle of judicial repose.EF Thus, once a j
witness testifies on an issue, e.g.,
the need for the facility, and the Licensing Board issues a partial initial decision on that 4
issue, that decision may be used to support a finding on a later-U(... continued)
Station, Units 1 and 2), ALAB-942, 32 NRC 395 (1990), the Appeal Board upheld the Licensing Board's refusal to allow an intervenor to relitigate in one phase of the emergency planning hearing an issue that had been " adequately explored" in a previous phase of the emergency planning hearing.
Although the intervenor "could not properly be precluded by the Licensing Board" from introducing evidence on issues that pertained uniquely to the later (Massachusetts communities) phase of the hearing, the Appeal Board found that intervenor need not be allowed to relitigate in the later (Massachusetts) phase an issue that had been adequately explored in the earlier (New Hampshire) phase "in circumstances where the issue does not take on a different complexion" in the later phase.
32 NRC at 403.
EF In Seabrook, the Appeal Board upheld the Licensing Board's rejection, on ras iudicata grounds, of an intervenor's challenge to the overall capacity of various emergency reception centers.
In connection with this ruling, the Appeal Board stated:
we think that, absent some showing (or at the very least a colorable assertion) that conditions within the Massachusetts portion of the EPZ materially differ from those within the New Hampshire portion, the intervenors must be deemed to be foreclosed from litigating anew the planning basis issue.
No matter which particular doctrine of repose might be invoked (whether by analogy or otherwise), in the circumstances there is plainly no reason to permit the intervenors simply to replow old ground.
32 NRC at 406 (emphasis in original).
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addressed contention without the need to relitigate the i
issue.lU Moreover, this policy has been used to reject contentions where the issues are sufficiently similar, such that all issues in one contention will be resolved by litigation of l
one or more other contentions.lE Thus, Intervenor's concern regarding the need for redundant and potentially conflicting testimony is misplaced.
In this regard, we note that even if aspects of direct testimony on two contentions were to contain similarities, it does not necessarily follow that the contentions should be combined since the cross-examination and the rebuttal IU Hgg Duke Power Co.,
et al. (Catawba Nuclear Station, Units 1 and 2), LBP-84-52, 20 NRC 1484 (1984): in a Partial Initial Decision ruling on " foreman override" allegations, the Licensing Board adopted the following finding regarding l
incidents in which craftsmen were allegedly directed to proceed with welds without having the necessary paperwork (process control) in their possession:
We are not prepared to say that the evidence shows that work without process control was pervasive, based on these few l
incidents involving mainly just one foreman.
Moreover, we are also mindful of our earlier findings that, in general, Applicants' system I
of process control in the welding area worked rather well.
20 NRC at 1499 (emphasis added).
S' The Appeal Board upheld the Seabrook Licensing Board's refusal to admit an intervenor's contention that the evacuation of the Massachusetts beaches was not feasible.
l The basis for the Licensing Board's rejection of the l
proposed contention, as characterized by the Appeal Board, was that " previous litigation and logic established that the beach areas 'are spontaneously nearly evacuated almost every day' and that the issue [the intervenor) was seeking to litigate.
. was directly raised by other contentions."
32 NRC 395 at 416. -
testimony on each contention could (and almost certainly would) be different.
l Intervenor Has Created Its Own "Hardshio" Intervenor states, in its Motion at 3 n.2, that:
it would be an undue hardship (if not an impossibility) for CANT to fully prepare its case on financial qualification in time for the 1994 hearing.
because:
discovery on Contention Q (Financial Qualifications) is ongoing.
LES has only recently agreed to give CANT access to financial data under terms set forth in a protective order which will require CANT's witnesses to travel to a site of LES's choosing and take notes (not copy) such data, j
all of which will take considerable time.
This is a disingenuous statement.
Although discovery opened in January 1992,U' Intervenor waited over two years, until i
March 11, 1994, and March 24, 1994U' (the day before discovery closed), to serve interrogatories and requests for production of financial data, and now claims hardship because of the imminent safety hearing.
E' Sea Licensing Board Memorandum and Order (Memorializing Prehearing Conference), January 24, 1992.
M/
"3/11/94 Request for Production of Documents Filed by Citizens Against Nuclear Trash and Directed to Louisiana Energy Services, L.P.
Pertaining to Contention Q" ("3/11/94 Request") and "3/24/94 Interrogatories and Request for Production of Documenta Filed by Citizens Against Nuclear Trash and Directed to Louisiana Energy Services, L.P.
Pertaining to Contentions B, H,
and Q,"
("3/24/94 Request").
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Applicant reacted immediately to Intervenor's March 11, l
1994, Request and negotiated a joint proposed protective orderLF to avoid the delay and added workload associated with a motion, answers and Licensing Board deliberations.
If Intervenor faces hardship as a result of its last-minute interrogatories and production requests, it is a self-imposed hardship stemming from a failure to schedule.
Intervenor has been aware since July 1993 that the safety hearing was scheduled for June 1994, and has known since May 1992 that Contentions B and Q would be the subject of the safety hearing.
Yet Intervenor delayed relevant discovery until March 1994, has not yet complied with some discovery requests, and now files this Motion on the eve of trial.
The Commission has noted, in its Statement of Policy on conduct of Licensina Proceedinas, CLI-81-8, 13 NRC 452, 454 (1981), that "[f]airness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations."
Coincidentally, Intervenor also has failed to identify witnesses for all of its contentions for the safety hearing.
Although Intervenor filed a list of four proposed witnesses on l
April 1S, 1994, Intervenor notified Applicant on April 21, 1994, that two of the witnesses, would not appear (one being the witness on financial qualifications).
See April 28, 1994, letter EU Sent to the Licensing Board in an April 13, 1994, LES letter.
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from Applicant to Intervenor documenting the April 21 i
i notification.
Thus, Intervenor's requested delay appears to compensate for a lack of identified witnesses, i
Intervenor's failure to take timely action to discover relevant information and to secure witnesses, followed by a claim of hardship as a result of such failure, reflects either a casual
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attitude toward this proceeding or a manufactured attempt to j
adversely impact Applicant through delay.
This type of approach i
j was rejected by the Appeal Board in Public Service Company of j
Indiana, Inc. (Marble Hill Nuclear Generating Stations, Units 1 1
l and 2), ALAB-459, 7 NRC 179, 188-189 (1978), where the intervenor failed to make a reasonable effort to have a procedural error i
[
corrected, and then used the error to support an appeal.
i In reliance on the parties' agreement to a bifurcated
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hearing schedule with specific contentions to be litigated at each hearing (as documented in the Licensing Board's May 7,
- 1992, i
Memorandum and order), Applicant has proceeded in good faith by selecting and preparing witnesses for Contentions B and Q, and by preparing testimony (as well possible given the lack of Intervenor's witnesses) to support a June 1994 hearing.
Applicant will suffer real harm from a delay of Contentions B and Q.
Witnesses will require additional preparation, testimony will need revision, and there is a high probability that some of the present witnesses will be unavailable, requiring Applicant to expend additional resources for witness preparation.. -
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1 Intervenor, on the other hand, has not prepared its case on these issues, and must do so--either now or later.
Litigating Contentions B and Q now or later should impose no additional incremental cost on Intervenor.EF Applicant sought a bifurcated hearing schedule to resolve most of the Contentions as soon as possible, leaving only the environmental issues to await the Final Environmental Impact Statement.
The objects of this effort were twofold: (1) to minimize the length of the environmental hearing, thereby expediting the proceeding and shortening the time to receive a license, and (2). to obviate wasteful expenditures of resources through early identification of important issues.
The Appeal Board, in Potomac Electric Power ComDany (Douglas Point Nuclear Generating Stations, Units 1 and 2), ALAB-277, 1 NRC 539, 546 (1975), has noted that this second point is in the best interest of the applicant and the public.
(Consistent with this philosophy, we understand the NRC staff expedited preparation of the SER to allow early resolution of these issues subject to the parties' agreed upon schedule.)
Further, the additional delays associated with Intervenor's Motion would result in circumventing the bifurcated hearing process established by the Licensing Board, and will push some safety issues into the environmental hearings, making the latter more protracted and complex.
The EF It should be noted that the witness for Contention Q has not been identified.
Therefore, Intervenor's claims of hardship resulting from having the same witnesses appear twice amounts to no more than speculation at this point.
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T result would be a delay in the issuance of a decision by this board resulting from the extended hearing time and a consequent delay in the issuance of a license.
This would, therefore, defeat the very scheduling gains intended by the bifurcation.
This could only benefit Intervonor and cost Applicant more delay and expense in a licensing proceeding that is approaching its fifth year.
The enrichment services market is cyclical, dynamic and competitive.
Licensing delays directly impact financial and construction planning and have caused Applicant to miss windows of marketing opportunity, as Intervenor apparently is aware.
Therefore, Intervenor's attempt to delay issuance of the license by shifting additional issues into the environmental hearing (thereby delaying issuance of the license) can only impose unjustified hardship on Applicant when Intervenor's benefit is illusory at best and in any event a result of its own procrastination.
Moreover, Intervenor asserts that it "is still conducting discovery on the NEPA issues and may develop additional i
relevant factual information after testimony is taken on the technical issues in the 1994 [ safety) hearing, thus raising potential conflicts in the testimony and rga judicata problems."
Motion at 5.
Applicant argues that no weight should be given to this assertion.
First, Intervenor has had ample time for discovery of information related to "need for the facility" which (according to its Motion) it has known it would need for the imminent safety hearing. _Thus, discovery on issues for the safety hearing should have been completed by March 1994, precluding potential conflicts.
Second, as discussed above, prior testimony and findings on safety issues can be applied to environmental issues in the later hearing.
And, should an issue be revisited with new information, "any findings which might be made on a record developed well in advance of final decision must be regarded as subject to reconsideration should supervening developments or newly available evidence so warrant."
Doualas Point, 1 NRC at 545.
New information, should it occur, is not the anathema claimed by Intervenor.
IV.
CONCLUSION In conclusion, Contentions B, Q and J are not so l
" inextricably intertwined" that they cannot be resolved into a safety hearing component and an environmental hearing component, as Intervenor pointed out previously in part in its answers to l
Applicant's interrogatories.
Testimony on any issues that Intervenor feels are common to both hearings need not, and indeed should not, be repeated, thus avoiding the potential for
" conflicting testimony."
However, the Licensing Board can reconsider a prior decision if new facts are discovered in the second hearing.
Intervenor's claimed hardship appears to be a failure to take scheduling matters in hand at the appropriate time.
Intervenor has retained experienced counsel, familiar with !'
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litigation procedure.
Therefore, Intervenor should be held accountable for such failure.
Regarding Intervenor's claimed hardship of calling the same witnesses twice, such hardship is a matter of speculation until the hearing location and remaining witnesses are chosen.
On the other hand, Applicant's hardship, from the delay that will result if this Motion is granted, will be real.
Applicant notes that the Commission is committed to conducting its adjudications efficiently and economically, with a minimum of delay.E' For these reasons, and for the additional reasons stated above, Intervenor's Motion should be denied.
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LOUISIANA ENERGY SERVICES, L.P.
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Michael McGarr, III WINSTON & STRAWN, May 6, 1994 ATTORNEYS FOR LOUISIANA ENERGY
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See 10 C.F.R. Part 2, Appendix A.
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 34 MAY -9 P4 :20 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE 0i-SECRETARY In the Matter of
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00CKLI% ~ iERW:E
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BRAhUi LOUISIANA ENERGY SERVICES, L.P.
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Docket No. 70-3070
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(Claiborne Enrichment Center)
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CERTIFICATE OF SERVICE I hereby certify that copies of " APPLICANT'S ANSWER OPPOSING INTERVENOR'S APRIL 21, 1994, MOTION TO CONSOLIDATE HEARING ISSUES" have been served on the following by deposit in the United States Mail, first class, this 6th day of May, 1994:
Administrative Judge Administrative Judge Thomas S.
Moore, Chairman Richard F.
Cole Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 (2 copies)
Administrative Judge Secretary of the Commission Frederick J.
Shon U.S.
Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S.
Nuclear Regulatory Attention: Chief, Docketing and Commission Service Section Washington, D.C.
20555 (Original plus 2 copies)
Office of Commission Appellate Eugene Holler, Esq.
Adjudication Office of the General Counsel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
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1 Ronald Wascom, Deputy Assistant Joseph DiStefano Secretary Louisiana Energy Services, L.P.
Office of Air Quality &
2600 Virginia Avenue, N.W.
Radiation Protection Suite 610 P.O.
Box 82135 Washington, D.C.
20037 Baton Rouge, LA 70884-2135 Peter G.
LeRoy Marcus A.
Rowden Duke Engineering and Services, Fried, Frank, Harris, Shriver &
Inc.
Jacobsen 230 South Tryon Street 1101 Pennsylvania Avenue, N.W.
P.O.
Box 1004 Suite 900 South Charlotte, NC 28201-1004 Washington, D.C.
20004 Diane Curran Nathalie Walker Harmon, Curran, Gallagher &
Sierra Club Legal Defense Fund Spielberg 400 Magazine St.
c/o The Institute for Energy Suite 401 and Environmental Studies New Orleans, LA 70130
'6935 Laurel Avenue, Suite 204 Takoma Park, MD 20912 Adjudicatory File Dr.
W.
Howard Arnold Atomic Safety and Licensing Louisiana Energy Services, L.P.
Board Panel 2600 Virginia Avenue, N.W.
U.S.
Nuclear Regulatory Suite 608 Commission Washington D.C.
20037 Washington, D.C.
20555 LOUISIANA ENERGY SERVICES, L.P.
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Jghn A. MacEvoy WINSTON & STRAWN,~
ATTORNEYS FOR LOUISIANA ENERGY
- SERVICES, L.P.
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