ML20040F871
| ML20040F871 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 02/08/1982 |
| From: | Gutierrez J, Repka D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8202100406 | |
| Download: ML20040F871 (7) | |
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O 02/08/82 UNITED STATES OF AMERICA e
A NUCLEAR REGULATORY COMMISSION t
9 RECE S 9
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD p
FEBg $ 27 3 f(=?a$ER In the Matter of
/J MAINE YANKEE ATOMIC POWER COMPANY Docket No. 50-309 N
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(SpentFuel)
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(Maine Yankee Atomic Power Station))
HRC STAFF RESPONSE TO STATE OF MAINE'S RENEWED MOTION FOR A SECOND PREHEARING CONFERENCE I.
INTRODUCTION On January 19, 1982, the State of Maine by its Attorney General filed a " Motion for Prehearing Conference." In this pleading the State of Maine, for the second time, requests that the Board schedule a second prehearing conference. As viewed by the State, the conference is necessary "to consider the amended contentions already filed, the objections to the contentions, the responses to the objections and other mattersdeemedappropriatepursuantto[10C.F.R.]62.751(a)[ sic]."
The State of Maine first requested a second prehearing conference in a document entitled " State of Maine Request for Notice and Order Scheduling Prehearing Conference," filed October 26, 1981. The NRC Staff filed an opposition to that motion on November 11, 1981.
In a Memorandum and Order issued December 30, 1981, the Board denied the State's first DESIGNATE ORIGINAL Y0?K l
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' motion, stating that "no need is seen at this time for scheduling another prehearing conference." The NRC Staff believes that there continues to be no need for a second prehearing conference until the Board rules on the admissibility of the pending contentions and the parties conduct discovery. Therefore, the State's renewed motion should be denied.
II. DISCUSSION The State of Maine supports its request for a second prehearing conference by citing the purposes for special prehearing conferences outlinedin10C.F.R.62.751a.1/ Under the regulation, such conferences are held to:
(1) Permit identification of the key issues in the proceeding; (2) Take any steps necessary for further identification of the issues; (3) Consider all intervention petitions to allow the presiding officer to make preliminary or final determinations as to the parties to the proceeding, as may be appropriate; and (4) Establish a schedule for further actions in the proceeding.
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By its terms this section of the regulations is only applicable to proceedings involving "an application for a construction permit or an operating license." This proceeding involves an application for an amendment to an operating license, and therefore any prehearing conference held is at the discretion of the Board under 10 C.F.R. 6 2.752. Section 2.752 is the general prehearing conference provision, governing all such conferences which are not special prehearing conferences. What the State of Maine requests in its current motion is in fact a 5 2.752 conference and not a 5 2.751a conference. The Staff, however, believes the distinction is irrelevant to the State's current motion as neither type of prehearing conference is presently appropriate.
' The State suggests that not all four of these functions were carried out at the earlier prehearing conference in this case,U and therefore that a second conference is now necessary to perform the omitted functions.
However, there is no requirement that all the functions listed in 5 2.751a be carried out at a special prehearing conference. The regulation permits several types of special prehearing conference which serve different purposes. See, Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), LBP-78-23, 8 NRC 71, 76 (1978). As proviJed in 10 C.F.R. 5 2.752, in proceedings not involving the issuance of a construction permit or operating license, prehearing conferences may be scheduled within the discretion of the presiding officer to consider any matters deemed appropriate.
In the December 30th Memorandum and Order the Board saw "no need" for scheduling another prehearing conference at that time. A prehearing conference has already been held under 10 C.F.R. 5 2.751a to consider contentions. The State of Maine, in its current motion, has demonstrated no new circumstances which would now necessitate another conference. The State requests a conference to consider the Intervenors' amended
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The special prehearing conference was noticed June 22, 1981, and held in Wiscasset, Maine on August 11, 1931. The Board issued a Pre-hearing Conference Order on August 24, 1981 (amended by Order of September 15,1981).
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contentions, the objections of the NRC Staff and the Licensee to the contentions, and the Intervenors' responses to the objections.3_/ The NRC Staff believes that a conference is not necessary prior to a Board Order ruling on the contentions. The parties have had ample opportunity to make their positions clear at the previous prehearing conference held to consider contentions and in the various filings on the contentions. An Order should be issued on the proposed contentions without further preliminaries.
The State also suggests that a prehearing conference is currently required to set a schedule for further actions in this proceeding. The NRC Staff believes that a prehearing conference simply to establish a schedule for discovery and hearings would be an unduly expensive and time consuming manner of conducting business. Surely, in its order ruling on contentions this Board can establish a reasonable discovery period. Even assuming party input is needed to establish a discovery schedule, such input can be made in a conference call.
Finally, the NRC Staff takes the position that now is not the time for a prehearing conference, either under 6 2.751a or 5 2.752, to further
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Intervenors Maine and SMP each filed amended cont.entions on October 5, 1981. Responses to each were filed by the Licensee on October 13, 1981 and by the Staff on October 26, 1981.
Pursuant to the Board Order of December 30, 1981, responses to the Licensee and Staff objections were filed by Maine on January 19, 1982, and by SMP on January 24, 1982.
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' identify and narrow the issues in the proceeding. A prehearing conference to discuss what issues will actually be the subject of a hearing should only be held in the discretion of the Board under 5 2.752 after a ruling on contentions and an ensuing period for discovery and negotiations among the parties.
Such a conference prior to discovery and negotiation would be a reversal of the logical order of events, and a pointless exercise.
III. CONCLUSION For the reasons set out above, the NRC Staff believes that a second prehearing conference is inappropriate at this time. Therefore, the State of Maine's motion should be denied.
Respectfully submitted, d
- b. y David A. Repka Counsel for NRC Staff b. bd I
q Jay M. Gutierrez Mk Counsel for NRC Staff Dated at Bethesda, Maryland this 8th day of February, 1982.
1 J
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0milSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
MAINE YANKEE ATOMIC POWER COMPANY Docket No. 50-309 (Spent Fuel)
(Maine' Yankee Atomic Power Station) i CERTIFICATE OF SERVICE L
2 I.hereby certify that copies of NRC STAFF RESPONSE TO STATE OF MAINE'S RENEWED MOTION FOR A SECOND PREHEARING CONFERENCE in the above-captioned proceeding have been-served on.the following by deposit in the United
' States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 8th day t
of February, 1982.
i Robert M. Lazo, Esq., Chaiman*
Administrative Judge Rufus E. Brown Atomic-Safety and Licensing Board
-Deputy Attorney General U.S. Nuclear Regulatory Comission
' Department of the Attorney General Washington, DC 20555 State House Augusta, ME 04333-Dr. Cadet H. Hand, Jr.
Administrative Judge.and Director, Bodega Marine Laboratory David Santee Miller
-University of California Counsel for Petitioner P.O. Bcx 247.
213 Morgan Street, N.W.
Bodega Bay, CA 94923 Washington, DC 20001 Peter A. Morris
- i Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel
- U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission j
Washington,.DC 20555 Washington, DC 20555 Thomas Dignan, Esq.
Atomic ~ Safety and Licensing l
Ropes'& Gray..
Appeal Board *
'225 Franklin Street U.S. Nuclear Regulatory Comission
+
Boston,'MA: 02110 Washington, DC 20555
. Stanley Tupper, Docketing and Service Section*
Tupper.& Bradley Office of the Secretary t
102 Townsend Avenue U.S. Nuclear Regulatory Comission Boothbay Harbor, ME 04538 Washington, DC 20555 1
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1 David Colton-Manheim Box #386 Bedford's Barn t
Gouldsboro, Maine 04607
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i b bhk David A. Repka 5
Counsel for NRC Staff i
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