ML20134P624
| ML20134P624 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island, 07200018  |
| Issue date: | 11/26/1996 |
| From: | Marco C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#496-18074 ISFSI, NUDOCS 9611290184 | |
| Download: ML20134P624 (8) | |
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November 26,Ufdf6C l UNITED STATES OF AMERICA '96 NOV 26 Pl2:42 NUCLEAR REGULATORY COMMISSION
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REFORE THE ATOMIC R AFFTY AND I_ICFNRING . [ ROARD 'I'd h In the Matter of
) 4 NORTHERN STATES POWER COMPANY ) Docket No. 72-18-ISFSI
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(Independent Spent )
Fuel Storage Installation) ) j NRC STAFF'S RESPONSE TO FLORENCE TOWNSHIP'S MOTION FOR DIRMIRRAI AND RROIIFST FOR HEARING INTRODIICTION
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On November 14,1996, as amended on November 20,1996, Florence Township moved the Atomic Safety and Licensing Board (Board), among other things, to dismiss without prejudice !
Northern States Power (NSP's) application for a license to construct and operate an ISFSI in Goodhue County, Minnesota. For the reasons set forth below, the NRC staff does not support l Florence Township's motion.
RACKGROLIND On November 13,1996, Northern States Power (NSP) requested the staff of the Nuclear Regulatory Commission (Staff) to suspend its review of NSP's application and, on the same date, moved the Atomic Safety and Licensing Board to suspend further adjudicatory proceedings related to NSP's application. Sec " Northern States Power Cortpany's Motion for Suspension of Proceeding," dated November 13,1996; Letter from Roger O. Anderson, Director, Licensing and Management, NSP to Charles J. Haughney, Acting Director, Spent Fuel Projects Office, NMSS, dated November 13, 1996. Thereafter, on November 14,1996, petitioner, Florence Township 9611290184 961126 PDR C
ADOCK 07200010 PDR a 3p]
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1 filed a motion for dismissal, motion for extension of time limits, and a response to NSP's November 13,1996, motion to suspend the proceeding.' " Petitioner Florence Township's Motion For Dismissal, Motion For Extension of Time Limits, and Response to NSP's Motion For j Suspension of Proceeding," (Motion) dated November 14, 1996. Florence Township amended I
its filing on November 20,1996 to include a request for a hearing on NSP's motion to suspend i the proceeding.2 The Staff's response to Florence Township's motion for dismissal and request
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for a hearing on NSP's motion is set forth L-low.
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I. Elorence Townshin's nismical Motion In its Motion, Florence Township requests the Board to dismiss NSP's application for a ;
license to construct and operate an ISFSI in Goodhue County, Minnesota without prejudice.
Motion at 1. The relief sought by Florence Township, however, is outside of the Board's jurisdiction and, thus, cannot be granted. As Florence Township recognizes, the Commission's l
1 regulations provide that the Commission may permit an applicant to withdraw an application prior !
to the issuance of a notice of hearing, or it may deny the application or dismiss it with prejudice.
8 Florence Township's motion for extension of time limits requested that the Board order a thirty day extension of time for filing contentions, which would ordinarily have been due on November 25,1996, pending the Board's resolution of NSP's motion. On November 19,1996, the Board postponed the date for amending petitions and submitting contentions until after a ruling on NSP's motion. See " Order Postponing Filing Date" at 1.
2 On November 15, 1996, the Staff responded to NSP's motion, stating that it had no objection. "NRC Staff's Response to Northern States Power Company's Motion For Suspension of Proceeding," dated November 15, 1996. To date, the Staff has received the responses of five l
petitioners, the City ofIAe City, the Minnesota Environmental Quality Board, the Prairie Island !
Coalition, and the City of Red Wing, in support of NSP's motion.
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See 10 C.F.R. I 2.107. After issuance of the notice of hearing, withdrawal of an application may be permitted on terms set forth by the Board. Id. Thus, prior to issuance of the notice of hearing as provided in 10 C.F.R. I 2.105(e)(2), exclusive jurisdiction to address withdrawals of applications rests with the Commission (or Staff, by delegation of authority). Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-93-20,38 NRC 83, 84-5 (1993).
Florence Township correctly states that NSP has'not requested a withdrawal of its application, but merely a suspension, a measure not authorized, in its view, by the regulation.
The Staff considers an action on a licensee's request to suspend the review ofits application as falling within the purview of the Staff's authority to act upon withdrawal requests prior to publication of the notice of hearing. Such Staff action is not unusual in the context of nuclear power plant licensing. For example, the Commission's Policy Statement on Deferred Plants provides that when a plant is deferred, meaning that the licensee has ceased activity, maintains the construction permit in effect, and has not announced termination of the plant, the Staff will normally bring all ongoing reviews to a termination point and will not initiate new reviews during the period of deferral. 52 Fed. Reg. 38,077 (1987). With respect to the instant request to suspend review of the application, the Staff considered and granted NSP's November 13,1996, request.
Inasmuch as the Board had not issued a notice of hearing in this proceeding prior to NSP's request i
to the Staff for suspension of the application, the authority to act on the request remains with the Staff. See also 10 C.F.R. 6 2.717(b) (Director of Nuclear Material Safety and Safeguards may 4
take action with respect to a licensee that is a party to a pending proceeding, such as issue an order against it or take other administrative action). Thus, since the Board does not have jurisdiction d
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4 to provide Florence Township the relief it requests, Florence Township's motion must be denied.
Even if the Board were to determine that it had jurisdiction in this matter, Florence Township's Motion should still be denied. Florence Township makes several assertions of the harm that will befall it if NSP's motion to suspend the proceeding is granted, rather than outright dismissal of the application without prejudice. Florence Township states that dismissal will allow for certainty and " allow the township adequate notice to begin the intervention process and secure counsel and experts, and most importantly, funding. . . ." Amended Motion at 4. The Staff understands that Florence Township would incur expenses associated with the proceeding, but Florence Township has not shown that those expenses would be greater if the proceeding is suspended and then reactivated, rather than if the application is dismissed and resubmitted. It would appear that the costs to a prospective intervenor would be the same and may, in some respects, be reduced because standing would not need to be reestablished for this petitioner.'
II. Elorence Townshin's Recuest for Oral Arenment The Commission's regulations provide that no oral argument will be heard on a motion unless the presiding officer or Commission directs otherwise. 10 C.F.R. 6 2.730(d). Inasmuch as oral argument is discretionary, the Commission has held that a party seeking oral argument must explain how it would assist the Commission in reaching a decision. See Joseph J. Macktal, CLI-89-12,30 NRC 19, 23 n.1 (1989) (oral argument regarding NRC subpoena denied because 3
Neither the Staff nor NSP objected to the standing of Florence Township. "NRC Staff's Response to Petitions For leave to Intervene of the Minnesota Environmental Quality Board, the Pratrie Island Indian Community, the City of Red Wing, Lake City, the Prairie Island Coalition, and Florence Township," dated November 5,1996; " Northern States Power Co.'s Answer to Florence Township's Request For Hearing and Petition to Intervene," dated November 1,1996.
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could not assist Commission in making a decision); Advanced Nuclear Fuels Corp. (Import of South African Enriched Uranium Hexaflouride), CLI-87-9, 26 NRC 109,112 (1987) (oral argument on export licenses unnecessary where, based on the written submissions, the Commission understood the participants' positions and had sufficient information upon which to decide). Florence Township has not shown that sufficient need exists for oral argument on the matter of NSP's motion in that the issue is quite straight-forward and can be resolved from a review of the filings before the Board. The facts underlying NSP's motion regarding the pendency of the Prairie Island Indian Community's lawsuit are not in dispute. All of the e
responses to date support NSP's motion, with the exception of Florence Township, which supports the motion, but only as alternative relief. Thus, it does not appear that oral argument would assist the Board in reaching a decision. Therefore, oral argument does not warrant the expenditure of travel funds and time it would require, and the request should be denied.
CONCI 11SION For the reasons set forth above, Florence Township's dismissal motion and request for a j hearing on NSP's motion should be denied. ,
l Respectfully submitted, l D
Catherine L. Marco Counsel for NRC staff Dated at Rockville, Maryland this 26th day of November,1996 I
. . 00CKETED USHRC UNITED STATES OF AMERICA i i
NUCLEAR REGULATORY COMMISSION *% Nov 26 P12:42 i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD:CE OF SECDET/4RY DOCKEllN3 L SEAV!CE l BRANCH In the Matter of )
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NORTHERN STATES POWER COMPANY ) Docket No. 72-18-ISFSI i )
(Independent Spent Fuel Storage Installation)
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, CERTIFICATE OF SERVICE 1 I hereby certify that copies of the "NRC STAFF'S RESPONSE TO FLORENCE TOWNSHIP'S
, MOTION FOR DISMISSAL AND REQUEST FOR HEARING" in the above-captioned matter have 2
been served on the following by deposit in the United States mail, first class, as indicated by asterisk i
or through deposit in the Nuclear Regulatory Commission's internal mail system this 26th day of November,1996:
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Charles Bechhoefer, Chairman Frederick J. Shon i Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board l i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20005 Washington, DC 20005 Thomas D. Murphy Adjudicatory File (2)
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
- _ Washington, DC 20005 Washington, DC 20005-Office of the Commission Appellate Office of the Secretary Adjudication Attn.
- Docketing and Service Mail Stop: 16-G-15 OWFN Mail Stop: 16-G-15 OWFN U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20005 Washington, DC 20005
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Atomic Safety and Licensing Board Brent Vanderlinden, Esq.*
Panel Assistant Attorney General Mail Stop: T-3F23 1200 NCL Tower i U.S. Nuclear Regulatory Commission 445 Minnesota St.
Washington, DC 20005 St. Paul, MN 55101-2130 David E. Sampsel, Director
- Gary Johnson, Esq.*
Federal Intervention Office Northern States Power Co.
Metro Square Bldg., Ste. 200 414 Nicollet Mall 121 - 7th Place East Minneapolis, MN 55401 l St. Paul, MN 55101-2145 Lenor A. Scheffler* Alan Mitchell*
Joseph M. Paiement Assistant Attorney General 5636 Sturgeon Lake Road 900 NCL Tower
^ Ich, MN 55089 445 Minnesota Street St. Paul, MN 55101 oen Cupit* David Lewis
- Minnesota Environmental Quality Jay Silberg Board Shaw, Pittman, Potts & Trowbridge 658 Cedar Street 2300 N. Street, N.W.
St. Paul, MN 55155 Washington, DC 20037 Mr. George C. Hof1* Mr. Steve Perkins*
Hoff, Bany & Kuderer, PA Council Administrator 7901 Flying Cloud Dr. City ofRed Wing Suite 260 P.O. Box 34, City Hall Eden Prairie, MN 55344-7914 Red Wing, MN 55066 Richard Abraham
- Scott H. Strauss
- City Administrator Robert L. Roach 205 West Center Street Spiegei & McDiarmid Lake City, Minnesota 55041 1350 New York Ave., N.W., Ste. I100 Washington, DC 20005-4798 Philip Ganner* George Crocker, Steering Committee
- Gartner & Shulman Susan Johnson, Goodhue. Co.
Box 149 Prairie Island Coalition 120 West Center Street 733 Sanford Street Lake City, Minnesota 55041 Red Wing, MN 55066
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3 Carol A. Overland, Esq.*
P.O. Box 202 j 209 Oak Street, Ste 8 Farmington, MN 55024 h n4 kan nin n .Wnntd Catherine L. Marco l Counsel for NRC Staff l
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