ML20141M588
| ML20141M588 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 08/17/1992 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#392-13184 DCOM, NUDOCS 9209030015 | |
| Download: ML20141M588 (9) | |
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- U94RC UNITED STATES OF AMERICA T2EWNM 4 NUCLEAR REGULATORY COMMISSION- . ; e , ?
i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket No. 50-312 DCOM
- SACRAMENTO MUNICIPAL UTILITY )
DISTRICT ) (Decommissioning Plan)
)
(Rancho Seco Nuclear Generating )
l Station, Facility Operating )
License No. DRP-54) )
I NRC STAFF RESPONSE IN SUPPORT OF LICENSEE'S MOTIONS TO STRIKE IMPROPER ARGUMENT IN ENVIRONMENTAL AN RESOURCES CONSERVATION ORGANIZATION'S FILINGS
\
INTRODUCTION t
On July 27,1992, Sacramento Municipal Utility District (SMUD) responded 8 to 4
two motions by Environmental and Resources Conservation Organization (ECO).2 In its responses SMUD moved the Licensing Board to strike parts of these motions as further
' " Licensee's Answer in Opposition to Petitioner's Motion for an Order to Compel Service and Licensee's Motion to Strike Portions Thereof;" " Licensee's Answer in l Opposition to Petitioner's Contir. gent Motion to Withhold Any Order Wholly Denying the Petition for Leave to Intervene and/or the Request for a Hearing and Licensee's Motion to Strike Portions Thereof."
2
" Petitioner's Contingent Motion to Withhold Any Order Wholly Denying the Petition for Leave to Intervene and/or the Request for a Hearing (Contingent Motion) i- dated July 17, 1992; " Petitioner's Motion for an Order to Compel Service (Motion to Compel)," dated July 17, 1992.
9209030015 DR 920e17 ADOCK 05000312 PDR
. argument upon the admission of contention which is not provided for in the regulations of the Commission or the orders of this Board. The Staff supports the Licensee's two motions to strike.
BACKGROUND On June 7,1989, Sh1UD permanently shut down Rancho Seco. Sec 57 Fed. Reg. 9577 (htarch 19, 1992). All spent fuel in the reactor has been transferred fr ' the reactor to the spent fuel storage pool and the Rancho Seco operating license has ocen amended to a possess, but not operate, states. Id.
On h! arch 19,1992, the NRC published a notice in the Federal Register that the Commission was considering the issuance of an order to Sacramento hiunicipal Utility District ("Sh1UD" or " Licensee") approving a Decommissioning Plan authorizing the decommissioning of Rancho Seco. Id.3 The notice stated that Sh1UD proposed to retain spent fuel onsite until a Federal repository was available and had submitted a supplement dated October 21, 1991, to the Rancho Seco Environmental Repott, analyzing the environmental impacts of the SAFSTOR decommissioning option at Rancho Seco.' Id.
3 The Decommissioning Plan provides 10 to 20 years of onsite storage (SAFSTOR) followed by the removal of residual radioactivity. 57 Fed. Reg. 9577. The SAFSTOR option for decommissioning provides for storage for a term of years to allow for radioactive decay, followed by decontamination of the facility. See General Requirements for Decommissioning Nuclear Facilities,= 53 Fed. Reg. 24018, 24022 (June 27,1988).
- The environmental impacts of various-decommissioning options have been examined in a Generic Environmental Impact Statement (GEIS) on Decommissioning, NUREG-0586, August 1988, on which public comment was obtained. The Rar.cho Seco Environmental Assessment supplemented the GEIS to address site-specific matters.
1
The notice further provided that any person whose interest may be affected by the results of the proceeding, and who wished to participate as a party in the proceeding, could Gle a petition to intervene under 10 C.F.R. 6 2.714. 57 Fed. Reg. 9578.~ A petition must state, with particularity, the nature of the petitioner's rights or interests in the proceeding, how those interests could be affected by the proposed agency action, and identify the aspects of the proceeding upon which it wished to intervene. -Id. See also 10 C.F.R. $ 2.714(a). On April 20,1992, ECO filed a petition for leave to intervene in this proceeding.5 The Licensee and the NRC Staff filed responses opposing the petition to intervene on May 5 and May 11, 1992, respectively.'
This Licensing Board was established on May 13,1992 "[to] rule on petitions for leave to intervene" concerning the proposed Order authorizing decommissioning.
57 Fed. Reg. 21433 (May 20,1992). In a Memorandum and Order (Filing Schedules and Prehearing Conference), dated May 15,1992, the Licensing Board (1) indicated that it would not rule on the petition at that time, in view of Petitioner's right to amend or supplement its petition up to 15 days before a prehearing conference, (2) established a schedule for the submittal of ECO's amendment to its petition and for responsive filings, I
and (3) scheduled a prehearing conference. ECO filed an amendment and petition to 8
Environmental and Resources Conservation Organization's Petition for Leave to Intervene and Request for Hearing, dated April 20,1992 (" Petition").
6 Licensee's Answer Opposing the Petition for Leave To Intervene and Request for Prior Hearing Filed by Environmental and Resources Conservation Organization, dated May 5,1992 (" Licensee's Response"); NRC Staff Response in Opposition to
, Petition To Intervene Filed by the Env_ironmental Conservation Organization on Proposed l Order to Decommission the Rancho Seco Facility, dated May -11,1992 (" Staff's Response").
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d
.- 4 intervene.7 The NRC Staff and Licensee filed responses in opposition to ECO's
[
] supplement.' A prehearing conference was held in Bethesda, Maryland on July 14, 1992. Subsequent to ' a rehearing conference, ECO filed the two motions. See note 2, supra. The Staff responded to ECO's Contingent Motion' but did not respond a
to ECO's Motion to Compel. The Licensee responded to both of the ECO motions'0 and i
, in its responses moved the Licensing Board to strike ECO's further argument regarding its proffered contentions.
l DISCUSSION
- The Licensing Board's Memorandum and Order (Filing Schedules and Prehearing i
- Conference), dated May 15,1992, provided for filmg of contentions by ECO by June 29, i
l 1992, prior to the first prehearing conference to be held 'for- July 14, 1992.
10 C.F.R. @ 2.714(b)(1) provides that ECO must file its contentions fifteen days prior to the first prehearing conference. ECO fikd its contentions which were opposed by the i
7
! ECO's Amendment and Supplement To Petition For Leave To Intervene And i Request For Hearing, dated June 29,1992 ("ECO Supplement").
t
' NRC Staff Response to ECO's Supplement to its Petition for Leave to Intervene l and Request for Hearing, dated July 10,1992; Licensee's Answer to ECO's Amendment i and Supplement to Petition for Leave to Intervene and Request for Heariug, dated July 8, 1992.
' "NRC Staff Response in Opposition to ECO's Contingent Motion to Withhold' i Any Order Wholly Denying Its Petition for Leave to Intervene," dated August 6,1992.
l 3
See footnote 1.
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4 . licensee and staff" and extensively argued of the prehearing conference " No provision was made for further argument of the parties.
.I l Generally unauthorized filings and unauthorized responses to a reply to proposed contentions are not allowed. See Arizona Public Sen' ice Co. (Palo Verde Nuclear Power Station, Unit 1), LBP-83-36,18 NRC 45,50 (1983) (unauthorized response to reply to proposed contention rejected); Long Island Lighting Co. (Shoreham Nuclear Power Statior,, Unit 1), LBP 83-57,18 NRC 445,624 n.72 (1983) (unauthorized response to I
filings rejected); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-87-26,26 NRC 201,206 (1987) (Leave to file unauthorized pleading denied where
, there was no compelling reason to allow filing). In the Rancho Seco possession only license proceeding, the petitioner, ECO, also filed unauthorized pleadings, but in support of its petition to intervene and they were rejected by the Board. See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-91-17,
, 33 NRC 379,381 n.3.
! The material Licensee seeks to strike is further argument in support of contentions 1
i j that may not be submitted after the time provided for the intervention of those arguments.
Footnotes 1 and 2 to'ECO's " Contingent Motion" are principally citations to cases that ECO maintains support the admission of contentions it filed. ECO's Contingent Motion
" " Licensee's Answer to ECO's Amendment and Sunclement to Petition for Leave to Intervene and Request for Hearing," dated July.8,1992; "NRC Staff Response to ECO's Supplement to Its Petition for Leave to Intervene and Request for Hearing," dated July 10,1992.
" Transcript 28-52.
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5
- - 6-5 at 1-2. This further argument regarding the contentions is basically an unauthorized and
! untimely amendment to its intervention petition and must be rejected under the above cited cases.
4 The material which Licensee seeks to strike on pages 3-4 of ECO's " Motion to Compel" is similarly additional argument in support of an authorized reply to the parties l opposition to ECO's contentions which may not be accepted for filing. -It does not deal with the subject of the motion to compel the service of documents upon it, but cites information in the public document room which ECO maintains add: support to its-contentions. It is further argument that SMUD's April 15, 1992 response to NRC staff
! questions and the NRC staff request for that information demonstrate a basis-for its i
- . assertion that there were deficiencies in SMUD's Environmental Report." At that i
- j. prehearing conference, the Licensee and this Board Chairman both informed ECO that J
i Staff review and questions are not indications of deficiencies in SMUD's environmental
, submissions."
i
- As ECO recognizes, it could have examined and cited this material, if relevant, i
in support of its contentions in its original filings or at oral argument. Under the above l cited cases, this part of ECO's " Motion to Compel" should be stricken as an authorized 1
i- response to filings opposing its contentions.
4
, The regulations provide for the submission 'of coatentions prior to the first
. prehearing conference and 10 C.F.R._Q 2.714(b)(2) specifically requires that the basis
" See Tr.167, t
" Tr.167,168.
3
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and justification for the contentions be submitted with the proffered contentions prior to the prehearing conference. Further argument by ECO is unauthorized and is in clear violation of the Commission's regulat:ons. The Licensee's two motions to strike portions of ECO's two motions should be granted.
Respectfully submitted, Charles A. Barth Ah&
Counsel for NRC Staff Dated at Rockville, Maryland this 17th day of August,1992.
I 4
I o UNITED STATES OF AMERICA 1TN[
. NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOEME O N M In the Matter of ) Q/,l))! u/ l ,
) nw SACRAMENTO MUNICIPAL UTIL.ITY ) Docket No. 50-312-DCOM 3
DISTRICT )
) (Decommissioning Plan)
(Rancho Seco Nuclear Generating Station, )
Facility Operating License No. DRP-54) )
CERTTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN SUPPORT OF LICENSEE'S MOTIONS TO STRIKE IMPROPER ARGUMENT IN ENVIRONMENTAL AND RESOURCES CONSERVATION ORGANIZATIONS FILINGS" 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, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by two asterisks, by messenger, this 17th day of August,1992:
Charles Bechhoefer, Esq., Chairman
- James P. McGranery, Jr., Esq.
Administrative Judge Dow, Lohnes & Albertson Atomic Safety and Licensing 1255 23rd Street, N.W.
Board Panel Suite 500 U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555 Ms. Jan Schori Richard F. Cole
- Sacramento Municipal Utility District Administrative Judge 6201 S Street Atomic Safety and Licensing P.O. Box 15830 Board Panel Sacramento, CA 95814 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of the Secretary * (2)
Attn: Docketing and Service Thomas D. Murphy, Esq.* U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 .
Atomic Safety and Licensing !
Board Panel U.S. Nuclear Regulatory Commission l Washington, DC 20555 l
l l l :
t 1
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a Sacramento County Board Thomas A. Baxter, Esq.
of Supervisors - Shaw, Pittman, Potts, & Trowbridge 700 H Street, Suite 2450 2300 N Street, N.W.
Sacramento, CA 95814 Washington, D.C. 20037 Office of Commission Appellate Atomic Safety and Licensing Adjudication
- Board Panel U.S. Nuclear Regulatory Commission Adjudicatory File * (2)
Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
$7 koWh &
Charles A. Barth Counsel for NRC Staff i
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