ML20149E486
| ML20149E486 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 05/11/1994 |
| From: | Holler E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#294-15040 ML, NUDOCS 9405310132 | |
| Download: ML20149E486 (10) | |
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amiEl i sm DOCKETED UNITED STATES OF' AMERICA USNRC NUCLEAR REGULATORY. COMMISSION.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 34 MAY 12. All $9:
- 0FFICE OF SECRETARY I DOCKETING & SERVICE; BRANCH j
In the Matter of
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-i Louisiana Energy Services, L.P.
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Docket No. 70-3070-ML o
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(Claiborne Enrichment Center)
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NRC STAFF'S ANSWER OPPOSING MOTION BY CANT TO CONSOLIDATE FOR HEARING CONTENTION B AND CONTENTION O WITH NEPA ISSUES l
1 INTRODUCTION ~
1 On April 21, 1994, Citizens Against Nuclear Trash (" CANT") filed a " Motion to-Consolidate for Hearing Contention B (Decommissioning Funding Plan Deficiencies) and,
Contention Q (Financial Qualifications) with NEPA Issues" (" Motion"). On May '6,1994, Louisiana Energy Services ("LES") filed " Applicant's Answer Opposing Intervenor's April 21, 1994, Motion to Consolidate Hearing Issues" ("LES Answer").
Pursuant to.10 C.F.R. 6 2.730(c), the NRC staff (" Staff") hereby files its answer to CANT's motion.
i BACKGROUND 1
On January 31,1991, LES filed an application for a license to construct and operate the Claiborne Enrichment Center (" CEC"),'a uranium enrichment facility to be constructed 'near Homer, Louisiana. On May 21,1991,' the Commission published a notice in the Federal-1 Register, whereby it noted, inter alia, that it had received the application and provided a Notice il i
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of Hearing and Commission Order with respect thereto.
The Notice further provided that, pursuant to statutory enactments,2 a single adjudicatory hearing would be held to consider the licensing of the facility, in accordance with the rules of procedure set forth in 10 C.F.R. Part 2, Subpart G (and, to the extent that classified information becomes involved, Subpart I).3 ' On May 23,1991, an Atomic Safety and Licensing Board was established to preside over the proceeding; and on June 20,1991, a petition for leave to intervene was filed by CANT.'
On July 16, 1991, the Licensing Board issued a Memorandum and Order in which it, inter alia, granted CANT's petition and permitted it to file contentions. - CANT filed its contentions on October 3,1991. By Memorandum and Order of December 19,1991, the Licensing Board admitted Contentions B, H, I, J, K: L, M, and Q, and admitted CANT as a party to the proceeding.5 By Memorandum and Order of May 7,1992, (Memorializing 1
1 Prehearing Conference), the Licensing Board adopted a prehearing schedule proposed by the
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" Notice of Receipt of Application for License [;] Notice of Availability of Applicant's Environmental Report; Notice of Consideration of Issuance of License; and Notice of Hearing and Commission Order; Louisiana Energy Services, L.P.; Claiborne Enrichment Center,"
56 Fed. Reg. 23,310 (May 21,1991).
See Section 193(b) of the Atomic Energy Act of 1954, as amended, as amended by the 2
Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990 (Pub. L.101-575),42 U.S.C. f 2243(b) (1990).
3 56 Fed. Reg. 23,310 311 (May 21,1991).
In addition, on June 27, 1991, the State of Imuisiana, Department of Environmental Quality ("DEQ"), filed a request for leave to participate as an interested state agency under the provisions of 10 C.F.R. 5 2.715(c); that request was granted by the Licensing Board's Memorandum and Order of July 16,1991, at 6-7.
No contentions have been filed by the Imuisiana DEQ.
Limitations on the admitted comentions are described in the Licensing Board's Order.
5 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-91-41, 34 NRC 332 (1991).
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parties which is based on separate hearing schedules for safety and environmental issues. The safety phase is to encompass Contentions B, H, I (Parts 8-11), L, M, and Q and the environmental phase is to encompass Contentions I (Parts 1-7), J, K, and W.* Memorandum and Order at 2.
For the reasons set forth below, the Staff opposes CANT's Motion and recommends that i
it be denied.
DISCUSSION 1.
Summary of Admitted Contentions B. O. and J Contention B, as admitted by the Licensing Board, is "that the LES decommissioning plan does not provide reasonable assurance that the CEC site can be cleaned up and adequately restored upon cessation of operations." The Licensing Board admitted Contention B " insofar p as it challenges the reasonableness of LES' decommissioning funding plan." Louisiana Energy Senices, L.P. (Claiborne Enrichment Center), LBP-91-41, 34 NRC 332, 337 (1991). The Licensing Board found that " bases one, four and five support the contention." Id. at 338.
Basis B1 asserts that there is no realistic basis for the estimate of cost for the disposal of depleted uranium hexafluoride. Basis B4 alleges that LES provides no details on how the decommissioning costs were determined. Basis B5 alleges that the LES decommissioning costs do not indicate what facilities will be decontaminated and to what extent. Id. at 337.
Contention J, as admitted by the Licensing Board, is that "[t]he Environmental Report '
does not adequately describe or weigh the environmental, social, and economic impacts and costs of operating the CEC. Moreover, the benefit-cost analysis fails to demonstrate that there is a
' Contention W is a late filed environmental phase contention admitted by the Licensing i
Board in its Memorandum and Order of April 5,1994.
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4-need for the facility." Id. at 349. The Licensing Board admitted bases three, four, and six in support of Contention J.
Basis J3 asserts that LES has not provided sufficient basis for its estimates of decommissioning costs. In admitting basis J3, the Licensing Board noted LES' argument that basis 33 rests squarely on bases B4, B5, and B6 and reasoned that because bases B4 and B5 were accepted by the Board as issues in this case, basis J3 should be accepted. Id.
at 350. Basis J4 involves the legal question: "What, if any, consideration must be given to the need for the facility in fulfilling NEPA responsibilities?" Id. at 351. Basis J6 alleges that the Environmental Report does not contain a complete or adequate assessment of the potential environmental impacts of the proposed project on ground and surface water. Id. at 351-52.
Contention Q, as admitted by the Licensing Board, is that "LES has not demonstrated 1
3 that it is financially qualified to build and operate CEC because partners are not committed to fund the building and operation of the facility...." Id. at 358.
II.
Separating the Hearine into Two Phases Advances the Hearing Process At the outset, it is important to note that this proceeding involves a single hearing.
Throughout its Motion, CANT attempts to distinguish what it characterizes as the " technical hearing" or the " hearing in the summer of 1994," from the " environmental hearing" or the
" hearing to be held on NEPA issues in 1995" as if there were two hearings associated with this licensing proceeding. Motion at 1,5, and 6. CANT asserts that litigation of certain issues must be consolidated "in order to avoid conflicting testimony and resjudica.a problems." Motion at 1. The plain fact of the matter is that this proceeding consists of a single hearing as required
-. by law and the Commission's May 15,1991 Order.' The Licensing Board's scheduling of the single hearing into two phases to accommodate the Staff's projected issuance of the Safety Evaluation Report ("SER") and the Final Environmental Impact Statement ("FEIS") was in response to the parties' agreed-to hearing schedule. See Memorandum and Order of May 7, 1992, (Memorializing Prehearing Conference) May 7,1992, at 2. The Licensing Board's action did not create two separate hearings and, as discussed more fully in III. infra, conducting the hearing in two phases does not give rise to resjudicata problems.8 Separating the hearing into two phases to address the safety and environmental issues as proposed by the parties and adopted by the Licensing Board in its May 7,1992, Order makes sense. At the time the Licensing Board issued its May 7,1992, Order, the Staff projected that
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there would be a seven and a half month delay between issuance of the SER and the FEIS. 11 Memorandum and order at 1-2. That delay period has remained approximately constant with the SER having been issued on January 25,1994, and the FEIS scheduled for issuance less than eight months later by August 30,1994. See Parties' March 15, 1994, Joint Progress Report at 2.
Section 193 of the Atomic Energy Act of 1954, as amended by the Solar, Wind, Waste, 7
and Geothermal Power Production Incentives Act of 1990 (Pub. L.101-575) (1990), provides, in pertinent part, that "[t]he Commission shall conduct a single adjudicatory hearing on the record with regard to the licensing of the construction and operation of a uranium enrichment facility under sections 53 and 63."
42 U.S.C. f 2243(b)(1). See also The Commission's-May 15,1991, Order, 56 Fed. Reg. 23,310 (1991).
CANT also suggests that litigation of the Contentions B and Q in the safety phase of the 8
hearing will give rise to conflicting testimony. Motion at 1 and 5. Conflicting testimony, if it in fact occurs, would not be the problem CANT seems to suggest in that Licensing Boards are vested with the responsibility to appraise critically the evidence placed before them. Public Service of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33,71-72 (1977).
. i In matters of scheduling, the paramount consideration is the public interest. The public interest is usually served by as rapid a decision as is possible consistent with everyone's opportunity to be heard. See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277,1 NRC 539,552 (1975). The issues scheduled for the -
safety phase of the hearing are matters which have been addressed in the SER. The issues scheduled for the environmental phase of the hearing are matters which will be addressed in the FEIS. Proceeding with the safety phase of the hearing while the Staff is addressing the comments directed to the Draft Environmental Impact Statement, and which requires no action on the part of the other parties, is an appropriate measure to advance the hearing process.
Ill.
CANT Has Not Made a Sufficient Showing to Warrant a Further Delay in this 1
Proceedinc 3
As a general rule, scheduling is a mrtter of Licensing Board discretion which will not be interfered with absent a "truly exceptional situation." Public Service Co. ofNew Hampshire (Seabrook Station, Unitt 1 and 2), AL AB-295, 2 NRC 668, 670 (1975). CANT argues that Contentions J and Q overlap because "[b]oth of these contentions involve the factual question of whether there is a market or need for the enriched uranium to be produced by the CEC."
Motion at 3. The Staff disagrees. Assuming arguendo that the issue of market or need for enrichment services is relevant to basis J4, the issue is irrelevant to Contention Q. Contention Q concerns the financial qualification of the Applicant to build and operate the CEC. Whether or not the CEC will be a profit-making concern is a matter outside the scope of Contention Q,-
as admitted.
CANT further argues that Contention B has a significant overlap with Contention J in that Contention B is admitted as basis J3 of Contention J. Motion at 4. _ The Staff agrees that an
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4 overlap exists to the extent that basis J3 and bases B4 and B5 involve the same issue. The common issue is the sufficiency of LES' basis for its estimate of decommissioning costs.
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However, because basis J3 " rests squarely on the bases" for Contention B, the results of the Contention B litigation will, in all likelihood, also resolve basis J3. The Staff has completed and published its review of the license application regarding the issue of decommissioning costs' which also has been open to discovery for more than two years. ' Further, the sufficiency of LES' basis for its estimate of decommissioning costs has been scheduled by the Licensing Board since May 1992 for litigation as Contention B in the safety phase of the proceeding.
CANT asserts the issue of decommissioning costs "must also be litigated in relation to 1
Contention J " Motion at 4. The Staff disagrees. When a particular issue has been adequately explored and resolved in an early phase of a proceeding, an intervenor may not litigate a similar p issue in a subsequent phase of the proceeding unless there are different circumstances which may have a material bearing on the resolution of the issue in the subsequent phase of the pro:eeding.
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 402-03 (1990). CANT further argues that it is still conducting discovery on the environmental issues and may, therefore, develop additional factual information regarding basis J3 after testimony is taken in the safety phase of the hearing. CANT asserts that such additional factualinformation would raise resjudicata problems. Motion at 5. Again, the Staff disagrees.
' On January 25,1994, the Staffissued the U.S. Nuclear Regulatory Commission " Safety-Evaluation Report for the Claiborne Enrichment Center, Homer Louisiana," NUREG-1491 January 1994 ("SER").
Chapter 15 of the SER contains the Staff's evaluation of LES' decommissioning plans.
8 Discovery on Contention B opened in January 1992. See Licensing Board Memorandum and Order (Memorializing Prehearing Conference), January 24,1992.
. Findings made on a record developed in advance of a final decision "must be regarded as subject to reconsideration should supervening developments or newly available evidence so warrant."
Douglas Point,1 NRC at 545. Thus, rather than raising the unspecified resfudicata problems CANT asserts, the discovery of new material evidence regarding decommissioning costs would merely require presentation of that evidence at the environmental phase of the hearing. The Staff concedes that such a situation might require CANT to call its witness to testify again.
However, on balance, the risk of CANT having to call the same witness to testify twice in the remote event that new evidence is discovered in the next six months after two years of discovery regarding this issue, is more than offset by the savings in time gained by dealing with the issue early on in the safety phase of the hearing.
In summary, CANT has not made a showing of exceptional circumstances at this time i
i sufficient to disturb the scheduling of the safety and environmental phases of this proceeding as set out in the Licensing Board's Memorandum and Order of May 7,1992.
CONCLUSION For the reasons discussed above, the Staff opposes the CANT Motion to consolidate for hearing Contention B and Contention Q with the NEPA issues and recommends that the Motion 1
be denied.
ectfully submitted, Y
,a Eug e Holler i
Counsel for NRC Staff i
Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland i
this lith day of May,1994
e UNITED STATES OF AMERICA D0CKETED.
USHRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'94 tif.Y 12 All :59 In de Matter of
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0FFICE OF SECRETARY I
DnCKETlHG & SERVICE LOUISIANA' ENERGY SERVICES, L.P.
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Docket No. 70-3070-ML BRANCH-
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(Claiborne Enrichment Center)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER OPPOSING MOTION BY CANT TO CONSOLIDATE FOR HEARING CONTENTION B AND CONTENTION Q WITH NEPA ISSUES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or through deposit in the Nuclear Regulatory Commission's internal mail system as indicated by an asterisk, or by facsimile as indicated by a double asterisk, this lith day of May,1994:
Thomas S. Moore, Chairman **
Richard F. Cole **
Administrative Judge -
Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Frederick J. Shon**
Mr. Ronald Wascom -
Administrative Judge Deputy Assistant Secretary Atomic Safety and Licensing Board Office of Air Quality &
Mail Stop: EW-439 Radiation Protection U.S. Nuclear Regulatory Commission P.O. Box 82135 Washington, DC 20555 Baton Rouge, LA 70884-2135 J. Michael McGarry, III, Esq.**
Peter LeRoy Winston & Strawn Duke Engineering & Services, Inc.
1400 L Street, N.W.
P.O. Box 1004 Washington, DC 20005 Charlotte, NC 28201-1004
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. Q Dr. W. Howard Arnold Marcus A. Rowden, Esq.
Louisiana Energy Services, L.P.
Fried, Frank, Harris 2600 Virginia Avenue, N.W.
Shriver & Jacobsen Suite 608 1101 Pennsylvania Avenue, N.W.
Washington, DC 20037 Suite 900 South Washington, DC 20004 l
Office of the Commission Appellate Office of the Secretary
- l Adjudication
- ATTN: Docketing and Service l
Mail Stop: 16-G-15 OWFN U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Board Nathalie M, Walker, Esq.**
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Panel
- Sierra Club 12 gal Defense Fund Mail Stop: EW-439 400 Magazine Street, Ste. 401 U.S. Nuclear Regulatory Commission New Orleans, LA 70130 Washington, DC 20555
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l Diane Curran, Esq.**
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c/o IEER 6935 Laurel Avenue, Suite 204
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Takoma Park, MD 20912 I
'h Eugen0 J. Holler Counsel for NRC Staff I
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