ML20209E875
| ML20209E875 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 04/24/1987 |
| From: | Lewis S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20209E835 | List: |
| References | |
| CON-#287-3375 SC, NUDOCS 8704300143 | |
| Download: ML20209E875 (9) | |
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00CKETED USNRC 87 APR 28 P3 :05 April 24,1987 0FFIN N E i 00CKlith4{'..
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
U.S. ECOLOGY, INC. ) Docket No. 27-39
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
NRC STAFF RESPONSE TO MOTION BY US ECOLOGY FOR SANCTIONS AND OTHER RELIEF I. INTRODUCTION On April 21, 1987, US Ecology ("USE") filed a motion with the Atom-ic Safety and Licensing Appeal Board seeking the dismissal of the State of Illinois as a party to this appeal for failure to have filed a timely brief in response to the Brict of US Ecology, Inc. in Support of its Appeal of the Final Decision ("USE appeal brief"), filed on March 16, 1987. O USE also seeks to have the Appeal Board strike any responsive brief the State i may file. In the alternative, USE requests the Appeal Board to require the State and the NRC staff to file their briefs in response to the USE 1,/ Motion By US Ecology For Sanctions And Other Relief ("USE motion") .
8704300143 870424 PDR ADOCK 02700039 C PDR
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appeal brief by April 27, 1987. As developed in this response, the USE motion should be denied. b II. DISCUSSION The USE motion is prompted by the Staff's letter to the Appeal Board, dated April 16, 1987, in which the Staff had advised the Appeal Board of the time within which the State believes it may file its responsive brief and the Staff's resultant calculation of the date by which j it may file its responsive brief. USE accuses the Staff of attempting
. . . to utilize for its own advantage the State's obvious tactic to stall i
i the proceeding despite the Appeal Board's determination that it should go
- forward. " USE motion at 2. The purpose of the Staff's letter was not to I
} delay the consideration of USE's appeal, but rather to protect the Staff from having to file its response to the USE appeal brief in advance of the
! State's response.
1 i Under 10 C.F.R. I 2.762, the Staff's response brief to an appeal of l an initial decision is not due until 10 days after the responsive briefs of a
other parties may be filed. See 9 2.762(c). Counsel for the State advised the Staff that it interpreted i 2.762 as allowing it to await the
-2/ On March 16, 1987, USE filed a " Motion to Modify the Time for Filing Briefs in Opposition to the Appeal by US Ecology, Inc. of the Final ;
Decision and Statement of Related Considerations." USE there asked that the State and Staff be required to submit answering briefs within two weeks of the filing of the USE appeal brief. The Appeal Board summarily denied the motion on March 19, 1987.
3/
By Order dated April 22, 1987, the Appeal Board directed the State and Staff to file their responses to the USE motion by April 24th in
! such a manner as to assure their receipt by the Appeal Board by ;
2 Apr!! 27th. l i :
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close of the period in w[ich a party other than USE (in this case that
, \
l could only be the Staff) ,idght appeal the Licensing Board's Memorandum l 4 I I
and Order (Ruling on Motions for Summary Disposition), dated !
February 20, 1987 and itC Memorandum and Order (Clarifying Finality of Decision), dated March 10, 1987. Furthermore, the State believed that it would not know for certain whether there was another appellant until the period had expired for another party to file an appeal brief. Under this interpretation, the Staff calculated that the State's responsive brief would be due by June 1, 1987, and that in order to preserve the . Staff's i opportunity to file last, the Staff's responsive brief would not be due until June 11, 1987.
T The State further advised the Staff that it believed that its determi-l nation of the date by' which it would have to respond was consistent with 4
the plain meaning of f 2.762 and that the State, therefore, did not l
consider it necessary to advise the Appeal Board of its interpretation of the regulation In order to avoid a situation where the State and the i Staff were proceeding on different assumptions as to when their respon-l l sive briefs v ere due, the Staff concluded that it had an obligation to i
advise the Appeal Board of the State's views. The Staff rejects USE's assertions that it was acting improperly in so advising the Appeal Board. O i
1 4/
In light of the Appeal Board's previous denial of USE's motion to expedite the briefing schedule, Staff's knowledge of normal filing i practice before agency tribunals, and the information it had
! concerning the State's reasonable albeit different interpretation of
- 10 C.F.R. I 2.762, Staff counsel concluded that he had a " manifest l (FOOTNOTE CONTINUED ON NEXT PAGE) i !
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_4-Since the filing dates recited in the April 16th letter are based on j the State's interpretation of I 2.762, the State can explain the basis for its interpretation. The application of I 2.762 to the circumstances of this appeal, however, raises questions which affect the calculation of the filing dates for the responsive briefs.
USE argues that it was the only nonprevailing party before the Li-censing Board and that, therefore, the time for the filing of responsive briefs ran from March 16, 1987,- the date of filing of the USE appeal brief. USE motion at 4. The State might have believed, however, that j
the Staff would appeal the Licensing Board's decisions, specifically the Licensing Board's determination that USE must meet 10 C.F.R. Part 61 with respect to the Sheffield site 5_/ The State would not have known i
until April 1,1987 whether the Staff was also an appellant. 6/
Under I 2.762(c), the time for filing responsive briefs should be considered to run from April lat. This is consistent with the Commis-sion's purpose, referenced in the USE motion (at 3-4), in revising 1 '
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) i 1
and iron-clad obligation of candor" which required notification of the Appeal Board. Public Service Company of Oklahoma (Black Fox Station , Units 1 and 2), ALAB-505, 8 NRC 527, 532 (1978). This
, obligation existed even though the State's interpretation would result in no particular injury to the Staff's interests in this proceeding.
5/ Memorandum and Order (Ruling on Motions for Summary Disposition) l 2
at 26; Memorandum and Order (Clarifying Finality of Decision) at 3-4.
i 6/ As stated in the April 16th letter, March 27, 1987 was the date by which the Staff could have filed a notice of appeal. Assuming ser-vice of such a notice by regular mail, the State would be presumed to have received the notice by April 1, 1987. See 10 C.F.R.
I 2.710.
i
O f
l 5 2.762, to avoid prejudice to appellees where there are potentially !
multiple appeals. O This is the appropriate application of f 2.762 to this appeal, rather than USE's interpretation that the response dates should
~
run from the date of the filing of the USE appeal brief. l l
Applying 5 2.762 in this manner results in a filing date for the State's responsive brief of May 1,1987, and May 11, 1987 for the Staff's !
responsive brief. The Staff requests that the Appeal Board, in ruling on the USE motion, confirm that the Staff has until May 11, 1987 to file its responsive brief. Further, if the Appeal Board grants the State time f
l beyond May 1st for its responsive brief, the Staff requests that its filing date be adjusted so as to preserve the 10 days between the filing of the State's brief and the filing of the Staff's brief. See 10 C.F.R.
I 2.762(c).
Since the State's interpretation of I 2.762 is not without some basis in the language of the regulation, it is not appropriate to impose the severe sanctions of dismissal of the State as a party to this appeal and striking of any responsive brief it may file.
4 III. CONCLUSION
, The Appeal Board should decline to dismiss the State as a party to
, this appeal or to strike any responsive brief it may file. Further, the ,
Appeal Board should confirm that the Staff's responsive brief is required to be filed no earlier than May 11, 1987, and is not required to be filed l
-7/ See Statement of Considerations on Final Rule: Deletion of Exception FIIfng Requirement for Appeal from Initial Decision: Consolidation of Responsive Briefs, 48 Fed. Reg. 52282 (November 17, 1983).
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l until 10 days following the date by which the State's responsive brief may be filed.
Respectfully submitted,
+t kxc.m Stephen H. Lewis Counsel for NRC Staff Dated at Bethesda, Marylend this 24th day of April,1987 i
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DOLKETLD USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 APR 28 P3 :04 BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD '
C Orrits . te ntiAHY 00CKL W A . E RVEi.
In the hiatter of )
)
U.S. ECOLOOY , INC. ) Docket No. 27-39 -SC
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with I 2.713(b),
4 10 C.F.R., Part 2, the following information is provided:
4 Name: Stephen H. Lewis
, Address: Senior Supervisory Trial Attorney U.S. Nuclear Regulatory Commission Ofnce of the General Counsel Washington, D.C. 20555 Telephone Number: (301) 492-8139 I
Admissions: Commonwealth of Massachusetts Supreme Judicial Court District of Columbia Court of Appeals United States Supreme Court Name of Party NRC Staff Respectfully submitted, st $.bc I Stephen II. Lewis Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 24th day of April,1987 1
e i
00LnETEE U91Pr UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 APR 28 P3 :04 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD Of r u v ... :.Ary 00CKErisc i. Envict In the Matter of )
)
U.S. ECOLOGY, INC. ) Docket No. 27-39
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION BY US ECOLOGY FOR SANCTIONS AND OTHER RELIEF" and " NOTICE OF APPEARANCE" 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 Commission's internal mail system, this 24th day of April,1987:
B. Paul Cotter, Esq. , Chairman James R. May, Esq.
Administrative Judge , State's Attorney Atomic Safety and Licensing Board Bureau County Court House U.S. Nuclear Regulatory Commission Princeton, IL 61356 Washington, D.C. 20555*
Jerry R. Kline Henry L. Henderson, Esq.
Administrative Judge Asst. Attorney General Atomic Safety and Licensing Board Environmental Control Division U.S. Nuclear Regulatory Commission 13th Floor Washington, D.C. 20555* 100 West Randolph Street Chicago, IL 60601 Dr. Emmeth A. Leubke John M. Cannon, Esq.
Administrative Judge Mid-America Legal Foundation Atomic Safety and Licensing Board Suite 842 U.S. Nuclear Regulatory Commission 20 North Wacker Drive Washington, D.C. 20555* Chicago, IL 60606 i l Docketing and Service Section Robert Russell, Esq. 1 Office of the Secretary Johnson, Martin & Russell )
U.S. Nuclear Regulatory Commission 10 Park Avenue West Washington, D.C. 20555* Princeton, IL 61356 D. J. McRae, Esq. Susan B. Ilarmon, Esq.
217 West Second Street Burke, Bosselman and Weaver Kewaunee, IL 61443 Xerox Centre - 55 West Monroe
- Chicago, IL 60603 l
1
e Mark J. Wetterhahn, Esq. Mr. Charles F. Eason, Esq.
Robert Rader, Esq. American Ecology, Inc.
Conner and Wetterhahn Director for Governmental Affairs 1747 Pennsylvania Avenue, N.W. 1700 N. Moore Street Suite 1050 Suite 1925 Washington, D.C. 20006 Arlington, Virginia 22209 R. Lee Armbruster, Esq. Atomic Safety and Licensing General Counsel Board Panel U.S. Ecology, Inc. U.S. Nuclear Regulatory Commission P. O. Box 7246 Washington, D.C. 20555*
Louisville, KY 40207 Atomic Safety and Licensing Terry Lash Appeal Board Panel Director, Dept. of Nuclear Safety U.S. Nuclear Regulatory Commission 1035 Outer Park Drive Washington, D.C. 20555* Springfield, IL 62704 Chief Legal Counsel Marc Bernabei, Esq.
Department of Nuclear Safety State's Attorney 1035 Outer Park Drive Office of the State's Attorney Springfield, IL 62704 Bureau County Courthouse Princeton, IL 61356 m $* bl.ptc Stephen H. Lewis Senior Supervisory Trial Attorney i
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