ML20211H141
| ML20211H141 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 09/19/1997 |
| From: | Mcgarry J, Rowden M FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#497-18517 ML, NUDOCS 9710060260 | |
| Download: ML20211H141 (5) | |
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US}lRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g g p43g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF GECRETARY Docket No. 70-3070-Ai8JUDm aN RULEhWNC I
STAFF In the Matter of
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LOUISIANA ENERGY SERVICES, LP. )
September 19,1997
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(Claiborne Enrichment Center)
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APPLICANT'S RESPONSE TO THE LICENSING BOARD'S ORDER OF SEPTEMBER 11.1997 ON REMANDED PORTION OF THIRD PID Applicant Louisiana Energy Services, L.P. ("LES") hereby responds to the Licensing Board's Order of September 11,1997, directing each party to provide the Board with its views on two issues:
1.
The basis for the Licensing Board's jurisdiction to proceed in this matter. In our view, the Commission's action in remanding for clarification of LBP-97-3,45 NRC 99 (1997),
follows the example of remand to a Licensing Board while retaining appellate jurisdiction in Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), ALAB-770,19 NRC 1163, 1168 (1984). In that case, the Appeal Board remanded to the Licensing Board for a supplemental decision, but retained jurisdiction, thus eliminating the necessity to file a new notice of appeal.
Therefore, solid precedent exists for shared jurisdiction.
In any event, the Atomic Energy Act empowers the Commission to use licensing boards "to conduct such hearings n ths Commission may dirsst." 42 U.S.C. Q 2241 (emphasis added). As delegates of the Commission, the Commission's adjudicatory boards are obliged to exercise whatever authority the Commission commits to them. Duke Power Co. (Catawba Nuclear Station, Units 1 &
2), ALAB-825,22 NRC 785,790 (1985). The Commission's decisions make clear that licensing boards "can neither enlarge nor contract the jurisdiction conferred by the Commission." hL, siting NR b
ADO 0700 070
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PDR p
t Consumers Power Co (Midland Plant, Units 1 & 2), ALAB-235,8 AEC 645,647 (1974)(internal quotations omitted). As such, a board has "no discretion to alter this delegated authority absent Commission approval." Catawba. ALAB 825,22 NRC at 790. Accordingly, even if this Board should conclude differently than the Commission as to itsjurisdiction, the Board, as the Commission's delegate, is obliged to proceed as instructed.
2.
The most efHencious manner of pmceeding to respond fully to the Commission's order. In our view, the Board should either respond to the Commission's questions on its own or, to the extent it needs the assistance of the parties, instruct the parties to brief the issue, supplemented by affidavits as appropriate. In the event of resort to affidavits, each party should be given an I
opportunity to respond with counteraffidavits to ensure fairness. LES has repeatedly stated its concem over the timely completion of this proceeding, and the Commission has itself observed that
"[t]his limited remand should not unduly delay the ultimate resolution of the adjudication" and should be complete at the latest by November 17,1997. LES submits that briefs and initial affidavits should be filed in hand with the Board and parties by October 17, with counteraffidavits filed in hand on October 24,1997. This should enable the Licensing Board to render its remand decision promptly and certainly by the Commission's deadline.
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i While LES would be available for a conference call on this procedure, the Licensing Board should, in our view, simply establish the suggested briefing schedule without further delay.
Respectfully submitted, September 19,1997 LOUISIANA ENERGY SERVICES, LP.
Ai.dA 9&EML Marcus A. Rowden
/J. Michael McGirry, IIF Robert M. Rader FRIED, FRANK, HARRIS, Robert L. Draper SHRIVER & JACOBSON WINSTON & STRAWN, ATTORNEYS FOR LOUISIANA ENERGY SERVICES, L.P.
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00CKETED UNITED STATES OF AhiERICA USHRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION OFFCE CF RETARY RU MW
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ADJU ICAllONS ST F in the Matter of
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Docket No. 70-3070 ML
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LOUISIANA ENERGY SERVICES, L.P.
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September 19,1997
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(Claiborne Enrichment Center)
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CERTIFICATE OF SERVICE I hereby certify that copies of" Applicant's Response to the Licensing Board's Order of September 11,1997 on Remanded Portion of Third PID" were served upon the following, via first-class U.S. mail, postage prepaid, this 19th day of September,1997:
Administrative Judge Administrative Judge Thomas S. Moore, Chairman Richard F. Cole Atomic Safety and Licensing Atomic Safety and Licensing
- Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C 20555 Washington, D.C. 20555 (2 copies)
Administrative Judge -
Office of the Secretary Frederick J. Shon '
U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Attention: Chief, Rulemakings and Commission Adjudications Staff Washington, D.C. 20555 (Original plus 2 copies)
Office of Commission Appellate Ann Hodgdon, Esq.
Adjudication Richard Bachmann, Esq.
U.S. Nuclear Regulatory Office of the General Counsel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 9
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-2o e
Ronald Wascom, Deputy Assistant Joseph DiStefano, Esq,
' Secretary Quinn, Racusin & Gazzola Office of Air Quality &
1401 H Street, N.W.
Radiation Protection Suite 510 7290 Bluebonnet Boulevard Washington, D.C. 20005 Baton Rouge, LA 70810 Robert G. Morgan - WC26B Marcus A. Rowden Licensing Manager Fried, Frank, Harris, Shriver &
Duke Engineering & Services, Jacobsen Inc.
1001 Pennsylvania Avenue, N.W.
400 South Tryon Street Suite 900 South Charlotte, NC 28201-1004 Washington, D.C. 20004 Diane Curran Nathalie Walker Harmon, Curran, Gallagher &
Earthjustice Legal Defense Fund Spielberg 400 Magazine St.
2001 S Street, N.W.
Suite 401 Suite 430 New Orleans, LA 70130 Washington, D.C. 20009-1125 Adjudicatory File Roland J. Jensen Atomic Safety and Licensing Louisiana Energy Services, L.P.
Board Panel 2600 Virginia Avenue, N.W.
U.S. Nuclear Regulatory Commission Suite 608 Washington, D.C. 20555 Washington D.C. 20037 Thomas J. Henderson, Esq.
David S. Bailey, Esq.
lawyers' rommmittee for Civil Ri :ts Under Law 1450 G 5treet, N.W.
Suite 400 Washington, D.C. 20005 LOUISIANA ENERGY SERVICES, L.P.
4.
J. Michael McGarry III WINSTON & STRAWN, ATTORNEY FOR LOUISIANA ENERGY SERVICES, L.P.
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