ML20212H091
| ML20212H091 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 09/24/1997 |
| From: | Walker N CITIZENS AGAINST NUCLEAR TRASH |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#497-18608 91-641-02-ML, 91-641-2-ML, CLI-97-11, LBP-97-03, LBP-97-3, ML, NUDOCS 9711100055 | |
| Download: ML20212H091 (8) | |
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ASLBP No. 9164102 htL LOUISIANA ENERGY SERVICES, L.P.
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(Special Nuclear (Claiborne Enrichment Center)
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hinterials License)
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September 24,1997 RESPONSE OF CITIZENS AGAINST NUCLEAR TRASil TO Tile LICENSING BOARD'S ORDER OF SEITEhfBER 11. 1997 Intervenor, Citizens Against Nuclear Trash (" CANT"), hereby responds to the Licensing Board's order of September 11, 1997 which requested that each party express its views about whether and how to proceed in addressing a recent Commission order (CLI 97-11).
INTRODUCTION in an order dated September 3,1997 (CLI 97-11), the Commission remanded LDP-97-3, 45 NRC 99 (1997) (pertair,ing to waste disposal and decommissioning funding at the proposed Claiborne Enrichment Center - " CEC") to the Licensing Board for clarification of specific issues. On September 11,1997, the Licensing Board directed each party to address two matters:
- 1) whether the 1.icensing Board has jurisdiction to make such a clarification for the Commission; and 2) how such a chtrification may be handled most efficaciously, CANT submits that the Licensing Board has jurisdiction to clarify the particular matters raised by the Commission, and that the Board can do so efficaciously simply by reviewing the record and responding to the questions posed by the Commission in CLl-97-II, N70 ll ll l llllllll ll A
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DISCUSSION A.
The Basis For The Lleensing Board's Jurisdiction.
The jurisdiction of 1 Jcensing Boards is strictly limited to "such matters that the commission commits to them." Duke Power Co. (Catawba Nuclest Station, units 1 and 2),
ALAB 825,22 NRC 785,790 (1985). The Commission's 1991 Hearing Order in this matter gave the Licensing Board jurisdiction to decide all is.;ues regarding the Applicant's compliance with NRC safety and NEPA regulations. 56 Fed. Reg. 23310 (May 21,1991). Pursuant to 10 C.F.R. _I 2.717(a), the Licensing Board retains the jurisdiction conferred on it by the Hearing-Order.' However, consistent with its authority, the Commission modified the Licensing Board's jurisdiction in CL197 11, by remanding certain limited factual questions to the Licensing Board.
- Duke Power Coc, 22 NRC at 790 (Commission has " plenary" subject matter jurisdiction, and may use licensing boards "to conduct such hearings as ti.e Commission may direct.")
- Thus, the terms of CL197 ll establish the scope of the Licensing Board's authority on this remand. As directed in CLI 9711-at 3, the Board's authority is limited to providing
" clarification"8 regarding the following questions about the Board's decision on deep mine-disposal:.
.None of the criteria-set forth' in -10 C.F.R. I 2.717 for terminating the. Board's jurisdiction over LBP-97-3 have been satisfied:
The presiding officer's jurisdiction in each proceeding will terminate upon the expiration of the period within which the Commission may direct that the record be certified to it for final decision, or when the Commission renders a final decision, or when the presiding officer shall have withdrawn himself from the
- case upon considering himself disqualified, whichever is earliest.-
2 In CLI 97-12, the Commission restated that the remand constitutes an " opportunity to clarify the deep mine disposal issue " lsL at 2 (September 19, 1997)..
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[Whetherl the Board found it plausible that a deep mine with the exact near-surface values chosen for each sensitive parameter used by the staff would be available, or [instead] if the Board simply found it plausible that there is a mine in the U.S. with characteristics falling within the expected range; and i
2.
[Why] the staff's dose impact calculations can be taken as representative of disposal in mines with groundwater characteristics that differ from the staff's single set of values.
CLI 97 Il at 3-4.
Because these questions pertain to the existing record, and require only.
" clarification," solicitation by the Board of new evidence from the parties would be beyond the scope of the remand in CLI 97 II.
The Licensing Board's jurisdiction to take new evidentiary affidavits is also limited by NRC regulations at 10 C.F.R. Q 2.718(j), which implicitly forbids the Board from reopening the record sua sponte once it has issued an initial decision. According to 6 2.718(j), the " powers" of the presiding officer include the power to "[rleopen a proceeding for the reception of further evidence at any time prior to initial decision." The logical inference of this regulation is that the Board lacks the power to reopen the record once an initial decision has issued, unless explicitly directed to do so by the Commission.
B.
The Most Efficacious Manner Of Proceeding To Respond Fully To The Commission's Order.
The questions posed by the Commission relate to the basis for the Board's decision in LBP 97-3. These narrow queries regarding the Board's own decisionmaking process can and should be answered by the Board. Not only are the parties incapable of commenting on the Board's reasons for its decision, but the Board still has recourse to the parties' proposed findings
. of fact and conclusions oflaw, which provide their views on the conclusions that may be drawn from the record. Thus, although the Commission's order permits the Board to solicit "further 3
1 l
P affidavits or other pleadings" by the parties, CANT does not believe they are appropriate or necessary for the efficacious resolution of the Commission's questions. CLl 97 Il at 4.
Consistent with the jurisdictional limits of the Commission's remand, any pleadings requested by the Board should be restricted to pointing out those places in the existing record which support the parties' respective positions on the questions remanded by the Commission.
CANT submits that this function can be performed through the parties' attorneys, without the need for affidavits. If the Board chooses to solicit affidavits, such affidavits should be restricted to discussing the record of this proceeding, and be barred from introducing any new evidence.8 CONCLUSION The Licensing Board has jurisdiction to clarify the particular matters raised by the Commission in CL1-9711, and the Board can do so expeditiously simply by reviewing the record and responding to the questions posed by the Commission.
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'lhe reception of new evidence would effectively constitute the reopening of the record, which is not authorized by CLI-9711. Moreover, any such new evidence could not be admitted without first subjecting it to discovery and cross-examination, a lengthy process which CLI 97-11 does not contemplate.
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Respectfully submitied, Nathalie M. Walker EARTiljUSTICE I.EGAL DEFENSE FUND, INC.
400 Magazine Street, Suite 401 New Orleans, Louisiana. 70130 Telephone: (504) 522 1394 Diane Curran HARMON, CURRAN & SPIELBERG 2001 "S" Street N.W., Suite 430 Washington, D.C. 20009 -
Telephone: -(202) 328-3500 O
By:
Nathalie M. Walker Attorneys for Intervenor, Citizens Against Nuclear Trash 9
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Docket No. 70 3070 h1L In the hiatter of
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ASLHP No. 9144102 h1L LOUISIANA ENERGY SERVICES, L.P.
)
)
(Special Nuclear (Claiborne Enrichment Center)
)
hiaterials License)
)
)
September 24,1997 CERTIFICATE OF SERVICE I hereby certify that copies of the " RESPONSE OF CITIZENS AGAINST NUCLEAR TRASil TO Tile LICENSING BOARD'S ORDER OF SEPTliMBER 11. 1997" have been served on this 24th day of September,1997, as follows:
Office of the Secretary By first class mail U.S. Nuclear Regulatory Commission original plus 2 copies Washington, D.C. 20555-0001 and 1 copy via facsimile Attention: Rulemakings and Adjudication Staff Shirley Ann Jackson, Chainnan By first class mail U.S. Nuclear Regulatory Commission and facsimile Washington, D.C. 20555 1 copy Kenneth C. Rogers, Commissioner By first class mail U.S. Nuclear Regulatory Commission and facsimile Washington, D.C. 20555 1 copy Greta J. Dieus, Commissioner By first class mail U.S. Nuclear Regulatory Commission and facsimile Washington, D.C. 20555 1 copy Nils J. Diaz, Commissioner By first class mai!
U.S. Nuclear Regulatory Commission and facsimile Washington, D.C. 20555 1 copy l
Edward McGaffigan, Jr., Commi,sion By Orst class mail U.S. Nuclear Regulatory Commission and facsimile Washington, D.C. 20555
! copy Administrative Judge By first cicss mail Thomas S. Moore, Chairman and facsimile Atomic Safety and Licensing Board Icopy U.S. Nuclear Regulatory Commiss;on Washington, D.C. 20$$$
Administrative Judge By first class mail Richard F. Cole and facsimile Atomic Safety and Licensing Board Icopy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Admindstrative Judge By first class mail Frederick J. Shon and facsimile Atomic Safety and Licensing Board Icopy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Commission Appellate By first class mail Adjudication
! copy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard G. Bachmann By first class mail Office of the General Counsel and facsimile U.S. Nuclear Regulatory Commission Icopy Washington, D.C. 20555 Joseph DiStefano By first class mail Quinn, Racusin & Genola 1 copy 1401 11 Street, N.W.
Suite 510 Washington, D.C. 20005 Marcus A. Rowden By first class mail Fried, Frank, liarris, Shriver Icopy
& Jacobsen 1101 Pennsylvania Avenue, N.W.
Suite 900 South Washington, D.C. 20004 2
Diane Curran By first class mail liarmon Curran & Spielberg Icopy 2001 S St NW Suite 430 Washington, DC 20009 Ronald Wascom, Deputy Asst. Sec.
By first class mail Louisiana Dept. of Enytl. Quality Icopy Office of Air Quality & Radiation -
Ptotection P.O. Box 82135 Baton Rouge, LA 70884 2135 J. Michael McGarry,111 By first class mail Winston & Strawn and facsimile 1400 L Street, N.W.
Icopy Washington, D.C. 20005 Adjudicatory File By first class mail Atomic Safety & Licensing Bd. Panel Icopy U.S. Nuclear Regulatory Commis:, ion Washington, D.C. 20555 J
i Nathalie M. Walker EARTIUUSTICE LEGAL DEFENSE FUND Attorneys for Intervenor, Citizens Against Nuclear Trash homer \\ review.12 3
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