ML20216K110
| ML20216K110 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 09/12/1997 |
| From: | Mcgarry J, Rowden M FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#397-18498 CLI-97-11, ML, NUDOCS 9709190018 | |
| Download: ML20216K110 (6) | |
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00CKETED USNRC UNITED STATES OF AMERICA
'97 SEP 15 A9:42 l
NUCLEAR REGULATORY COMMISSION j
o m s o r s c &(!
HEFORE Tile COMMISSION i{
E In the Matter of
)
Docket No. 70-3070 - /ti L
)
LOUISIANA ENERGY SERVICES, L.P. )
September 12,1997 l
)
(Claiborne Enrichment Center)
)
)
APPLICANT'S SUPPLEMENTAL OPPOSITION TO CANT'S MOTION TO RECONSIDER On September 3,1997, the Commission issued an Order, CL1-97-11,46 NRC (1997),
remanding a discrete portion of the Third PID in this case to the Licensing Board for an explanation ofhow the FEIS analyzed "the estimated dose impacts from disposal of U 0, in a hypothetical deep 3
disposal site and found them to be within regulatory limits." Order at 2, citina FEIS at pp. 4-66 to 68.
' After CANT moved for reconsideration of CLI-97-11, the Commission provided Applicant
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Louisiana Energy Services, L.P. ("LES") and the NRC StafT an opportunity to comment on CANT's motion by September 12,1997. Ees Order of September 9,1997. LES filed its opposition on e
September 9th. In response to the partial remand, the Licensing Board yesterday issued an Order (attached) that compels LES to supplement its response to CANT's motion to reconsider within the September 12th deadline.
9709190018 97o912 PDR ADOCK 07003070 C
In its Order, the Licensing Board asked for the panies' views "(1) on the basis for the Licensing Board'sjurisdiction to proceed in this matter and (2) on the most efficacious manner of proceeding to respond fully to the Commission's order."
As the Conunission is aware, CANT has already raised the issue ofjurisdiction in its motion for reconsideration, suggesting that it is inappropriate for the Commission to remand for clarification of one particular aspect without first acting on the pending petitions for review. As LES set forth in its opposition of September 9th, Commission action on petitions is discretionary LES views it as clearly reasonable and certainly within its summary powers for the Commission to request from the Licensing Board information needed to act on a petition. Upon receipt ofinformation from the Licensing Board, the Commission will then be in a better position to act on the petitions. Such a request pending review of the entire PID is clearly consistent with judicial economy and any reasonable interpretation of 10 C.F.R. s 2.786, which grants the Commission broad discretion to consider a variety of factors in granting or denying review.
The unfortunate prospect of even further unnecessary delay about which LES has often lamented now compels LES to bring the Board's action squarely before the Commission. In our view, it is inappropriate for the Licensing Board to raise En sponte its jurisdiction to proceed as
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directed by the Commission itsdf, especially when the Commission is poised to decide promptly, in CANT's motion to reconsider, the veryjurisdictional issue raised atlerwards by the Board. More importantly, by raising the issue ofjurisdiction sa sponte, the Licensing Board intimates at least 2
4 the possibility of finding that the Board laglejurisdiction on remand, putting the Commission and the parties back on square one.l' So that this proceeding is not further unnecessarily delayed, the Commission should send a clear instruction to the Licensing Board that it hasjurisdiction to proceed with this matter which it should exercise expeditiously? 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, l
supplemented by affidavits as appropriate. In the event of resort to affidavits, each party should be given an opportunity to respond with counteraflidavits to ensure faimess. Altematively, the l
l' LES does not bel?ve that the Commission would have remanded to the Board for clarification of the Third PID ifit had harbored doubts about the Board'sjurisdiction. In fact, the Commission's action 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.
In any event, the Atomic Energy Act empowers the Commission to use licensing boards "to conduct such hearings as the Commission may direct." 42 U.S.C. s 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
.C.o (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." Ld, citine Consumers Power Co.
a (Midland Plant, Units 1 & 2), ALAB 235,8 AEC 645,647 (1974)(intemal quotations omitted). As such, a board has "no discretion to alter this delegated authority absent Commission approval." Catawha, ALAB-825,22 NRC at 790.
I In remanding, the Commission gently prodded the Board, noting that "[t]his limited remand should not unduly delay the ultimate resolution of the adjudication" and should be complete by November 17,1997. Nevertheless, it took the Licensing Board eight days to issue a brief procedural order, and gave the parties another two weeks until September 24,1997 to respond. Nor did the Board explain why a hearing conference (on procedural issues) is necessary, particularly a week later on September 30,1997, nearly a month after ths Commission's remand order. Nothing better illustrates why this proceeding has dragged on for six years.
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4 Commission could simply ask the parties directly for the same information, as the Commission or the former Appeal Board has frequently _done in earlier licensing hearings to avoid the delay of-remand and expedite review.
Inasmuch as the Licensing Board has asked for the parties' views b'y September 24,1997,.
. we request that the Commission act forthwith so as to obviate any such pleading.
September 12,1997-LOUISIANA ENERGY SERVICES, L.P.
/2m b
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Marcus A. Rowden, Esq.
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/J. hiichael hicGag Ill, E4 FRIED, FRANK, HARRIS, SHRIVER, WINSTON & STRAWN
& JACOBSON COUNSEL FOR LOUISIANA ENERGY SERVICES, L.P.
Document Number: 0065260.01 9 12 97/11:46am 4
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UNITED STATES OF AMERICA 00CKETED USHRC NUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION
'97 SEP 15 A9 'A2 OFFICE OF SECRETARY s
RULEWJONGS AND In the Matter of
)
ADJUDICAT'ONs STAFF
)
LOUISIANA ENERGY SERVICES, L.P. )
Docket No. 70 3070
)
(Claiborne Enrichment Center)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the attached APPLICANT'S SUPPLEMENTAL OPPOSITION TO CANT'S MOTION TO RECONSIDER were served upon the following this 12th day of September,1997:
Secretary of the Commission
- Administrative Judge Thomas S. Moore U.S. Nuclear Regulatory Commission Chairman
- l Washington, D.C. 20555 Atomic Safety and Licensing Board Attention: Chief, Docketing and U.S. Nuclear Regulatory Commission Service Section Washington, D.C. 20555 (Original plus 2 copies)
(2 copies)
Shirley Ann Jackson, Chairman
- Administrative Judge Frederick J. Shon*
U.S. Nuclear Regulatory Commission Atomic Safety and Licensi.ig Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Greta J. Dieus, Commissioner
- U.S. Nuclear Regulatory Commission Administrative Judge Richard F. Cole
- Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Nils J. Diaz, Commissioner
- Washington, D C. 20555 U.S. Nuclear Regulatory Commissian Washington, D.C. 20555 Office of Commission Appellate Adjudication
- Edward McGaffigan, Jr., Commissioner
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC. 20555 Washington, D.C. 20555
't
2-Ronald Wascom, Deputy Assistant Joseph DiStefano, Esq.**
Secretary *
- Quinn, Racusin & Gazzola Office of Air Quality &
140111 Street, N.W.
l Radiation Protection Suite 510 P.O. Box 82135 Washington, D.C. 20005 Baton Rouge, LA 70884-2135 Robert G. h1 organ - WC26B**
h! arcus A. Rowden**
Licensing hianager Fried, Frank, IIarris, Shriver &
Duke Engineering & Services, Jacobsen Inc.
1101 Pennsylvania Avenue, N.W.
l 400 South Tryon Street Suite 900 South Charlotte, NC 28201-1004 Washington, D.C. 20004 Diane Curran **
Nathalie Walker **
Ilarmon, Curran, Gallagher &
Sierra Club Legal Defense Fund l
Spielberg 400 Magazine St.
2001 S Street, N.W.
Suite 401 Suite 430 New Orleans, LA 70130 Washington,D.C. 20009-1125 Adjudicatoy 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' Commmittee for Civil Rights Under Law
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1450 G Street, N.W.
Suite 400 Washington, D.C. 20555 LOUISIANA ENERGY SERVICES, L.P.
September 12, 1997 f Michael McG
,III WINSTON & STRAWN, COUNSEL FOR LOUISIANA ENERGY SERVICES, L.P.
Via Messenger
- Via Fax
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7/r29[
DOCK TED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION
.W SEP 11 Pl2:20 ATOMIC SAFETY AND LICENSING BOARD OFfC g i:
.rw -
Before Administrative Judges:
R ADJUDICAiOfiS ETAFF
-Thomas S. Moore, Chairman Richard F. Cole Frederick J. Shon SERVED SEP 111997 In the Matter of Docket No. 70-3070-ML.
LOUISIANA ENERGY SERVICES, L.P.
ASLBP No. 91-641-02-ML-R
.(Special Nuclear Material License)
(Claiborne Enrichment Center)
September 11, 1997-ORDER Without either granting the.pending petitions for review of LBP-97-3, 45 NRC 99 (1997) or undertaking a sua sponte review of that decision, the Commission remanded an issue-for-"further
-explanation."
CLI-97-11, _NRC_ (slip, op., Sept. 3, 1997).
By a filing that shall be in our hands and the hands of the other parties by the close of business on September 24, 1997, each party shall provide us with its views (1) on the basis for-the Licensing Board's jurisdiction to proceed in this matter and (2) on the most efficacious manner of proceeding to respond fully to
-the Commission's-order.
After receiving the parties' filings, we
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will decide whether a hearing conference is necessary, In the event, we determine a conference is necessary, the conference will be held at 10:00 a.m.,
September 30, 1997, in the Licensing Board's third floor hearing room, Room 3B-45, Two White Flint North,- 11545 Rockville Pike, Rockville, Maryland.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD O'hyto W'
Thomas S. Moore, Chairman ADMINISTRATIVE JUDGE Richard F. Cole ADMINISTRATIVE JUDGE
/
Frederick J. Shpf1' ADMINISTRAf1VF/ JUDGE t.
-Rockville, Maryland September 11, 1997
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