ML20247L756
| ML20247L756 | |
| Person / Time | |
|---|---|
| Site: | 07000036 |
| Issue date: | 09/18/1989 |
| From: | Axelrad M ABB COMBUSTION ENGINEERING NUCLEAR FUEL (FORMERLY, NEWMAN & HOLTZINGER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-9196 89-593-01-MLA, 89-593-1-MLA, MLA, NUDOCS 8909250056 | |
| Download: ML20247L756 (13) | |
Text
[ %,. /g-. -,
!4*
i PDCKETED N
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 SEP 20. P2:17 ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judge:
F Charles Bechhoefer
)
In the Matter of
)
)
Docket No. 70-36-MLA
)
COMBUSTION ENGINEERING, INC.
)
)
)
(Hematite Fuel Fabrication
)
ASLBP No. 89-593-01-MLA Facility, Special-
)
Nuclear Materials
)
License No. SNM-33)
)
September 18, 1989
)
APPLICANT'S REPLY TO INTERVENERS' AMENDED PETITIONS I.
INTRODUCTION On May 24, 1989, the Nuclear Regulatory Commission
(" Commission" or "NRC") published a notice in the Federal Register stating that it was considering the issuance of an amendment to the Combustion Engineering, Inc. ("C-E" or
" Applicant") Special Nuclear Materials License for its fuel fabrication eacility in Hematite, Missouri.
54 Fed. Reg. 22,510.
The notice also announced that the NRC Staff had prepared an Environmental Assessment relating to the proposed amendment, issued a finding of no significant impact to the environment and was providing an opportunity for persons affected by the amendment to request a hearing under the Commission's regulation in 10 C.F.R. Part 2, Subpart L " Informal Hearing Procedures for 8909250056 890918 PDR ADOCK07%06 3#)g c
. Adjudications in Materials Licensing Proceedings."
Id. at 22,511.
On June 21, 1989, a Missouri State Senator, Jeremiah W.
Nixon, who represents the area where the facility is located, requested that the NRC Staff hold hearings on the proposed license amendment.
Letter to the Executive Director for
'perations, NRC from Senator Jay Nixon (dated June 18 and 21, 1989).
On June 22, 1989, Mrs. Martha Dodson, Ms. Karen Sisk and the Coalition for the Environment (" Coalition") jointly requested a hearing.
Letter to the Executive Director for Operations, NRC from Mrs. Martha Dodson, Ms. Karen Sisk and Ms. Arlene Saunders, (President of the St. Louis, Missouri chapter of the Coalition for the Environment) (June 22, 1989)
(" Joint Request").
C-E opposed both of these requests for a hearing.
See Applicant's Answer To Senator Nixon's Memorandum (June 30, 1989); Applicant's Answer To The June 22, 1989 Letter Regarding The Hematite Facility (July 7, 1989).
By a letter of August 3, 1989, the NRC Staff declined to participate in the proceeding.
Letter to Judge Bechhoefer, NRC from Ms. Colleen P. Woodhead, Counsel for NRC Staff (August 3, 1989).
On August 18, 1989, the presiding officer for the Atomic Safety and Licensing Board Panel issued a Memorandum and Order which granted Mrs. Dodson's request for a hearing and allowed her to intervene in the above titled proceedings.
In re Combustion Engineering, Inc. (Hematite Fuel Fabrication Facility, Special Nuclear Materials License No. SNM-33) Docket
_ - =
'f
. No. 70-36-MLA, Memorandum and Order (Requests for a Hearing),
slio op., at 18 (August 18, 1989).
The presiding officer deferred ruling on the petitions of Mr. Nixon, Ms. Sisk and the Coalition and allowed them until September 5, 1989 to amend their requests and demonstrate standing to intervene in the proceedings.
Id.
On August 22, 1989, Mrs. Dodson advised the presiding officer that she intended to participate as an individual and not as a member of the Coalition.1/
Letter to Judge Bechhoefer (NRC, Presiding Officer in Docket No. 70-36-MLA) from Mre. Martha Dodson (August 22, 1989).
On September 5, 1989, Mr. Nixon amended his petition to intervene to indicate that he wished to participate as an individual who resides and has recreational interests in the vicinity of the Hematite facility.
Supplemental Information To Request Of Senator Nixon, at 1-2 (September 5, 1989).
Finally, on September 13, 1989, Applicant received a supplement to Ms. Sisk's and the Coalition's request for a hearing.2/
1/
With respect to any participation in the proceeding by the Coalition, Mrs. Dodson stated that, if the Coalition is admitted as a party, she would like the Coalition to serve as the lead intervenor.
2/
Although this supplemental information was post-marked on the September 5, 1989 date set by the presiding officer, Applicant was not served with a copy of Ms. Sisk's or the Coalition's supplement and did not obtain a copy of these supplements until September 13, 1989.
See Memorandum to Mr.
Emile Julian, Docketing and Services Branch Office of the Secretary NRC, from Judge Bechhoefer, NRC (September 13, 1989).
I I
2.-
q
_4 I
II.
APPLICANT'S POSITION REGARDING ADMISSION OF PARTIES Applicant has no additional objections beyond those previously raised in regard to Mr. Nixon or Ms. Sisk's request to participate as individuals in this proceeding.3/
- However, Applicant objects to Ms. Sisk also being admitted "as a member of the Coalition for the Environment."
Supplemental Information.To Request Of Karen Sisk, at 1-2 (Sr ptcaber 5, 1989) ("Sisk Supplement").
For-the reasons set forth below, Applicant's position is that the Coalition should not be admitted as a party.
Moreover, in the case of Ms. Sisk, she cannot simultaneously represent herself and have an organization represent her.
The Coalition is depending on injury to tra interests of its members to demonstrate standing.
Sea Joint Request at p.2; Supplemental Information Concerning The Coalition For The Environment Request, at 3 (September 5, 1989) (" Coalition Supplement").
When such an organization seeks to participate before the NRC, it must' identify at least one member of the organization who would allegedly be injured; describe the nature of that injury; and provide authorization from that individual for the organization to represent the individual in the proceeding.
Philadelphia Electric Co. (Limerick Generating 2/
However, Applicant is not conceding that all of her stated concerns would appropriately be considered in this proceeding.
As discussed below, Applicant urges the presiding officer to direct Ms. Sisk and the other interveners to specify in their written presentations how the issues they raise pertain to the amendment to C-E's license for the Hematite facility.
l L
,t I
i 1 Station, Units'1 and 2), LBP-82-43A, 15 NRC 1423, 1437-38'(1982).
The Coalition has failed to satisfy these requirements.
The Coalition identifies two individuals'who have allegedly authorized the Coalition to represent them:
Mrs. Dodson and Ms. Sisk. ' Coalition Supplement at 1.
- However, these " members" joined the Coalition in August of 1989 after the June 23, 1989 1/ deadline established for a hearing request on the proposed amendment for the Hematite facility.
Id.
An l
organization cannot establish an interest in an NRC licensing
{
1 proceeding by acquiring a new member who resides in the vicinity of the facility after the deadline for filing a petition to-intervene without establishing good cause for the late filings.
Washington Public Power Supply System (WPPSS Nuclear Project No. 2) LBP-79-7, 9 NRC 330, 335 (1979).
A Licensing Board's discretion to permit amendment of a timely petition does not create "an open invitation for an organization whose membership is far removed from the facility and who claimed to have membership in the vicinity of the site to later try to recruit individuals in the vicinity as members and gain a retroactive recognition of interest" in the proceeding.
Id. at 336.
l A/
Under Subpart L, an intervenor has 30 days from the date of the agency's publication of the initial Federal Register notice to request a hearing.
10 C.F.R. 52.1205(c)(1)(1989);
54 Fed. Reg. 22,510, 22,511 (May 24, 1989).
Since the Federal Register Notification was filed on May 24, 1989 all timely petitions for a hearing and to intervene were required to be filed by June 23, 1989.
l 1 i
The Coalition sought to demonstrate organizational j
standing through members in the vicinity of the Hematite facility.
The Coalition's recruiting of Mrs. Dodson and Ms. Sisk after the deadline for a timely request for a hearing does not demonstrate an interest in this proceeding.
The Coalition cannot initially claim to have members of its organization living in the vicinity of the Hematite facility, and then subsequently acquire members to support that claim.
Furthermore, neither Ms. Sisk nor Mrs. Dodson has actually authorized the Coalition to represent her interests.
1 Mrs. Dodson stated that she intends "to proceed as an individual, not as a member of the Coalition for the Environment, although I am a member."
Letter to Judge Bechhoefer, NRC from Mrs. Martha Dodson (August 22, 1989).
Ms. Sisk on the other hand, is seeking to participate "both as an individual.
and as a member of the Coalition for the Environment."
Sisk Supplement, at 1-2.
Ms. Sisk has not authorized the Coalition to represent her interests, which is evident from her expressed desire to participate as an individual.5/
Thus, the Coalition cannot rely I
either on Mrs. Dodson or Ms. Sisk to demonstrate organizational standing.E/
1 5/
Ms. Sisk states only that, "If the Coalition for the Environment is admitted as a party to this proceeding, I would like the Coalition to serve as the lead intervenor in representing my interests."
Sisk Supplement, at 3.
E/
The Coalition makes reference to a number of other members l
allegedly residing in Jefferson County, St. Louis County and 1
(continued...)
I l
. In summary, the Coalition has not identified any
" member" of its organization who had standing and authorized the Coalition to represent his interests.
In particular, Mrs. Dodson and Ms. Sisk were not members of the Coalition before the deadline for a timely intervention passed.
They cannot subsequently be recruited to provide the Coalition with an interest in this proceeding.
Furthermore, they are seeking to represent their own interests in this proceeding.
Thus, the Coalition's request for a hearing should be denied.
III.
REQUEST FOR SCHEDULE AND FOR DIRECTIVE REGARDING CONTENTS OF PRESENTATION The NRC staff served its " hearing file" on the petitioners and interveners on September 6, 1989.
The Commission's regulations intend that written presentations under 10 C.F.R. S 2.1233 be made "as promptly as possible."
Sea 54 Fed. Reg. 8269, 8274 (February 28, 1989).
In addition, the Applicant is entitled to prompt notification concerning the issues to be raised and the schedule for their resolution.
Further delay in those proceedings would result in continued uncertainty with respect to the final approval of C-E's proposed amendment, in the form as requested.
Accordingly, C-E requests that the presiding officer promptly establish a schedule for the parties' presentations.
E/(... continued) the City of St. Louis.
Coalition Supplement at 3.
Since no names or any other information concerning the interests of these members are provided, the Coalition clearly cannot establish standing on the basis of such membership.
l l
1
)
1
. Applicant suggests that the interveners be required to file the written presentation of their argument and any other documentary data under 10 C.F.R. S 2.1233 within 6 weeks of the
)
i date of service of the NRC staff's " hearing file"; trat is, not later than Wednesday, October 18, 1989.
Under such a schedule, O
Applicant would agree to file its reply no later than 30 days after the latest intervenor's filing.
As there is no indication that the scope of the proposed license amendment to the Hematite facility encompasses one of the " rare instances" in which the written presentations would " leave unresolved issues that the presiding officer finds can be decided only after having oral presentations.
" no oral presentation should be scheduled at this time.
54 Fed. Eeg. 8269, 8274 (February 28, 1989); 10 C.F.R. S 2.1235 (1989).
In establishing such a schedule, Applicant urges the presiding officer to direct the interveners to show the connection between the issues they raise in their submittals and the amendment that is the subject of the proceeding.
In order to be contested in a license amendment proceeding, an issue must have a reasonable " nexus" to the proposed change; the concerns raised must be "a direct consequence" or a "necessary implication" of the proposed change requested by the license amendment.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) ALAB-245, 8 AEC 873, 875 (1974); ALAB-246 8 AEC 933, 934, reconsideration denied, ALAB-250, 8 AEC 990 l
(1974); Consumers Power Co. (Big Rock Point Nuclear Plant) l
-9 LBP-80-4, 11 NRC 117, 125 (1980).
The scope of a hearing on a proposed license amendment is limited to the environmental or safety impacts which may result from that amendment.
Consumers Power Co. (Big Rock Point Nuclear Plant) LBP-74-15, 7 AEC 297, 300 (1974).
For example, a number of the concerns stated in Ms.
Sisk's supplemental information are in no way related to the additional pelletizing operations that are authorized by the license amendment.
Sisk Supplement, at 2-3.
The license amendment will in no way affect the safety of radioactive materials previously buried at the Hematite facility.
Furthermore, this amendment does not increase the amount of uranium hexafluoride that is processed at the facility and does not create any added risks from fluorides.
Finally, potential impacts associated with transportation of radioactive materials to and from the facility are not increased by the amendment.
There is no increase in amount of special nuclear materials that are transported and no change in nearby transportation routes.
I l
. I j
Thus, Applicant urges that the presiding officer direct Ms. Sisk and the other. interveners to demonstrate in their presentations that the concerns they raise have a reasonable nexus to the proposed license amendment and are "a direct i
consequence" or a "necessary implication" of the proposed amendment.
Respectfully submitted, Maurice Axelrad~
\\
Michael A. Bauser Newman & Holtzinger, P.C.
1615 L Street, N.W.
Suite 1000 Washington, D.C. 20036 Telephone:
(202) 955-6600 Counsel for Date:
September 18, 1989 Combustion Engineering, Inc.
't
':MMUjl i
UNITED' STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL 1
d Before Administrative Judge: '
{fg g
[
vuw<
Charles Bechhoefer
{
)
In the Matter of
)
)
Docket No.70-36-MLA COMBUSTION ENGINEERING, INC.
)
)
'(Hematite Fuel Fabrication.
)
ASLPB No. 89-593-01-MLA i
Facility, Special
)
Nuclear Materials
)
License No. SNM-33)
)
)
j
)
)
{
CERTIFICATE OF SERVICE I hereby certify that copies of.the Applicant's Reply to Interveners' Amended Petitions have been served upon the following persons by United States mail, postage prepaid and properly addressed on the date shown below:
Administrative Judge Charles Bechhoefer Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge Jerry R. Kline Atomic Safety and Licensing Board 1
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 1
i
. Adjudicatory File Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (Two' Copies)
Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Attn Chief, Docketing & Service Section (Original plus two copies)
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (Three copies)
Missouri State Senator Jeremiah W.
(Jay) Nixon 22nd District Room 42, State Capitol Jefferson City, MO 65101 Earen Sisk 1123 Wolf Hollow Road Imperial, MO 63052 Martha Dodson 412 Mississippi Crystal City, MO 63019 I
Arlene Sandler j
President, Coalition for the Environment, j
St. Louis Chapter
{
6267 Delmar Boulevard St. Louis, MO 63130 l
l i
l
(;
y-
_.3 Dated..this 18th day of September, 1989.
David W. Jenkik)
Newman & Holtzinger, P.C.
1615 L Street, N.W.,
Suite 1000 Washington, D.C.
20036 Telephone:- 202/955-6600 l
_ - _ _ _