ML20247Q738
| ML20247Q738 | |
| Person / Time | |
|---|---|
| Site: | 07000036 |
| Issue date: | 09/25/1989 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | COALITION FOR THE ENVIRONMENT, ST.LOUIS REGION, NIXON, J.W., SISK, K. |
| References | |
| CON-#389-9217 89-593-01-MLA, 89-593-1-MLA, LBP-89-23, LBP-89-25, MLA, NUDOCS 8909290085 | |
| Download: ML20247Q738 (15) | |
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2 I) 1-LBP- h UNITED STATES OF AMERICA j, NUCLEAR REGULATORY COMMISSION '89 SEP 25 P3 :47 L
b ATOMIC SAFETY.AND LICENSING BOARD PANEL gp Before Administrative Judge: ,
Charles Bechhoefer SERVED SEP 2 5 1989 1
L In the Matter of Docket No.-70-36-MLA COMBUT, TION ENGINEERING, INC.
(Hematite Fuel Fabrication ASLBP No. 89-593-01-MLA
-Facility, Special Nuclear Materials License No. SNM-33)
September 25, 1989
. r-MEMORANDUM AND ORDER (Additional Intervention Petitions, Issues and Schedules)
By my Memorandum and Order (Requests for a Hearing)
. dated August 18, 1989, LBP-89-23, 30 NRC (hereinafter LBP-89-23), I granted the request for a hearing'and petition for intervention of Ms. Martha Dodson. I deferred ruling on petitions submitted by Sen. Jeremiah W. (Jay) Nixon, Ms.
Karen Sisk, and the Coalition for the Environment. I requested certain additional information from each of the petitioners (as well as from the Intervenor, Ms. Dodson) concerning certain aspects of their petitions and established a schedule for submission of this information.
Timely supplements to their intervention petitions were filed by Ms. Dodson on August 22, 1989, by Sen. Nixon on September 2, 1989, and by Ms. Sis'.c and the Coalition for the 8909290085 890925 PDR ADOCK 07000036 C PDR 77
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0 Environment, respectively, on September 5, 1989. The Applicant filed its response on September 18, 1989.
For reasons set forth below, I am granting the intervention petitions of Sen. Nixon (in his individual capacity) and of Ms. Sisk (also as an individual). As of this. time, the Coalition has not established.its standing to participate but, before finally ruling on its petition, I will permit the Coalition to provide further information if it wishes to do so. I am scheduling a prehearing conference on October 25, 1989, to define and clarify matters properly at issue in the proceeding and also to permit the Coalition to provide further information concerning its petition.
- 1. Petition of Sen. Nixon.
In LBP-89-23, I determined that Sen. Nixon's stated concerns were sufficient to constitute matters properly j subject to challenge in this proceeding. I also determined l
l that Sen. Nixon would not have standing to intervene as a l representative of his constituents, but that he might have standing to intervene as an individual. I provided Sen.
Nixon with an opportunity to supplement his petition if he wished to intervene in his individual capacity.
In his supplement, Sen. Nixon indicated that he does wish to intervene in his individual capacity, and he set forth his interest in terms of a residence close to the facility, use of roads and by-ways of the area with great I frequency, and use of Joachim Creek near the facility for l l L _ _ ________._____________________9
recreational purposes. The Applicant offers no additional objections beyond those previously expressed (concerning Sen. Nixon's statement of concerns, as well as his standing to participate in a representative capacity) to Sen. Nixon's participation as an individual. I find that Sen.' Nixon has adequately established his standing to intervene as an individual and, given my earlier determination that his statement of concerns was adequate, that he should be admitted in his individual capacity as an Intervenor.
- 2. Petition of Ms. Karen Sisk.
In LBP-89-23, I determined that Ms. Sisk's stated concerns were sufficient for intervention but that she had not adequately described how the interests she had set forth would be affected by the amendment. I gave her an opportunity to supplement her petition, and she did so. She described the location of her residence and other property near the facility, and she reiterated her concerns about both accidental and routine emissions from the facility.
l Ms. Sisk also expresses her wish to intervene both l individually and as a member of the Coalition for the Environment. The Applicant objects to her participation in both capacities but offers no new objection (beyond those previously expressed with regard to her concerns) to her individual participation. (The Applicant continues to question the relevancy to this proceeding of certain of her concerns.)
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I' find that, in her individual capacity, Ms. Sisk has satisfied the requirements for intervention, and I am admitting her in that capacity. I will' treat her request to be admitted as'a member of the Coalition when I deal with l
the Coalition's petition, infra.
- 3. Petition of Coalition for the Environment.
In LBP-89-23, I determined that the Coalition appeared to ccek admiccion as a representative of certain members, some of whom it referred to as residing in Jefferson County; but that, since it had not identified any members who sought to be represented by.the Coalition and had authorized the Coalition to represent them, it had not fulfilled the requirements for intervention in a representative capacity.
I authorized the coalition to supplement its petition.
In its supplement, the Coalition identified two members--Ms. Dodson and Ms. Sisk--for the purpose of establishing its standing in a representative capacity. ,
-1 Both of these individuals possess adequate standing and, indeed, have each been admitted to this proceeding on the strength of that standing.
The Applicant strongly objects to the admittance of the Coalition on the basis of these two members, who are identified as having joined the Coalition in August, 1989 (primarily as a result of my ruling in LBP-89-23 that the Coalition had to identify specific members), and, perforce, after the time when intervention petitions were required to
tbe filed. The Applicant asserts first that, on the basis of
-these two members, the petition must be regarded as late-fi. led?(without adequate. justification for the late filing),
citing Washincton Public Power Sucolv System (WPPSS Nuclear Project No. 2, LBP-79-7,.9 NRC 330, 335 (1979). That opinion denied the petition of an organization which,_after the time when intervention petitions had to be filed, sought to enlist members near the site in order to fulfill its standing requirements.
,The lateness question, while present as the result of
.the. tardy joining of the organization of members on whom standing is based, would not necessarily preclude admission of the Coalition. Another Licensing Board admitted an organization whose member on whom standing was based was presumed to have joined the organization after the date for filing of intervention petitions; that Board balanced the factors for late intervention petitions and found that they favored admission of the organization, even if deemed to be late. Houston Lichtina and Power Co. (South Texas Project, l
Units 1 and 2), LBP-79-10, 9 NRC 439, 448 n.3 '(1979). In affirming that ruling, the Appeal Board remarked that the l organization could be considered " " late" . . . only in a 1
legalistic senso" (its petition in fact having been filed a day early, as is the case here) and that the applicant could not reasonably complain that the " late" intervention would
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unreasonably delay the proceeding. ALAB-549, 9 NRC 644, 648-49 (1979).
In an informal proceeding of this type, only two factors technically govern late-filed intervention petitions--(1) whether the lateness was excusable, and.(2) whether grant of a late-filed request would result in any undue prejudice or injury to other participants. 10 C.F.R.
S 1205 (k) (1) . Here, the lateness appears to be attributable to legal inexperience and hence is excusable, and grant of intervention status to the coalition would not seem to produce further delay in the proceeding or prejudice to any other participant. For that reason, I would be prepared to overlook the technical, legalistic lateness of the Coalition.
However, another' objection to the Coalition's participation advanced by the Applicant is more significant.
In the first place, it is not clear to me that Ms. Dodson and Ms. Sisk are in fact seeking to be represented by the Coalition. Ms. Dodson states (in her August 22, 1989, filing) that she wishes to intervene personally, although she is willing to permit the Coalition to serve as lead intervenor. For her part, Ms. Sisk indicates that she 1
wishes to intervene both as an individual and as a Coalition member; she also states that she wishes the Coalition to serve as lead intervenor (Supplemental Information dated September 5, 1989). As the Applicant observes, Ms. Sisk's
1 expressed desire to participate as an individual negates her authorization for the Coalition to represent her interests.
The most that can be said is that she has authorized the Coalition to serve as lead intervenor with regard to issues of common interest.
Finally, it is not clear to me whether Ms. Sisk may simultaneously represent herself and also be represented by an organization. The Applicant claims that she may not do so, but it cites no authority for this proposition. Nor am I aware of any precedent on this question. It appears sensible, however, not to afford a party two bites at the apple, at least where, as here, the Coalition has not indicated whether it is advancing any claims which the individual members are unwilling or unable to advance on their own behalf.
In an informal proceeding of this type, the lateness factors set forth in 10 C.F.R. SS 2.714 (a) (1) (iii) and (iv) are not technically applicable, but in my opinion they are generally relevant to my determination whether to admit the Coalition as a late-filed intervenor. I have no information which would indicate whether or not the Coalition would assist in the development of a sound record, and it also appears that the Coalition's interest may be adequately represented by existing parties--i.e., Ms. Dodson and Ms.
Sisk. On the basis of the record as it now stands, I would
have to deny intervention to the Coalition on the basis of these considerations.
At the prehearing conference which I am scheduling, I will permit the Coalition to provide further clarification of the status of its proposed intervention. By that time, it will be required to have filed a more definitive statement of any issues it wishes to raise. Beyond that, it has mentioned certain unnamed members in Jefferson County, but if the Coalition wishes to rely on any members other than Ms. Dodson or Ms. Sisk, it will have to identify them.
Pending receipt of further information, I am deferring any ruling on the Coalition's intervention petition.
- 4. Statement of Issues.
Following the admission of interveners as parties to the proceeding, the next course of action under the informal hearing rules would be for parties to submit written presentations, under oath or affirmation, of their arguments ,
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and documentary data, informational material, and other l
supporting written evidence, This presentation must describe in detail any deficiency or omission in the license application, with particular references provided. The j l relief sought must also be detailed. 10 C.F.R. SS 2.1233(c) and (d).
i In this proceeding, however, it appears that there may well be disputes as to whether certain matters referenced by )
the Interveners in their statements of concern may in fact l l
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L be litigable. In my opinion,-there are outstanding
. questions as to the scope of the proposed license amendment and the effects that may be engendered by it. In addition, there are unreselved questions concerning the petition of l the Coalition. Failure to resolve these questions prior to the submission of written presentations under 10 C.F.R. S 2.1233 would likely result in unnecessary paperwork for many parties. For'that reason, I have decided that the most efficient manner to supplement the record in this regard would be to hold a prehearing conference, as authorized by 10 C.F.R. S 2.1209(c), preceded by a filing of issues in dispute (but not full statements of their cases) by all Interveners and petitioners.'
As suggested by the Applicant in its September 18, 1989 filing, the statement of issues should demonstrate the deficiencies or omissions in the license application, the relationship (or " nexus") of'the issues to the proposed license amendment, and the source of the Intervenor's (or l
I advised all parties by telephone of my intent to hold a prehearing conference, and all parties except the Applicant favored that approach. The Applicant, while agreeing that statements of issues were desirable, opined that I should await receipt of those statements before determining whether a prehearing conference was necessary.
however, there are sufficient areas where written statements of issues by parties will inevitably call for follow-up inquiries such as, for example, the scope of the proceeding and matters which may be affected by the license amendment.
For that reason, it would appear that waiting for the statements of issues before determining whether a prehearing conference should be convened would unnecessarily delay the
. proceeding.
I petitioner's) belief that there are deficiencies or I
i omissions in the application. In particular, an explanation ;
of the relationship to the license application of the alleged unplanned release of radioactivity on August 28 or 29, 1989, referenced by Ms. Sisk and by the Coalition, would be useful.
Finally, based on certain of the concerns set forth by the Interveners, and after examination of the hearing file, I am identifying one safety matter for which I am posing questions to the Applicant and NRC Staff pursuant to 10 C.F.R. S 2.1233(a). These questions are set forth below.
The prehearing conference will be held on Wednesday, October 25, 1989, beginning at 9:00 a.m., at the Student Center Building, Viking Room, Jefferson College, Hillsboro, Missouri. On the evening of Tuesday, October 24, 1989, I will hear oral limited appearance statements pursuant to 10 C.F.R. S 2.1211(a). The limited appearance session will take place from 7:00-9:30 p.m. (or until the last person present has delivered his or her statement, whichever is earlier) at the Arts and Sciences Building, Little Theatre, Jefferson College, Hillsboro, Missouri. Although limited appearance statements are not considered part of the decisional record, I may ask the parties to develop information for the record (or at least have the Staff consider information) concerning matters rained in such l
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statements and not directly covered by issues identified by the parties.
- 5. Ouestions for Applicant and Staff.
In their statements of concerns, each of the Interveners has mentioned potentials for criticality accidents and releases of radioactive chemicals, particulate and gases. My examination of the hearing file has brought to light a question concerning the criticality standard which ought to be applied in this proceeding.
Thus, as part of its May 1, 1989, application for a license amendment, and again in the further information filed on August 18, 1989, the Applicant has set forth certain criticality considerations as part of its description of the process of filling of bulk storage hoppers. It states that "the K g, is 0.9744 0.0032." It is my understanding, however, that the K g, normally found acceptable by the NRC Staff is 0.95. See ANSI /ANS-8.1-1983, as incorporated in NRC Regulatory Guide 3.4, " Nuclear Criticality Safety in Operations With Fissionable Materials at Fuels and Materials Facilities" (Rev. 2, March, 1986).
In addition, the current icense includes a provision limiting the K g, to not in excess of 0.95 unless specifically authorized (License SNM-33, Amendment 13, at 1 31). Therefore, I have the following questions:
Anolicant: 1. What justification are you providing for using a Kg, greater (i.e., less conservative} than 0.95?
- 2. What changes in your application, if any, would result if you were to be limited to a K g, of 0.95 or less?
- 3. What would be the effect on your operations if I were to include a provision in your amended license comparable to 1 31 of your current license, covering the information submitted at 1 8.3.4.1 of your amendment application?
Staff: 1. What is your current policy for permitting a K g, less conservative than 0.95?
- 2. Do you plan to include a provision comparable to 1 31 of the current license to cover the higher Kg, included in the May 1, 1989 application or the August 18, 1989 statement of additional inforr.;ation?
Answers to the foregoirg questions should be provided to all parties and petitioners prior to ^he prehearing conference. (If the Staff review is not yet at the stage ,
where it can answer my second question to it, it can so state.) Although these questions are likely to be discussed at the prehearing conference, the Staff, which is not a party to the proceeding, may limit its answers to written answers; it need not participate at the prehearing conference, although it is invited to do so, irrespective of its party status.
- 6. Settlement.
I urge all parties to attempt to settle any issues in this proceeding. The prehearing conference which I am
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scheduling could usefully serve as a medium tv-settle
. outstanding issues. I call upon all parties to attempt to resolve their differences in this manner.
- 7. Order,,
For the reasons stated, it is, this 25th day of September, 1989 ORDERED:
- 1. The intervention petitions of Sen. Jeremiah W.
(Jay) Nixon and Ms. Karen Sisk are hereby aranted. Action on the petition of the Coalition for the Environment is deferred.
- 2. All Interveners and petitioners must file a statement of proposed issues no later than Wednesday, October 18, 1989, using express mail for copies intended for the Applicant and for me. (If ordinary mail is preferred, the statements should be filed by Monday, October 16, 1989.)
The Applicant and NRC Staff are requested to provide responses to the questions posed by me at pp. 11-12, suora.
- 3. A prehearing conference is scheduled for Wednesday, October 25, 1989, beginning at 9:00 a.m., at the Student Center Building, Viking Room, Jefferson College, Hillsboro, Missouri. On the prior evening, I will entertain oral limited appearance statements, from 7:00-9:30 p.m. (or such earlier time as would permit the last person present to make his or her statement), from persons who are not parties (or petitioners) in the proceeding. These statements will be l
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heard at the Arts and Sciences Building, Little. Theatre, i Jefferson College, Hillsboro, Missouri.
Charles Bechhoefer A 31 /
Presiding Officer /
ADMINISTRATIVE JUDGE Bethesda, Maryland September 25, 1989 l
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.- UNITED STATES OF AMERICA NUCLEAR RESULATORY COMMISSION In the Matter of I I
COMBUSTION ENGINEERING. INC. I Docket No.(s) 70-36-MLA I
(Hematite Fuel Fabrication Facility 1 License No. SNM-33) l l
CERTIFICATE OF SERVICE I hereby certify that copies of the forecoino LB M&O (ADD'L INTERVENTION...)
have been served upon the followino persons by U.S. mail, first class, except as otherwise noted and in accordance with the reoutrements of 10 CFR Sec. 2.712.
Administrative Judoe Administrative Judce Charles Sechhoefer Jerry R. Kline Atomic Safety and Licensino Board Atomic Safety and Licensino Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington DC 20555 Washinoten. DC 20555 Michael A. Bauser, Escuire Office of the Seneral Counsel Newman & Holtrincer. P.C.
U.S. Nuclear Reculatory Commission 1615 L Street. NW Washincton. DC 20555 Washincton, DC 20036 Missouri State Senator Jeremiah W. (Jay) Nixon 22nd District Martha Dodson Room 429 412 Mississicci State Capitol Crystal City, MD 63019 Jefferson City. MD 65101 Arlene Sandler President Karen Sisk Coalition for the Environment 1123 Wolf Hollow Road St. Louis Chapter Imperial. HD 63052 6267 Delmar Boulevard St. Louis. MD 63130 i
l l Dated at Rockville. Md. this '
25 day of September 19S9 Office pf the Secretary of the Commission l
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