ML20129J577

NRC Staff Answer Opposing Intervenor Motion for Partial Reconsideration of CLI-96-8.* Recommends That Citizen Against Nuclear Trash Motion Be Denied as Untimely.W/ Certificate of Svc

ML20129J577
Person / Time
Site:	Claiborne
Issue date:	10/29/1996
From:	Bachmann R, Holler E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#496-18022 CLI-96-08, CLI-96-8, ML, NUDOCS 9611070022
Download: ML20129J577 (10)

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s jfpdb DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 96 0CT 29 P1 :35 DEFORE THE COMMISSION OFFICE Of 3ECRETARY 00CXE TWG 1 SERVICE BRANCH In the Matter of )

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Louisiana Energy Services, L.P. ) Docket No. 70-3070-ML

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(Claiborne Enrichment Center) )

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l NRC STAFF'S ANSWER OPPOSING INTERVENOR'S MOTION FOR PARTIAL RECONSIDERATION OF CLI-96-8 i

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Eugene Holler Richard G. Bachmann Counsel for NRC Staff l

October 29,1996 i

9611070022 961029 PDR ADOCK 07003070 3go7 i

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October 29,1996 UNITED STATES OF AMERICA l

l NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION l

In the Matter of )

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l Louisiana Energy Services, L.P. ) Docket No. 70-3070-ML

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(Claiborne Enrichment Center) )

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NRC STAFF'S ANSWER OPPOSING l INTERVENOR'S MOTION FOR PARTIAL RECONSIDERATION OF CLI-96-8 INTRODUCTION On October 17, 1996, Intervenor Citizens Against Nuclear Trash (CANT) filed a motion,8 pursuant to 10 C.F.R. 6 2.771, for reconsideration of part of the Commission's October 2,1996 Order, granting in part and denying in part CANT's petition for review of LBP-96-7.2 Specifically, CANT seeks reconsideration of that part of CLI-96-8 which rules that l Louisiana Energy Services, L.P. (LES) has sufficiently clarified the relationship between the onsite fire brigade and the offsite fire department in responding to an emergency at the Claiborne Enrichment Center (CEC). Motion at 1-2,9. The staff of the Nuclear Regulatory Commission 8

"C.tizens Against Nuclear Trash's Motion for Partial Reconsideration of CLI-96-08,"

dated Octoter 17,1996 (Motion).

2 CANT sought review of certain Licensing Board rulings in Louisiana Energy Senices, L.P. (Claiborne Enrichment Center), LBP-96-7,43 NRC 142 (1996), concerning Contention H which challenged the adequacy of Louisiana Energy Services, L.P.'s (LES's) emergency plan for the Claiborne Enrichment Center (CEC). In Louisiana Energy Senices, L.P. (Claiborne Enrichment Center), CLI-96-8, 44 NRC (October 2,1996), the Commission denied the petition for review of LBP-96-7, except for a single issue concerning post-hearing resolution of the role of the on-site fire brigade. CLI-96-8, slip op, at 1-2.

l (Staff) hereby files its answer opposing CANT's Motion.' CANT's Motion should be denied 1

as it falls to offer new information to suggest that the result reached in CLI-96-8 was incorrect. l Moreover, as discussed below, the Motion is untimely.

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BACKGROUND l On January 31,1991, LES filed an application for a license to construct and operate the CEC, a uranium enrichment facility to be constructed near Homer, Louisiana. On May 23, 1 1991, an Atomic Safety and Licensing Board was established to preside over the proceeding; and 1

on June 20,1991, a petition for leave to intervene was filed by CANT.* By Memorandum and 1

Order of December 19,1991, the Licensing Board admitted CANT as a party to the proceeding. j On April 26,1996, the Licensing Board issued a partial initial decision in which it concluded that the CEC Emergency Plan and the CEC Fundamental Nuclear Material Control (FNMC)

Plan comply with the Commission's applicable regulations and that CANT's Contentions H, L,  ;

and M could not be sustained. LBP-96-7, 43 NRC at 176. Although it found that CANT's Contention H could not be sustained regarding the CEC Emergency Plan and found the plan in compliance with the Commission's regulations, the Licensing Board directed that LES correct any ambiguity introduced by the testimony ofits witness regarding the ensite responsibility of 8

Although the Staff recognizes that it may not be necessary to respond (Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-166,6 AEC 1148,1150, n.7 (1973), accord, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

19 NRC 981,983, n.6 (1984)), the Staff offers its answer to the Motion.

4 In addition, on June 27, 1991, the State of Louisiana, Department of Environmental Quality (DEQ), filed a request for leave to participate as an interested state agency under the provisions of 10 C.F.R. 5 2.715(c); that request was granted by the Licensing Board's l Memorandum and Order of July 16,1991, at 6-7. No contentions were filed by the Imuisiana l DEQ.

! l l offsite fire departments and that the Staff supplement the SER, if necessary, to reflect the correct l

\ l role of the onsite fire brigade. LBP-96-7,43 NRC at 161. j l

On May 16,1996, CANT filed a petition, pursuant to 10 C.F.R. 5 2.786(b), seeking l review of certain rulings concerning Contention H in LBP-96-7.5 On October 2,1996, the ,

l l l Commission granted in part and denied in part CANT's petition for review of LBP-96-7. CLI-1 l

96-8, slip op. at 6. CANT now seeks reconsideration of that part of CLI-96-8 which ruled that LES has sufficiently clarified the relationship between the onsite fire brigade and the offsite fire department in responding to an emergency at the CEC. Motion at 1-2,9. l DISCUSSION l

A. Standards for Commission Reconsideration 1

In CLI-96-8, the Commission referred to 10 C.F.R. f 2.771 in noting that CANT could  ;

call to the Commission's attention any " record evidence" the Commission may have overlooked in resolving CANT's Petition for Review. CLI-96-8, slip op. at 6, n.2. The Commission's regulations in i 2.771 provide that a petition for reconsideration must be filed "within ten (10) days of the date after the date of the decision." 10 C.F.R. 5 2.771(a); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-88-3,28 NRC 1,2 (1988). The petition for reconsideration must state specifically "the respects in which the final decision is claimed to be erroneous, the grounds of the petition, and the relief sought." 10 C.F.R. f 2.771(b).

A movant seeking reconsideration of a final decision must do so on the basis of an elaboration upon, or refinement of, arguments previously advanced, generally on the basis of l

5 "Intervenor's Petition for Review of LBP-96-7," dated May 16,1996 (Petition for i Review). CANT did not seek review of the Licensing Board's rulings associated with Contentions L and M which concerned the adequacy of the applicant's FNMC Plan for detecting i and preventing the unlawful production of enriched uranium at the CEC.

l information not previously available. See Central Electric Power Cooperative, Inc. (Virgil C.

Summer Nuclear Station, Unit 1), CLI-81-26,14 NRC 787, 790 (1981); Tennessee Valley Amhority (Hartsville Nuclear Plant, Units I A, 2A, IB, and 2B), ALAB-418, 6 NRC 1, 2 (1977). A reconsideration request is not an occasion for advancing an entirely new thesis. Id.

Nor are petitions for reconsideration the occasion for simply reiterating arguments previously i proffered and rejected. See Shoreham, CLI-88-3,28 NRC at 2,4.

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B. CANT'S Motion for Reconsideration Is Untimely.

The Commission's regulations provide that a petition for reconsideration of a final decision may be filed by a party within ten (10) days "after the date ofthe decision." 10 C.F.R. 6 2.771(a) (emphasis added). This regulation is different from other regulations in 10 C.F.R.

I Part 2, which provide for filing within a specified number of days after service of a decision or motion.* CANT filed its Motion 15 days after the issuance of CLI-96-8 and has proffered no l

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• See e.g.10 C.F.R. Q 2.786(b)(1)(provides for filing of a petition for review 15 days after I i

service of an initial decision); 10 C.F.R. 6 2.730(c)(provides for filing of an answer to a motion 10 days after service of a written motion). When the computation of time within which a person is required to do something runs from the service of a notice or other paper upon him or her, 10 C.F.R. f 2.710 prescribes the method for computing the time. Section 2.710 by its terms is limited to cases where the time to file runs from service of the decision of a notice or other paper.

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showing of good cause for its lateness.7 The Commission, if it so chooses, could deny the motion for this reason alone.8 l C. CANT Has Not Shown Grounds Meritine Reconsideration.

l First, CANT argues that the new information submitted by LES in its answer to CANT's Petition for Review demonstrates that LES relies on the local fire department as a " surrogate

• i for the CEC fire brigade without "specifying the qualifications or training" of the local fire department.' Motion at 1-2,5-6. While acknowledging that the Commission has found that the CEC emergency plan does in fact satisfy NRC requirements, CANT argues that [t]he Commission erred in failing to apply the Reg. Guide [ Regulatory Guide 3.67] to the adequacy" of the offsite fire department. Motion at 5-7. Putting aside the fact that regulatory guides are not regulations, this argument must fail in that it is simply a reiteration of the same argument, that regulatory guides prescribe requirements, which CANT made before the Commission in its 7 CLI-96-8 issued on October 2,1996. Any petition for reconsideration of CLI-96-8, would have been due for filing on October 12, 1996, except that October 12 was a Saturday and Monday, October 14 was a legal holiday. That being the case, the filing date was extended to l Tuesday, October 15, 1996, pursuant to 10 C.F.R. % 2.710. Intervenor's Motion for l Reconsideration was filed October 17,1996,2 days out of time.

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' See Shoreham, CLI-88-3,28 NRC at 2, in which the Commission held that a motion for reconsideration was untimely having been filed 19 days after the " issuance" of a Commission decision rather than "the 10 days provided by 10 C.F.R. Q 2.771(a), with no showing of good cause for its lateness."

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CANT is mistaken in asserting that this is new information. As the Commission l determined in CLI-96-8, LES's answer " clarified any ambiguity in the intended role and training l of the on-site fire brigade." CLI-96-8, slip op. at 4. LES's answer showed that the safety analysis report for the CEC (SAR) " accurately describes the respective roles of the onsite fire brigade and the local fire department in the event of a fire at the CEC." Id. Thus, the information in the SAR regarding the fire brigade and the fire department, which the Licensing Board had before it at the hearing, was correct and has not been modified by new information provided by LES.

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I Petition for Review and which the Commission rejected in CLI-96-8. CLI-96-8, slip op. at 1, nl. Reiteration of arguments made before and rejected by the Commission do not warrant l reconsideration. See Shoreham, CLI-88-3,28 NRC at 2,4.

l Second, CANT raises the argument that the Licensing Board " failed to address the qualifications and training" of the offsite fire department to perform its onsin, functions. Motion

, at7. CANT first raised this argument in its proposed findings before the Licensing Board, l

which found against CANT. LBP-96-7,43 NRC at 49-50. CANT, however, did not contest the Licensing Board's finding in its Petition for Review. The Commission has held that motions l l 1 to reconsider "should be associated with requests for re-evaluation of an order in light of an elaboration upon, or refinement of. arguments previously advanced." Summer, CLI-81-26,14 NRC at 790, citing Tennessee Valley Authority, ALAB-418, 6 NRC at 2. Motions for reconsideration are not the occasion for advancing arguments not contested on appeal. See Tennessee Valley Authority (Hartsville Nuclear Plant, Units l A,2A, IB, and 2B), ALAB-467, l 7 NRC 459, 462 (1978). Thus, CANT cannot raise for the first time in a motion for reconsideration a matter which it did not raise in its Petition for Review.

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CONCLUSION As demonstrated above, CANT's motion for reconsideration should be denied as untimely or, in the alternative, because it fails to offer new information to suggest that the result reached  ;

in CLI-96-8 was incorrect.

l Respectfully submitted, A S O EughJ. Holler )

Counsel for NRC Staff 1

Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland

! this 29th day of October 1996 l I

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I DOCKETED L

USHRC

! UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'96 0CT 29 P135 BEFORE THE COMMISSION l

0FFICE D SECRETARY In the Matter of ) DOCKEIm i JVICE

) BRANCH LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070-ML

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(Claiborne Enrichment Center) )

l CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER OPPOSING INTERVENOR'S MOTION FOR PARTIAL RECONSIDERATION OF CLI-96-8" in the above captioned proceeding have been served on the following through deposit in l

the Nuclear Regulatory Commission's internal mail system, or by deposit in the United States mail, first class, as indicated by an asterisk this 29th day of October, 1996:

j Thomas S. Moore, Chairman Richard F. Cole

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Frederick J. Shon Mr. Ronald Wascom*

Administrative Judge Deputy Assistant Secretary Atomic Safety and Licensing Board- Office of Air Quality & ,

l U.S. Nuclear Regulatory Commission Radiation Protection Washington, DC 20555 P.O. Box 82135 Baton Rouge, LA 70884-2135 J. Michael McGarry, IIL Esq.* Robert G. Morgan *

Winston & Strawn Duke Engineering & Services, Inc.

1400 L Street, N.W. P.O. Box 1004

Washington, DC 20005 Charlotte, NC .28201-1004 l

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p-1 i l, t l  !

l Roland J. Jensen* Marcus A. Rowden, Esq.*

Louisiana Energy Services, L.P. Fried, Frank, Harris '

2600 Virginia Avenue, N.W. Shriver & Jacobsen -

l Suite 608 1101 Pennsylvania Avenue, N.W.

Washington, DC 20037 Suite 900 South l Washington, DC 20004 l l Office of the Commission Appellate Office of the Secretary (16)

Adjudication ATTN: Docketing and Service Branch Mail Stop: 16-G-15 OWFN U.S. Nuclear Ryulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 j Washington, DC 20555

Atomic Safety and Licensing Board Nathalie M. Walker, Esq.* '

Panel Sierra Club Ixgal Defense Fund U.S. Nuclear Regulatory Commission 400 Magazine Street, Ste. 401 ,

Washington, DC 20555 New Orleans, LA 70130 Diane Curran, Esq.* Joseph DiStefano, Esq.* l Harmon, Curran, & Spielberg Urenco Investments, Inc.

2001 S Street, N.W., Suite 430 Suite 610 l Washington, D.C. 20009-1125 2600 Virginia Ave., N.W.

l Washington, DC 20037 l David S. Bailey, Esq.* i Thomas J. Henderson, Esq.

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l Lawyers' Committee for Civil '

! Rights Under Law

! 1450 G Street N.W.., Ste. 400 1 Washington, DC 20005 l

( m;=

• EugeneI Holler Counsel for NRC Staff l

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