ML20217K950

NRC Staff Response to Citizens Against Nuclear Trash (Cant) Motion for Leave to File Supplemental Findings in Reply to NRC Staff Reply Findings.* Motion Should Be Denied. W/Certificate of Svc

ML20217K950
Person / Time
Site:	Claiborne
Issue date:	10/23/1997
From:	Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#497-18596 CLI-97-11, ML, NUDOCS 9710300148
Download: ML20217K950 (6)

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'97 DTM8%N7 UNITED STATES OF AMERICA NUCLEAR REOULATORY COMMISSIONOgy[f,' d5']'[.

BEFORE THE ATOMIC SAFETY AND UcENSINGkb in the Matter of )

)

LOUISIANA ENERGY SERVICES, L.P. ) Doclun No. 704070-ML

)

(Claiborne Enrichment Center) .

)

NRC STAFF'S RESPONSE TO CANT'S MOTION FOR LEAVE TO FILE SUPPI FMENTAL FINDINGS IN REPLY TO NRC STAFF REPLY FINDINGS

• INTRODUCTION On October 16,1997, Intervenor Citizens Asainst Nucle a Trash (CANT) filed its Motion' before the Atomic Safety and Licensing Board (Board) for leave to file supplemental findings related to the issue remanded by the Commissionin CLI 97-11. As discussed below, the staff of the Nuclear Regulatory Corranission (Staff) opposes CANT's Motion.

DISCUSSION CANT's first argument is that in its Reply Findings 8the Staff contradicted the testimony

- given by Staff witness Dr. Joseph D. Price at the hearing in March 1995. Motion at 1,11. The

- alleged contradiction is based on the statement made in the Reply Findings that the Staff

• reviewed" a National Academy of Sciences (NAS) report. Reply Findings at 3,15. Accordirs l

Citizens Against Nuclear Trnh's Motion for lave to File Surreply Propcsed Supplemental Findings (Motion).

8 NRC Staff Reply to Ptoposed Fi.xiings Regarding CLI 9711, dated October 14,1997 uteply Findings).

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2 to CANT, Dr. Price testified at the hearing that he had not " reviewed" the report, j CANT's argument is without merit. Dr. Price's actual testimony, given in response to questlom from counsel for LES is as follows:

Q. . Now, Dr. Makhljani references some National Academy of Science repons for the proposition that the value that you have ur:d Sr the retard, tion factor is much higher than reflected in the National Academy unence rnons and perhaps

other documents. And to put it in the context, I think you are uses a retardation factor of 1,200, and Dr. Makhijani refers to information that would have the figure down as low as, I think, 50, but maybe in the range of 100, maybe 200, in its -

but something significantly lower than 1,200. Isn't that correct?

A. (Price) Yes. I believe that is correct.

Q. Now, how do you deal with that criticism? What is your - why is it appropriate to use the 1,200 as opposed to the 50 or the 100 or the 2007 A. (Price) Well, we are, of course, aware of the National Academy study, and in panicular with the summary table that provides values for retardations and with the associa'ed text that goes v ith that table. Neither the text nor the table provides citatiom for de value. And in addition, some of the associated text qualifies the values that aru provided in the table, i

We felt that we went to another reference, because it was a direct citation to experimental data, and we felt that we needed to rely on that, that that was a preferable route to go.

Tr.1116-17. ,

s In light of the testimcay of Dr. Price, quoted by CANT and supeated here, the use of the . ,

word " reviewed" was appropriate. CANT is being disingenuous in arguing that because Dr. Price did not use tlw. word " review " he did not review the repon.

CANT's second argument is that there is a misleading quotation from the NAS report which is not part of tha record. Motion at 1,12. CANT is correct that the NAS repon is not part of the record, in submitting his draft input for the Reply Findings, Dr. Price included the

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t 3- l statement for information purposes. Staff counsel inadvertently included the statement in the Reply Findings. The Staff withdraws the statement from its Reply Findings.

CANT's third assertion is that the Board should now review the NAS report. Motion at 12,13. This is unnecessary. Since that portion of the Reply Findings quoting the NAS report has been withdrawn, there is no basis for CANT's request that the Board review the extra record t

material.

Finally, CANT seeks leave to respond to statementt made by the Staff in the Reply Findings in response to statements made by CANT in its Proposed Finding 8. Motion at 2,14.

CANT appears to argue that, because the Staff did not propose a finding in the area of doses from the depleted uranium compared with doses from naturally occurring uranham, the Staff should be prxluded from replying to CANT's assertions. This would destroy the purpose of filing replies.

Whether or not a party has proposed a finding, that party may reply to statements made which are disputed by that party. Nothing in CANT's Motion establishes good cause for altering the proces ,

established by the Board in order to allow CANT to file any further reply fmdings CANT's Motion should, therefore, be denied, g

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8 Citizens Against' Nuclear Trash's Proposed Supplemental Findings of Fact and Conclusions of Law Regarding Contentions B and J.3, dated October 7,1997 (Proposed Findings).

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4 CONCLUSION For the reasons discussed above, CANT's Motion should be denied.

Respectfully submitted,

( ~ h _

! Richard G. Bachmann l' Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of October,1997 -

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DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'97 OCT 24 A8 34 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFIG 0" UFCEWW In the Matter of ) RULEMArh5 OND

) ADJUDK:AhC% aTAFF LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070 ML

)

(Claibome Enrichment Center) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO CANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL FINDINGSIN REPLY TO NRC STAFF REPLY FINDINGS" in the above captioned proceedini, have been served on the following through deposit in the Nuclear Regulatory Commission's internal mail system, or by deposit in the United States mall, first class, as indicated by an asterisk or by facsimile transmission with a conforming copy, as indicated by a double asterisk, '

or by hand delivery, as indicated by a triple asterisk, this 23rd day of October,1997:

Office of the Secretary *" Richard F. Cole *"

ATTN: Rulemakings and Adjudications Administrative Judge Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Thomas S. Moore, Chairman *" Frederick J. Shon*"

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board g U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Mr. Ronald Wascom* J. Michel McGarry, III. Esq."

Deputy Assistant Secretary Winston & Strawn Office of Air Quality & 1400 L Street, N.W.

Radiation Protection Washington, DC 20005 P.O. L 1x 82135 Baton Rouge, LA 70884-2135

j\ '

Robert G. Morgan

• Roland J. Jensen*

Duke Engineering & Services, Inc. Iouisiana Energy Services, L.P.

P.O. Box 1004 2600 Virginia Avenue, N.W.

Charlotte, NC 282011004 Suite 608 Washington, DC 20037 Marcus A. Rowden, Esq.* Office of the Commission Appellate Fried, Frank, Harris Adjudication Shriver & Jacobsen Mall Stop: 16-G 15 OWFN 1101 Pennsylvania Avenue, N.W. U.S. Nuclear Regulatory Commission Suite 900 South Washington, DC 20555 Washington, DC 20004 Atomic Safety and Licensing Board Nathalle M. Walker, Esq **

Panel Eanhjustice Legal Defense Fund

'J.S. Nuclear Regulatory Commission 400 Magazine Street, Ste. 401 Washington, DC 20555 New Orleans, LA 70130 Diane Curran, Esq.** Joseph DIStefano, Esq.*

Harmon, Curran, & Spielberg Urenco Investments, Inc.

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

Washington, DC 20037 David S. Bailey, Esq.*

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Thomas J. Henderson, Esq.

Lawyers' Committee for Civil Rights Under Law 1450 0 Street N.W., Ste. 400 s Washington, DC 20005 Richard G. Bachmann Counsel for NRC Staff 9

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