ML060330660
| ML060330660 | |
| Person / Time | |
|---|---|
| Site: | Monticello  |
| Issue date: | 02/02/2006 |
| From: | Vietti-Cook A L NRC/SECY |
| To: | |
| Byrdsong A T | |
| References | |
| 50-263-LR, ASLBP 05-841-02-LR, CLI-06-06, RAS 11137 | |
| Download: ML060330660 (7) | |
Text
1 LBP-05-31, 62 NRC __, slip op. Nov. 1, 2005.2 See Request for a Hearing and Petition for Leave to Intervene by the North AmericanWater Office (July 9, 2005), at 1. UNITED STATES OF AMERICA RAS 11137NUCLEAR REGULATORY COMMISSIONDOCKETED 02/02/06COMMISSIONERSSERVED 02/02/06Nils J. Diaz, ChairmanEdward McGaffigan, Jr.
Jeffrey S. Merrifield Gregory B. Jackzo Peter B. Lyons In the Matter ofNuclear Management Company, LLC (Monticello Nuclear Generating Plant)Docket No. 50-263-LRCLI-06-06MEMORANDUM AND ORDERBefore the Commission is an "appeal" by petitioner North American Water Office("NAWO"), of the Atomic Safety and Licensing Board's ("Board") ruling on standing and contention admissibility.
1 That ruling denied NAWO's petition to intervene in the application ofthe Nuclear Management Company, LLC ("NMC") to renew the operating license for its Monticello Nuclear Generating Plant ("MNGP") in Monticello, Minnesota. NAWO describesitself as an organization formed to educate people about environmental concerns, notably electric utility waste.
2 On November 11, 2005, NAWO submitted a document to the Board entitled "Appeal ofthe North American Water Office to the November 1, 2005 Order of the Atomic Safety and Licensing Board Denying Standing and Rejecting Contentions of the North American Water Office in the Above Captioned Matter" ("Appeal"). In the document, less than two pages long, 3 Status Report (Dec. 14, 2005), at 1.
4 Id.5 Id. at 2.6 See 10 C.F.R. § 2.311(a). We conclude that no further pleading is forthcoming fromNAWO. The time for filing an appeal of LBP-05-31 expired on November 14, 2005. Even if NAWO's "appeal" were intended as a motion for reconsideration, NAWO would have had 10 days from the Board's ruling on its motion (e.g., the "status report") to file an appeal. Thatdeadline has also passed.
7 Both the NRC Staff and NMC declined to submit any substantive response to thearguments in NAWO's "appeal."
See Letter of David R. Lewis to Administrative Judgesinforming them that NMC does not intend to respond further (Nov. 22, 2005); Letter of Michael A. Woods to Administrative Judges informing them that the NRC staff does not intend torespond further (Nov. 22, 2005).NAWO stated that it "appealed" the Board's November 1, 2005 order, but addressed the Boardand asked it to "reconsider." Thus, it was not clear whether the document was intended as a motion for reconsideration by the Board or an appeal to the Commission.On December 14, 2005, the Board issued a "Status Report" noting that NRC rulesrequire that a petitioner must first obtain leave from the presiding officer to file a motion for reconsideration.
3 The Board stated that in its view the document must be considered, "ifanything," an appeal of the Board's decision.
4 The Board referred the matter to theCommission for whatever action we deemed appropriate.
5 The Board's underlying ruling found that NAWO had no standing and that it had notoffered an admissible contention. Thus, an appeal would have to convince us that NAWO both has standing and has presented at least one litigable contention. We conclude that the appealstates no grounds for the Commission to overrule the Board, for the following reasons:
- 1. NAWO's document does not conform to our procedural regulations governingappeals, which provide that a notice of appeal be accompanied by a brief.
6 NAWO's "appeal" isdevoid of legal argument and includes no citation to the record.
7 The lack of a brief is sufficient 8 See Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 198 (1993), citing Georgia Power Co. (Vogtle Electric Generating Plant, Units1 & 2), CLI-92-3, 35 NRC 63, 66 (1992). 9 Appeal at 2.
10 See, e.g., U.S. Dep't. of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357,363 (2004); Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47, 56 (1992).11 See LBP-05-31, 62 NRC __, slip op. at 6-8.
12 NAWO has evidently abandoned the remainder of its proposed contentions, whichrelated to: the no-action alternative, radiation monitoring, security, drinking water safety, the effects of global warming on reactor operations, and severe accident mitigation analysis. reason, without more, to reject NAWO's "appeal."
- 82. NAWO's "appeal" does not contend that the Board misapplied NRC rules relating tostanding. Instead, it argues that the standards the Board used were "rules designed to denystanding and disenfranchise those with legitimate interests."
9 The NRC generally follows judicial concepts of standing in its own proceedings.
10 TheBoard found that NAWO had not shown that it, or any of its members, would suffer any concrete or particularized harm from the proposed license renewal. A review of the Board's decision shows that its standing analysis was based on U.S. Supreme Court precedent and was consistent with this agency's practice with respect to standing.
11 Nothing in NAWO's "appeal"suggests that the Board misapplied applicable law relating to standing. 3. Similarly, the "appeal" does not provide the Commission any reason to question theBoard's ruling on NAWO's proposed contentions. NAWO does not specify which of its proposed contentions it is pursuing on appeal, but it appears that only proposed Contention 4(Reactor Aging Problems Will Escape Detection Until Too Late) relates to its argument.
12 The"appeal" states in conclusory fashion that "NAWO brought forward a whole new category of 13 Appeal at 2.
14 Id. 15 LBP-05-31, 62 NRC at __, slip op. at 23. See also 10 C.F.R. § 2.309(f)(1)(v).
16 LBP-05-31, 62 NRC at __, slip op. at 23.
17 See, e.g., Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11,49 NRC 328, 336-37 (1999).
18 It should be noted that the use of intemperate and disrespectful rhetoric such as thatin NAWO's "appeal" has no place in filings before the Commission or its Boards.
See, e.g.,Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746,748-49 (1978); La. Power & Light Co. (Waterford Steam Electric Station, Unit 3) ALAB-121, 6AEC 319, 320 (1973). Ad hominem attacks do nothing to advance the petitioner's interests orthe orderly administration of the Commission's adjudicatory processes, and will not betolerated. reactor components that had escaped scrutiny in [the] aging management program."
13 It furtherargues that the fact that the NRC staff issued a Request for Additional Information ("RAI") tothe applicant concerning some of these components is "irrefutable evidence" of a genuine contention.
14 The Board reasonably held that the proposed contention was "vague and speculative,and lack[ed] expert opinion, documents, or sources to support it;" that it "present[ed] nothingmore than an unsupported conclusion;"
15 and that insofar as the contention related to routineinspections, it fell outside the scope of a license renewal proceeding.
16 Furthermore, we haveheld repeatedly that the mere issuance of a staff RAI does not establish grounds for a litigablecontention.
17 NAWO offers no other argument in defense of its contention, while the Board'sreasoning appears correct on its face.
18 For the foregoing reasons, NAWO's "appeal" is rejected, and the Board's decision isaffirmed.IT IS SO ORDERED. For the Commission/RA/ Annette L. Vietti-CookSecretary of the CommissionDated at Rockville, Maryl and This 2 nd day of February, 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONIn the Matter of ) )NUCLEAR MANAGEMENT COMPANY, LLC)Docket No. 50-263-LR )
)(Monticello Nuclear Generating Plant))CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-06-06) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U S mail, first class, or through NRC internal distribution. Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.govAdministrative JudgeLawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: lgm1@nrc.govAdministrative JudgeWilliam M. Murphy Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: wmurphy@csuchico.eduAdministrative JudgeRichard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.govMichael A. Woods, Esq.Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: maw2@nrc.gov David R. Lewis, Esq.Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W.
Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com 2Docket No. 50-263-LRCOMMISSION MEMORANDUM AND ORDER (CLI-06-06) George CrockerExecutive Director North American Water Office
P.O. Box 174 Lake Elmo, MN 55042 E-mail: gwillc@nawo.orgJonathan Rogoff, Esq.General Counsel Nuclear Management Company, LLC 700 First Street Hudson, WI 54016 E-mail: jonathan.rogoff@nmcco.com[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the CommissionDated at Rockville, Marylandthis 2 nd day of February 2006