ML042610296

Response by Dominion Nuclear in Support of Motion to Dismiss, Dated 8/26/04

ML042610296
Person / Time
Site:	Millstone
Issue date:	08/26/2004
From:	Doris Lewis Dominion Nuclear Connecticut, ShawPittman, LLP
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, 2nd Circuit
Charles Mullins
References
04-3577-AG
Download: ML042610296 (8)

Text

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

)

CONNECTICUT COALITION )

AGAINST MILLSTONE )

Petitioner, )

) No. 04-3577-AG

v. )

U.S. NUCLEAR REGULATORY COMMISSION) and DOMINION NUCLEAR CONNECTICUT, INC., )

Respondents )

)

DOMINION NUCLEAR CONNECTICUT, INC.'S RESPONSE IN SUPPORT OF FEDERAL RESPONDENTS' MOTION TO DISMISS Intervenor-Respondent Dominion Nuclear Connecticut, Inc. ("DNC") submits this response in support of the August 16, 2004 "Federal Respondents' Motion to Dismiss" ("Motion to Dismiss') filed by the United States Nuclear Regulatory Commission ("Commission" or "NRC") and the United States of America ("Federal Respondents"). The Motion to Dismiss seeks dismissal of the Petition for Review filed in this Court by Connecticut Coalition Against Millstone ("Petitioner" or "CCAM") for lack ofjurisdiction and mootness. As more fully discussed below, dismissal of CCAM's Petition for Review is warranted under the law and by basic principles of judicial economy. Accordingly, the Federal-Respondents' Motion to Dismiss should be granted.

STATEMENT OF FACTS The relevant facts are correctly set forth in the Motion to Dismiss and will not be repeated here.

ARGUMENT I. THE COURT LACKS JURISDICTION TO REVIEW THE NRC DECISIONS AT ISSUE A. Introduction CCAM would have this Court examine two rulings by the NRC, neither of which is fit for review. The first ruling - the Commission's rejection of the CCAM's February 12, 2004 Petition to Intervene and Request for Hearing ("Petition to Intervene") as premature - is not within the Court's jurisdiction, and has in any event been rendered moot by the agency's acceptance for litigation of CCAM's March 22, 2004 re-filing of the February 12, 2004 Petition to Intervene. The second ruling - the decision that the "new" NRC rules of practice apply to the ongoing licensing proceeding that is examining CCAM's challenge to the License Renewal Applications - addresses a procedural, non-dispositive issue that is not ripe for judicial examination and must await the final outcome of the licensing proceeding. Thus, there is no legal basis for CCAM's Petition for Review, which must accordingly be dismissed.

In addition, by seeking the Court's review of the NRC's preliminary rulings on its Petition to Intervene, CCAM is wasting the time of the Court and the parties. Judicial economy dictates that, even if the Court had jurisdiction to review the procedural issues asserted in the Petition for Review, it should decline to examine them at this time.

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B. The NRC's Relection of CCAM's February 12, 2004 Petition to Intervene is Not Subject to Judicial Review

1. The Rejection of CCAM's February 12, 2004 Petition to Intervene was not an Order in a 42 U.S.C. § 2239(a) "Proceeding" U.S. courts of appeals have jurisdiction to adjudicate appeals from "all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42. " 28 U.S.C. § 2342(4); Riverkeeper v. Collins, 359 F.3d 156, 164 (2d Cir. 2004). In particular, this and other courts of appeals have jurisdiction to review all final orders in NRC licensing proceedings. Id.

Most controversies over a court's jurisdiction to review an NRC order in a licensing proceeding have centered on whether the agency action is a "final order" within the meaning of the statute. See, e.g., County of Rockland v. NRC, 709 F.2d 766, 775 (2d Cir.), cert. denied, 464 U.S. 993 (1983), and discussion infra. In connection with the NRC's rejection of CCAM's February 12, 2004 Petition to Intervene, however, the question is whether the NRC action occurred in a "licensing proceeding." It is clear that at the time the Petition to Intervene was filed no such proceeding existed: the NRC's dismissal of CCAM's filing as premature was issued precisely because there was no ongoing proceeding to which the Petition to Intervene could apply.

An examination of the NRC regulations in effect on February 12, 2004, when the Petition to Intervene was filed, readily proves the point. Under those regulations, when a license application (such as the License Renewal Applications) is filed, the NRC initially treats it as a "tendered application" in order to "allow a determination as to whether [the application] is complete and acceptable for docketing." 10 C.F.R. § 2.101(a)(2). A tendered application is made "available for public inspection at the NRC Web site ... and/or at the NRC Public Document Room." Id. The process of determining whether the tendered application is acceptable for 3

docketing is generally made "within a period of thirty days." Id.' If and when the NRC Staff determines that the application is acceptable for docketing "a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination."

10 C.F.R. § 2.101(a)(3).

If a hearing is required under the Act or the NRC regulations, the NRC will then "issue a notice of hearing to be published in the Federal Register." 10 C.F.R. § 2.104(a). If a hearing is not required on a nuclear power plant license application, the NRC "will, prior to acting thereon, cause to be published in the Federal Register a notice of proposed action" or "a notice of opportunity for a hearing." 10 C.F.R. §§ 2.105(a)(1) and (a)(10). The notice will provide that,-

within thirty days from the date of publication in the Federal Register, "[a]ny person whose interest may be affected by the proceeding may file a request for a hearing or a petition for leave to intervene if a hearing has already been requested." 10 C.F.R. § 2.105(d)(2). It is then that a request for a hearing may be filed by an interested party. 2 The NRC followed exactly the procedure called for in its regulations upon the filing of the License Renewal Applications. Notice was given to the public on February 3 via the Notice of Receipt and Availability of Application (Exhibit 2 to Motion to Dismiss) that the applications had been tendered. Thirty-four days later, on March 8, the NRC determined that the applications were acceptable for docketing, assigned them a number, and issued the Notice of Acceptance for Docketing and Notice of Opportunity for Hearing (Exhibit 3 to Motion to Dismiss), which was Treating a submitted license application as a "tendered" document pending review is necessary because the NRC procedures contemplate, that if an application is incomplete and therefore not acceptable for docketing, the applicant will be informed and allowed to amend the application. 10 C.F.R. § 2.101(a)(4).

2 The provisions in the "new" NRC Rules of Practice are essentially the same as those in the "old" ones in the areas discussed herein, except that the period for filing petitions to intervene and requests for hearings has been increased to sixty days from the date of publication in the Federal Register. Compare 10 C.F.R. § 2.309(b)(3)

("new" rules) with 10 C.F.R. § 2.105(d) ("old" rules).

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then published in the Federal Register on March 12. It was not until issuance of this Notice of Acceptance that a request for a hearing and petition for leave to intervene could be filed, because it was not until then that the NRC decided that the application was complete enough that a review by the agency and public hearings on the application could be conducted. Therefore, it was not until then that a "licensing proceeding" existed to which judicial review could be applied. The NRC's rejection of CCAM's premature Petition to Intervene was appropriate, consistent with the agency's own regulations, and not subject to judicial review.

2. The NRC's Acceptance of the March 22, 2004 Petition to Intervene and the Institution of a Licensing Proceeding Have Rendered Moot CCAM's Appeal of the Rejection of its February 12, 2004 Petition Even if the NRC had wrongly rejected CCAM's February 12 Petition to Intervene, the error would have been cured by the NRC's acceptance of the March 22 resubmitted Petition to Intervene and the institution of the ASLB proceeding now in progress. See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), Order (March 25, 2004)

(Exhibit 4 to Motion to Dismiss). Therefore, Petitioner's appeal of the NRC's decision to reject its February 12, 2004 request is moot and as such this Court lacks jurisdiction over it. Long Island Lighting Co. v. Cuomo, 888 F.2d 230, 233 (2d Cir. 1989).3 II. THE DECISION ON WHAT PROCEDURES APPLY TO THE HEARING REQUEST BY CCAM IS NOT A REVIEWNYABLE "FINAL ORDER" As noted earlier, jurisdiction of this Court extends only to "final orders" of the NRC. In an NRC licensing proceeding, such as that instituted by the NRC with respect to the License Renewal Applications, "it is the order granting or denying the license that is ordinarily the final 3 The only potential impact of the rejection of the February 12, 2004 Petition to lntenrene would be as to which procedures should apply to CCAM's hearing request. As discussed below, the NRC's position on that issue is not a "final" decision from which appeal can be taken at this time.

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order." City ofBenton v. NRC, 136 F.3d 824, 825 (D.C. Cir. 1998); see also Mass. v. NRC, 924 F.2d 311, 322 (D.C. Cir.), cert. denied, 502 U.S. 899 (199 1); NaturalResources Defense Council, Inc. v. NRC, 680 F.2d 810, 815-16 (D.C. Cir. 1982); Citizensfor a Safe Environment v.

AEC, 489 F.2d 1018, 1021 (3d Cir. 1974); Thermal Ecology Must Be Preservedv. AEC, 433 F.2d 524, 525 (D.C. Cir. 1970). A decision at the outset of a licensing proceeding establishing the procedures for the proceeding is clearly interlocutory and not final agency action from which judicial review can be had. 4 NaturalResources Defense Council, supra, 680 F.2d at 816.

The inability to obtain judicial review at this time of the NRC's decision that the amended Rules of Practice govern proceedings on CCAM's Petition to Intervene causes no harn or prejudice to Petitioner. 5 At the conclusion of the pending licensing proceeding before the NRC, once CCAM's Motion for Reconsideration before the ASLB and its appeal to the Commission of the dismissal of the Petition to Intervene are resolved, CCAM will have the opportunity to seek this Court's review of any issue raised in the licensing proceeding below that has aggrieved it. See, e.g., Thermal Ecology, supra, 433 F.2d at 525.

4 This Court has held that a final agency action is one that "markis] the consummation of the agency's decisionmaking process" and determines the rights and obligations of the parties. Top Choice Distributorsv.

U.S. PostalServ., 138 F.3d 463, 466 (2d Cir. 1998) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)).

Establishing what procedures should apply to a licensing proceeding is certainly not the consummation of the NRC's decisionmaking process with respect to CCAM's Petition to Intervene.

5 The NRC standards for determining whether a hearing request should be granted (whether the petitioner has demonstrated standing and submitted at least one admissible contention) are essentially the same under the "old" and "new" rules. While the "new" rules require leave of the Presiding Officer to amend a petition after the initial filing, in the proceeding before the ASLB CCAM both amended and supplemented its original Petition to Intervene. See Dominion Nuclear Connecticut,Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP 15, 60 N.R.C. _ (2004), slip op. at 2-3 (Exhibit 7 to Motion to Dismiss). Thus, so far, application of the "new" rules has had no adverse effect on CCAM.

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CONCLUSION For the above reasons, the Court should grant the Federal Respondents' Motion to Dismiss and dismiss the Petition for Review for want ofjurisdiction.

Respectfully submitted, Lillian M. Cuoco David R. Lewis Dominion Resources Services, Inc. Matias Travieso-Diaz Millstone Power Station Rope Ferry Road SHAW PITTMAN, LLP Waterford, CT 06835 2300 N. Street, N.W.

Washington, D.C. 20037 (202) 663-8000 Counsel for Dominion Nuclear Connecticut, Inc.

Dated: August 26,2004 7

CERTIFICATE OF SERVICE I hereby certify that true copies of the foregoing "Dominion Nuclear Connecticut, Inc.'s Response in Support of Federal Respondents' Motion To Dismiss" were served upon the following by deposit in the United States mail, first class, postage prepaid, on this 26th day of August, 2004.

Charles E. Mullins, Esq.

Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Andrew Mergen Attorney Environmental Division, Appellate Section U.S. Department of Justice Washington, D.C. 20026-3795 Nancy Burton, Esq.

147 Cross Highway Redding Ridge, CT 06876 Zk QZ-David R. Lewis Counsel for Dominion Nuclear Connecticut, Inc.

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