ML080590546
| ML080590546 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee, Pilgrim File:NorthStar Vermont Yankee icon.png |
| Issue date: | 02/14/2008 |
| From: | Brock M, Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, State of MA, Office of the Attorney General |
| To: | NRC/OGC |
| Hamrick C, OGC, 301-415-4106 | |
| References | |
| 07-1482, 07-1483 | |
| Download: ML080590546 (79) | |
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TABLE OF CONTENTS TA BLE O F A U TH ORITIES................................................................... I.................. ii
- 1.
INTRODUCTION
................................ 1 II.
BY TAKING FINAL AGENCY ACTION TO EXCLUDE THE COMMONWEALTH FROM THE RELICENSING PROCEEDINGS FOR PILGRIM AND VERMONT YANKEE, THE NRC HAS FORCED THE COMMONWEALTH TO SEEK JUDICIAL REVIEW N O W.................................................
3 III.
AS AN INTERESTED STATE, THE COMMONWEALTH WOULD NOT BE A PARTY UNDER NRC REGULATIONS AND WOULD NOT HAVE THE RIGHT TO SEEK A STAY FROM THE NRC ORA COURT OF A DECISION BY THE NRC TO RELICENSE PILGRIM AND VERMONT YANKEE.................................
5 A.
An Interested State Is Not A Party Under NRC Regulations............ 5 B.
Because An Interested State Is Not A Party Under NRC Regulations, the Commonwealth Cannot Seek A Stay Or Suspension Of An NRC Decision To Relicense Pilgrim Or Vermont Yankee Under 10 C.F.R. § 2.802 (d)...............................
..................... 7 C.
Because An Interested State Is Not A Party Under NRC Regulations, the Commonwealth Likely Would Not Be Entitled To Seek Judicial Review Of An NRC Decision To Relicense Pilgrim Or Vermont Yankee Or To Request A Judicial Stay Of A Relicensing Decision...................................
9 IV.
THE COMMONWEALTH IS NOT REQUIRED TO EXHAUST THE NRC'S § 2.802(d) ADMINISTRATIVE PROCESS BECAUSE THAT REMEDY IS NOT AVAILABLE TO THE COMMONWEALTH UNDER NRC REGULATIONS AND WOULD NOT PROVIDE ADEQUATE RELIEF................................................
10 V.
C O N CLU SIO N.........................................................................................
.11 i
TABLE OF AUTHORITIES Judicial Decisions Nelson v. LN.S., 232 F.3d 258 (1st Cir. 2000)............................................
8 Citizens Awareness Network v. U.S., 391 F.3d 338, 349 (1st Cir. 2004)....... 9 Eagle-Picher Industries v. United States E.P.A., 759 F.2d 905, 911 (D.C. C ir. 1985)........
.............. 10 City of Rochester v. Bond, 603 F.2d 927, 935 (D.C. Cir. 1979)
......... 10 U.S. v. Horn, 29 F.3d 754, 767-768 (1st Cir. 1994)......................................
10 Christopher w. v. Portsmouth School Committee, 877 F.2d 1089, 1098, 1099 (1st C ir. 1989)......
..I,...........
..............11 Rose v. Yeaw, 214 F.3d 206, 210-211 (1st Cir. 2000)..............
.. 11 Coit Independence Joint Venture v. Federal Sav. And Loan Ins. Corp.
489 U.S. 561,587 (1989)
......... 11 Administrative Decisions Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), and Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007).Passim Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), and Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-07-13, 65 NRC 211, 215 n. 16 (2007)
Passim Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 627 (2004).................................................
8 Statutes National Environmental Policy Act 42 U.S.C. §§ 4321 - 4370(f)(NEPA).............
...................... 1 Atomic Energy Act 42 U.S.C. § 2239(a) (AEA)...................
1,7 42 U.S.C. § 189(a)................................................................
6 Hobbs Act 28 U.S.C. § 2344........
Ii 2 8.S
.. § 2 3 4......,.........................................................
.... 9 iiL
Rules 10 C.F.R. § 2.315(c).....................
2,5,6,9 10 C.F.R. § 2,309......................
6 10 C.F.R. § 2.802(d)................................
5, 8, 10, 11 Federal. Register Notices NRC Final Rule, Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2200-2201, 2,223 (Jan. 14, 2004).............
6,7
¢I Ii iii
I.
INTRODUCTION On December 6, 2007, the Commonwealth and other parties presented oral argument to the Court. Consistent with its briefs, the Commonwealth argued that the Nuclear Regulatory Commission (NRC or Commission) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 - 4370(f) (NEPA), and the Atomic Energy Act, 42 U.S.C. § 2239(a) (AEA), by dismissing the Commonwealth from the individual license renewal proceedings for the Pilgrim and Vermont Yankee nuclear power plants, without first ensuring that the agency (a) will take a hard look at new and significant information submitted by the Commonwealth about the environmental risks of spent fuel storage at Pilgrim and Vermont Yankee, including the risk of terrorist attack, and (b) will apply those considerations to Pilgrim and Vermont Yankee before relicensing these plants for another twenty years.
At oral argument, the NRC generally failed to address the merits of the Commonwealth's NEPA claims, instead pressing its position - raised for the first time on appeal - that the NRC Commissioners did not mean what they said when the agency ruled that it was taking final agency action to end the Commonwealth's rights of participation and party status in the Pilgrim and Vermont Yankee proceedings, and that the Commonwealth must now appeal to the Court. In its new See Brief for Petitioner Commonwealth of Massachusetts (August 22, 2007)(Commonwealth Initial Brief) 30- 35.
position, the NRC argued that there is an alternative process under 10 C.F.R. § 2.315(c) (interested governmental entity or Interested State) that the Commonwealth could utilize, without prejudice to its rights to judicial review, and that could avoid the need for judicial review now, pending a decision by the agency on the Commonwealth's Rulemaking Petition. 2 The NRC's belated reliance on an alternative process to defer judicial review
-. which the NRC never relied: on below -
suffers from at least three fatal flaws:
first, the process does not exist in the law; second, the Commonwealth's rights to judicial review in the future would be prejudiced; and third, the NRC's argument is a red herring to avoid judicial review now of the NRC's precipitous and unlawful decision in CLI-07-03 to dismiss the Commonwealth from the Pilgrim and Vermont Yankee proceedings without first complying with NEPA.3 Because of these flaws, the Commonwealth must seek judicial review at this time to protect its rights to obtain relief on its NEPA and AEA claims for Pilgrim and Vermont Yankee in this Court.
Moreover, the NRC's untimely invocation of an alternative process requires utter disregard of the NRC's explicit and repeated determinations that its action as 2 NRC Brief 31; Add. 36 - 43 (Transcript of oral argument, December 6, 2007).
The Commonwealth obtained a disk of the oral argument and had a transcript prepared by Catugno Reporting Services. The transcript is attached as part of the Addendum to this brief (hereinafter cited as Add. 9.
3 Joint Appendix (August 22, 2007) 9 - 10 (hereinafter cited as J.A.
j) 2
to the Commonwealth was final and if the Attorney General "wants to pursue judicial review of our rejection of her contention, she must do so now." Id. The NRC's new reliance on the "Interested State" process also requires the agency to disregard explicit authority, including its own, that this process would not confer "party" status on the Commonwealth and would not allow or protect the Commonwealth's rights to judicial review.
II.
BY TAKING FINAL AGENCY ACTION TO EXCLUDE THE COMMONWEALTH FROM THE RELICENSING PROCEEDINGS FOR PILGRIM AND VERMONT YANKEE, THE NRC HAS FORCED THE COMMONWEALTH TO SEEK JUDICIAL REVIEW NOW.
The NRC's actions in this case have given the Commonwealth no choice but to seek judicial review now in order to preserve its right to obtain enforcement of NEPA and the AEA in this Court. The NRC has admitted taking final agency action to exclude the Commonwealth from the individual relicensing proceedings for the Pilgrim and Vermont Yankee nuclear power plants.4 The NRC then denied the Commonwealth's Motion for Reconsideration and Clarification (Motion) that sought to defer the necessity to seek judicial review now, until the NRC clarifies whether or when the agency will address the Commonwealth's new and significant information in the pending generic Rulemaking proceedings and apply those 4 See Reply Brief For Petitioner Commonwealth of Massachusetts (November 8, 2007)(Commonwealth Reply Brief) 1 - 2.
3
considerations to Pilgrim and Vermont Yankee. Specifically, the Commonwealth asked the NRC to clarify that the agency's decision in'CLI-07-03, to exclude the Commonwealth from the individual relicensing proceedings, "is not a final decision with respect to the Attorney General's rights of participation in the Pilgrim and Vermont Yankee license renewal proceedings" and that the Commonwealth will continue to maintain party status in those proceedings until
/5 the Rulemaking process is resolved. The NRC refused and denied the Motion.
In denying the Commonwealth's Motion, the NRC stated explicitly that the Commonwealth must seek judicial review now.
Thus if she [Commonwealth Attorney General] wants to pursue judicial review of our rejection of her contention, she must do so now.
[footnote omitted] It is true that the petition for rulemakingcurrently under consideration might possibly render judicial review moot. But the mere potential that an issue may become moot in the future due to a rulemaking does not affect the finality of the decision today.6 Therefore, to protect its sole opportunity and right to judicial review to ensure that the NRC complies with NEPA, and as mandated by the Hobbs Act, the Commonwealth petitioned for review to this Court within sixty (60) days of the NRC's final agency action in CLI-07-03 dismissing the Commonwealth from the individual proceedings. 7 5 J.A. 212-214; 220-221.
6 JA 6J.A. 9.
7 Commonwealth Reply Brief 5 - 7.
4 1
III.
AS AN INTERESTED STATE, THE COMMONWEALTH WOULD NOT BE A PARTY UNDER NRC REGULATIONS AND WOULD NOT HAVE THE RIGHT TO SEEK A STAY FROM THE NRC OR A COURT OF A DECISION BY THE NRC TO RELICENSE PILGRIM AND VERMONT YANKEE.
In an effort to avoid judicial review now, the NRC argues for the first time on appeal that, if the Commonwealth seeks "interested state" status under 10 C.F.R. § 2.315, it should be considered a "party" that can petition the Commission, under 10 C.F.R. § 2.802, to stay the issuance of a renewed license to Pilgrim and Vermont Yankee. NRC Brief at 42. If the petition is denied, the NRC also suggests that the Commonwealth then could seek judicial review of that decision in this Court. Tr. at 32.8 The NRC's new position is contradicted by its own regulations and by the statute limiting the subject matter jurisdiction of this Court for judicial appeals from NRC decisions.
A.
An Interested State Is Not A Party Under NRC Regulations.
The NRC's own-regulations state that an interested governmental entity or interested state is not a party under 10 C.F.R, § 2.315(c). The regulation is specifically entitled "Participation by a Person Not a Party" and further provides:
"[t]he presiding officer will afford an interested State...which has not been
- 8. See Section III.C. below.
5
admitted as a party under § 2.309, a reasonable opportunity to participate in a hearing." 10 C.F.R. § 2.315(c)(emphasis added).9 In addition to the plain meaning of the NRC's regulations, the NRC commented and. affirmed in a recent rulemaking that an Interested State is not a party under NRC regulations.
[T]he Commission intended to maintain the distinction between a State, local governmental body, or Indian Tribe participating as parties under § 2.309, versus their participation in a hearing as an "interested" state...
under § 2.315(c)...
A State... admitted as a party is entitled to the rights and bears the responsibility of a full party, including the ability to engage in discovery, initiate motions, and take positions on the merits. By contrast, an "interested" state may participate in a hearing by filing testimony, briefs, and interrogating witnesses if parties are permitted by the rules to cross-examine witness, as provided in § 2.315(c).
However, such participation is dependent on the existence of a hearing independent of the interested state participation, and such participation ends when the hearing is terminated.
10 As is clear from both the language of the regulation and the NRC's interpretation in the Federal Register, an IS's participation in a licensing proceeding is limited to those rights explicitly listed in section 2.315(c). Those rights do not include a right to judicial review:
Regardless of the nature of participation by a person who is a non-party, that person does not possess any of the rights and privileges of a person who has 9 Add. 1.
10 NRC Final Rule, Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2200-2201 (Jan. 14, 2004) (to be codified at 10 C.F.R. pts. 1, 2, 50, et al.)(emphasis added). Add 4 - 5.
6
attained the status of a party, including taking an appeal to the Commission, or to judicial review of an agency final decision,.
The AEA provides only one route to becoming a party to an NRC licensing proceeding: by requesting a hearing under §189a of the Act, 42 U.S.C. § 2239(a).
The Commonwealth complied with § 2239(a) in May of 2006, by submitting a hearing request regarding the Pilgrim and Vermont Yankee license renewal applications. The NRC's proposed alternative procedure in this case is legally unsupportable under its own rules.
B.
Because An Interested State Is Not A Party Under NRC Regulations, the Commonwealth Cannot Seek A Stay Or Suspension Of An NRC Decision To Relicense Pilgrim Or' Vermont Yankee Under 10 C.F.R. § 2.802(d).
Since the Commonwealth, as an Interested State, would not be a party to the NRC relicensing proceedings, the Commonwealth would not be permitted to seek a suspension of any relicensing decision under 10 C.F.R. § 2802(d), which provides that:
The petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pendirng disposition of the petition for rulemaking.12 Therefore the NRC's argument to this Court that the Commonwealth would be protected as a party to seek a stay under § 2802(d) is again contradicted by its "69 Fed. Reg. at 2,223 (emphasis added). Add. 6.
12 Id. (emphasis added). The text of 10 C.F.R. § 2.802(d) is reproduced at Add. 2.
7
own regulations. Moreover, the NRC cannot simply disregard its own rules, Nelson v. I.NS., 232 F. 3d 258, 262 (1st Cir. 2000), nor can the Commonwealth assume the risk of the NRC doing so by dismissing this action in return for status as an Interested State and an uncertain or unlikely judicial appeal in the future.'3 In addition to precluding the Commonwealth from obtaining judicial review as an Interested State, NRC precedent would not permit the Commonwealth to rely on its NEPA claims to support a 10 C.F.R. § 2.802 motion, because the NRC has dismissed those claims from the relicensing proceedings. See J.A. 9 (CLI-07-13, 65 NRC 211, 214 (2007), holding that the Commonwealth "has no claim remaining in either adjudication."). The Commonwealth's participation in those proceedings would be limited to claims raised by other parties. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 627 (2004)
(requiring interested. state to identify, ahead of time, the other parties' contentions on which it sought to participate).14 It is also clear that under NRC regulations and precedent, in order to acquire
.interested state status in the Pilgrim and Vermont Yankee license renewal proceedings, the Commonwealth would have had to abandon its party status in 13 Even the NRC and Entergy admit uncertainty that an Interested State would be considered a "party" for purposes of judicial review. Add. 37; 48 - 49.
14 The NRC and Entergy acknowledge that a Section 2.802 Motion must be filed in the individual proceeding, not in the generic rulemaking. Add. 46 - 47.
8 ii~
II I 'I I~
Ii Ijj~
those proceedings. See J.A. 9 n. 16 (CLI-07-13; 65 NRC at 215 n. 16): "A state may participate either as an interested governmental entity or as a party with its own contentions, but not both.").
Furthermore, the NRC's position on appeal constitutes a post hoc reversal of the Commission's previous position in this case and its longstanding policy on the limits of interested state status under 10 C.F.R. § 2.315. See Add 6. As this Court has recognized, "[i]t is a bedrock principle that a court may only uphold an administrative action on a rationale advanced by the agency in the administrative proceeding." Citizens Awareness Network v. U.S., 391 F.3d 338, 349 (ist Cir.
2004). Having failed to offer its rationale in the administrative case, the NRC may not rely on it here.'5 C.
Because An Interested State Is Not A Party Under NRC Regulations, the Commonwealth Likely Would Not Be Entitled To Seek Judicial Review Of An NRC Decision To Relicense Pilgrim Or Vermont Yankee Or To Request A Judicial Stay Of A Relicensing Decision.
Under the Hobbs Act, only an aggrieved "party" to an NRC proceeding may petition for review of an NRC decision in the U.S. Court of Appeals. 28 U.S.C. § 2344. Even if the Commission were entitled to rely on its post hoc argument that 15 While the Commission below did state that the Commonwealth could seek interested state status, see J.A. 9 n. 16 (CLI-07-13, 65 NRC at 215 n. 16), the NRC never determined - contrary to what the agency now argues on appeal - that doing so would confer party status or a right to judicial review on the Commonwealth.
Nor could the Commission do so consistent with its own regulations. Supra.
9
interested state status is equivalent to party status for purposes of the Hobbs Act, it is not at all clear that the Court could do so. The Hobbs Act sets strict limits on access to the federal courts, and the courts lack authority to broaden access beyond the terms of the statute. As the U.S. Court of Appeals for the D.C. Circuit recognized in Eagle-Picher Industries v. United States E.P.A., statutory time limits on petitions for review."reflect 'a deliberate congressional choice to impose statutory finality on agency orders, a choice we may not second-guess."' 759 F.2d 905, 911 (D.C. Cir. 1985), quoting City of Rochester v. Bond, 603 F.2d 927, 935 (D.C. Cir. 1979).
Moreover the Commonwealth and the NRC cannot by agreement expand the jurisdiction of the Hobbs Act or of this Court, which is limited to appeals by a "party." Supra.; U.S. v. Horn, 29 F. 3d 754, 767 - 768 (1st Cir. 1994)(parties cannot confer subject matter jurisdiction on a court by consent).
IV.
THE COMMONWEALTH IS NOT REQUIRED TO EXHAUST THE NRC'S § 2.802(d) ADMINISTRATIVE PROCESS BECAUSE THAT REMEDY IS NOT AVAILABLE TO THE COMMONWEALTH UNDER NRC REGULATIONS AND WOULD NOT PROVIDE ADEQUATE RELIEF.
From its new position that a Section 2.802(d) remedy is available to the Commonwealth, the NRC now argues that the Commonwealth's case should be dismissed because it failed to exhaust its administrative remedies. NRC Brief at
- 32. But the Commonwealth has no obligation to use an administrative process that 10
/
is "not able to grant the relief [the Commonwealth] seeks." Christopher W. v.
Portsmouth School Committee, 877 F.2d 1089, 1098 (1st Cir. 1989).16-Because the Commonwealth, as an Interested State, would not be a party under NRC regulations, supra, the alleged remedy offered by the NRC to seek a stay of relicensing under §2.802(d) would not be available to the Commonwealth.
Therefore the exhaustion of administrative remedies doctrine simply has no application here. See Rose v. Yeaw, 214 F.3d 206, 210-211 (1st Cir. 2000) ("A plaintiff does not have to exhaust administrative remedies if she can show... that the administrative remedies afforded by the process-are inadequate given the relief sought."); Coit Independence Joint Venture v. Federal Say. and Loan Ins. Corp.,
.489 U.S. 561, 587 (1989) ("Administrative remedies that are inadequate'need not be exhausted."). Here, the new remedy offered by the NRC is not inadequate; it is non-existent.
V.
CONCLUSION The Commonwealth has used all reasonable means to avoid judicial review until now, including through its Motion to the Commission. However, the NRC 16 In contrast to the instant case, in Christopher W, the Court found that the petitioner had failed to follow "a clear comprehensive scheme of procedural safeguards which are to be followed for any alleged violations of the statute." 877 F.2d at 1099. There is nothing clear or comprehensive about the NRC's alternative process for interested state status in this case. The interested state provision is clearly inapplicable to these circumstances, and lacks basic elements to protect the Commonwealth's legal claims in this Court.
11
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denied the Motion and now leaves the Commonwealth with only one opportunity -
- through this appeal -- to obtain judicial review. Therefore, the Commonwealth respectfully requests this Court to reach and decide the merits of the Commonwealth's NEPA claims which are now ripe for judicial review: that the NRC must consider the Commonwealth's information, whether in the individual Pilgrim and Vermont Yankee proceedings or in the generic rulemaking, and apply those considerations to these plants before they are relicensed for another twenty years.' 7 Of equal importance, the NRC's asserted basis for its erroneous NEPA position - that the NRC has the discretion whether or when to comply with NEPA' 8 - should be reversed by this Court, and not be allowed to stand as future precedent in this case or in other relicensing proceedings before the agency.' 9 17 Commonwealth Reply Brief 9-11; Commonwealth Initial Brief 1-2 30-35.
18 Commonwealth Initial Brief at 35 - 37; Commonwealth Reply Brief 2 - 4.
19 As directed by the Court at oral argument, the Commonwealth entered into extensive discussions with the NRC to explore whether an alternative and lawful process did exist to protect the Commonwealth's rights and thereby defer judicial review at this time. However, clear deficiencies in the process, as discussed in this brief, as well as new demands by the NRC for concessions by the Commonwealth on its substantive case, made that process unworkable to protect the Commonwealth's interests in enforcing NEPA and the Atomic Energy Act.
12
By its Attorneys, MARTHA COAKLEY ATTORNEY GENERAL I!}
Matthew B rock?ý Assistant Attorney General Office of the Attorney General Environmental Protection Division One Ashburton Place Boston, MA 02108 617/727-2200 X 2425 Diane Curran Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 203-328-3500 February 14, 2008 13
Attorney's. Certificate of Compliance with Rule 32(a)
This supplemental reply brief complies with the type-volume requirements of Fed. R. App. P. 32(a)(7)(B)(ii) because it contains less than 3,500 words as determined by the word-count function on the word processor, and excluding the parts of the brief exempted by Fed. R. App. P.. 32(a)(7)(B)(iii). (Under Fed. R.
App. P. 37(a)(7)(B), a 15 page brief is deemed to have 7,000 words; thus this brief is well within the Court's 20 page limit.) The count does not include the title page, corporate disclosure statement, table of contents, table of authorities, statement with respect to oral argument, addendum of statutes, rules, regulations, and hearing transcript. The word count does -include all footnotes, headings, and sub-headings within the brief.
This brief also complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6). The typeface used is Times New Roman, a proportionally spaced typeface using serifs, and the Brief is set in 14-point type. The word processing program used was Microsoft Word.
Matthew Brock Attorney for the Commonwealth of Massachusetts Dated: February 14,.2008 14
Certificate of Service I hereby certify that on February 14, 2008, copies of the Supplemental Reply Brief for Petitioner Commonwealth of Massachusetts were served by first class mail upon the following:
John F. Cordes, Jr. Esq.
Solicitor Office of General Counsel U.S. Nuclear Regulatory Commission U.S. NRC Mail Stop 0-15D21 Washington, D.C. 20555-0001 Steven C. Hamrick Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. NRC Mail Stop 0-15D21 Washington, DC 20555 Paul A. Gaukler, Esq.
David R. Lewis, Esq.
Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street N.W.
Washington, DC 20037 Alberto Gonzales, Esq.
Attorney General of the United States U.S, Department of Justice 950 Pennsylvania Avenue Washington, D.C. 20530 Matthew *Brock Attorney, Commonwealth of Massachusetts 15 it K
ADDENDUM T -r,, *
- ,*r** "*;*'*'*
- '*÷*N*.J
ADDENDUM
~ti~
~l~i I
PERTINENT NRC REGULATIONS 10 C.F.R. § 2.315(c).......................................
....... ADD-i 10 C.F.R. § 2.802(d)............................
ADD-2 NRC Final Rule, Changes to Adjudicatory Process; 69 Fed. Reg. 2182, 2200-2201 (Jan. 14, 2004)................... ADD-3 NRC Final Rule, Changes to Adjudicatory Process; 69 Fed. Reg. at 2223 ADD-6 TRANSCRIPT OF ORAL ARGUMENT Transcript of December 5, 2007, oral Argument before U.S. Court of Appeals For the First Circuit.............................
ADD-7 it Ii~4
Add-1 NRC Regulations 10 C.F.R. Part 2, Subpart.C - Rules of General Applicability:
Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General 'earing Management for NRC Adjudicatory Hearings
§ 2.315 Participation by a person not a party.
(c) The presiding officer will afford an interested State, local governmental body (county, municipality or other subdivision), and affected, Federally-recognized Indian Tribe, which has not been admitted as a party under § 2.309, a reasonable opportunity to participate in a hearing. Each State, local governmental body, and affected Federally-recognized Indian Tribe shall, in its request to participate in a hearing, each designate a single representative for the hearing. The representative shall be permitted to introduce evidence, interrogate witnesses where cross-examination by the parties is permitted, advise the Commission without requiring the representative to take a position with-respect to the issue, file proposed findings in those proceedings where findings are permitted, and petition for review by the Commission under § 2.341 with respect
ýto the admitted contentions. The representative shall identify those contentions on which it will participate in advance of any hearing held.
Add-2 NRC Regulations 10 C.F.R. Part 2, Subpart H - Rule Making
§ 2.802 Petition for rulemaking.
(d) The petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking.
ADD-3 Federal Register/Vol. 69, No. 9/Wednesday, January 14, 2004/Rules and Regulations 2182 NUCLEAR REGULATORY COMMISSION 10 CFR Parts 1, 2, 50, 51, 52, 54, 60, 63, 70, 72, 73, 75, 76, and 110 RIN 3150-AG49 Changes to Adjudicatory Process AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending its regulations concerning its rules of practice to make the NRC's hearing
- process more effective and efficient. The finalrule will fashion hearing
.procedures that are tailored to the differing types of licensing and regulatory activities the NRC -...-ducts and will better focus the limited resources of involved parties and the NRC.
DATES: This final rule is effective February 13, 2004. The rules of procedure in the final rule apply to, proceedings noticed on or after, the effective date, unless otherwise directed by the Commission.
FOR FURTHER INFORMATION CONTACT:
Geary S. Mizuno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1639, e-mail GSM@'rc.gov.
SUPPLEMENTARY INFORMATION:
Contents I. Background.
- A. Policy Statement.
B. Reexamination of NRC's Hearing Process.
C. Comments on Policy Statement.
D. Comments from Hearing Process Workshop.
11 Discussion of the Final Rule.
A. Resolution of Public Comments on Proposed Rule; Bases for Final Rule.
-1. Overview of Public Comments on Proposed Rule.
- 2. Significant Comments and Issues, and Their Resolution in Final Rule.
- (a) Overall Organization of Part 2.
(b) Commission Response to Eight General Questions in Proposed Rule.
(c) Introductory provisions.
(d) Subpart A.
(e) Subpart B (f) Subpart C.
(g) Subpart G.
(h) Subpart 1.
(i) Subpart J.
Qi) Subpart K, (k) Subpart L.
(1) Subpart M.
(m) Subpart N.
(n) Subpart 0.
- (o) Part 60.
B. Section-by-Section Analysis.
- 1. Implementation of Rule.
- 2. Introductory provisions-Sections 2.1-2.8.
- 3. Subpart A-Sections 2.100-2.111.
- 4. Subpart B-Sections 2.200-2.206.
- 5. Subpart C-Sections 2.300-2.348, 2.390.
- 6. Subpart G--Sections 2,700-2.713.
- 7. Subpart I.-Sections 2.900-2.913.
- 8. Subpart J.-Sections 2.1000-2.1027.
- 9. Subpart K.-Sections 2.1101-2.119.
- 10. Subpart L-Sections 2.1200-2.1213.
- 11. Subpart M.-Sections 2.1300-2.1331.
- 12. Subpart N-Sections 2.1400-2.1407.
- 13. Subpart O-Sections 2.1500-2.1509.
III. Availability of Documents.
IV. Voluntary Consensus Standards.
V. Environmental Impact: Categorical Exclusion.
VI. Paperwork Reduction Act Statement.
VII. Regulatory Analysis.
VIII. Regulatory Flexibility Certification.
IX. Backfit Analysis.
1. Background
Among the very first actions taken by the Nuclear Regulatory Commission (NRC) following its creation in 1975 was an affirmation of the fundamental importance it attributes to public participation in the Commission's adjudicatory processes. Public participation, the Commission said, "is a vital ingredient to the open'and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties
- which have been entrusted to us." N.
States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). However, the form and formality ofthe processes provided for public participation have long been. debated, well before the NRC was established and well after the foregoing statement was made.
The Commission has taken a number of steps in recent years to reassess its, processes to identify ways in which it can conduct its regulatory activities more effectively. This assessment has extended across the full range of the NRC's programs, from its oversight and inspection program to evaluate and assess licensee performance, to its internal program management activities.
One of the cornerstones of the NRC's regulatory approach has always been ensuring that its review processes and decisionmaking are open, understandable, and accessible to all interested parties. Its processes for achieving this goal have been part of the reassessment as well. Recently, steps have been taken to expand the opportunities for stakeholder awareness and involvement in NRC policy and decisionmaking through greater use of public workshops in rulemaking, inviting stakeholder participation in Commission meetings, and more extensive use of public meetings with interested parties on a variety of safety and regulatory matters.
The Commission has had a longstanding concern that the adjudicatory (hearing) process in 10 CFR part 2, subpart G, associated with licensing and enforcement actions, is not as effective as it could be. Beginning with case-by-case actions in 1983, and with a final rule in 1989, the Commission took steps to move away from the trial-type, adversarial format to resolve technical disputes with respect to its materials license applications.
Commission experience suggested that, in most instances, the use of the full panoply of formal, trial-like adjudicatory procedures in subpart G is not essential to the development of an adequate hearing record; yet all too frequently their use resulted in protracted, costly proceedings. The Commission adopted more informal procedures with the goals of reducing the burden oflitigation costs, and enhancing the, role of the presiding officer as a technical fact finder by giving him or her the primary responsibility for controlling the development of the hearing record beyond the initial submissions of the parties. A significant portion of the NRC's proceedings in the past ten years has been conducted under these more informal procedures. Although the Commission's experience to date indicates that some of the original objectives have been achieved, there have also been some aspects of the more informal procedures that have continued to prolong proceedings without truly enhancing the decisionmaking process. Given the Commission's experience. and with the potential in the next few years for new proceedings to consider applications for new facilities, to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities, the Commission concluded it needs to reassess its hearing processes to identify improvements that will result in a better use of all participants' limited resources. To that end, the Commission initiated certain actions related to its hearing processes-development of a Policy Statement on the hearing process, and a reexamination of the NRC's hearing process and requirements under the Atomic Energy Act of 1954, as amended (AEA)-as a foundation for possible rule changes.
A. Policy Statement In 1998, the Commission adopted a new Policy Statement that provides specific guidance for Licensing Boards 1'1111ý77-_,
ADD-4 Federal Register/Vol. 69, No. 9/Wednesday, January 14, 2004/Rules and Regulations' 2200
.I1~
a limited opportunity to ask questions, the availability of application-related documents for reading on the NRC Web site and/or download, and Federal Register and/or Web notice of the filing of an application and acceptance of the application for docketing, effectively provides the public with more than sixty (60) days to become familiar with an application and prepare an adequate request for hearing/petition for intervention and contentions. License amendments and similar regulatory approvals for nuclear facilities, by' contrast, are for the most part narrow in scope in terms of regulatory permission sought, and do not involve extensive amounts of documentary material. For these actions, a period substantially less than sixty (60) days should be sufficient to become familiar with an application and prepare an adequate request for hearing/petition for intervention and contentions. Nonetheless, the Commission will set the period for filing requests for hearing/petit
. to intervene and contentions at sixty (60) days for these actions too.
With respect to licensing actions for radioactive materials, most of these actions do not usually involve extensive amounts of documentary material to review, and there is no statutory requirement for publication of notice of materials licensing actions in the Federal Register. Thus, the sixty (60)
'day period provided by § 2.309(b) should be more than ample time to review the application for a radioactive materials license and prepare a request for hearing/petition to intervene and proposed contentions. For those radioactive materials licensing actions that are sufficiently complex or broad in scope, it is the Commission's intention that NRC Web site notices would be provided for pre-application meetings and notifications of intent to file an application, and notice of docketing of the application. These notices would ordinarily be published only on the NRC Web site inasmuch as there is no statutory requirement for publication in the Federal Register, although the Commission could, as a matter of discretion, decide to publish notices of opportunity for hearing in the Federal Register in individual cases if circumstances tend to indicate that such publication is desirable. The Commission believes that sixty (60) days is more than ample time to review the application for a complex and/or broad scope radioactive materials license and prepare a request for hearing/petition to intervene and contentions, in view of Web site notice of pre-application meetings, availability of application-related documents for reading on the NRC Web site and/or download, and Web site notice of the.,
filing of an application and acceptance of the application for docketing.
If a potential requestor/petitioner believes that the period provided for filing a request for hearing/petition to intervene is insufficient, it may file an appropriate motion with the Commission to extend the deadline for submission of requests/petitions and contentions, Although the Commission expects to exercise its discretion to extend such deadlines sparingly, the
.availability of such relief provides additional reason to set a sixty (60) day period for filing a request for hearing/
petition to intervene.for the usual cases.
Therefore, the final rule provides for a sixty (60) day period from notice-in the Federal Register (if no time is specified in the Federal Register notice) or on the NRC Web site at http://www.nrc.gov/
public-intolve/major-actions.html for filing of requests for hearing/petitions to intervene, together with proposed contentions.
Section 2.309(b)(1) incorporates the existing twenty (20) day period for filing a request for hearing/petition to
'intervene and contentions on license transfers that was formerly contained, in
§ 2.1306 (which is being removed in the final rule). Although the proposed rule indicated that § 2.1306 would be removed, a corresponding requirement for filing within twenty (20) days was not included in proposed Subpart C.
Section 2.309(b)(i) of the final rule corrects this oversight. Similarly, Section 2.309(b)(2) incorporates the existing thirty (30) day period for filing a request for hearing/petition to intervene in connection with the licensing of a HLW geologic repository.
Although the proposed rule indicated that § 2.1014 would be removed, a corresponding requirement for filing within thirty (30) days was not included in proposed Subpart C. Section 2.309(b)(2) corrects this oversight. To accomplish these changes, paragraphs (b)(1) and (b)(2) of proposed § 2.309 are renumbered as (b)(3) and (b)(4), and paragraph (b)(3) is modified to remove the phrase, "the latest of." Finally,
§ 2.309(b)(3)(iii) is modified to make clear that the sixty (60) day filing period applies where the Federal Register notice does not specify a time for filing requests/petitions.
Standing A nuclear industry commenter indicated that § 2.309(d) should specify that a person must establish standing in order to participate in Commission proceedings. Two citizen group commenters stated that the NRC should not rely upon NRC case law for standing requirements, but should go to the broadest judicial standards.
The Commission does not believe that
§ 2.309 needs to specify that a showing of standing is the general rule for participation in.NRC hearings, inasmuch as the basic structure of the rule requires a demonstration of standing in order to participate as a party (standing is presumed for a State, local government, and Federally-recognized Indian Tribe where a facility is located within its political boundaries). The only exception where intervention may be permitted, despite a lack of demonstration of standing, is discretionary intervention under
§ 2.309(e).
While Article III of the Constitution does not constrain the NRC hearing process, our hearings therefore, are not
.governed by judicially-created standing doctrine, see Envirocare of Utah, Inc. v.
NRC, 194 F.3d 72(D.C.,Cir. 1999), the Commission nonetheless has generally looked to judicial concepts of standing where appropriate to-determine those interests affected within the meaning of Section 189.a. of the AEA.
Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),
CLI-99-04, 49 NRC 185, 188 (1999),
citing Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, 4 NRC 610, 613-14 (1976).'
The Commission contemplates no change in this practice. Accordingly, no change to the rule has been made in this regard.
A commenter, while supporting the proposed § 2.309(d) requirement that a single designated representative of an affected State, local governmental body and affected, Federally-recognized Indian Tribe (Indian Tribe) be granted party status, suggested that the designated representative must take a position on any contentions for which the affected State, local governmental body or Indian Tribe wishes to participate. The Commission believes that the language of the proposed
§ 2.309(d) may have led the commenter incorrectly to conclude that the Commission would permit an affected State, governmental body, or affected Indian Tribe admitted as a party under
§ 2;309 to "participate as a party without taking sides." On the contrary, the Commission intended to maintain the distinction between a State, local governmental body, or Indian Tribe participating as parties under § 2.309, versus their participation in a hearing as an "interested" State, local governmental body or Indian Tribe under § 2.315(c) (formerly § 2.715(c)). A II Ii' ui~
ADD-5 Federal Register / Vol. 69, No. 9 / Wednesday, January 14, 2004 / Rules and Regulations 2201 State, local governmental body or Indian Tribe admitted as a party is entitled to
- the rights and bears the responsibilities of a full party, including the ability to engage in discovery, initiate motions, and take positions on the merits. By contrast, an "interested" State, local governmental body or Indian Tribe may participate in a hearing by filing.
testimony, briefs, and interrogating witnesses if parties are permitted by the rules to cross-examine witnesses, as providedin § 2.315(c). However, such participation is dependent onthe
- existence of a hearing independent of the interested State, local governmental body or Indian Tribe participation, and such participation ends when the hearing is terminated. The Commission believes that the first sentence of proposed § 2.309(d)(2)(ii), which was intended to apply only to participation under § 2.315(c) as an "interested"
.State,.local government body or Indian Tribe, may have led to the confusion with respect to the participation of a State, local governmental body or Indian Tribe as a party. Accordingly, this sentence is removed from § 2.309(d)(ii) and has been incorporated into
§ 2.315(c). Other minor conforming changes were made to §§2.309(d) and 2.315(c), to.uniform' -refer to "local governmental bod.
and "affected Federally-recognized Indian Tribe."
Discretionary Intervention The Commission requested public comment on whether the standard for discretionary intervention should be extended by providing an additional alternative for discretionary intervention in situations when another party has already established standing and the discretionary intervenor may "reasonably be expected to assist in developing a-sound record." The Commission also requested public comments on whether, as an alternative to codification of the six-part Pebble Springs standard for discretionary
- intervention,' 2 the Commission should adopt a simpler test for permitting discretionary intervention and the nature of such a standard.
Many commenters opposed codification of the discretionary intervention standard in proposed
§ 2.309(e), arguing, inter alia that: (1)
The subjectivity of the standards will likely delay presiding officers in making determinations, (2) meaningful public participation will not be hampered by continuing to apply the Pebble Springs factors without codification, and (3) 11 Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
discretionary intervention is not consistent with the purpose of adjudicatory proceedings and would permit parties who cannot demonstrate a direct interest in the outcome of the proceeding to extend and broaden the scope of the proceeding. Two commenters argued that there should be a presumption against discretionary intervention such that it should be allowed only in extraordinary
- circumstances. On the other hand, a citizen group commenter indicated that the NRC should adopt a simpler test for permitting discretionary intervention:
one standard should be if a petitioner lives within a community near a licensed facility or is affected by a licensed facility-another should be the ability to raise important health, safety, environmental, and legal issues that have previously not been considered or adjudicated by the NRC.
The Commission has decided to incorporate the Pebble Springs standard for discretionary intervention into the final rule to allow consideration of discretionary intervention when at least one other requestor/petitioner has established standing and at least one admissible contention so that a hearing will be held. Those criteria presume that discretionary intervention is an extraordinary procedure, and will not be.
allowed unless there are compelling factors in favor of such intervention.
The. Commission disagrees with the claim that the subjectivity of the standards will result in delays; in the past, the Pebble Springs standards have been applied by presiding officers and Licensing Boards without apparent delay. With respect to the claim that the lack of codification Will not prevent meaningful public participation, the Commission notes that codification directly into the Commission's procedures for the conduct of adjudicatory, proceedings provides clear notice to the public regarding the criteria that the Commission or presiding officer will apply in evaluating requests for discretionary intervention; members of the public who are unaware* of the Pebble Springs decision would not be aware of the criteria that the Commission would apply in assessing a petition for discretionary. intervention. The Commission disagrees with the assertion that discretionary intervention is inconsistent with the purposes of adjudicatory proceedings. The ultimate purpose of an adjudicatory proceeding is to resolve material issues with respect to an NRC regulatory action. The discretionary intervention standards; properly applied, should ensure that only persons and entities who can meaningfully contribute to the
- development of a sound record on contested matters will be admitted as parties. With respect to the citizen group commenters' suggestion that.
discretionary intervention should be permitted for any petitioner living within.a community near a licensed facility, the Commission believes that such a criterion, if adopted, would most.
likely be met in every circumstance and would not account for the consideration of other relevant factors& With respect to the second criterion, the.Commission agrees with the citizen group commenter that one factor (indeed, the most important factor, see Pebble Springs, 4 NRC at 617) to be considered in assessing requests/petitions for discretionary intervention is the capability of the requestor seeking discretionary intervention to contribute to the development of a sound record on important health, safety, environmental or legal issues. However, the Commission must also be mindful that there are other factors that must be considered, e.g., whether other parties already admitted in the hearing possess the same capability to represent that requestor's interest. In the Commission's view, the Pebble Springs criteria for assessing petitions for discretionary intervention provide for an appropriate balancing of the relevant competing factors. Therefore, the Commission declines to adopt the suggestion that.
discretionary intervention be based solely on consideration of the requestor's capability to contribute to the hearing.
- Nonetheless, the Commission must emphasize that past case law and -
Commission policy make it clear that foremost among the factors in favor of granting discretionary intervention is whether the petitioner will assist in developing a sound record. See Pebble Springs, 4 NRC at 617 (1976). The most important factor weighing against intervention is the potential to inappropriately broaden or delay the proceeding. Id. The Commission fully expects that this case law and Commission policy will be followed in applying the codified discretionary intervention criteria.
Contentions In a significant change from the existing regulations, the requirement to proffer specific, adequately-supported contentions in order to be admitted as a party is extended to informal proceedings under Subpart L. Under the existing Subpart L, petitioners need only describe "areas of concern about the licensing activity that is the subject
ADD-6 Federal Register/Vol. 69, No. 9/Wednesday, January 14, 2004/Rules and Regulations 2223 New, informal "fast-track" procedures in Subpart N may be used by direction of the Commission if the proceeding is expected to take no more than two (2) days to complete, or if all parties agree to the use of the "fast-track" procedures.
The Commission'has added a new Subpart 0 that provides for procedures to be used if the Commission decides to hold "legislative hearings." The legislative hearing procedures would be used in any design certification rulemaking hearings which the Commission in its discretion determined to hold under § 52.51(b).
Conforming changes to § 52.51(b) are made to remove the hearing procedures currently contained in paragraph (b) of
§ 52.51, The legislative hearing procedures in Subpart 0 could be used at the Commission's discretion in developing a record to assist the Commission in resolving, under
§ 2.335(d), a petition filed under
§ 2.335(b).
Section 2.31 i--Interlocutory Review of Rulings on Requests for Hearing!
Petitions To Intervene and Selection of Hearing Procedures Section 2.311 continues unchanged
.the provision in former § 2.714a that limits interlocutory appeal of rulings.on requests for hearing and petitions to intervene to those that grant. or deny a petitionto intervene. However, paragraph (d) represent: a new provision dealing with.ppeals of orders selecting hearing procedures. Appeals must be filed within ten (10) days of the order selecting hearing procedures, and the sole grounds for appeal is that the selection of hearing procedure was in contravention of the applicable criteria in § 2.310.
Section 2.313-Designation of Presiding Officer, Disqualification, Unavailability, and Substitution Section 2.313 addresses who may be designated as a presiding officer in.
hearing tracks. In general, unless the Commission designates otherwise, the Chief Administrative Judge may designate either an Atomic Safety and Licensing Board or an administrative law judge as the presiding officer for a hearing conducted under Subparts G, J, K, L, or N, and may designate either an Atomic Safety and Licensing Board, an administrative law judge, or an administrative judge as the presiding officer for a hearing conducted under Subpart M. The Commission alone has authority to decide who shall be a presiding officer in a Subpart 0 hearing.
Section 2.313 also addresses the disqualification, unavailability and substitution of a presiding officer, and continues without substantive change the comparable provisions on disqualification, unavailability, and substitution of a presiding officer (including a member of a Licensing Board) in former § 2.704.
Section 2.314-Appearance and Practice Before the Commission in Adjudicatory Proceedings Section 2M314 simplifies and expands the existing provisions in §§ 2.713 and 2.1215 on appearance and representation in NRC adjudications.
For example, the new rule requires all persons appearing in a representative capacity to file a notice of appearance providing a facsimile number, and an e-mail address, if the person possesses either or both.
Section 2.315-Participation by a Person Not a Party This section continues largely unchanged the provisions in former
§ 2.715(a) and (b). However, several clarifying changes have been made in the language of this section. For example, in paragraph (a), a sentence has been added to clarify that statements of position submitted by a person who is not a party shall not be considered evidence in the proceeding.
In paragraph (d), the language has been clarified to make clear that the motion for leave to file an amicus brief may be submitted with the amicus brief itself.
Regardless of the nature of participation by a person who is anon-party, that person does not possess any of the rights and privileges of a person who
.has attained the status of a party, including taking an appeal to the Commission, or to judicial review of an agency final decision.
Substantial changes have been made to § 2.315(c), in part to use language which is consistent with the final version of § 2.309(d), and to reflect the Commission's determination that interested States, governmental bodies (counties, municipalities or other subdivisions) and affected Federally-recognized Indian Tribes must identify prior to the commencement of the hearing the contentions on which they wish to participate. Also, the final rule, unlike existing § 2.715(c), requires each interested State, governmental body and Indian Tribe to designate a single representative for the proceeding; the Commission will no longer permit multiple agencies or offices within a political entity to separately participate under § 2.315(c).
Section 2.316-Consolidation of Parties This section clarifies the language in former § 2.715a regarding consolidation of parties, and expands the applicability of the section from construction permit and operating license proceedings, for production and utilization facilities under the former rule, to all proceedings.
Section 2.317-Separate Hearings; Consolidation of Proceedings This section expands upon the general concept in existing § 2761a that separate hearings may be appropriate in certain instances. In addition, this section incorporates without change the provisions for consolidation of proceedings currently in § 2.716.
Section 2.318-Commencement and Termination of Jurisdiction of Presiding Officer This section continues without change the existing provisions in § 2;717 with respect to the commencement and termination of the jurisdiction of a presiding officer. A conforming change is made to § 2.107, "Withdrawal of application," to clarify that the Commission shall dismiss a proceeding when an application has been
.withdrawn. before a notice of hearing has been issued.
Section 2.319-Power of the Presiding Officer This section consolidates provisions in former § 2.718 and § 2.1233(e), and identifies the authority and powers of the presiding officer. Although the substance of the regulation remains unchanged, in some cases the regulation was clarified. For example, the language in § 2.319(d) derived from former
§ 2.718(c) was expanded to make clear the presiding officer's power to strike any portion of a written presentation that is cumulative, irrelevant, immaterial or unreliable. In other instances, the regulation includes a provision that identifies a power that presiding officers have always possessed, but was not specifically, identified in the former regulation. For example, § 2.319(c) was added to make clear the presiding officer's power to consolidate parties and proceedings; which were formerly addressed in
§§ 2.715a and 2.716.
Section 2.320-Default Section 2.320 establishes the circumstances under which a presiding officer may declare a default, and describes the actions that may be taken upon a default. This section continues without change the provisions that were formerly in § 2.707.
I'
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N It14 1~1 41
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ADD-7 1
1 US COURT OF APPEALS FOR THE FIRST CIRCUIT 2
Docket Nos.
07-1482; 07-1483 3
4 COMMONWEALTH OF MASSACHUSETTS, 5
Petitioner 6
VS.
7 U.S.
- NUCLEAR, 8
Respondent 9
10 On Petitions for Review of Orders of the U.S.
Nuclear 11 Regulatory Commission.
12 13 ORAL ARGUMENT HELD ON THURSDAY, DECEMBER 6,
2007 AT 1 4 9:30 AM AT THE US COURT OF APPEALS FOR THE FIRST 15 CIRCUIT COURT IN BOSTON, MASSACHUSETTS BEFORE THE 16 PANEL OF APPEALS JUDGES:
JUAN R.
TORRUELLA, NORMAN H.
17 STAHL AND SANDRA L.
LYNCH J
18 CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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9 10 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES Matthew Brock, Assistant Attorney General Steven Hamrick, Counsel for the Petitioner Counsel for the David Lewis, Reporter:
Respondent, The U.S.
NRC Counsel for the Intervener, Entergy Nuclear Raymond F.
Catuogno Registered Professional Reporter (Transcript Prepared from Tape) 4IN CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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.21 22 23 24 25 WITNESS INDEX DIRECT CROSS REDIRECT RECROSS 3.
kv EXHIBITS PAGE Mr.
Brock:
.. :the Commonwealth of Massachusetts.
The Commonwealth is here today essentially because the Nuclear Regulatory Commission has forced the CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
ADD-10 4
1 Commonwealth's hand.
It admits that it took 2
final agency action to exclude the Commonwealth 3-from the relicensing proceedings for the Pilgrim 4
and Vermont Yankee Nuclear Power Plants.
And it 5
admits it will not consider information submitted 6
by the Commonwealth in those proceedings about 7
the risks of spent fuel storage, including the 8
risk of terrorist attack on a nuclear power 9
plant.
At the time the NRC took final-agency 10 action excluding -the.Commonwealth, the NRC did 11 not establish any alternative process that will 12 ensure that the Commonwealth's information is 13 considered by the Agency before it relicenses 14 Pilgrim and Vermont Yankee for another 20 years.
15 We definitely think that is'a clear violation of 16 the National Environmental Policy Act.
17 18 Judge Lynch:
Mr.
Brock?
19 20 Mr.
Brock:
- Yes, Your Honor?
21 22 Judge Lynch:
It's been very difficult to work through this 23 case and the assistance of counsel would be most 24 helpful, to us.
The NRC has said.that you do have 25 an alternative mechanism, that you could enter CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
ADD-11 I
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- 16 17 18 19 20 21 22 23 24 25 the adjudicatory licensing proceeding as an Interested Government Entity, an IGE.
And that if you were to do so, they say. in the rule making proceeding, you-then could ask for a stay of the licensing proceeding under a particular rule, 2.8 something, I think it was, that refers to petitioners in rule making who are also parties to the adjudicatory proceeding.
Now as I understand it, you say that the NRC's position may be nice but they can't do it because their own regulations don't permit them to do it, because the regulations refer to a party as opposed to an IGE, and therefore, this alternative is not available'to.you.
As I, I
further understand there to be two other parts to your argument and you can tell me if I've misunderstood this.
There is some concern about your ability to access judicial review.
And it, you suggest that it is clear that if you were a party in, it is clear if you are a party in the adjudicatory proceeding, then whatever the Agency decides, you could seek judicial:review.
There is at least a suggestion in your briefs that as an IGE, rather than a party, there is some doubt about your ability to seek judicial review.
The
~10 till Al pIil CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
ADD-12 6
1 third strand of the argument that I think I see 2
is that even if you participated as an IGE in the 3.
adjudicatory proceeding,. you would be limited to 4
the contentions that have been accepted by the 5
Hearing Officer.
And that those contentions may 6
not be adequate to help you assert the concerns 7
that you wish to put forward.
Have I 8
misunderstood this?
9 10 Mr.
Brock:
Well.
Your Honor; I appreciate that the NRC has 11 raised several issues, which they argue would 12 down the road protect the Commonwealth's interest 13 here.
Because at the end cf the day, the 14 Commonwealth wants to be sure that it gets.a, a 15 hearing in the event the NRC does not comply with 16 MEPA, does not consider the Commonwealth's 17 information prior to relicensing Pilgrim and 18 Vermont Yankee..
That is why we are here today.
19 In response to that concern and that legal 20 position, they argue a couple things as your 21 Honor indicates.
INAUDIBLE is they claim that 22 the rule making process would allow the 23 Commonwealth to subsequently appeal if they don't 24 like what the NRC does in the rule making.
That 25 is not an INAUDIBLE...
CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA B.oston,.MA Lawrence, MA Providence, RI'
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.16 17 18 1:9 20 21 22 23 24 25 Judge Lynch:
Mr. Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
No.
No.
No.
I'm sorry.
Please.
I'm sorry Your Honor.
We didn't start with that.
We started with their assertion that you could seek a stay of the licensing proceeding if the adjudicatory, if the rule making proceeding is not resolved before the licensing proceeding is.
Okay.
Your Honor, I don't think in the current posture we can see the stay in the adjudi-, in the, in the adjudicatory...
No.
No.
No..
Assuming, assuming you apply for IGE status.
All right.
The IGE status; the NRC does state in its brief that we could do that.
We have responded saying that, that is the first time
[Mr. Brock:
CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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19 20 21 22 23 24 25 that the NRC has said that.
Judge Lynch:
Mr.
Brock:.
1judge J
Lynch:
Well.
So what?.
It, it's a judicial admission on their part, that, that probably has stopped.
The more serious issue is whether their, that action is consistent with-their own regulations.
Well.
I think the Commission the INAUDIBLE said it is not.
They said, the Comm-,
the NRC Commissioner said it's not.
Well.
If, if the Agency were to say, "We interpret our regulations in such a way, such that if you took, you the Commonwealth, took IGE status in the adjudicatory proceeding, you would have the ability in the rule making proceeding.to seek astay.
of the licensing proceeding."
Okay.
Well.
Your Honor; you alluded earlier to the fact that, as anIGE, we could only participate on issues admitted to the proceeding.
So, we could not participate on the issues of concern raised by the Commonwealth.
We could not...
Mr.
Brock:
I CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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)3 24 25 Judge Lynch:
Mr. Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
And that's because the contentions that have been admitted thus far, do not adequately encompass your, the scope of your concerns.
That's correct Your Honor.
They have nothing to do.with the issues of concern the Commonwealth has raised about the risks of spent fuel and the risk of terrorist attack.
Those are not issues that have been admitted to the proceeding.
So, even if the Commonwealth participates, we will not participate on the issues of concern to us.
The other point I raise is...
Does that mean that your ability to seek a stay in the rule making proceeding is limited by the contentions?
I, I don't think the rule is very clear on that point.
Your Honor, I think it would be very difficult to show that a likelihood of success, regarding an issue that is outside the scope of the proceeding.
Andessentially, we would want...
Well.
The, the rule says you can seek a stay in the licensing proceeding, in the rule making CATUOGNO COURT REPORTING. SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Brock:
Judge Lynch:
Mr. Brock:
Judge Lynch:
Mr. Brock:
Judge Lynch:
Mr.
Brock:
proceeding, as long as you're a party.
I don't read the rule to restrict the arguments that you make, but maybe the NRC can answer that question.
Well.
Your Honor, we did not understand that we would be able to raise issues in support of a stay that the NRC has already excluded from the adjudicatory proceedings.
No.
No.
No.
Okay.
You would seek-the stay in the rule making proceeding.
That's what they're talking about.
Okay.
Well.
And if they were to agree that you could, and they were to agree that you could raise your safety concerns, would that alleviate the concerns that the Commonwealth has?
Your Honor, I would say no.
And the reason is that NRC is trying to posture the Commonwealth's CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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.15 16 17 18 19 20 21 22 23 24 25 case as a matter of Agency discretion.
A'stay is classically a, a request to the Agency to consider, to balance, to decide whether or not it will proceed.
The National Environmental Policy Act requires the Agency...
Judge Lynch:
Mr.
Brock:
Judge'Lynch:
Mr.
Brock:
Judge Lynch:
Mr.
Brock:
Okay.
to take its review prior to relicensing.
All right.
I under...
Excuse me, ma'am.
I understand.
But their response is, "We haven't said yet, we won't stay it.
It's premature.
You all were a little late in getting to us.on the rule making.
We need to have time to consider the substance of the rule making before we decide whether to stay the licensing proceeding.
And among other things, we might like to have the advice of our expert staff on it."
Your Honor, we have no problem if the NRC wants it It fit CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Judge Lynch:
to work out the subsequent issues in the rule making.
They're entitled to do that.
We say so in our brief.
We have no quarrel with that.
It is though an,.an issue of connecting the two proceedings.
Correct.
The Supreme Court in Baltimore Gas makes Clear that an Agency must ensure that the overall process,. and we quote this in page 26 of. our brief, the overall process, the generic rule making and the individual proceeding have to be brought together to, to have the environmental...
Then what doyou with their argument that "We haven't yet said no to the Commonwealth.
We consider what the Commonwealth has done to, to be a bit premature.
At the point we say no, and we're giving you a mechanism by which you can find out whether we're going to say yes or no to the stay of the proceedings so you're rights aren't hurt in the meantime."
And this court should stay its hand.
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Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Well.
Your Honor, the, the reason again, I, I
would respectively suggest that, that the need action is that, if we participate, as the NRC says in their brief, in the adjudicatory proceeding as I've indicated, we can't participate on the issues of concern with the Commonwealth and those are not issues that are being addressed in that proceeding.
It does say, you don't have to address them in the adjudicatory proceeding.
They can be addressed in the rule making proceeding.
And in fact, that's the appropriate~place to address them and that you can seek a stay there.
And so, what~is wrong with that?
Because Your Honor, the stay would allow the NRC to exercise discretion whether or not to comply with MEPA.
It would, it would be able to say, "We decide...
- And, and, and, and they say, "We may-in. the end agree with the Commonwealth, but we haven't yet taken a final position on that.
And we prefer that the Court let us take the final positionon CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr.
Brock:
I Judge Lynch:
Mr.
Brock:
Your Honor, we asked -
and I understand you're, you're point, Your Honor.
I would say that we asked the NRC if they would deem the ruling to exclude the Commonwealth as a not final agency action while the adjudicatory process played out, while the rule making process played out, because that would protect the Commonwealth's. rights to come back to Court later.
Yes.
And that goes to my second-level.
Why is it that what they have offered would not protect your rights to come back in the rule making proceeding?
Is it that this Court loses jurisdiction and you're in front of the DC circuit?
Is that what's going on?
Your Honor, I don't think that, that even if the Commonwealth prevailed in the rule making, ultimately; even if we got the rule exactly what we wanted, we don't have the legal means to connect that rule making back to the adjudicatory CATUOGNO COURT REPORTING SERVICES.
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Mr.
Brock:
Judge Stahl:
Mr.
Brock:
Judge Stahl:
proceeding, back to;the individual points of concern.
You do under the regulation.
You can request a stay under the rule making regulation of the licensing proceeding.
But Your Honor, I don't, I don't think that the rule making court, at least the NRC has cited. no authority to support this, but the rule making Court could INAUDIBLE whatever the rule ultimately is decided can be applied back to Pilgrim and Vermont Yankee.
It's a separate proceeding.
It, is it a concern that the, the, while the rule making procedure is going through, the time that it will take.
Yes.
That the licenses, because they are a separate proceeding, will be granted.
And then even if the rule is changed, it's not gonna affect the grant of license.
And would, would you then, if I j I'ill; I II
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Mr.
Brock:
Judge Lynch:
Mr. Brock:
Judge Lynch:
Mr. Brock:
Your Honor, from our perspective, this is our one opportunity to do that.
If we don't get relief from the Court now, we will not have a chance to come back to say that the NRC did not comply with MEPA in the individual proceedings.
Well.
I, frankly, I don't know what their position is on that and it would be helpful to know that.
Sure.
But why, why are you assuming that if they change the generic rule, that you would then not have standing to come in and say, "That means that the two power plants have to file a new environmental statement, and they haven't done it so far?"
Your Honor, I believe once the rule making is
- decided, we would -
I mean, well.
As part of the CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Judge Lynch:
Mr.
Brock:
Judge Lynch:
rule making process, the Commonwealth could appeal a decision -
if we did not agree with the NRC's rule, we could appeal that to Court, we could appeal it to this Court and this Court would have.jurisdiction to decide whether or not the NRC's rule is correct.
But that is a
different question from the INAUDIBLE...
Exactly.
You have not yet...
... rule making to the individual proceeding.
answere'd the question I asked you.
I beg your pardon, Your Honor.
Assume, hypothetically, that they issue a license renewal before you have completed the rule making, whichever way the rule making comes out, assumption number one.
Assumption number two, the rule making comes out the.way that you want it to come out, they have issued the license.
Is there no procedure at that point for the Commonwealth to go back to the Agency and say, "Since there is a new set of generic CATUOGNO COURT REPORTING SERVICES Springfield, MA -Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Your Honor, I am not aware of any such procedure.
I don't believe the NRC cited to any procedure Mr.
Brock:
that would allow us to do so.
Judge Lynch:
Mr.
Brock:
Can the NRC itself say, "We are granting a contingent license, subject to the outcome of the rule making proceeding"?
Your Honor, as to that, that is very similar to the casewe cited involving the State of Minnesota where the Court remanded the NRC's individual licensing proceeding to be considered in light of the separate pending rule making.
And that's what we would like..
If because they need to be linked back,'Your Honor.
And they have not done so.
And we are being, you know, the Commonwealth does not want to be played in a manner that we could go. and proceed and, and actually prevail even on the rule making, but have no means to get that rule applied back to the plants of concern, Pilgrim and Vermont Yankee.
They could be licensed as you've ji it CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA _ Boston, MA Lawrence, MA Providence, RI
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And no, we don't see a process that would allow us, even if we purveyed in that rule making to then come back...
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Suppose, suppose in the rule making proceeding that they were to apply the rule to all plants, whether relicensed or not?
Your Honor, if the NRC did that, I mean assuming it
- was, it was phrased appropriately, that would satisfy us I expect.
I didn't see any offer from, from the NRC in that way.
I didn't see anything in the, in the rule making...
Did the Commonwealth ask for that as part of its rule making?
Your Honor, we filed these contentions raising issues, issues relative to Pilgrim and Vermont Yankee.
And, and the Agency is the one who moved it to a rule making process, again, which they're entitled to do.
Yes.
Let's -exactly.
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Judge Lynch:
Mr. Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Mr. Brock:
Judge Lynch:
Yes.
They are entitled.
They are entitled to do that.
Yes.
That's right.
So the quandary here is how to protect your rights....
Yes,.Your Honor.
once they've done that.
That's correct, Your Honor.
You, you've, you've basically agreed.
They have the right to do that.
They absolutely can use a generic proceeding.
But, but...
So could the Commonwealth,.in the rule making proceeding, ask that, whatever the status of the licensing, that if the license is issued first, I Mr.
Brock:
Judge Lynch:
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Mr.
Brock:
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Your Honor, I suppose we could make such a request.
But if the NRC said, "No",
I don't think we'd have recourse.
Why not?
I don't believe that if we make -
what, whatever we would do in the rule making process, and if we don't like what the NRC says, and we take that to a court, we have not seen authority.
The NRC has not cited authority to our satisfaction that would allow the rule making Court itself to render that the generic rule making be applied back to the individual plants, Pilgrim and VermontYankee.
In fact, those plants already may be licensed.
They might even claim to be grandfathered.
So, we are vulnerable here, you're Honor.
This is, under the Hobbs Act; we have sixty (60) days to appeal.
Okay.
The standard of review would be arbitrary II CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr. Brock:
Judge Lynch:
/
Mr.
Brock:
If this Court had jurisdiction, You'r Honor.
But there's very...
You have said, you have just said that you could seek judicial review of a rule making proceeding.
Why couldn't you, at that *point, present an argument to a court that the failure of the Agency to grant relief, which you have not yet requested, of application of this rule would, was, to an existing licensed facility, was itself arbitrary and capricious?
Your Honor, with due respect; I believe, again, at least I have not seen authority that would give the Commonwealth comfort the Court would
- even have jurisdiction to entertain that question.
The question, the Court would entertain is, is the generic rule, you know, consistent with proper administrative practice and standards?
But what, how that rule gets applied, when it gets applied, whether it gets applied to Pilgrim and Vermont Yankee, I'm not, I, I,*I am not persuaded that the Court would have CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr.
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authority, the rule making Court.
It is this Court that has INAUDIBLE individual licensing proceedings, and therefore, it is this Court, from our perspective, because the NRC did not do what the Supreme Court said in Baltimore Gas that it must ensure that the overall process, generic and individual is'brought together, they INAUDIBLE brought it together and we need this Court to do it or the Commonwealth will be exposed.
And, and what would we do with that prematurity argument?
Your Honor, I,
I think the, the NRC did a, a very nice job of suggesting that *down the road there will be relief and down the road the Commonwealth with have a chance..
I think at bottom, it isn't legally credible for the reasons I said.
I think under the Hobbs Act, we have no appeal to this Court of individual proceedings.
We have made that appeal and it is now,.the NRC as I said they forced our hand, Your Honor.
They could have avoided this appeal now if they had simply said; "We won"t deem this final agency action excluding
'1 CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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But they didn't.
We asked the Commission for clarification and reconsideration, and the Commissioner said, "You have one chance to appeal and you need to do it now."
And so we're doing it, Your Honor.
They.put us in this position.
And I think it is...
Then your appeal really isn't concerned with your party status.
Your appeal is basically concerned with their refusal to set a deadline that, for the rule making, that takes place before the Judge Lynch:
licensing proceeding.
Mr. Brock:
Judge Lynch:
That would certainly been a INAUDIBLE that could have addressed the problem, Your Honor.
- But, but, but the bottom.line is the need that requires them to consider this information you put in this proceeding before they relicense.
I, I want to be clear about what you asked the Agency.
Did you ask the Agency to give you limited party status to that extent, only to the extent of asking for a stay of the licensing proceeding, pending the - not a stay, not a stay CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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- that they withhold final decision in the licensing proceeding?
Mr.
Brock:
Judge Lynch:
Mr. Brock:
Judge Lynch:
Your Honor, I think that we filed a motion for reconsideration clarification.
I think that's at two, page 2 -
12 of the appendix.
I, I don't have it right in front of me, so that would say exactly what we asked for.
Butwe asked for party status so that -
a, a continuing party-status, even though the NRC had said, "We will not consider your contentions in the individual proceeding," precisely because we didn't want to be prejudice.
We didn't want the Commonwealth put in a position of losing its one chance to appeal.
The NRC Commissioner said...
Yes-, although it's far from clear, you have done that, that, that you've, that the outcome of this*
case would mean that you've lost your only chance for appeal.
Your Honor?
And, and that, as far as I'm concerned, has not been adequately briefed by either side.
It might CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr.
Brock:
Judge Stahl:
Mr.
Brock:
Judge Stahl:
Mr.
Brock:
Judge Stahl:
Mr.
Brock:
Judge Stahl:
- Yes, Your Honor.
No further questions.
When did the ruling request go in?
That was August of 2006, Your Honor.
It's been pending sixteen (16) months, something like that.
Has there been any discernible movement on that ruling that you know of?
I mean, we, we submitted it and the NRC took public comment.
The public comment period, I don't know precisely, but...
INAUDIBLE.
but it closed a, a year ago.
I mean it's been with the Agency a long time, Your Honor.
And I, beyond that,, I, I can't tell you the status.
You started the rule making procedure about the same time the license renewal began?
CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Judge:Stahl:
Mr.
Hamrick:
Judge Lynch:
we,. we I think in May of, May of '06, we filed the contentions in the ind-, individual proceedings because that's when we thought it was appropriate to do.
Without getting into that, the NRC made clear they thought this should be handled generically.
So in the end of the summer roughly of '06, we filed the rule-making petition.
Thankyou.
No more questions.
Mr.
Hamrick?
Good morning Your Honors.
May it please the court; I'm Steven Hamrick, representing the Nuclear Regulatory Commission of the United States.
I think Judge Lynch kind of hit the nail on the head as to, as to what this case really boils down to, and it's the fact that the Commonwealth is concerned about how to.protect their rights.
Their, their interests with respect to their spent fuel INAUDIBLE claim.
- And let's assume that the Court takes that very seriously.
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Judge Lynch-,
Well.
And, and Your Honor, the, the Commission frankly takes it seriously too..
If, if you look back at the, the order that the Commission decided back in January of this year, the Commission said, "We can't INAUDIBLE this issue because it's a generic issue."
The licensing board doesn't have the authority to challenge a, a, a, the result on a rule-making proceeding to challenge a rule, but the Commission was cognicant of the Commonwealth's concerns and said, "Well.
- One, one can't be a party.
You're a State and you; you can participate as an Interested State under our regulations.
And we're going to, under our, under the Commission regulations, generously interpret the, the, 2.802, which, which Judge Lynch referred to, which allows a party to a proceeding to request a,
a stay based upon their rule makingpetition.
Is, is, is it the NRC's position and representation to this Court by which it will be bound, that that regulation., the term party would include the Commonwealth of Massachusetts as an Interested Governmental Entity, were they to seek that status?
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Judge Lynch:
Mr.
Hamrick:
Abs-, absolutely.
That, that's what the, the, the Commission went to the effort of draf-, of, of footnoting the order saying, "An Interested State can request this type of stay under 2.802(d)."
So you -
that's been the case ever since, ever since January.
That has been the Commission's po-, po-, position.
Normally INAUDIBLE...
But what do they gain by doing that?.
They -
well.
The Commission at first did not grant the stay request that was made in the rule-making petition because it was premature, because that was made back in August of 2006..
And the licensing decisions will not be scheduled to be made until the summer of 2008.
So the Commission said that's premature.
What they gain by seeking Interested State or Interested Governmental Entity status is the ability to come in at a later time, a more opportune time, a more appropriate time and request a stay.
But again, as I-said, the, the, because of all the hearings with other parties in both proceedings, the I
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Mr.
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licensing decisions are not scheduled to be made until some point this summer.
All right.
So sup-, suppose the Commonwealth, hypothetically, filed for InterestedGovernmental Entity status and they were to ask in the rule-.
making proceeding for a stay of the decision in the licensing proceeding, until the rule-making proceeding had been included?
It, it would certainly be, be - procedurally they would be able to make that request:
Now the, the question comes down to whether the Commission will, will decide whether that's an appropriate remedy based upon the facts.
And the, the, the facts of -. the situation is that, you know, the Entergy staff is currently working on the rule-making petition.
As, as we'discussed, it's
- been, it was filed over a year ago.
That's not unusual for rule making petitions, but they are, are actively working on it and I can't represent to you that it will certainly be resolved before the summer, but that, that certainly is the, is it was scheduled to be resolved in November.
So CATUOGNO COURT REPORTING SERVICES Springfiel-d, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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So -
but it, it's certainly possible and likely that the, the rule making petition will be decided in advance of the license renewal decisions.
So if, if that's the case, there's no need, there's no need to *stay the license renewal decisions.
- However, if it comes to May or June and the licensing boards have held hearings and have reached decisions that-indicate that the licensing, licensing can take place, at that point, if the, if.the Commonwealth requests Interested State status, the commission would certainly think, it would be more likely to, to find that a stay is, is appropriate.
And if, and if it didn't, is there a right of appeal somewhere at that point?
I, I'm hot aware of a, of a case on point that an Interested State would necessarily be a party for the purposes of, of the, of the Hobbs Act to, to seek review in, in the Court of Appeals.
But if, if, if you look at the, the purpose of the; the party requirements in the Hobbs Act, the purpose is that a, a, an interested person has, has come Judge Stahl:
Mr.
Hamrick:
CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr.
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Judge Lynch:
Mr.
Hamrick:
forth to the Commission, presented its arguments, made its case and the Commission has had an opportunity to decide those issues.
So - well.
- Let, let's just say its not a party from the limited purpose of the NRC's regulations in, in its hearings.,
It, it, I,
I, I,
I can represent that, that it seems as though it would be a party for the purpose of, of the Hobbs Act.
Okay.
The representation may have to be a little bit stronger than it seems to be.
It would seem' to me, the NRC could agree that it would not object to the ability of the Commonwealth to petition for judicial review of any decision on a stay, which is requested by the Commonwealth as an IGE.
Cer-, certainly in, in, in this case, we, we, the NRC would not object.
I, I,
I can't, I, I
can't I'm not talking about a generic...
Right.
Right.
Right.
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Mr.
Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
change...
Right.
in position, but...
Right.
... to bring the parties closer together.
And it is always possible that an agreement could be reached in this case that would sufficiently preserve the Commonwealth's right to seek review and sufficiently preserve the flexibility that the Agency says it would like to have.
Cert-, certainly.
I mean, as,, I mean, in, in, in this case we, we, the NRC, we would not, would not necessarily, would not challenge the, the right of the Commonwealth to seek judicial review of, of a, of a stay, of a stay decision that is, that is ultimately a final, that, that is considered a final decision because its made close...
No.
No.
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- Mr. Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
Mr. Hamrick:
Judge Lynch:
Mr.
Hamrick:
... close enough to what INAUDIBLE decision.
No.
No.
No.
No.
No.
Well...
And,. and let's
- not quibble about whether it's a
final decision.
We now know that the, the two, two timetables, according to what you've just represented to the Court, are very close.
Correct.
All right.
So it seems to me that if the NRC is, as it certainly seemed to be in its last order, saying to the Commonwealth, "We are perfectly willing to hear your concerns.
You' ve just chosen the wrong forum to hear them."
Right.
That the NRC ought to be willing to say that if they seek a stay, that, and it's denied, that they can seek judicial review of that.
You're I
ýJudge Lynch:
CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Hamrick:
Judge Lynch:
Mrt.
Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
not going to impose an objection based on party status.
You're not going to interpose an Objection based On final order.
Well.
I believe, like I said, the NRC certainly would not object over, over party status.
- The, the finality concern -
it, it,
- its, its possible that the licensing decisions could be delayed even, even farther.
Yeah.
That, that, that, that's fine.
Right.
And maybe you can make a substantive argument to the Court that apart from the final order issue, which is a jurisdictional issue...
Correct.
it's premature for a Court to rule.
You've made both of those arguments in...
Correct.
IMr.
Hamrick:
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Mr.
Hamrick:
Judge Lynch:
Mr. Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
in these cases.
But that would preserve the Commonwealth's ability to seek judicial review.
Correct.
And that's what they're afraid of losing here.
Right.
That's, that's, that's correct you're Honor.
And, and as, as I said, the Commission
- was, was aware of the Commonwealth's concern.
And you know, that's why it, it went to the effort of, of expli-, explicitly stating that Interested State status was, was a, was an avenue for the, for the Commonwealth to, to seek review.
So, so that - certainly.
We would, would not challenge the, the, their party status.
Unless the Court has any, any further...
Yes.
questions?
There, there, there was -
the whole series of questions that both Judge Stahl and I have asked about - well.
Suppose it happens that you decide CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Hamrick:
Well.
If. if this -
as, as you were just saying, if, if the Commonwealth is able to request a stay and, and, and, and if the Commission denies that stay, challenges that to this Courti then this.
Court would certainly have jurisdiction over the, the license renewal proceedings for both Pilgrim and.Vermont Yankee, as, as well, it, it also has jurisdiction over the rule making petition as
.well.
So as, as long as this.Court maintains jurisdiction over the licensing actions, there, there will not really be any concern about whether the, the ultimate rule making...
All right.
Is that *the only mechanism?
well.
The -
we also addressed in our brief that, you know, a petition for rule making itself is, is...
Could an outcome of a rule making.be that we, the licensing before you decide the rule making.
What, what are the alternatives there to apply the results of the rule making to the two license holders?.
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
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Hamrick:
Judge Lynch:
Mr. Hamrick:
Judge Lynch:
That, that's certainly an, an option that, that the, the Commission could, could issue a conditional license, which - but the issue was,
- was, you know, INAUDIBLE that it's, that it's, it's, it's about Agency decision making,, and so it, it, it's, it's the NRC could commission the license and say we may. have to, where this is conditional, we may have to reassess in, in the future if this rule making petition is, is, is granted.
So...
And the Commonwealth could bring that concern to the NRC in the course of the rule making petition if they're not a participant in the adjudicatory proceeding?
I'm, I'm not sure I follow what you're...
Well.
They're, they're afraid that if they're not *a party in the adjudicatory proceedings that CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr.
Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
Judge Stahl:
Mr.
Hamrick:
Judge Stahl:
Well.
That's, that's, I think, part, part of, of their, their ability under 2.802(d) to request a, a suspension or a stay of licensing.
They, they INAUDIBLE just say, you know, NRC INAUDIBLE stay his actions.
They can INAUDIBLE...
That, that could be part of what they argue for?
Correct.
Correct.
Right.
There, there's, there's no prohibition on, on, on that, that, type of argument.
That's correct.
All right.
So thank you.
Thank you.
Mr.
Lewis?
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Lewis:
Judge Lynch:
Mr.
Lewis:
Good morning Your Honors.
My name is David Lewis and I have the privilege of representing Entergy.
Judge Lynch, you, your questions presuppose that a request under INAUDIBLE 2.802(d) would be made in the rule making petition.
My belief in the position as the counsel for Entergy is that such a request will in fact be made in the individual proceedings.
I believe that is why the.NRC requires a person who has filed the rule making petitions also be a participant in the individual proceedings to request that relief, so that they can make that request in the individual proceedings.
Yes.
But the NRC has just taken a different position.
And they've just bound themselves to that position in this Court.
I, I did not hear the NRC in fact say that, that request would be made within the rule making proceeding.
I thought they said that they would consider such a request and they would consider the Commonwealth as a party, but I did not hear the NRC to say, and that motion is one that's made in the rule making proceeding itself.
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.12 13 14 15 16 17 18 19 20 21-22 23 24 25 j1Judge Lynch:
Mr. Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
Mr.
Hamrick:
Judge Lynch:
Right.
But pause for a moment.
I, I,
I don't want to say the wrong thing.
It,
- its, it's a,
it's a request made directly to the Commission under the rule making rules, but it.,
it doesn't have to be from aparty of, of the licensing proceeding.
It...
So. it can be made either in the licensing proceeding or in the rule making proceeding?
I, I,
I, I believe it, it should be made in, in the license...
In the licensing...
In the licensing proceeding.
Counsel, thank you.
That, that helps clarify.
But the point is that the NRC appears to be amenable to this other mechanism for the Commonwealth to use, which would permit them to raise their concerns, albeit in the licensing proceeding.
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Lewis:
Judge Lynch:
Mr.
Lewis:
Well.
I think that's an important distinction Your Honor, because had they made, had the ability to make that request in the licensing
.proceeding, that in fact creates a final reviewable order on that same request in the individual licensing proceedings over which this Court would have jurisdiction.
So I think, in fact, there is and Entergy's position would be that the Commonwealth would have status to seek judicial review if it were denied a request under 2.802(d),
and such a request would be made in the individual proceedings and reviewable....
For a stay.
... that, that time, which the Court could look at, which at this point, it does,- it does not have any rule of discussion of the equities.
Okay.
I will note, while there aren't any real precedents that clearly state that a, an Interested State is a party for purposes such as K
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Mr.
Lewis:
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Mr.
Lewis:
seek a judicial review.
That Interested State status is a statutory correction, a stat-,
statutory creation under 2.; I guess 2.74 INAUDIBLE...
Well.
That certainly helps.
... Atomic Energy Act.
And I think if Congress gave a state the ability to participate in NRC proceedings without having to take a position, it could not be, be argued that, that they intended to cut off judicial review, having given the state such a right.
There was one case, when I was looking at this issue, Ohio vs. NRC, 814 F.2nd
- 258, a Circuit case in 1987 where a state requested to participate as an Interested State.
Its request was denied because the proceeding was
- over and it was too late and the record was closed.
But the Court of Appeals, in fact, accepted judicial review and reviewed whether the NRC was right and without denying the, the request to participate.
And I think that case was INAUDIBLE proposition that yes, an Interested State does have standing as a party to seek judicial review if it is denied relief under that I
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provision.
INAUDIBLE to the status of the rule 2
making petition, the NRC has been acting very, 3
very diligently.
It has not been sitting on its 4
hands for a year.
The NRC published the notice 5
of proposed rule last November and sought 6
- comments, I believe, by January.
In January, a 7
number of stakeholders came and asked for another 8
sixty (60) days to submit comments.
The NRC 9
extended that period, *so the comment then, period 10 thenran until March; I think it was March 1
9 th.
11 On March 1 5 th, the State of California submitted 12 an identical rule making petition and the NRC 13 decided that they would consolidate those two 14 rule making petitions, publish the notice of*
15 California's rule making petition and gave 16 another sixty (60) days for comments.
So that is 17 why the NRC is a little bitbehind schedule.
But 18 the NRC has been acting to try to resolve the 19 rule making petition well in advance of the 20 individual decisions in the, the Vermont Yankee 21 and Pilgrim license renewal proceedings.
22 Ultimately, Marsh teaches, Marsh's Supreme Court 23 case teaches us that the belief is something that 24 is subject to the rule of reason and I would 25 submit that. as the appropriate standards here.
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And there is absolutely no indication on the 2
record that the NRC has done anything other than 3
to try and act reasonably throughout this 4
proceeding.
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Judge Lynch:
Okay.
Judge Torruella, who is the presiding 7
judge, and I have obviously been consulting.
It, 8
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close to positions that would allow you to agree 10 upon a mechanism, which would preserve the 11 Commonwealth's rights to seek judicial review in 12 the end of any decision by the NRC, whether to 13 issue a stay, should the licensing proceedings 14 advance ahead of the rule making proceedings.
15 The NRC, to its credit, has made a number of 16 concessions today and you have as well that would 17 preserve judicial review..
However, the mechanism 18 to be used would be the IGE mechanism and the 19 rule 2.802 mechanism.
It would be possible, if 20 the parties could get together on this, I think 21 for you to work out something that would both 22 preserve flexibility for the Agency and cause no 23 harm to the Commonwealth in terms of losing any 24 rights.
We could stay this action in the interim 25 and that would allow you to work out a resolution CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Lewis:
Judge Lynch:
Mr.
Lewis:
Judge Lynch:
along the lines we've, we've been discussing.
I, I,
I'd, I'd like your thoughts about it.
If you are not going to work out a resolution, then of
- course, we would like further briefing.
On the other hand, it might make more sense for you to spend the next period of time attempting to work out something, which is sui generis to this case.
Judge Lynch, I have actually no objection to do this.
In fact, our position is that if the State seeks INAUDIBLE to a state status and files such a motion and it is
- denied, it is reviewable and it is reviewable in this Court and I'm quite happy to formalize that brief for the Commonwealth.
The reason that this issue was, was presented was that the original contention of hearing request focused on the Commonwealth's claim that it had the right to litigate the accuracy of NRC rules...
Of course.
INAUDIBLE to begin with.
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That is exactly what happens.
Were this Court to permit you this period and to, itself not yet address the issues, the Commonwealth would, at the same time, have preserved its argumentthat, inthe end, it's entitled to party status.
There would be no decision on it.
And I take it that there, were they to file as IGE that would not be held against them, were they to file as IGE as part of the settlement, wouldn'.t be held against them should the case come back to us.
Well.
I agree.
I, i think if they do that, they, they follow the appropriate procedure that the Commission spelled out for them.
All right.
Before I ask the Commonwealth, I'd ask the counsel for the NRC.
Your Honor.
As much as like counsel for, for Entergy, we would have no, no issue with, with your proposed resolution.
So that, that's, that's...
Mr.
Lewis:
Judge Lynch:
Mr.
Hamrick:
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Mr. Hamrick:
Judge Lynch:
Mr. Hamrick:
Judge Lynch:
Mr. Brock:
And you'.re willing to sit down with the Commonwealth and attempt to work out the details of all of this?
Certainly.
Certainly.
And, and if, if Your Honors would like to set some kind of a, a, a deadline whereby further briefing would then become necessary, that would be fine with us as well.
Well.
Okay.
It, it seems to me one needs to hear from. the Commonwealth, and then if the Commonwealth is amenable to at least discussing this, then some sort of schedule could be set for a report back to the Court and failing a resolution, further briefing.
Certainly, Your Honor.
Thank you.
Could we hear from the Commonwealth please?
Yes, Your Honor.
Certainly as a general matter if the parties can reach settlement, we're all for that.
We want to be sure the Commonwealth's rights are protected.
There's been a lot of CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI
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Mr.
Brock:
discussion here, but I have no problem.
I think we would want to talk with the other parties and see if we could do that and if we are successful, great.
And if we are not, I think we'd have to report that back to the Court.
But we're certainly prepared to try.
All right.
I, I, and as, as your brother indicated that the shape of the case has, has changed dramatically from the beginning.
And I understand that some of the discussion today has to do with what you characterized as new positions.
But out of those new positions, it strikes me there is some hope for working out something that would protect your rights and hopefully the NRC will act on this soon.
Perhaps the whole thing will be, become muted out.
But what would be a reasonable time for you to confer, talk with your clients and report back to the Court?.
INAUDIBLE I would just say, Your Honor, you know, counsel would obviously talk and I would need to be talking to management in the Attorney General's office as well, so we get some CATUOGNO COURT REPORTING SERVICES Springfield, MA Worcester, MA Boston, MA Lawrence, MA Providence, RI A.
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Mr.
Brock:
Judge Lynch:
Mr. Brock:.
Judge Lynch:
Mr.
Brock:
Judge Lynch:
Of course..
Would, would the end of January be satisfactory, given that INAUDIBLE decisions here?
Yes.
Okay.
And if you -
so whatever the last working day in January is, it, we will expect a, a joint submission from the parties on the status of any proposed resolution.
If, If you can reach agreement, we don't need to necessarily be making law here.
And if you are unable to reach agreement, then briefs would be due two weeks thereafter;
- Yes, Your Honor.
The Court does have available settlement counsel, and we're willing to make Our settlement counsel available to you, if you think it would'be authority for our discussions.
But...
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I can not say he's an expert in Nuclear Regulatory Commiss-ion matters, but neither are we.
Mr. Brock:
Judge Lynch:
Mr. Brock:
Judge Stahl:
- Thank you very much, Your Honor.
You let us know if you'd like the assistance of settlement counsel.
Let the clerk's office know.
Thank you.
We're, we're taking a brief break after that.
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23 24 25 COMMONWEALTH OF MASSACHUSETTS I,
RAYMOND F.
- CATUOGNO, SR.,
Registered Professional Reporter, do hereby certify that the foregoing testimony, prepared from designated portions of cassettes furnished by the parties
- herein, is true and accurate to the best of my knowledge and belief.
12-17-07 Date Raymond F. Catuogno, Sr.
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