ML20094C137
| ML20094C137 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 08/01/1984 |
| From: | Hirsch D COMMITTEE TO BRIDGE THE GAP |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL, NUDOCS 8408070386 | |
| Download: ML20094C137 (83) | |
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COMMITTBE TO BRIDGE THE GAP , ;
l h 1 1637 Butler Avenue, Suite 203 Ies Angeles, California 90025 2 (213) 478-0829 oggm 3 UNTED STATES OF AMiRICA ,
NUCLEAR REGUIATORY COMMISSION '6j [fg 6 D ? 1 {
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EPORE THE ATOMIC SAFETY AND LICENSING BOARD {
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6 I" th* M****r of l Docket No. 50-142[f c i
! TM REGENTS OF THE UNIHRSITY (Proposed Rengual af 7
& CALIFORNIA FacilityLicense)
(UCIAResearchReactor) 9 10 CBG RBSPONSE TO STAFF'S PROPOSED CONDITIONS FOR UCIA APPLICATION WITHDRAVAL 11 12 I. Introduction i 13 l
I 14 Pending before the Atomic Safety and Licensing Board is UCIA's 15 Motion af June 14, requesting that in light of the Universt ty's decision 16 to Perunnently close and dismantle its reacto , the Board accept.
-17 pursuant to 10 CFR 2.107, withdrawal of UCIA's license renewal application 18 and terminate the renewal PA-rd'99 on the following conditions:
19 (1) that the reactor not operate again, ani (2) that the reactor be 20 dismantled, decon+==4nated, and disposed of, pursuant to an NRC approved Plan. N relaM conditions have already been imposed W the Board 21
, 22 in accepting UCIA's request (also of June 14) that the then-farthcoming 23 evidentiary hearings on security be suspended while the Board acts on g the withdrawal requests. These two additional conditions ares
{ Walter Veget to Harold Denton, both dated June]/ h letters of Chance 14, 1984 M Ubiv'ersity's Roguest to Withdraw Application, dated June 14 (p Vegst letter, sggy_. ,
i ty's Motion to Suspend Proceedings Pending Board Action on
\ ty's Request to Withdraw Application.
8408070386 840801 PDR ADOCK 05000142PUR 8d)
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COMMITTEE TO BRIDGE THE GAP
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- 1 1637 Butler Avenue, Suite 203 Ies Angeles', California 90025
- 2 (213) 478-0829 o7cxe y, d
.[ p UNIMD STATES OF AMilRICA NUCIEAR REGUIATORY COMMISSION 'C 1 [c3 g p; , ,
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD s' -
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In the Matter of 6
et No. 50-142 k c.
- M N OF M UN M RSITY
,/ 7 (Proposed Reneu'l a of
& Om Facility License) 8
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(UCIA Research Reactae)
- 9
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GaC RESPONS TO STAFF'S PRCPME CONDITIONS FOR UCIA APPLICATION WITHDRAWAL t}6 11 c
,7 .
, 12 I. Introduction l /
s ,r -
13 14 y Ponding before h Atomic Safety and Licensin6 Soard is UCIA's 15 / Motion af June 14, requesting that in light cf the Univernd.ty's decision 16 '..to permanently close and dismantle its reacto
, the Board accept, 17 pursuant to 10 CFR 2.107, withdrawal af UCIA's license reneual application 18 and terminath the renewal proceedings on Se following conditions
, .19 (1) that the reactor not operate again,'and (2) that the reactor be I
'20 ' dismantled, decon+==1nated, and iisposei of, pursuant to an NRC approved plan. N related conditions have already been imposed W the Board
'dl 22 in accepting UCIA's request (also af June 14) that the then-forthcoming 23 evidentiary hearings on security be srapended while the Board acts on 24 the withdrawal requests. These two additional conditions ares g Sgg letters of Chancellar Young to Chairman Palladino and from 26 Walter Vegst to Harald Denton, both dated June 14, 1984 University's Roguest to Withdraw Application, dated June 14 27 so Wegst letter, sggs.
28 M University's Motion to suspend Proceedings Pending Board Action on University's Request to Withdraw Application.
8408070386 840801 e , PDR ADOCK 05000142 PDR
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+ 1 (1) that the fuel on-site be shipped to a suitable recipient as soon as 2 reasonably prscticable consistent with applicable regulations and with its 3 security, public health ami safety obligations, and (2) that the reactor 4 be Miately functionally disab1'defrom being capable of going critical.
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5 ucLA has committed toe 'xpeaitiously carrying out the former of'these
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6 conditions,Y nd a states that it has already disabled the reacter by 7 severing the control bhde drive shafts so that the reactor has been I 8 made =persanently inoperable."Y 9 CBG w i.iedYto UCLA's action far withdrawal and proposed coniitions 10 by not opposing h proposd withdranal provided. intet aMa, that the 11 various conditions and associated commitments made by UCLA be explicitly 12 included ac conditions in the Order withdrawing the application, ami that, 13 pursuant to NRC practice for such withdramals, completion dates be included, e,
14 documents N preserved and a reporting requirement instituted", the protective 15 arders be dissolvedh that the coniitions be explicit, binding commitments, 16 enforceable by the Commission and the courts.Y 17 18 g Ord'er of June 22. . Se revised language vacated an oral stipulation of June 15 and an Order of June 18 after UCIA refused to comply with it.
19 m s incident, m 14+1es why tb 41thdratal conditions discussed herein must be ande explicit and clearly binding.
20 g -
,,g,,1etter. of June 25 from willie= D. Schaeler, UCLA Executive Vice =911ar to the Honorable Gray Davis, Assemblyman, 43rd District, 21 transmitted to the 3 card on June 26 by UCLA attorney Carmier.
22 g ' wegst 1stter of June.22 to Harold Dentons and p. 8, UCLA's July 11 P to the Commission regarding the Olympics.
23 7/ Committee to Bridge the Cap's Response to University's Request to Withdraw Its Application for License Renewal, July 3,1984 24 g jag, e.g., Northe n Indiana Public Service Company (Bailly Generating 25 Station, Nuclear-1), .3P-82-29,15 NRC 762 (1982)& LEP-83-37,15 NRC 1139 (1982) and Public Service Costany of Ole 1=ho==. et al. (Black Fox Station, 26 Units 1 and 2), LEP-83-10, 17 NRC 410 (1983).
ge
.LEP 1gg Pacific 27 3-2,17 NRCCas and hectric 45 (1983): Commny and anilly, (Sinialmus Nuclear Project, Unit 1) sugga 28 E W Sgg 10 CFR 73 21(1) l 11/ Sgg Bailly. g]ga,
3 t 1 Se Staff, however, in its respons opposes immediate witMrawal 2 of the application and suggests an approach to UCLA's Motion for VitMrawal 3 that would appear to violate well-settled standards for dealing with 4 withdrawmis. Se Staff proposal, furthermore, cortains sajor ambiguities th"t could create seri ns problems later.
5 6
h Board granted UG and the Staff opportunities to resped to 7
CBG's proposed modification of UCLA's proposed withdrawal conditions, g and subsequently granted CBG simi2ar opportunity to respond to Staff's g proposal. Said response follows.
10 yy II. Backaround
. 12 mis hotly contested license renewal proceeding commenced in 1980,
.13 when U G 's License R-71 expired. Shortly before the date of expiration 14 (there remina debate as to whether it was within the time prescribed by 15 the rules l2d, UCLA filed its " Application for a Class 104 License for 16 a Research Reactor Facility." At page 5 of the ApPH cation UCLA 17 identified the license (s) it was requesting via the Application:
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18 (1) a Class 104 license for its reactor for use in the education of l-l 19 students in nuclear engineering, and (2) Special Nttelaar Materis.1 to be
- 20 ***8 1" ***"***i*" "ith th* f**ilitT* I*St'*llY th* 18t**" "*4"*** ***
21 for 4700 grams U-235 t 93% enrichment in irradiated fuel, 4700 grams 22 in fresh, and a 32 gram plutonium-239-Berylium source. h request was 23 I*t** ""*"d*d t* ****ntially 5 kilograms U-235 at the same enrichment and the Pu-Bo source. Sus, the renewal application was for a reactor 24 and for SNM associated therewith, and by virtue of W application 25 and 10 m 2.109, operations at the facility utilizing the reactor and SNM 26 27 12/ NRC Staff Response to the Request by the University of California to Withdraw Application, July 2, 1984 1]/ In January 1984 CBG filed a motion with the Licensing Board alleging, i_n_
t tag gl_ig, that based on information just recently received the Application had been filed after the date sandated by 10 CFR 2.109, thus not permitting operation after license expiration. ,
i t 1 possessed by virtue of License R-71, now expired, continued while the 2 application was litigated.
3 CBG petitioned for leave to intervene on the proposei renewal of 4 License R-71, was granted intervonor status, ani subsequently twenty 5 contentions with nua cous subparts were admitted. m ee contentions
-6 addressed a wide range of issues: (1).ttattheArgonantreketorand 7 casociated weapons-grade nuclear materials for which .: licensing were 8 requested were unacceptably risky from a public safety and security g standpoint, e.g. by lack of inherent safety, making destructive power 10 excursions, fire, ce other accidents a substantial risk, unacceptable in 11 a training device without containment or exclusion sone, (2) that the 12 Applicant is not qualified.to operate a nuclear reactor, e.g. by virtue l 13 of a long history of violations of NRC ro6ulations, sloppy ed=1Matrative 14 and managerial controls, numerous radiation spills and security breaches, 15 maj r calibration arrars and inadequate past maintenance ami the like, 16 (3) that the UCIA site uns unacceptable for a research reactor, e.g.
17 because of its high population density and 7roximity to major earthquake gg ' faults, and (4) that the Application itself failed to meet the regulatory gg standade, e.g., by containing material false statements ami inadequate emergency N aponse and security plans.
. 20 Discovery was lengthy ami extensive. After CBG had conducted 21 extensive discovery of UCIA's safety Analysis contained in its Application, 22 23
""i *#**" UCI# h*d D*** 1"' ""*d th**"8h C3C'* * "**"*1 "" "E d1******7 f CBG of C5G's detailed criticism of said Safety Anal pis, UC*i, right 24 befon evidentiary hearings were to be scheduled, withdrew its itire 25 safety Analysis in response to those criticisms ani replaced it w.th 26 2,1
, Staff's. (Ironically, CBG had to introduce UCIA's original 'asety analysis fNa t e APP l ication M at hearing, overWs objections.)
28
i 1 Summary disposition action were filed by UCLA and Staff on 2 essentially all contentions, and CBC answered (filing hundreds of pages 3 of declarations by approximately two dosen experts.) Summary disposition 4 was denied for most contentions, and deferred for all the rest, with the 5 exception of f'"**'i-1 q"--lifications, where par +4 ' -""-i disposition
- 6 **a granted.Y n Ithe process, the Board made numerous legal ruling 7 and rulings as to facts in dispute (determining, for example, that there l
l 3 was genuine dispute as to virtually all facts as to whether the UCIA device t
g wasinherentlysafe.)
l l 10 Hearings were held on a number of issues. Full evidentiary hearings 11 before an Alternate Board Member were held on Ccntention II (" Wrong Class 12 of License") in May of 1983, regarding CBG's contention that the reactor 13 had lost its usefulness as an educational or research tool, was being 14 used only a fes hours per yar far a hantful of ' students and performing l
15 no research, being used instead primarily for commercial purposes, in 16 violation of its license. Those hearings, the evidentiary record for 17 Mc was dosed a year ago, resulted in a proposed decision W Alterna,te
-18 Boazd Member Iaurensen affirming CBG's contention that for at least one
.gg year UCLA had been in viola +4on of the regulations regarding commercial 20 activitye and proposing that the application for reneusi ngt. be granted g unless certain conditions were attached regarding this matter. UCIA a n un ad its decision to withdraw its application prior to the time a 22 g decision was made by the: Board as to final determination of whether to .
_g issue the Alternate Board M' ember's proposed Order, which in certain key N In keeping with the Board's dLirection that parties not " shotgun" 25 summary disposition motions and delay the proceeding, CBG also filed
= ==P y disposition actions, but only as to two contentions as to which 96 there was essentially no dispute. Responses by Staff and UCIA indicated that the facts as to these two matters were generally agreed to (these 2# matters were seismic Contention IVII and SNM Contention IIII), but no ruling issued prior to the time UCIA withdrew.
1.f/ Aspects of the contentions alleging UCIA had devoted insufficient funds to roper maintenance were to be dealt with in the safety hearings.
116 1r.g., as to legal standards for class 104 licenses.
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I respects went against the Applicant and were vigorously objected thereto.
2 Very extensive hearings were held, after considerable delay, as to 3 inherent safety questions. Mose were held in summer ani fall of 1983 4 Great doubt es cast on the sufficiency of UCIA's (new) Safety Analysis 5 and ** inherent safety of the device for which license renewal was requested.
6 Se day before the evidentiary hearings were to close on these inherent 7 anfety matters, UCLA requested a brief recess of the hearing to try to 8 meet the serious questions raised and to submit now analyses of the g safety issues that would attempt to rectify the substantial doubts casta over the Safety Analysis through the evidentiary hearing. Se Board 10 11 granted the delay, asserting it would not permit the delay to extend 12 bey nd December 30in lieu of the serious safety questions raised and the e ntinued license p esessi n by virtue f the timely application rule.
13 2e new material submitted was found by the Board both to be insufficien".
14 15 ""d ""*1**17' # "l*"17 ** 'h* d "" *"*1 7*18 "hi"h ** 3 **d **1d 16
- h*"Id h*** D**" ** * ***d "i " ** *PPh***1 "* Cl ** # **'h**"i"8 record was. thus delayed considerably beyond the December 10 deadline set 77 by the Board, and withdrawal of the application by UCIA occurs thus prior 7g 79 to a determination whether those substantial doubts as to the inherent
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- 20 l g evidence in the record, there had been a " nonchalant approach to the I g substantive issues raised in this proceeding by both UCIA ani Staff,"
esserting further that the record supporting Staff and Applicant g
consisted merely of analyses the Board described as " superficial" ani
" cursory", demonstaa ting "at best UCLA's cavalier attitude toward this proceeding."IS[ As to the Wigner issue, the Board determined, "Cn balance, there was not much in the record to support UCLA. l2/
2_1 23l 1.7/ Memorandum ana Order of March 22,1984, at 10. I 1,8/ id. at 10, 12 l.2/ 5. at 13 I
. ~7-1 Mus, withdrnwal of the UCu application at this stage occurs
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_2 with an evidentiary recod in support af the application described by 3 the Board as " superficial" and "ww", and on key matters "there was 4
not auch in the record to support UCLA." Withdrawal would prevent an 5
adw e aling to ucu, and a determination that would be of tremendous 6
iEPortance as to the inherent sa:fety of the radiv four Argonaut-type 7
_ reactora in this country, with the same design and potential problems, g for exampl', e $3 50 af ' excess remotivity ani nowhere for the water to so.
.g Withdrasal prior to the measurement of the Wigner energy stored in the graphite, which UCIA only recently agreed to permit after auch reluctance, 10 gy likewise prevents determination d a safety matter about which there was little in the record to wyyve UCM, acWig to the Board, and which
-12 Would N Ny 1Epartant to a sty deterdnadon regarding Me oGer 13 still-operating reactors. Withdzswal at this stage prevents a ruling by 14 15 e ar n nta ety W 8M 88 w h (an ) have 16 serious doubts about the Application and the reactor's inherent safety.-
yg Aft're numerous d'e lays, caused in part by statements found by the gg Board to have b natorially false (although the Board was unable to
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""1"" 1"**"""""1"Y ** th' ******"**)' h**"i"8" " ***"*"7 1**"**
g werescNduledtobeginJune 21, 1984, with the pledge by the Board to' g complete the hearings and issue a decision prior to the Olympics, the focus
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23 hearings were to commence, and a few days before the~ bulk of the testimony g
was due to N filedk the Univsrsity announced its intention to close g
the a ility permanently, de amissi n it, ani withdraw the application, 26 g requesting that the evidentiary hearings on security be suspended. mis has resulted in the Olympics having come without the promised prior 2,,0/ Five of CBG's. seven witnesses had not yet filed. De Board had been Provided, at its request and over CBG's objection, the uncorrected deposition transcripts of three of the fives the Board saying it would use them ror the cross & CBG could appeal if used for any other p se.
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'videntiary e hearings and determination af what, if any, additional measures 2 are necessary to protect the reactor and SNM on site adequately from theft 3
or sabotag', e both of which risks remain. Withdrawal would prevent a ruling 4 on ihese matters, af r'elevance gt least as long as the SNM remains on site.
5 h Juns 14 Decision To Withdraw Application. Decommission Reactor 6
7 As indicatd above, one week before the schduled start of W 8 evidentiary hearings on security, Chancellor Young informed Chai: inn 9 Palbiina that he had decided to permanently close the UCIA reactor and 10 to decommission it. He announced further that he had decided to gy ... withdraw the application for. renewal af the liconae for the UCLA research reactor (Docket No. 50-142: LicenseNo.R-71),
current W ins before the Atomic Safety and Licensing Bosni...
12 Note @st the M appihtion, and the M heense R-71, were the subject 13 74 of the withdrawal. This will be important in h discussion that follows.
15 I* * #""*h** """ """** *** h*d **h'd *h* ****i*7 *****"'T" 16
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g Ey Motion of anae date, e===e1 for UCLA sutaitted a action pursuant to 10 CIPR 2.107 that the i ...UCLA. license _ renewal application be withdrawn on condition 19 that the UCIA reactor reash out of operation and that application 20 Note again the two conditions proposed by UCIA: (1) the reactor remain out of operation, and (2) the reactor be decommissioned via a Commimmion-armM plan. Note also that ragazding withdrawal conditions, the Commission
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is represented by the Boai, not the Staff-(the forne- sets the conditions via 2.107, the latter ' nforces e the conditions ordered hr the Board once withdzawalis' effective.)
Again on June 14,1: CIA's Walter Wegst wrote to NRC's Harold Denton informing his of th'e decision to withdraw th's application for renewal of License R-71 (again, the full application, tne full license, and the full I
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docket). Wegst committed the University further to immediate plans fors l 2
... returning the fuel (both fresh and irradiated) to the Doss dismantling the reactor structures decontamination and disposal 3
Parationst.ani W ultimate disposition of the facility (Ni m M , etc.).
4 Wegst further committed UCLA "to make no attempt to fix the existing control Ede prown, and the reactor will not operate talA*"
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O (emphasisadded) Note the latter phrase is UCIA's proposed condition 1 1 for acceptance af its withdrawal of its application, which CEG in its
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8 response agrees and insists must be explicitly included as a witMrawal O
condition.
10 Finally, also on June 14, UCIA reque sted that the evidentiary 11 M ngs scheduled to commence the following week on security be suspended, 12 pending resolution hr the Board af the withdrawal actiora In a conference l
13 onll with the presiding officer and parties, UCIA agreed to, as a condition I4
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of suspending the hearings prior to the Olympic.: (where a ruling had been 15 promised th'N in hand.sithin wAska), remove the SNM on site as soon as l
l 16 possible, befoe the olympics if possi m . All parties were instructed 17 to assist in expeditiously carryirig out that stipulation, and the Board 18 issued an Order on June 18 &_-p-Mig the bearings on those conditions.
l 19 Staff did its part in assisting--NMSS drector Burnett personally committed 20 to expiditing all paper-work and approvals, saying he would assure they 21 took a f'eu days at best, and identified for UCIAAavailable shipping casks, 22 saying he siisply awaited formal request from UCIA to push the approvals 23 through. UCIA refused to sutedt said request and to comply with the 24 stipulation and June 18 Board Order, and on June 22 the Board vacated the 25 Ordor of the 18th, requiring instead as conditions for suspension of
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f 26 the security hearings that the SNM be removed offsite as soon as 27 reasonably practicab1'e, consistent with applicam regulations and UCIA's 28 security, public health and safety obligations. 'Ibe entire incident of UCIA's l
I refusal to comply with its own stipulation and th'sBoard's directed conditions 2 in this matter ustgec&wthe absolute neenssity that all commitments UCIA 3 has mad' s rosardinst avoliention withdrawal be exnlicitly snelled out in the 4 wih==1 order and N het= commitments. enforceable by the Commission 5 ami thh courts, as is ts usumi practick with withdw.a1 coniitions, as 6 shall N shhn below.
7 On June 25, 1984, UCIA Itxecutive vice Chancellor v4114-= schaefer, 8 in a letter serNd on the Board and parties by UCLA Counsel Carater on 9 Jun's 26, committed UCLA as follous regarding removal af the reactor fuel, 10 quoting th'eBoard's June 22 order to remove the fuel as soon as reasonably 11 practicable:
12 I assur, you.we will move as. expeditiously as, possible in complying with the June 22 ceder of the Apaic safety and Licensing Board.
13 (emphasis adad) 14 UCIA further infora'de th'eBoard and parties that, in' compliance with the 15 Board's directive that, also as a condition of hearing suspension, it 16 render functionally inoperable the reacter, it had severed the control 17 blade shafts and taken other actions to anke the facility "Dermanently
, ino[erable. " (emphasisadded) i l
19 20 UCLA's Proposed Conditions l
21 UCIA thus ess'ntially e proposed four conditions: (1)thereactor 22 not operate semin, (2) it be dismantled, decon+==1n=ted and disposed of '
l 23 according to a Commission-approved plan, (3) fuel be removd as expeditiously i 24 as Nas6hkidy practicab1', s (4) the facility, prior to compl'ete dismantlement, 25 be Nndered permanently inoperab1'e. UCLA proposes i==ediate withdrawal of 26 ts application on thom conditions, and termination of the procedingu, 27 "without prejudice." 'Ihe phzase "without prejudice" is not defined, but 1 28 app'ars e to conform with the App'al e Board's definition in Fulton
l 1 (M57,14 IGtC %7, 973) that the Applicant is free to apply for a new 2 license at the same site or another site for a reactor af any type other 3 than the type for which this application was submitted. Since UcIA's i 4 ,v;--N conditions are that this reactor not operate again and be decommissioned.
and einne Antonauts have 1onse-since ceased being available the 3
l 6
withdramalwouldconstitute'gigg.indiostaforitsArgonautapplicationhat 7
wou3d be without prejudio' s to applying in the futur's for a new reactor of g some oth're sort at UCIA ar another site. 1his needs to be spelled out 9
- Kplicitly in the withdramal order (jag Board's criticism af lack of i
10 spoeifity W lower lichasing bonzd in Fulton. 33g1, regarding prejudice, 11 anditsdefinitiontherein.) Vith that sp' ell'd e out and certain additional
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specificity included as to the other proposed conditions (e.g. completion 12 13 d****' ir"'U"8 "'9"i"*"*"**' **** ) UCIA PP' "i*hd'***1 **"di*i
for approval 4 th' sBoard fit gan==11y th' requirements e af 2.107 and 74 appliamble case law. CBG's ew- ) anMfications did pr=a4=1y that-i 15 i
-16 1*i"8 i"8 uCIA "v;-: h conditions into co =14= N with 2.107 and the l It osse' law.
18 gg 1he Staff's qqssonae 20 application, suggests a rather astoa4=h4a* approach to UCIA's Motion 21 i . .. .
l for Withdrawal that could be seen to suggest stanting, through withdrawal, 22 what UCIA did not receive through applying far renewal. Whil'e these 23 prob e1'ss say be merely.du' e to inartful and inexact crafting af the language of its proposal,2fnot aare carefully written it could be seen as having 26 27 _23] See Cac introductory panel on inherent safety, at 2 27 28
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12-I n Staff proposes that the withduval of the application for license
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2 M N ind'efinitely postponed, despite Applicant's abandonaent of all
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3 plans for raneuml. This indefinite po-b+d t is to be open-ended.
~4 ustspecified ggg, unlimit'd in duration but extending at mMann many zgrg.
5 Staff propos's, e in addition, that tX2A be p'rmitted e to keep--also indefinitely-6 N h gggh_ M g 1980 and which has boon in effect these many 7 years since then only 4 virtak at the application for rensual UCIA now 8 requeste to witMraw. And lastly, Staff appears to piegn despite 9 . indefinit'epostponement af withdrawal af the application-removal of all 10 involvenont 4 th's Boazd, and the Intervenor, in gg, matter relatd to
'11 th'e remeter.
12 IN SHGtT, STAFF PROPOSES THAT IX2A BB GIVEN, IN RESPONSE TO ITS -
l 13 RRIUBST FOR WITIERAVAL OF ITS APPLICATION, PPmEY THAT WHICH IT HAS 14 NOT WWI ABIE TO GET BY THE APPLICATION I7SEIF-I4NG-BRM EXTENSION &
15 RS LICENSE,. vin 00T RESOLUTIQt & ANY ISSUE OR ISSUANCE OF ANY FINAL f
16 DECISION 0N THE MRITS. Furthermore, Staff proposes that % functions 17 of estaMi-his conditions far withdrawal mandate to the Board by 10 18 CPR 2.107 b's usurped by Staff, and that, despite indefinite deferral of 19 withdrawing W applica m n over which CBG has intervend , Cac be remor d 20 from all participation and all af its rights occuring through that participahn 21 he stripped. Ikd'r e the Staff pieW, UCIA would be granted, in 22 response to its request to withdraw its application, ggg than it could 23 possiEy hav' e received 4 the application its'lf-indefinite e continued
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24 possession of its license, without an expiration date, wihut need to 25 Prevail on th'e n'arits through evidentiary hearing that such grant is 26 justifiaMk on grounds of public health and safety, and with the removal 27 af th' strouM'some e (from WIA's standpoint) Board and Intervenor.
28 This effect, whether due to poor craftsmanship or otherwise, would violate I
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. I as shall be discussed $ low,well-settled starvlawis for dealing with withdrawala 2 as well as the most furvinanntal and elementary principles of fairness and due 3 process, in addition to being totally unnecessary. As ahe11 be discussed 4 in detail below, Staff's proposal violates the full range of NRC 5 precedent on this matter--that withdrawals are effective insediately, 6 with conditions a legal commitment to be followed thereafter, that Boards 7 (not Staff) are r'esponsible for approving site restoration conditions 8 for withdrawal under 2.107, ordering their implementation as a condition 9 after withdrawal, leaving residual rights to the Intervonor ani Staff to 10 kos m th m conditions aN encored. h' Staff's proposal can thus be 11 read to violate the full range of NRC practice and procedure regarding 12 withdrawals, would be sassively injurious to CBG's rights and those at 13 t N PuMio, and is totally n = anamaa n to boot. Se longstanding, proper 14 procedur' s for application withdrawal, as mandated in the regulations ani 15 omse law, tans care at any promens identified W Staff without any d 16 the injurike its proposal would occasion.
17 18 m . M h on 19 UCLA has applied for withdrawal of its application pursuant to 20 10CPR2.107(a). Dat regulation provides in pertinent parts 21 withdrawal of an application after the issuance of a notice of' hearing shall be on such terms as the presiding officer 22 say presaribe.
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23 2 at langunse is essentially the same as that of Rule 41(a)(2) of the
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24 Fedeml Rules of Civil Procedure. As stated-in Stanislau , "It is 25 abundantly clear that the Appeal Boards favor following the Federal 26 practice in Commission proceedings." Virtually all published decisions 27 in NRc/ABC case law regarding withdrawals rely on the Federal interpretation 28
- Pkcific Cas and metric company (St=ni=4us Nuclear Project, Unit 1),
32-2, 17 NRC 45, 49-50 (1983) (discussirw F.R.C.P. 41(a)(2) and the Federal practice regarding voluntary dismissalaf
-1 of rules for voluntary dismissal.
2 1he NRC practice, consistent with the F'deral e practice generally, 3 18 ** Permit voluntary withdrawal without prejudice if no substantial right of the Intervence.is injured 4 such withdrawal that a===at be ==d whale 4
I" *****hi"" ^""""hte comitions as terms to the withdrawal. If such
'5 6
rights cannot be made whole 4 attaching appropriate endimns and terms to the withdrawal, it must be with prejudice to the Applicant.
7 l g Prejudice has been defined W the Fulton Appeal Boarti as foreclosing the g
righttoapplyforadifferentkindofreactaratthesamesite.Eb/
If granted without prejudice, conditions are to be attached to e1 h te 10
- or compensate for inconvenience or injury ocomaioned the Intervenor W 77 the withdrawal. Condi b ne are thus to protect the rights of the Intervence--
12 13
"*'**#***"* * **88*****8' ** 'd# **8b** ** ** ***hd***i"8
'- Applicant and removie them from the Intervance.
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disbursements ande nosessary W having to face the possibility, due to l.e withdzmual without prejudice, of having to litigate some ar all of the sam's issues a second time. Wh'reas e the 3 g3, prospect of having to g
20 l nNo.iudios, that is boomune.oondiWas such as payments of fees and other 21 disbursements, as well as document preservation, generally can make whole th'sprosp'eot of a second litigation W not, forcing the defendant to ag, twice to litigate the same matter and assuring no loss of rights acquired 24 through the first litigation, such as loss of documentary evidence necessary 25 if the matter goes to a second litigation. Furthermore, if the injury is 26 beyond th's M prosp'est of a second litigation, and involves loss of 27 28 2J/ N , e.g., Rochester Cas and Electric Corporation (Sterling Power Project, Nuclear Unit.1), AIAD-596, llNRC 667, 869 (1980): Fulton. 3 Puerto Rico Electric Power Authority (North. Coast Nuclear Plant, Unit 1, AIAB-662, 14 NRC 1125, 1134 (1981)3 Duke Power Co._(Parkins Nuclear Power Station, IJnits 1,2, and 3), LEP-82-61,16 NRG U zd (1982)
W uMie - ..--
l L '
I rights or inconvenience caused which cannot be reaedied by imposition 2 of conditions such as payment of f'ees, eats, and relat'de disbursementa, 3 or docum'ont PNe'rvation, e then dismissal must be with prejudice.
(
4 1he defindant has tN right to preservation of a compensation for any 5 rights seguiNd throusn the praas4== that might otherwise be lost due 6 to the withdrawal.
7 In lac practice. Intervences are protketed ---inat inconvenience 8 or injury 4 withdzawal without prejudic'e4 document pr'servation, e 9 post-withdzawal S porting requirements and rights of inspec M n to assure i 10 co"Pli-- with conditions, sith retoration (4 dates outin), and 11 Svocation of any Naidual lichnses associated with the withdrawn project.
12 Withdrawals are 'offootivh i=Ndiately, with the conditions a Mnding 13 ocamitment omforces h 4 the w aaian and the courts, with residual 14 rights to None and Staff to ensure =>==H-=ah with the 1elly Madian 15 cemitNets. Fa s, costs and other disbursements to coup esate for having 16 to go through the expense a second time if the dissimi is without prejudice are permitted,but the san's Fed'eral standards must be met in order for an 17
! ig in'terrenor tp goalify (due to their case particulars, no.intervenor to date gg has not U m s5 nd= M )'s t N dismissal must be eff'ctiN e 1y without prejudice ,
t .
and the osse East have progressed far enough along into and beyond the 20 disco Nry phas'e that the injury oconsioned W withdrawal without prejudice 21 i
cannot be comp'nsated e for me N 1y 4 document preservation, yet not g g :::1
! 22 far m ough that t re were final decisions (in which case the American rule 23
- F* ) * ""** " * "~
24 for granting of f at met t date in previous cases at bar, but fully 25 26 applimEe in tN M case, Mia"lely if any part d N SWf's y.W 18 ### pted: that fees and related costs and disbursea'nte e any be a rr esiste
'27 - -
r ,
28
t I where the case "got off the grasad" in that it progresed substantiany
~
2 into " extensive discovery, enteNd into th' s trial stage, 3 and whers interv'nors e deslopd information which case doubt upon the 4 application. BgML S9BE t a Eggg,14 NRC H25, at n35, n. H.
5 In short, in NRC as won as general Federal practice, withdrawal 6 without y kjudice is on such terms and conditions as to prevent inconveni a ce 7 orinjurytoInterNaces(nottheApplicant,asStaffwouldpropose):
8 are responsibilities of the w'esidina officer (not the Staff, as Staff 9 wouldpropos'): e are a'ffective imediately upon ruling oc the conditions
. 10 (not after th' sconditions are met, sometime far is the future, as Staff 11 would propose): require reR2hl af existing licenses for which the 12 application has been withdrawn (not indefinite granting of the license 13 for which the application has been withdrawn, as Staff wou3d propose):
11 and ar's N ]&ggag, with r'esidual rights left to the Intervance to 5 -15 assure complianek and obtain kafarceSat through ts courts if necesesry 16 (not a setlaan's agemmat betunn Staff and Applicant, band on " good 17 faith" and no legni force preventing 2ater refusal to carry through, as Ig Staffwouldpropose). Most importantly, Applicants cannot obtain t
19 through withdrawing applications that which was not f%11v grantd
- i. 20 through applying, as Staff would propose.
l l 21 % relevant case law, the conclusions at which are summarised above, 1
22 is discussed b'elow.
- M QW MW 24 continue 6 Service of all Documente-Vermont Yankee, Sheeron Harrisb 25 1hese first two cases define rights of Intervenors to service of all l
26 27 Staff-Applicant correspondence relatd to b facility in question until
( . .. .
28 the application is finally determined.
! J2 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAbl?9, 7AEC 159,1838 Carolina Power & Ligat Co. (Shenron Harris Nucinar Power Plant, Unita 1,2,3 and 4) AIAF16+, 7 AEC 229, 237 (1974]
1 In Vermont Yankee. W Appeal Board ruld that % requird service 2 of all Staff-Applicant correspondence and other documents related to the 3 - facility at issue in an adjudicatory proceeding 4 ...aust continue unntated during. the period allowed for judicial reviou 3. therentter, during the. Pendency. af. judicial review, those 5 practices must continue unntated.with respect se parties who participate in the judicial review proceedings.
6 Yor No 7 har is intended to preclude some all of 4part sa[es fbof course,into entering voluntary arrangements to
.g continue serving documents after jud4M el review.has been concluded.
And, the issue not having. been presented here, we express no opinion g as to whether a. Party is entitled, after judicial review has been concluded, to personal service of those documents which relate to 10 a matinuing W=ing or MEMoring Mquirement imposed in annecMon with the resolution of an issue as to which the party had played l
77 an active role in the u ns.
12 e issue left pen was later resolved in M and Stanislaus. ,
13 s p , where' u ne nn# u p e nng and monitoring n quirements imposed as 14 conditions to application withdrawal requird continued service.
l 15 In yggli Jgkgg, however, it was determined that a right to continuing 16 service exists through the entire j"d d=1 review Period. It should thus le be noted that were Staff's proyve.1 to be ace'pted e of deferring the effective 18 gg son'e many years hence, continued servicar on CBG woulds b' r'equired, just g as CBG is iscesing r with its conditions for immarHate effective withdrawal.
g In 3lgggg ]hExia, th'e Appeal Board expanded the standazd set in l
Vermont Yankee to include all Staff-Applicant correspondence whatsoever about the facility, evEen when it involNs an application addressed to Staff, M . .
not the Bonzd, for an action in the purview of the Staff outside .the matters directly at issue in the license proceeding.
l 26 g/ Se Appeal Board also ruled that wher'eas % Incal Public. Document Room need he amintaiped during the course of the adjudicatory proceeding, it need 27 not be maintaind thereafter through % life of W plant, assin. leaving open the issue whether,it say be so required as part of a continuing repceting or
! 28 monitoring requirements. imposed as a condition. Furthermore, if one accepts Staff's proposal.cf indefinite deferral of application withdrawal effective date so.as,to, keep alive the timely application provision, then the LPDR aust likewise be kept alive until tho' application is effectively withdrawn.
1 In g g ggg h a contested construction permit proceeding, s
2 h Applicant in that proceeding requested, and the Staff granted, 3 an 'exemptim permitting the <=OAnt of certain on-site construction 4
activities. No prior notice that the request for an exemption had ev'n e 5
w rs uma anceded Intervene. h m enaing Board and Appeal 6
Boazd susped'd e in part work maar S exemption pending Se outume d 7
a full U*ine on the merits of the exemption. The Intervenor, among g other complaints, complained to the Appesi Board about the lack of service, i
g of the correspondence requesting the "exemption from the Staff. As the Appeal Board stated the pro Een 10 gy ...the applicant,did not give notice.to CCNC that it had applied for an esemption. A conseguence of this failure.
uns that CCNC did not learn of, the nation until 12 the regulatory staff had granted it. te omit .
13 It was arge'ed 1y the Applicant in that case that adversary hearings
~ 14 are not M for applications for 30.12 esemptions. 1he Appeal Board 15 ruled. O 16 ,,,,,ggna ,,m . ,in that section (ar.in.any of the ca-t-ian's l-I,t, Rules of Practice) which - M to re',ieve an annlicant for a l Section 50.12 esemptics of whatever ob1 .sation it may otherwise have
- with resoect to h m:. vins of notice to other arties in a vendina L 18 it- ~ . , & - f i, <
. nvolvinz W m eia 1 remotor.
~ (sushasis added) i l 19 1he Appeal Board con
- M 20 Among other things, tis fact that taere is no risht to an.
adversary.**in- on the. exemption application does not mean t. hat 21 an intervenor in the H
- na g :_M == any not submit to the regulatory staff an opposition to the application--setting forth 22 the reasons why he believes that the section 50.12 standards are not met.,1here is every reason to assume that the regulatory staff 23 would deem itself under an obliantion not merely to accept. such.a submission,.but also to give it consideration in unking the determination
. 24 as to whether an esemption should be granted (and, if sot what construction activities should.be encompassed.within it.)
L 25
- 26 27 28 s
1
%e Intervenor had cont' ended that adversary hearings should be held 2 on the exemption application.unier 50.12. S e Applicant had disagreed.
3 (In this case, the Commission ruled that adversary hearings may not be 4
requiraundAr50.12,butshouldb_eheld_giventhecircumstancesofthecase and directed
- mensag soard to h 2d such a hearing.61 ee -me 3
6 1**** *as independent, concluded W Appeal Boards
- . In short, the resolution of the notice issue does. not hinge upon a determination of either the validity or the thrust.
of Section 50.12.. Rather we think it turns upon whether considerations 8 of fd r auite nossibly rising to the dignity of nrocedural due w-c _ : m u:.re that. once a reactor has reached the noint of an 9 adjudicatory :.icensing m-:-::_Hins, the narties to the T,s+::Mina are entitled to nrompt notice of any Wnificant develonnent within 10 the r= 1-tory f==-work (such as the filing of an exemption application) which has.an inconi w4 t.ihle bearing upon the subject matter of 11 the proceeding. Tous,theanswermanifestlyisintheaffirmative.Y 12 13 g ye rickntly had aaa--ian to discuss anotheraspect of W question concerning the right of W narticinants in an on-going administrative 14 Wa"--di"" to versa =-1 service of =au annlicant-staff m- a= w-na-relating to the facility". /,, citation to Versont Yankee / In that 15 decision, we held that the f.ntervenars' risht to insist that ther be nar=aa-M y served with a' .1 c m a 44ence between the annlicant and renula",ary staff relatet to the exercise by the regulatory 16 staff of its onsoing rezulatory responsibil:.tr.r===%# in existence 17 not j'2st until % conclusion at =d=4=4stra".ive procesiings but throughout W period during which our decision,. or the Commission's, 18 was subject to judicial review. If anything, h reasons.which led us to. reach that result are even more, compelling here, where agency 10 proceedings are still under way. (emphasisadded) 20 In conclusion, the Board said "wk can see no possiW justification" in which 21 a party which has opposei an application for a permit or license for a particular facility is not "promptly informed" of other applications being 22 filed, r other action being taken, with regards the same facility.
23 24 2p mus, evert were Staff's argument that decommissioning. is not a condition 25 under 2.107 within Board jurisdiction but solely within the Staff's jurisdiction-26 a sattee dead wrong, as shall be discussed below--and even were its additional argument correct. that there is no right to intervene in a. 50,82 decommissioning 2#
application-likewise dead wrong-the responsibility to serve "all correspondence between the applicant and regulatory staff related to the exercise by the regulatory. staff of its ongoing regulatory responsibility" is a right for 93 the Intervenor which c3sains in existence "not just until the conclusion of the administrative proceedings but. throughout the period of judicial review. If Staff's proposal is accepted to defer indefinitely withdrawal tely continue, as well as ervigmust g
1
~
F 1 Tven were one to accept the wildly erroneous argument that site 2 clean-up conditions to be attached to the application withdrawal are matters
~
3 outside the Board's jurisdiction and outside the proceeding to which CBG 4 is a party, which, as shall be seen belou, is radically wrong,
~5 continued prompt utice as well as service at aM. staff-applicant carrespondence 6 relatd to W facility in question, he it on decommissioning matters or 7 otherwise, must continue until the application is effectively withdrawn 8 and the period af judicial review completed. Since staff proposes 9 indefinite delay in application withdrawal--so UCLs may keep a license 10 it nei h r needs nar has right to--notice and service of all facility-
, 11 related applications, correspondtace, progress reports and the like must 12 continue indefinitely. If one f.:.llouu the practice requir d W the case 13 la"--site restoration conditions approvd 4 h Board, withdrawal effective 14 immediat'ely with conditions legally MnrHng--continued service and
-15 reparting requirements far purpose of monitoring completion of the conditions 16 is necessary and a right at h Intervenor, as shall be seen in discussing 17 certain withdrawal cases, later.
. 18 19 sheffie:.d Avolicanta Cannot Unilateral',y Withdrawn Ms Phast Rule on Vi".hdraw Requests and Attach Ayw,og. ate Conditions 'Dnerato 20 -
21 Given the wealth of cases to the contrary, it is perhaps not surprising 22 that staff cites to only one case in its eutire brief assertedly supporting 23 its cont'entions that the Board is prohibited from reouiring specific site 24 clean-up n'nsures e as a condition far withdrawal, that a separate action 25 contro11ad exclusively by the Staff (and from which the Intervenor is excluded [
26 is requir'd,e and most creatively, that W Board, rather than accept (with 27 decomissioning conditions) UCLA's request to withdraw its appEcation, must 28 keep the application indefinitely so as to grant, without ruling on the applicatior 2_@/ Nuclear Engineering Company. Inc. (Sheffield, Illinois Im-Level Radioactive Waste Disposal Site), CLI-79-6, .9 NRC 673 (1979) l
~
U i
i 1 unlimited extension of the very license far which renewal is no longer being 2 sought. S e case relied upon by Staff is the first of two decisions about 3l tN proposed withdrawal at a renewal and expansion application for W 4 Sheffield,1111nnis, radioactive waste disposal site. Interestingly, i . .
5 Staff does not cite to the second af the two Sheffield cases, which, lire-6 *11 ** * ***
- P"* dent, appears at odds with the position advaned by Staff. So, too, however, is the first Sheffield case.
7 g Staff relies on the 1979 Commission Order in Shaffield far the following g assertions 10 mus, although a separate action is required for license termination, the license and the requirements thereunder must be retai gy for the time necessary to obtain an arder of tersdnation in the previous sentence to require " considerable time" and 12 onlT alis, dismantling and disposal ons are comple and any.not, be unilat-11y terminated. ootnote citing to the 13 1979 Sheffield cased 34 Staff thus m Ns thro's ass ations based on Sheffields (1)terminationaf an espired licensee pt alive solely by virtue of a timely renewal application I 15 16 f e which withdrawal is roguested, is a a tter ou d d me j u isdiction of th' eLicensing Board convened to rule on the renewal application, and is conditions to permit said termination are solely the reconsibility of the 73 Staff to determine, (2) that the Boezd convened to rule on the' renewal 19 t
20 virtue of its having expired, but must effectively grant (without a finding on tN merita) the now-disavowed application for renewal, and (3) that ,
! licenses any not be unilab11y terminated. While th'e probles any simply 23 he due to poce drafting of the sentencee close reading af tiie case and the footnot'e citing SN ffield make cla r that Sheffield provid'se authority only for th'e last of these three assertions. Staff has no authority in the case law whatsoever for the first two-Staff's key premises--and in fact, all th' ecase law go's e against it.
-- 1 In sheffik1d. the Nuclear unghering Company (NRCO) was holder of 2 a license to op'erate a low-level radioactive waste disposal site in 1111nois.
3 NECO had filed an application for renewal and expansion of its facility.
4 Under 10 CPR 2.109, NECO (like UCLA in this proceeding) was permitted to
~
5 continue its licensed activities even arter expiration of the license hr 6 virtakofitspedingrenosalapplication. shortly after a Licesing Board
,7 was ' established to rule on tN application, NECO filed notices with tN Board 8 and the Director of Nuclear Materials hfety and safeguards (NMSS) that it 9 was, as of the dath of the notice, unilabliy withdrawing ita
- 10 application and terminating its license which had continued in effect by 11 virtueofthatapplication.W 12 In r'sponse, e the Licensing Board inform'd e NECO that it could not 13 urila%11y withdraw its application, that that required Board approval, 14 and s't e a date for a h'sring e with all parties to hear wh' ther e the withdraw'al 15 should N acceptkd and, if so, under what conditions pursuant to 10 CFR 2.107.
16 At thk' sad tid, tN Director of NIBS respond'da to NECO's letter to him 17 by similarly informing NBCO that, since the Board had not yet accepted the Ig withdrawal nor determined what conditions should be attached thereto, t
19 NBCO's license rossined in effect pursuant to 10 CFR 2.109 and likewise 20 cald not be unilaterally termina4d.Y 21
- 22 L 23 -
24 25 ,2,2/ 2 affio.d. 1 9 NRC 673, 674-5 26 27 ag' sheffield at 675 28 d
,.w-- >-m,- ., ,-. .m - , - . . , . . .~,._,,..-,,m ,_,-,,,,wa,-w_ _ _ . , , - _ . , _ _ _ _ _ _ - - _ _ _ _ _ _ _ _ , - - - . _ ,
1 M informed NMSS tlat it was immediately (i.e., prior to Board 2 ruling on its withdrawal pleading, which the Bonid was treating as a motion 3 for withdrawal) ceasing to comply wi' the teras and conditions of its
_4 license, which was confirmed by NRC inspections. NMSS ordered NECO to
~
3 show cause why it should noter'sua'e ita responsibilities under its license, 6 N i"f disposition of its request to withdraw, and provided NECO twenty 7 days to $ quest a h' earing if it wishal on the show-cause order. NECO
~
g subeeguently e r' qu'st'd e e such a hearing, but asked that it be combined with
.g theLicensingBoard'salready-scNduledhearingonthewithdrawalaction, 10
- 'd **k'd th* C'*'ission in the interin to stay the i=U4=te effectiveness gg of the Director's show-cause order. Se th==1 ==4 on od' clined to do so, ruling that tN Di$ ctor of NMSS had acted within his authority in issuing 12 the ordhr, est tN shoueuse hearing requesM W NECO should be masolidaM 13 14 wi p the al Nedy-scheduled Boazd hM to d'etersiN if the withdrawal
!' amepted and und' o r what ' conditions, and that' the $quirement to -
15 comply with tN licens' e responsibilities " remain in effect at least until 16
~ '
37 tN issues have heen resolved 4 a Lie ==4M Board. 3/
- l. gg 2ns, the issue in Sheffiald was wh'th'r e e a licensee, whose license
~
gg r'mained e in force by virtue of a M 4 M r'nsual e application pursuant to 10 M 2.1@, muld Walk away from De resPenNties d that license 20 pri r t the ti d tN Board d'etermin'd e wN ther to p'rusti e and if so, 21 g und'or what conditions, withdrawal of the application and thus expiration g of the lic' ens'. e Bis is a far cry from the promises Staff in this case o ' ~
ass'rts a are provid'de authority by Sh'effie2d. aside from the elementary g
g fact that licensees and applicants cannot tEMANEnllY terminate licenses
> and applications, but shall only be on such conditions as tN Consission
- 26 g establishes.
28 2r/ sheffield g g a at 675,678-9.
P
~~a- _ - _ _ .
i i -
1 Note also that whereas staff in the UCLA case asserts that Sheffield 2 demonstrates that site r'storation e and stabilisation specific conditions 3 are matters to N decided solely 4 the staff in an action separate from 4 the withdrawals proceedings and in which neither the Board nor parties have
'5 roles, precisely the opposite appears to have been the case in shaffield.
6 There % staff submittd to W Board a list of propoed conditions, input I . . . .
7 #as prwidd by W o@er parties, and it was up to the Board to determine
[
l l g the specific site redress measures upon which to condition application withdrad 9
and ens licese expiration.Y It was W Board's determination-not the staff's--and it was to be done in % licensing proceeding, not as staff 10 11 suggests here, in an action separate to which the intervenars would not be 12 I'#tI' Note also that Sheffield clearly puts to rest any assertion that 13 site redress conditions cannot be applied W W Board in the UCIA case 14 beause W Board mWy had not authwed any actions which had anected 15 tN " environment, being a r'eneuml i sorhhiing where grant of the initial 16
~ ~
license had pr' e ceded it. Aside from the obvious answer that W g-S'1y 77 gg and' e possible years of additional environmental impact (e.g. site contamination)
( gg by permitting continued operation under 10 CFR 2.109, Sheffield makes clear 20
- * *"** "'"*"" " # ""*# ""# I" * "" * " "***E Work Authorisations permitting activity, as in the many construction parait g
cases in which site r' edress was a condition of withdrawal, likewise has
( g g the authority and duty to condition withdrawal on such site redress terms as are necessary to protect public health and safety and the rights of the
, parties. SHEFFIELD. LIKE UCIA A RENEWAL NOT A CONSTRUCTION Pli3tMIT PROCEEDING, ljV Sheffield npra, 12 NRc 156,158 .
26 ,
27
, 28
-____m -.___.-m..____~~._-,-._,_,m
_y_ .--ym m7 wm,--- r,_,__,-.___m_.m.,,._--
.1 CONSIDERED SPECIFIC SITE RESTORATION CONDITIONS FOR WITHDRAVAL, EVEN THOUGH 2 THE BOARD THERE HAD ISStlED NO NEW PERMITS THAT NEEDED VACATING. As in a 3 construction permit proceeding wher's LWAs or cps must be vacated if withdrawal 4 is granth, a r'en~wal e ,.vchsiing 3 for which withdrawal is reque sted results 5 in termination of the lic'ense for which renewal was requested by simple 6 opermWa of law via expiration. Therefore, site r'estoration condi W ns i- 7 must N considhed 4 % Board as withdrawal terms to protect the public g and parties.
i 9 In short, Neffiel_d would not appear to .,n -; the Staff's posi@n 10 in this case, but contradict it.
L
. 11 i
y.
12 Sterlis.a innhts thanat T===ove Their Position-i.h %=a th=
Retention of ",ha 1souested Permit or Lic==~Br Termin=_*' == the PraaU4 =n" 13 14 1hd Stirlim case makes quite clear that what the Staff appears to 15 N , v M indsfinite continuation of the license, the applica W n for l 16 renimal af which is being withdrawn--is at odds with the case law as well l
17 as, in the App'al e Board's words in sterlina. "considerawns at fnM mental 18 fairness." .
19 In h a construction paratt had been authorized W a licensing 20 Board, which save g all jurisdie n over it, ami affirmed W the Appeal 21 naard on all but two issues over which it continued to retain jurisdiction 22 (radonandneedforpower). The Applicants requested the Appeal Board 23 strike Star 11m from its docket Noaune of project discontinuance, an1 terminat e 24 'all Emaining issues raised by the intes.renar's appeal. The Appeal Board 25 sranted that 5 11.f. indicating howev're there remained an additional question:
20 g.Rochestar Gas and vlectric Corporation et al (Sterling Power Project, 27 Nuclear Unit No. 1) ALAB-396, 11 NRC 867 (198) 28 L
- t. '
I l
-' . j 1 But as the NRc staff correctly points out in its response to the appli t's . termination request [ footnote to date of 2 letier omit , there repains the question as to the status, once the evc.eding has been terminated, of the. construction 3 permit which was. issued by the Director of Nuclear Reactor Regulation on the strength of.the initial decision. Although
-4 the applicants have sidestepped that. question, its answe is diotnted by considerations of fuM==arttal fairness.
- Had -;he intervanor's anneal % n - w uned to a successful W ==4aa- the aa--4 ble aa= = ==aa- wan' d have M n not merely 6 " "--- wal of we inie=1 d-a M on but. as well. me revocation of the se w a tion neriet. Surely. the annlicants caniot 7 iamroue tseir Dosition--:..e.._ insure the retention of tse seruL",--1r havina: us ter=4=-te the m --reedina =nd thus bring a g 1 alt to %e anneal.
Sterling at 868-9 (emphasis added) 9 Despite ths very clear language of the Appeal Board here, this is 10 preciselywhatthhstaffwouldhavethisBoarddos have th'e Applicant 11 (UCIA) improve its position-i.e., insure the retention of the license, 12 indked without any expiration date--ty having the Board terminate the 13 proceeding and bring a halt to CBG's challeng's to the license, but not 14 Permitting th'a lic'ns' e eto " expire as required under th'e timely application 15 rule,(10cra2.109).
~
16 . h App'eal Board identified the ave vydate response: " remove the
~
17 authority underlying" th'e permit or license in questions 18 'Dnis will, in turne call.upon the Director af Nuclear Reactor l
Regulation to perform the ministerial duty of revaleins the normit-19 1.e. t 2e same duty that he wou'd have had to di=ah-* se in the event tint our_ annellate review of the merits of the initial 1' 20 asoision hac. led us to conclude that the Licenains na_e l . erroneously had authorised terait 1--a-nee.
21 l, Sterling at 869 l 22 Note that it is th' Boards'e r'esponsibilities to remove the authority j 23 und'erlying th' e permit or license in question-the Director of Nuclear 24 Reactor Regulation's duty is th'e " ministerial" one of insediately revoking
~ '
25 th'e psemit at the direction of the Board. The staff's proposal would !
26 turn th's' eeresponsibilities on their heads the Director of NRR would 27 determin's when the lic'ense should be revoked, and then direct the Board 28 to r'emov' e the underlying authority for the lic' ens'eby then making the l .- .-- - --- - _. _ ..- _ _ - . - _ - - - - -
I withdrawal of the application effective.
2 'Ihh " considerations of fundaNntal fairness" which the Appeal Boarti 3 insistedrequiiedrevocationofthepermitorlicenseforwhichtheapplication 4 was being withdrawn aree'ven' moEe clear in the UCIA case than in Starling.
5 Whereas it took an affirmative, additional action on W part of W Appeal i
6 Board (vaca W n of th' e initial d'ecision) beyond mere granting termination 7 of the proceeding, merk adchptance of W withdrawal request for UCIA 8 automatically removes the underlying authority for the license for which g the applica & n is, withdrawn. WheEens the Appeal Board said fuMamantal 10 fairNes requires additional achn to revoke thi license for which an 11 applicaWniswithdrawn,theStaffintheUCIAcasewouldhaietheBoard l 12 "8* .
take tie action requested by the Applicant-(withdrawal of the application)e 13 let alone any additional acmn, so that tie Applicant might 6 that
. 14 whichitsappliantionreqNated. If the Starlina App'esi Board had to take l . 15 the additional ac&n of revocation of permit because the Applicant was not
~
16 entitled to sonething which it might not have retained on app'eal, certainly 77
. thh UCIA Licensing Boazd must not, as urgei by W Staff, refrain from
, gg accepting withdzanal of a non-moot app l ication for renewal in order that l gg the Applicant might indefinitely keep the license which it might not have 20 a t M to keep had th' eproceedings not bein terminatet and they had 21 reached tNir final determination on the merits. ('Ihis is even more striking 22 in Sterlina, where W decisions hr the Licensing Board had been completal 23 and son against the intervenore but the Appeal Board still revokal the 24 h* N * "##"8 M O ' **#*d * '" "8 * **
UCIA's li ense expiNd four years ago, and remains effective oni,v by 25 Virtue f a live app ication l for reneual-now moot and for which withdrawal 26 has N'n e requestet. As shall N seen below, moot applications are not to 27 bi kept on th'edockets as seen above, iertainly not for the purpose of 28
{
I permitting retention of a lic' ens' ewhich had the adjudicatory proceeding 2 been permitted to resolvh the re=4"i"5 factual and legal disputes, might 3 nothavebeengranted,andwasinkffectonlybyvirtueattheapplicatio:
l 4 Surely, the. applicants cannot improv' e their position--
i.e., insure.the retention of the permit-lar having us 5 terminate the proceeding...
6 Sterlins at 868-9 7
8 9
M/ ,
North Coast--Lie ==4v Bcurds Not to Retain on Their Dockets in Parnetuity an A n.ication Wsich ins Becose Entirely Academic 10
'll 1he Staff, as discusskd above, asks the Board to ignare UCM's 12 rkquesttowithdrawitsapplicationandonlysakethewithdrawalsome 13 indefinits tins in the far-aff futurk (at IAst many years) so that Ucu 14 say retain far a considerab1'e _ tim's _" the license so hotly contested 15 thkselastfouryears. This despite the fact that Ucu has announced 16 it has dropped all plans for rkakwal, wishes the application withdrawn 17 and the proceeding terminated, will never operate th's r'sotor e again and
- 18 will tear it apart and dispose of it.
19 In Egg, _congi, th'eApp'esi Board deter =W that Licensing Boards I 20 have the authority--even where ther' s is ag,r'equest to withdraw the application -
l 21 to dismiss or deny an application pending befor' s it if it should appear l
l 22 that th'sapplicant had abandoned its' plans for the facility in question.
23 As th'eApp'esi Board stated:
24 It snarce:.y n'arforce follows, however that a licensirut ha= M is
, res tn' red "o retain on its docket in rernetuity an annlication
! 25 wh: .ai has become entirelv ma= uc. In this connection, we find no"Alag.in Scotion 189 of the Act or Section 2.104 of the Rules of 26 Practice which might support'such a curious result.
(esphasis added) 27 puerto Rico E .ectric Power Author,tjy, (North Coast Nuclear Plant, Unit 1),
gg A D-605, 12 NRC .53 (1980)
l
> - - , Yet this " curious result" is prc:isely that which is oroposed by Staff in this case, even though, unlike the initial North Coast case, there is a request from the Applicant to withdraw the application and terminate the proceeding and where it has clearly announced it is dropping all plans for which the application was put forward.
Note also that, just as in Sterling where there was no withdrawal request (merely a request for termination of the proceedings) but the Board nonetheless had the authority and responsibility to revoke the authority under which the license at issue in the proceeding was founded. Boards in North Coast were directed by the Appeal Board that they had the authority to remove from their dockets
' applications "which had become entirely academic," even in the absence of a request for withdrawal. The Staff's proposal in the UCLA cace, then, is even more " curious" than the concept rejected by the Appeal Board in North Coast--here it is proposed that' the Board is _reauired to keep on the docket indefinitely an application abandoned.by its sponsor and for which withdrawal is requested.
One month after the Appeal Board remanded the North Coast matter back to_ the Licensing Board to determine whether the
. Applicant intended to actively pursue the applicePion, the Applicant requested withdrawal of the application, which was premptly granted, and the spplication struck 'from the docket. The decision accepting
' the withdrawal request will be discussed in a later section.
F f
Davi:r-BesseN-Site Resotoration Reouired as Condition of Withdrawal:
Fr st:.nz Permits Immediately Revoked. Withdrawal With Conditions Mmmed:,ately Effective: B2ards to Determine Conditions for Permit
- and Proceeding Termination. Staff te, Advise.
In Davis-Besse, .the applicant therein withdrew its application for construction permits and the Chairman of the Appeal Panel struck from its docket two partial initial . decisions authorizing Limited Work Authorizations, directing that the request that the proceeding be fully. terminated be addressed to the Licensing Board which still retained jurisdiction over portions of it. (ALAB-622.
l12 NRC 667). The Staff. noting that site preparation work had been
- performed under tle LWAs argued that any termination must be preceded by review to determine whether the conditions at the site resulting from applicant's activities there require the imposition _ of special conditions. The Appeal Board. importantly.,
directed that the Board before deciding what conditions to attach to the termination request, accord the Staff a reasonable opportunity to propose any. conditions "which its' inspection of the current state of the site might suggest be attached to the termination l' order." /~The Appeal Board appended a footnote indicating that it is for licensing boards to impose conditions upon the' withdrawal of an application," pursuant to 10 CFR 2.107(a)l7 Thus, the role of Staff in determination of conditions for withdrawal of applications, termination of proceedings, and termination of permits or licenses related thereto is to propose conditions.
It is for_ the Boards to determine whether the specific site restoration conditions proposed by Staff -or any other party--should be imposed.
Staff, in its proposal for the UCLA case, asserts the contrary--
- 36/ Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station.
Units 2 and 3) . ALAB-622. 12 NRC f667 (1980): LBP-81-33 14 NRC 586 (1981 o.
I 1
l
- l
)
T Boards (and other parties to the proceeding) have no say, site restoration is a matter to be worked out between Staff and Applicant in a separate sction. Staff's proposal turns the 2.107(a) responsibilit on its head.
In a related matter, the Appeal Board (12 NRC 668-9) criticized the manner in which the Applicant in that case .._ ..
communicated with the NRC on the termination matter. Taking issue with the procedure of submitting a letter "by a lay official of the lead applicant to an NRC staff official " the Appeal Board indicated the communications should be from counsel to the adjudicatory board instead, noting in particular that such a procedure as employed by the lay . official of Toledo Edison ignored 'the important issues of attaching withdrawal conditions related to the site work that had occurred, matters which counsel should have addressed, rather than the official, and to the Board, not an NRC staff figure. This matter has recently surfac'ed in the cace before this Board, with a number of requests for relief being submitted by letter from a UCLA' official to an NRC official, rather than as motions by UCLA counsel to the Board. These requests -related to conditions for termination, in addition to raising certain confusion because of apparent contradictions with~ requests before the Board, appear to attempt to sidestep the Board's responsibility to determine conditions, rather than
.the Staff's, and the ' requirement that Applicant's proposals related to tho se conditions be by F.otion to. the Board, not let.ter to the Staff, with opportunity for response by the other litigants.
s As indicated in the Appeal Board decision, the withdrawal request and conditions attached thereto regarding site redress pursuant to 10 CFR 2.107(a) were placed before the Licensing Board.
Staff reviewed the site, made recommendations as to conditions that should be attached to proceeding termination, application 1
- dthdr::twal, and revocation of outstanding LWAs. The Board considered the pleadings on the proposed conditions, and ordered a number of specific site restoration conditions pursuant to 2.107(a).
s, The legal basis for the existing LWAs was immediately revoked, the Director of NRR was ordered to immediately revoke the LWAs iniquestion and publish in the Federal Register notice of immediate withdrawal' of the application, and the application was
' withdrawn and proceeding teminated, effective immediately, with the site restoration conditions to be legal commitments required to ' be carried out after the withdrawal was effective.
Note again that Davis Besse is thus at right angles to .
- the proposal by Staff in this case. Existing permits were immediately y revoked, withdrawal and proceeding termination likewise immediately effective ~, with site restoration required as a condition to be o
carried out thereafter. The Staff was in the role of a party proposing ' conditions: the Board, pursuant to 10 CFR 2.107 was the decision-maker. There was no " separate action" for termination 1
of the existing permits, the permits were not permitted to continue with withdrawal only after the conditions were met. Specific l
l requirements for site restoration were attached by the Boards
- not a transfer of that responsibility to the Staff.
e .
-33" The Director of NRR was directed by the Board to immediately revoke the existing permits, with site restoration to occur later; Staff here proposes the Director of NRR determine whal site restoration is necessary, and . direct the Board when to revoke the application.
Again, this is upside down.
No distinction idth the UCLA case can be made on the basis that Davis-Besse was a construction permit proceeding. If an LWA or permit is required to perform site alteration at a proposed nuclear facility, and if Staff's argument is correct that it needs to
. have.the licensee taaintain an NRC permit or license in order for the Staff to retain jurisdiction over_ the licensee to ensure site restoration, then Davis-Besce and all the other cases where site restoration was required as' a condition for withdrawal are at odds with Staff's interpretation. The Board in Davis-Bess _e (affirmed by the , Appeal Board in ALAB-652,14 NRC 627 (1981)) yanked the authority for the limited work authorizations (and directed NRR to perform 'the ministerial duty of revoking them), with site
. restoration to be performed afterwards acccrding to specific requirements established by the Board. If a permit or LWA is required for construction work at a site, it would likewise be required for construction work involved with site restoration.
D If a permit is required to enforce site restoration, then the Davis-Besse boards should .have been required to - follow the proposal Staff puts forward in the _UCIA case: ' withdrawal of _ the application effective only.upon completion of conditions, conditions being primarily that the Applicant apply to the Staff for permission to terminate the LWAs, Staff to determine whas site restoration is required. LWAs terminated only after site restoration is completed to satisfaction of staff, who will then direct the Board to make
r z -
a s
'the withdrawal effective. As noted in Bailly, citing Davis-Besse,
' the withdrawal procedure sanctioned by the Appeal Board is just the opposite--withdrawal effective immediately, with conditions
~ legally binding and to be accomplished thereafter, all permits immediately revoked, site restoration required thereafter. As shall also be discussed below, and was touched on in discussing Sheffield, any argument that this procedure is not relevant to UCLA because it is a renewal proceeding where the authority in question was not granted by the Board in question is likewise shown to be
,in error in Bailly, which required the same result as in Davis-Besse, despite the fact that the latter was a CP application
- proceeding and the former an extension (i.e. , renewal) proceeding.
Fu't Tui jbn32[-Licensing eauires a Showing Boards Have Power of Substantial Injury to Dismiss that _With Cann6t be Made Prejudice.
Whole by Attaching ADDropriate Conditions In Fulton, a Licensing Board dismissed an application with prejudice, ' believing that the' record demonstrated that the Applicant had been less than candid with the Board during the proceeding about its intentions regarding the application and that it had misused the Early Site Review procedures. The Appeal Board overturned the decision, ruling that although Boards have the authority to dismiss with prejudice, the record did not support the conclusion of the Licensing Board regarding the ESR procedure o
and the Applicant's intentions in that specific case. The Appeal Board defined " dismissal with prejudice"--criticizing the Licensing
. Board for not having explicitly so defined what it meant, something important to do in this case--as foreclosing the opportunity for applying for another kind of reactor than the one for which the p Philadelphia Electric Comnany (Fulton Generating Station Units 1&2) .
ALAB-057, 14 NRC 967 (1961)
. withdrawn application was addressed at this site. UCLA's request for. withdrawal andits proposed conditions fits .the Appeal Board's definition of "without prejudice"--UCLA proposes a condition that its Argonaut be decommissioned and not operate again, obviously foreclosing the re-application for renewal of this reactor so
, long contested here, but reserving the right to apply for a license for another reactor, at UCLA or elsewhere. Although half of the contentions being litigated in this proceeding were not tied to the particular type of reactor, being site-adequacy or Applicant competence (e.g. history of noncompliance), those issues might have to . be re-litigated were the Regents to apply for another reactor at some other time. The issues as to the Argonaut, however, would be forever mooted by. the conditions to decommission and not operate. Thus, UCLA seems to have defined "without prejudice" in its proposed conditions the same as the Fulton Appeal Board, but as that Board indicated, it should be made explicit. (We note that Staff has not commented on UCLA's proposed condition 1, no further qm operation, which CBG insists upon. ).
~
North Coast (2)3S!--Dismissal Should Generally Be Without Prejudice
- Unle3s There .Would Be a Substantial _ Injury to the Intervenor or Publj.c that Jould Not Be Remedied by Conditions on the Withdrawal Such a Condition Might be Payment of Costs and Fees if the Expense Had Been Substantial and Intervenor Had Developed Information that Cast Doubt on the Application.
In North Coast, the Appeal Board expanded on its discussion in~Fulton, supra, regarding withdrawal with or without prejudice.
Citing, as it did in ,Fulton, the Federal practice, the Appeal Board US Puerto Rico Electric Power Authority (North Coast Nuclear Plant, 1 Unit 1) ALAB-o62.14 NRC 1125 (1981)
once again indius.ted Boards have the authority to dismiss with prejudice, but should only do so when there will be some substantial injury to 'the Intervenor or public that cannot be cured with appropriate conditions. The Federal practice cited to establishes that (1) one has the right to voluntary dismissal without prejudice >
or conditions if the dismissal occurs at a very early stage of the proceeding (in the Federal Rules, before summary disposition motions or answers by the opposing party are served: see F.R.C.P. 41(a)(1))
where neither expense nor significant rights have accrued to the defendant (i.e. , the Intervenor), and (2) if dismissal is requested at a later stage in the proceeding, where substantial expense and rights (such as discovery) have accrued to the opposing party, dismissal shall generally be without prejudice but upon such conditions as to ensure those costs will not be borne a second time if there is relitigation and those rights not lost (e.g. by payment of fees &
costs and preservation of documents).* Thus the mere prospect of a second litigation (e.g. for another kind of reactor at the same site; where one had raised sit: adequacy issues in the first litigation) is insufficient in and of itself to cause dismissal with prejudice, because the injury and inconvenience involved to the other party can be compensated for by- a remedy less severe than dismissal with prejudice--dismissal without prejudice but on certain conditions. The standard Federal conditions are payments of costs, attornays fees and related disbursements , and preservation of documents.
In fact, as shall be discussed shortly, the standard Federal practice, from the authority relied upon by the Appeal Board .in these cases here, is withdrawal without prejudice upon payments of fees and related di'sbur s em er3ts .
~
37-In - No rth Coast , the Appeal Board found no substantive ihjury to the Intervenor that would warrant a dismissal with prejudice. As to fees, referring to the sources of the Federal practice which identify. the usual practice as dismissal without prejudice upon payment of fees (if the case has "gotten off the ground"), the Appeal Board said as follows32I:
We note that the case at bar did not entail lengthy discovery. or proceed through the trial stage. It hardly got off the ground. We leave open the question whether something short of a z
dismissal-with prejudice, such as conditioning
! withdrawal of an application upon payment of the opposing parties' expenses might be within the Commission's powers and otherwise appropriate where the expenses incurred were substantial and intervenors developed information which cast doubt upon the
. merits of the application.
Those circumstances sure precisely those of this case. Unlike
- North Coast, this proceeding did "get off the ground," there
. was lengthy discovery, we did go deeply into tue hearing stage, .
CBG's expenses were extensive, and most clearly, CBG developed information which cast -serious doubts upon the merits of the application: (so much so, in fact, tht the Applicant withdrew its .
'first safety analysis. . repudiated much of its second, and was left
- with very serious questions unresolved after extensive hearings and deeply critical testimony and cross-examination by CEG.
m The Board ruled, e.g. in its February 8 1983 Order, that CBG h'ad ' developed substantial information that cast serious doubt
?' 'about athe inherent safety: of the device, genuine disputes which required a hearing. The . adequacy of the application was, if anything,
' called into even greater question by CBG's involvement in those ,
hearings . )
32/ North Coast at '1135, n.11
7 ,
Q. I
. Whereas the need for dismissal with prejudice or with fees & disbursemer.
h:
' might be mooted by granting the dismissal with the conditions propor?c by UCLA (reactor not operate again, be deiommissioned, fuel expeditiously off-shipped) as modified by CEG (dates certain, conditions binding and explicit commitments, reporting requirement, document preservation. etc. ), that is certainly not the case
-if' Staff's proposal were adopted. There, dismissal would
- cause extremely substantial injury to CBG--it would lose all rights
~ :it hid-acqui red by virtue. of the applicatio proceeding (service,
- document preservation, participation in making its views known
- in an adjudicatory setting, ability to present evidence and testimony and . to cross-examine, and, most importantly, ability to attempt m
to prevent l license renewal and continued license possession unless safety and ' security problems were resolved).
Applicant would get more than it requested by applying--indefinite license possession--and CBG would lose the fundamental rights g uaranteed to lit by- Section 189 of the Atomic Energy Act, right to a hearing and ,decis. ion on the evidence as to whether the renewal should issue.
If any part of Staff's proposal were accepted, or if CEG's conditions were not, then the prejudice would be severe enough that dismissal would have to be, according to the North Coast standard and the ,
. long-standing: Federal practice, either with prejudice or at minimum with costs, fees, and disbursements.
D'
.s .
' NW Bailly --Approval of Site Restoration plan is Board Responsibility; Withdrawal Must Be Immediate. Conditions to Be Carried Out
'c ,Thereaftsr; Conditions to Be Legally Binding, Enforceable by Commassion and Courts; Dates Certain Required; Reporting Requirement and Fost-Termination Monitoring Rights Bailly is the seminal case of relevance to the UCLA case and the Staff proposals therein. Bailly was a construction permit extension proceeding (i.e. , a renewal) . Bailly involved a facility with a construction permit granted in a different, previous proceeding, a permit which had expired and for which the -licensee had requested extension. As in the UCLA case.
-the' expired permit continued in effect while the extension request was litigated.
' Like all the other cases, in this one the Licensing Board determined the specifics of the site restoration plan and ordered it included as a candition of application withdrawal; as le the established practice, Staff and the other parties could propose conditions, but the Board made the determination what they should be, with ' Staff and the other parties to supervise the site restoration progress to assure . compliance with the conditions. Those cor ditions were very explicit, and included completion dates--the Board .having determined that the absence of initiation and completion dates "suggest the possibility of an extended or indefinite delay in completing (or even beginning) the restoration . " Therefore
- the Board included such initiation and completion dates as conditions in its_ Order. This is.a central point and central problem with
- both the Staff and Applicant proposals--the lack of initiation
- and completion dates make the kind of delay identified by the 30/ Northern Indiana Public Service Company (Bailly Generating Station.
Nuclear-1). LBF-o2-29,15 NRC 762 (1962); LBP-82-37, 15 NRC 1139 (1982)
Bailly Board as requiring prevention via dates as conditions an unacceptable possibility. A commitment to do something without a date by which.it must be started and/or completed is an essentially
- non-binding commitment, because the party can always say it still plans to carry out the commitment and has violated no term of it because no dates were included. Bailly required initiation and completion dates for its site redress conditions, and thP.s Board must as well, or otherwise the decommissioning condition is essentially without meaning and essentially unenforceable.
'These dates sh:uld be reasonable, but legally binding--UCLA and Staff's attempt to have a decommissioning commitment that is non-binding as to completion or nature would be very injurious to CBG's rights, 'because the decommissioning condition might never be complied with, if specificity and dates are lacking. This is especially true'since' Staff proposes that the license stay in effect, and the application not be withdrawn, until the decommissioning is completed, and the University has recently indicated b1I it wishes to defer for many years even deciding whether to compl'ete decommissionin and if so, how and when. Conditions without ir.itiation and completion dates are not-enforceable conditions, and the'Bailly Board (and that of Black Fox) determined the responsibility of 10 'CFR 2.107 to attach such terms and conditions as are just to the withdrawal mandated initiation and completion dates.
%[7 See letter of July 26 from UCLA's Wegst to NRR's Denton l
41-Perhaps the most important aspect of Bailly for the UCLA case is -that it resolved squarely the issue of whether applications should be withdrawn effective immediately or effective only upon completion of site restoration conditions.
Contemplating the issues raised by the Staff in the UCLA proceeding--
that maintaining a ' function ing permit and an application not assertedly
. yet withdrawn would/' enhance enforcing the conditions and conferring jurisdiction--the Board decided squarely that tho se concerns could be met simply by letting the construction permit expire by virtue of the withdrawn extension application and making the site redress conditions binding commitments enforceable lar the Commission and the courts. In determining that withdrawals should .be eff active immediately, with binding conditions to be
'followed thereafter, the Board relied on a number of factors, including:
Finally, but not the least in our consideration, there is the Appeal Board's approval of the general procedure of t.erminating proceedings subject to site restoration conditions, rather than having the Licensing Board supervise the restoration and then terminate the proceeding.
Toledo Edison Company (Davis-Besse Nuclear Power Station.
Units 2 and 3), A1AB-622,12 NRC 667 (1980): ALAB-652, 14 NRC 627 (1981). To depart from a general procedure sanctioned by the Appeal Board,_ even u_nder reasonable Ibut not compelling) circumstances, stands __little chance f succes_s. ( emphasis added)
Bailly, 15 NRC 762. 765 Thus, the key feature of the -Staff's proposal--defer effective date of application withdrawal until completion of site restoration
.many years in the future, and thus keep alive the license indefinitely, is directly rejected by li3C practice.
m
.IfLthe procedure is to let existing NRC permits and licenses lapse by virtue of withdrawal of renewal or extension requests (or vacating of initial decisions in non-renewal cases)
' by immediate effectiveness of conditioned withdrawals, with the conditions . binding. there is no basis whatsoever for Staff's contrary proposal in the UCLA case. If conditions under 10 CFR 2.107(a) req uire a continuing license to have effect, then 10 CFR 2.107(a) would have no power whatsoever; 2.107(a) zives Boards authority to establish binding terms and- conditions in exchange for withdrawal without prejudice and vacating of existing permits: Bailly makes clear withdrawal does not await completion of. tho se conditions, conditions in the UCLA case for which the Staff and UCLA propose an open-ended time frame for empliance.
One cannot argue that the long line of cases that have required site redress as conditions of . withdrawal, and established the specifics of such redress in'the conditions, are not relevant to the UCLA case because the UCLA Board has authorized no actions affecting the environment that require redress. In addition to the fact that the very pendency of the Board's proceedings has permitted four more years of environmental impact and radiological contamin*ation necessitating redress, Bailly, like UCLA , was a proceedins to determine whether a license previously granted, expiration of
-which had passed, should be extended. The Bailly Board had taken no action affecting the environment, yet was required under 2.lO7(a) to establish specific site redress conditions to assure that no untoward effects resulted from the withdrawal of the application (and .thus termination.>of the permit and the pro ject) .
n
~'
43-
. As to the issue of whether to grant the withdrawal with or without prejudice, Bailly followed the Appeal Board direction in Fulton and made explicit exactly what portions of the action were with and what without prejudice. As to the "effect that termination of this proceeding should have on future activities at the Bailly site ":
As we understand that effect, which would be automatic (by operation of law) even without our characterizing the temination, Construction Permit No. CPPR-104 will expire without opportunity for further extension because the time for filing a timely application for extension has passed. Since there has been no decision adverse 9.. '
- to NIPSCO 's building. a nuclear plant at the Bailly sit e, NIPS 00 would be free to file a new application to construct a . nuclear plant on that site. We see no reason to depart from that result by either failing to specifically foreclose NIPSCO from reviving Construction Permit No. CPPR-104, or by permitting the ' expiration of that permit to prejudice
- NIPS 00 's right to file a new application for a construction permit. We would spell out that result to assure its c ert ainty .- - -
Bailly at 765 ( emphasis added)
The Bailly Board did indeed spell out that result to make it a certainty in its conditions, mnd the UCLA Board should as well.
The Bailly- Order explicitly stated that Construction Permit No.
.CPPR-104 "is deemed to have expired without further_occortunity to revive such permit. " (id. at 769).
4W The Board ordered all
- environmental effects that' had occurred under Permit CPPR-104 (which it had not issued; it had merely'been hearing evidence whether r
'it should be . extended at the time the extension application was withdrawn) to be redressed, by dates certain, so that not only was the permit gone, with all opportunity to revive it likewise
. gone' j but the environmental effects of the lapsed permit likewise were removed or redressed. Given those co nditions, the Board explicitly kept open the opportunity for the Applicant to apply for a new Construction Permit for another reactor at the Bailly site.
'That is the Fulton Appeal Board standards that is what was ordered
' W - ~ _ _ _ _ _ _ . _ . _ _ _ _ . _ _ _ _ _ , _
4 t '. +
r
~ ~ '
at-a situation similar to UCLA's renewal withdrawal, at Bailly; that is the effect UCLA has requested in asking for withdrawal
~ without prejudice on the condition that its Argonaut be decommissioned,
-dismantled, decontaminated, and disposed of, not to operate again;
, and it' should be spelled out by the Board. Staff's proposal is to the' contrary--rather than spell out that the license R-71 1
has expired.due to the renewal application being withdrawn and that License R-71 cannot be revived (but not precluding the opportunity to apply for a new license for another reactor).
Utaff -proposes _ the License R-71 be indefinitely extended.
This.is ~ contrary to all the case law and fundamental fairness.
- As to thes i. mae of fees and expenses, the Bailly Board, following the North Coast footnote 11 referred to earlier.
_recogni zes th e rih g t to- impose conditions on dismissals as an exception :to, the American rule" Shat you cannot, absent special statutory authority permitting private attorneys-general, receive costs as an award for winning in litigation. ) : As discussed in more
~
detail in Perkins, to follow, fees and expenses as a condition for withdrawal-is not an award for winning anything, but compensation for having to face the possibility that due to a party being permitted to withdraw without prejudice to bringing another action one might have to expend the same costs twice for the same action.
Bailly found that the circumstances of that case did not
~ fit in with the above-mentioned exception to the American Rule, and that Boards do not have the authority to go beyond the established exc eption'. (Staff's reference to this matter in its pleading at
- p. 5-ic particularly misleading--Bailly found merely that the
' Appeal Board's " footnote 11" conditions were not met by those L particular intervenors, and that Licensing Boards could no t go I
-4 5-
. beyond the established conditions. ) Since the Federal Rule is that fees are not to be granted when the ruling is with prejudice, but only as compensation for when it is without prejudice,
~
the Bailly Board found that, since the extension application
- was withdrawn and the construction permit automatically expired.
and since site restoration' was included as a withdrawal condition, withdrawal was effectively with prejudice and thus fees and expenses were not. appropriate under the Rule. (Recognizing that a new
- application for a new construction permit for a different reactor at - the same site could be filed, the Board argued that the particulars of any such new CP .cace would be different than those of this
?particular CP completionsdate-extension case, and thus expenses would :not be duplicated. That would not necessarily be the case in the UCLA matter, where an operating license renewal involves the full range'of issues that can be addressed in an initial operating
. license application, and where many of the contentions at issue
- in the renewal case were site suitability and Applicant competence fissues that would be duplicated in an application for a new operating license for another reactor at the UCLA site).
Whereas one can argue that withdrawal without prejudice (as defined above) of the UCLA renewal application, like the.
LBalliy case, is essentially with prejudice to' License R-71 and the UCLA Argonaut. (although without prejudice to a new application afor another reactor}, and thus CBG might not be entitled to . fees and expenses -(at least with regards that portion of the contentions
.that Lare' specific to the ArAcnaut rather than the site and the Applicant rnAT WOULD' NOT BE:THE CASE WERE THE STAFF'S PROPOSAL ACCEPTED.
, -- e,- . - - ,--- , , - - - - - - - , - - , - . - - _ . - - - - , - - - . , - - - - - - - - - - - - - - - - - - - - - -
i l
Under the Staff's proposal, not only would the withdrawal be effectively without prejudice as to R-71 and the Argonaut,
.it would produce extreme prejudice to the rights of CBG, by giving
?,he formerly-requested renewal, but without conclusion of or even continuation of the evidentiary hearings, and in the face of abandonment of the application. Furthermore, the renewal would be without temination date, legally infinite, something not permitted by the regulations even were the renewal granted after an affirmative finding by a Board on the merits o.f the application. The Staff's
- proposal would deprive CBG of a ruling on the merits but grant UCLA the license the application for which it wants to withdraw.
Under.those circumstances. CBG's injury would be immense, and the standards of withdrawal with prejudice or conditions of fees a ad expenses and other terms would be clearly mandated under the case law. .
In short, Bailly should be looked at closely, particularly the withdrawal Order prepared. Withdrawal, and thus automatic permit expiration, was immediate--not indefinitely deferred as proposed by Staff here. Specific site restoration conditions for tecnidation were a responsibility of the Board, not the Staff as proposed here. A reporting requirement--every three months until completion--was imposed, providing the intervenor continued notice after the proceeding terminated to monitor compliance with the conditions. This included inspection rights, full service, and the like. Dates certain were established for initiation and completion of the conditions, not indefinite open-ended situations as proposed by both Staff and UCLA. That the underlying permit automatically expired and could not be revived was clearly spelled out, i~
'5 47-And the conditions were legally binding; enforceable by the Commission and the courts. CBG's proposed language is taken almost.. verbatim'from Bailly, as are many of its proposed modifications o f **CLA 's propo s ed .co ndi tions . Bai'lly's Order states:
That the conditions imposed by this termination order be considered as an obligation assumed by NIPSCO in consideration of the Commission's terminating this
' proceeding prior to the restoration of the site, enforceable by the NRC Commission and the courts.
The Interv'enor is thus gi'ven places to go if the conditions are not met, and the conditions become legally binding. Under the Staff's proposal, there would be no legal binding and no place to go if promises made were not kept--in fact, UCLA would have
- an indefinite license and thus rm obligation legally whatsoever
. to c commence or complete dismantlement,' particularly in absence got any required dates spelled out. It could keep the highly enriched uranium close to forever (last time it shipped out lightly-irradiated
, . fuelitook r.early two decades), and it could for years or decades delay dismantlement actions.
7 The conditions must be explicit, with dates certain, binding, and with reporting requirements and prompt service and notice to CBG--all as required in Bailly.
The Bailly Orders should be looked at with great care in res,olving. what Order should issue in the UCLA case. One should rem' ember as well Bailly was a permit extension or renewal, like LUCLA. If Bailly could require site restoration work without an active construction permit, thic Eoard can and should require dismantlement and decontamination and disposal gonditions without an active license, as conditions -for the withdrawal pursuant to
'10.CFR.2.107(a). If Bailly and all the other cases make conditioned withdrawal immediately effective, and revoke all existing permits G . _ -
. 48-or licenses in effect by virtue of the proceeding or the application X, being withdrawn, then so should- this Board. The Staff's proposal runs counter to all the precedent, and all fairness and due process.
W Perkins--Conditions Are for the Protection of the Intervenort
, " Payment of Attorney's Fees is Not Necessa_rily Prohibited,_As a Matter of-Law. As a -Condition of Withdrawal '.11thout Frejudice" O
Perkins is the seminal case with regards conditioning withdrawals without prejudice on payment of Intervenor's fees land: expenses. It is the most thoroughly thought-out and argued, being directed by the Appeal Board to consider the matter, keeping in mi'nd the Appeal Board's previous words in footnote 11 of its North Coast-decision. (See Appeal Board decision in Perkins, ALAB-668,15 NRC 450 (1982) providing direction to and guidance I
t o the ' Licensing Board to address this issue.)
'The Perkins Board approached the withdrawal motion with the -following standards in mind:
- Duke is entitled ~ to withdraw its application without prejudice unless there is legal harm to the intervenors or the public.
In this case the Board may attach reasonable conditions
~
on a withdrawal without prejudice to protect intervenors and the public from legal harm.
But -if conditions on a withdrawal without prejudice cannot avoid legal. harm. dismissal with prejudice may be ordered, but only to the extent that a dism.issal with prejudice-is necessary to prevent the legal harm. The right to a voluntary dismissal vithout prejudice is note
- not absolute. LeCompte/[v. Mr. Chip, Inc., 528 F.2d 601
( 5th Cir.1976)/ a: o04.
Duke would have the option to accept either reasonable
, conditions on a dismissal-without prejudice, or a dismissal with prejudice as to certain issues. Yoff e / v. K ell _er__ Indu s. ,
-Inc., 580 F. 2d 126.129-30 (5th Cir.1976); petition for r ehearing - denied , 582 F. 2d 982 (1978J7 580 F.2d at 131, n.13;
-582 F.2d at 963 W Duke Fower Company (Perkins I;uclear Station. Units 1,2 and 3) .
HP-82-81,16 NRC 1128 (1982); ALAB-668,15 3RC 430 (1982) .
The Board' goes on:
Moore's federal' Practice cited in North Coast (Vol. 5.
141.05/ 2J. at 71-75 (2d ed.1981) discusses many cases where a motion for unconditional voluntary dismissal without
. prejudice was denied or where a motion to dismiss was granted, but with prejudice. The tenor of these cases is that the litigation had moved along too far to dismiss unconditionally without prejudi_ce because the other carty had already been out to the expense of defending.
Perkins. 16 NRC at 1135, emphasis added The Board went on to make clear the Intervenors have standing with regards determination of conditions for withdrawal--a matter
.the Staff now asserts is outside the scope of this proceeding, a matter entirely _ in its -jurisdiction alone. id. at 1136:
Part and parcel of their right to intervene is the right to enjoy any earned benefits of tne ensuing proceeding.
Otherwise the entire intervention process would be pointless.
Id_at 1137. emphasis added Continuing:
In our view the Intervenors have standing to seek a dismissal Elth prejudice or to seek conditions on a aismissal without prejudice to the exact extent that they may be exposed _to Iezal-harm by a dismissal.
id, emphasis added .
Thus,' Staff's argument that ' CBG has no standing in any action
= to determine conditions on termination, that that is a separate action in which' it may not participate and-in which it has no rights,
, is squarely wrong. To the extent CBG would be injured by Staff arranging for unlimited extended duration of the license CEG has opposed so 'long--a very large ~ injury--CBG surely has standing in determining whether those conditions should be imposed. Likewise.
to the extent Staff wishes to keep--without termination dates--
UCLA 's right - to possess highly enriched uranium and a radioactively contaminated reactor CEG is highly injured and has the right to
conditions that do not produce said injury.
The _Perkins Board continued:
If the Intervenors have won anything in this proceeding they me entitled to have that judgment preserved for use in any revived Perkins proceeding or to be protected from harm if any. victory is nullified by the unfair need to relit.igate their interests again.
CBG has won important legal and evidentiary rulines in this cases there are scores of Board Orders on.important matters herein; a major evidentiary record, with important documentary and expert witness evidence, as well as a vast array of admissions against interest by witnesses of opposing parties obtained through cross-examination . - CBG has had valuable discovery rights, and rights to service and notice, regarding the nuclear activities of the m Aphlicant. If Applicant insists on dismissal without prejudice as to applying for another reactor at UCLA documents must be
. preserved so that evidence useful in litigating the same site and competence issues would not be lost by virtue of the application withdrawal here. That is a relatively simple matter, to be resolved by CEG's proposed document preservation order. However, if Staff's proposal is permitted, indefinitely deferring the withdrawal and permitting continued license possession, the injury 1x) be addreased is far larger and requires far more serious conditions, of. which fees and expenses would be but ones preservation of evidentiary record and legal decisions but another.
Perkins was not persuaded by the arguments of the NRC Staff and. Duke that the Commission's boards lack authority to award attorneys fees "for the purpose o.f obviating legal har= threatened by a withdrawal without prejudice.":
D - JJ -_ 4 -
51-
.._- Many cases under Rule 41 have involved the payment of f attorney's fees to save defendants from legal harm where actions
- have been dismissed without prejudice. As the court in LeComote noted:
Most cases under the Rule-conditions that require paym[ent 41(a)(217 of costshave and involved attorney's fees. See, e.g., American - Cyanamid Co . V. McGhee, 317 F.2d 295 (5th Cir.1963): see also 5 Moore's Federal Practics 241.06, et 1081-1083 (2d ed. 1975); Annot.,
' 21 A.L.R. 2d ' 627, 633-637 (1952) , and cases cited therein.
528 F.2dlat 603 The courts have freely used the payment of attorney's expenses as the most useful of the conditions available to protect a defendant in recognition that the plaintiff may reinstate his action after the defendant has been put to '
effort and expense in the first proceeding for naught. Id.
The American rule, which bars recovery of litigation
< - costs by the prevailing party as an award for winning a
' presumably completed law suite, must be distinguished from the. practice -of reimbursing litigation costs as a condition on a .dismissc1 . without - prejudic e. The latter'is not an award
'for winning anything but is intended .as compensation to defendanys who;have been put to trouble and expense- to pcepare a defense only to have the plaintiff change his mind, withdraw the complaint, but' remain free to bring the action again.
. It is only anticipation that the defendant -may have to incur expenses to prepare again in ~a refiled: proceeding which justifies the payment of1 defendant's costs in the first proceeding as a condition of dismissal without prejudice. 5 Moore's Federal
. Practice, sunr_, a 241.06, at 41-83, 41-86.
Both Staff and Duke recognize that boards may apply appropriate conditions on = the withdrawal of an application for construction permit, but each argues that a condition requiring reimbursement of attorney's fees may not attach because boards lack statutory authority or any inherent equity
^'
authority 'for such a . condition. Their arguments fall of their own' weight. Where-is the express authority to attach any kind
-. of fcondition--redress of a site for example? Is there something n
about money that takes reimbursement of litigation expenses
~
- out, of the bank of possible conditions available to avoid legal
~ harm Lto an adversary? ' Staff. argues only that the Federal Rules do' not necessar(ly apply to Commission ' proceedings [~ emphasis
,in1 original /.- Response at 29 Applicant lightly brushes aside the well-established use of attorney's fees in without-prejudice
, dismissals by courts to' protect litigants from harm. Reply at 26. Both allow the clear prohibition against lawyer's fees under 'the American rule to wander out of its limitations into
^
itheirf own considerations .of conditions on dismissals without 1 prejudice--two essentially unrelated concepts.
E . _ _ _ _ _ _ _ - _ _ _ _ __
. 1 There is nothing about the payment of money vhich removes a possible = litigation-expense co ndition from consideration. ;
because, in the final analysis , the utility does not have l to pay. It can instead elect to accept a reasonable with-prejudice ruling as to issues where, for example, the intervenor prevailed and where the public interest permits.
id at 1139-1140
- After - its extensive consideration of the matter. the Board issues its ruling, pursuant to the Appeal Board's direction to do so
. ( ALAB-668,15 NRC 450):
~
We hold that the payment of atterney's fees is not necessarily prohibited. as a matter of law, as a condition of withdrawai without prejudice of a construction nermi t aDplication Perkins at 1141 After determining that there is no legal bar to grant of attorney's fees in NRC proceedings as conditions of withdrawal without prejudice .(it should be noted that no distinction with an ,
.' operating permit application appears to alter the conclusion) .
the perkins Board went on to determine that fees and expenses were not appropriate conditions given the particulars of that case, because no legal harm would devolve upon the Intervenor by a withdrawal without prejudice. Since the particular case involved withdrawal at a very late stage--after decisions against the intervenor were issued--and since those decisions were adverse to the intervenor, it was argued the intervenor would suffer no injury were it required to litigate the matters again. The worst that could happen, it was argued, was that it would loce again--no harm. If it won, it had been granted a second opportunity at bat it would not have had otherwise. These conditions, of course, do not apply in the UCLA case, where the Board issued no initial decisions despite the evidentiary hearings neld to date. '.le r e CSG forced to relitigate matters, it would not be beine granted
C.
an unearned second chance but rather would lose the bulk of the first effort--testimony and cross-examination and documentary evidence and discovery materials and rulings and summary disposition responses--all having to be repeated to no benefit to CEG and extreme -expense (these four years have been extremely expensive to CBG, which is prepared to identify in detail those expenses were the Board _ to permit in any of Staff's proposal and the resulting attendant i~njury.)
Thus, the Perkins ruling that there is no tar to c. payment of. fees and expenses as a condition of withdrawal without prejudice if _ injury results as a result of that withdrawal would require the Board establish a procedure to determination of what pavment of litigation expenses should be required as a withdrawal condition if any of t'he Staff's proposal we_re accepted. That proposal.
involving indefinite continued license possession with removal of all the rights CBG has acquired in the proceedine, would constitute the kind of injury for which payment of litigation expenses would be but a minimum condition.
h .
_ 34_
'Stani slau c b --Document Preservation. Continuine Nctification of Flans as Ocnditions for - fithdrawal 4 -3tanislaus' involved conditioning withdrawal upon preservation
.of discovery documents. - The Applicant had requested withdrawal without -prejudice. and since extensive discovery had occurred
, 'and; future litigation was not precluded, the Soard determined that withdrawal without prejudice could only be sanctioned if the withdrawal were conditioned upon terms to protect the JIntervenor from harm that might occur from the withdrawal--
.in this: case, loss of- the discovery which might be needed in future litigation.
~
Stanislaus is right on point to the UCLA case. ,
To.the extent that UCLA is requesting withdrawal without prejudice--
which appears from its proposed conditions and commitments to be Lto keep open the nuclear option at the UCLA site for a reactor other than' the Argonaut it intends to dismantle--and to the extent:that the same site adequacy. and Applicant competence issues ( e.g. . history of regulatory non-compliance. security lapses, radiation spills. indicating inadequate managerial controls and inability to demonstrate likelihood of future regulatory compliance) could thus be raised, all-documents related to the issues that may have to be relitigated must be preserved. (3ince there are few"if any of. the documents involved that are not relevant to the issue of adequacy of Applicant as a potentici licensee, and the adequacy of the -site, but particularly the former, one cannot really separate out documents which need not be preserved.
Operating and ' maintenance logs. for example, while containing soma Argonaut-specific information. also contain a wealth of information demonstrating past non-compliance with operating procedures and 3,/ Facific Gas and Electric Company. Stanislaus Nuclear Pro j ect.
[ vnit i. CLI-c2-5 15 Nac wok (1962):L5F-53-2. 17 :G; 45 (1983)
- 5 5-maintenance responsibilities that would be relevant evidence or information no matter what type of reactor UCLA might apply f ar at the UCLA site. )
To the extent UCLA has withdrawn the Argonaut reactor fran its future plans--which it repeatedly says it has permanently done so , even to the ex tent of " permanently" disabling it and starting to dismantle it--then there should be no reason whatsoever that that is not made an explicit condition and binding co mmitment .
" Good faith" statements are insufficient to protect a party, unless
. they are made legally binding; if they are made in good faith, as UCLA repeatedly asserte they are, then there is no injury to UCLA whatsoever in making them binding, and much potential injury to CBG can be prevented. The history of this case and the numerous stipulations entered into, or commitments made by App.licant, that ended up not kept necessitates any commitments made here be binding and in force once the proceeding ends.
For that and other reasons, Staff's silence on the matter of UCLA's first proposed condition--that the reactor not operate again--and on clear definition of "without prejudice" is injurious; that condition and clear definition as per Fulton are essential.
Stanislaus makes clear that if, as is the required practice, application withdrawal is immediately effective, document preservation rights and rights to prompt notice of Applicant's plans are recuired to protect Intervenor. ( Applicant cannot be permitted to remove an Intervenor from a proceeding by withdrawine, then reapplying f.r example for another reactor at the same site and nope to get out of having to litigate the site and character issues by not having
'_c. formed the Intervenor directly and promptly that it intends to exercize its "without prejudice" rights in some fashion. Similarly,
F7 u 1.,
l i
. .if' Applicant intends to take actions that could 'e c seen as not fulfilling the fwithdrawal conditions, prompt notice is essential to . ensuring affected parties can takc action to enforce the conditions.
This was also requir ed in Esilly. )
It- should be _ noted tha'. Stanislaus determined that , since the proceeding had not ' proceeded through the discovery stage, the Appeal Board's North Coast footnote 11 conditions for payment of litigation. expenses as condition for withdrawal without prejudice were not met in that particular case, but the rights of the
.LIntervenor could be adequately protected by preserving the fruits of that discovery.W In short. Stanislau s would require preservation of discovery
' insofar as there are no binding conditions barring future 13 tigation.
of any of- the matters at issue in the UCLA proceeding at bar.
Where UCLA has dropped plans and cannot revive the renewal application
~_. .
. for the Argonaut. that must be, as UCLA itaelf has proposed, a condition of withdrawal. To the extent UCLA wishes to . leave open
- the door to - relitigate non-reactor-specific issues by a future application for another kind of reactor at the UCLA site, discovery
& procedure
- related to Applicant's record as a licensee and to site / matters must be preserved.
]L5/ The single Administrative Law Judge hearing the Stanirlaus case, unlike the three-member Soard in Perkins at about the same time, found "there is no 'need to determine whether the Commission has . the - power to authorize payment of litigation expenses a., a
-condition of permitting withdrawal of an application without prejudice,"
and then adds several sentence of dicta on the matter. .Jhereas the Ferkins Board spent many pazes examining the precedent and t.
issues, then issuing what it described as an affirmative "rulinc" on -fees an permissible conditions, these brief non-binding comments by this ALJ, going againct the HRC precedent and the Federal practice
.vhich it itself said is " abundantly clear" is favored in NRC cases (at
- 50) is entitled to little weight compared, for example, with the Ferkine ruling.
L_ .
m-
- 57 L
Black Foxbb Site Restoration Recuired; .lithcra'tal vith Condi tions
$ffect $ Immediately; Outstanding Permits Immediately Revoked; Ataff Honetheless Has All the Monitorine Authority It Neecs to Assure Site Redress Dates Certain neouired for Completion.
Bla ck Fo x, in three brief pages, makes many of the basic points about establis'hed NRC practice regarding withdrawals discussed in the previous cases. Site restoration was required according to a specific plan identified as a specific cendition
~ in the Order. The withdrawal with conditions was effective
~
^ .immediately, and- outstanding permits were immediately revoked; yet -the staff, by virtue of the binding nature of the conditions.
had all the authority it needed to tonitor and assure compliance.
n even though the utility was no longer an NRC licensee--the
-conditions ,of withdrawal, agreed to by the' utility in accepting the withdrawal with- those conditions (it had the choice of not withdrawing if it didn't like the conditions), subjected the former
" licensee to, a binding commitment to fuf111 the obligations in the' conditions. -Furthermore. dates certain were established (see condition la) for completion of site etabilization.
If .the Staff has the authority to oversee soil stabilization and erosion control site work where there is no longer any valid Limited 'dork Authe rization~, because that restoration work was a
"" conditionifor withdrawing the L'.IA and application and tenninating the1 proceedings, then- the same is true in the UCLA case if the
~
dismantling matters are 2.107 conditions.
]hb/ Fublic Service Company of Oklahoma, et al (Black Fox 3tation, U ni t a l' and. 2 ) LEF-o )-10 p
6 f
~~ v, ,.
' - -58
' The Federal Practice 3riefly As is seen in reviewing the NRC casns dealing with voluntary withdrawal, they rely heavily on the Federal practice and interpretations thereon. Boards have frecuently cited to-LeComte v. Mr. Chip ( 528 F. 2d 601 5th Cir . 1976 ) , to Uright
- and Miller's. Federal Practice, to Yoffe, and other similar cases and authority. The Federal practice underscores all the paints made above as to the NRC well-established principles in this regards When considering a dismissal . without prejudice.
the court should keep in mind the interests of the defendant, for it is his position which should be protected.
LeComt e, supra, at 604 LeComte, citing a' number of authorities, also stated that most cases involving voluntary dismissal have involved conditions that require payment of costs and attorneys fees, but that the trial judge "is not limited to conditions of payments of costs.
-expenses and fees. The dismissal may be conditioned upon the imposition of other terms designed to reduce ir. convenience S7./
to the defendant." LeComte at 603 These other conditions identified in LeComte include production of documents, producing certain witnesses at trial,' paying half cost of defendant bringinc in~ other witnesses, and so on. id. LeComte makes clear that the purpose of conditions is to " prevent defandants from beinz unfairly affectea by such dismissal." id at_604.
"Q/ emphasic added
7
.Thef purpose of terms and conditions is not to punich a vithdravrinz
~
party-but~to protect the opposing party:
-Good faith, however, is simply irrelevant to an award of attorneys' fees or the imposition of any other
" terms and conditions" under Rule 41(a)(2). As noted above, the purpose of the rule is to protect defendants from undue prejudice or inconvenibnce caused by a plaintiff's prenature dismissal.
GAF Corp. V. Insurance Co. of N. America 6o$ F2d 364 (D.C. Cir. 1961), on remand 96 F.R.D. 188, D.C. 1982)
L Just as " good faith" in h' aving prosecuted a case and then withdrawing before completion is irrelevant to the imposition of withdrawal conditions, which are designed to protect the other~ party, " good faith" promises by the withdrawing party
' re insufficient protection for the opposing party against a
undue prejudice or inconvenience caused by the dismissal---
the " good faith" commitments must be made legally binding.
explicit, enforceab'le conditions.
IV. THE STAFF'S PROPOSAL IN LIGHT 0F THE ABOVE STANDARDS We have discussed above in great detail how the entire NRC case law appears to go against the proposed withdrawal procedure suggested by Staff in this case. Whereas the full
,waight of NRC' practice regarding withdrawals involves Boards conditioning withdrawals on site redress, document preservatd or.
and reporting requirements, with conditioned withdrawals effective 6' immediately and 'related permits and licensees immediately rnvoked J
' with '-the attached conditions legally binding. Staff proposes to
~
, turn the well-established practice on its head. Soaff proposes i" . ,,
{toishift1the 2.107 respcnsibility to' set site redress conditions
- =. . ,
7_-
from the Board to the Staff. The Staff proposes to rcmova the~ other parties to the proceeding from any involvement in setting those conditions. and to eliminate any right to monitor the compliance with those conditions. 'clhereas withdrawals are immediately effectivc. Staff proposes indefinite deferral, although the application has been entirely abandoned and itc sponsor seeks its withdrawal. And most creatively--and injurious--Staff proposes indefinite. continued possession of the contested license for which
. renewal is no- longer sought. The Staff proposal thus violates the full range on NRC precedent on withdrawals, but most particularly.
the Sterling standard that one cannot retain through withdrawal that which one was not guaranteed of retaining or obtaining throuEh applying. Staff essentially proposes that UCLA get indefinite
' license. renewal. through withdrawal of its application for license renewal. totally untenable, unnecessary, and contrary to the well-established procedure.
The Staff Argument First of all it should. be said that the Staff proposal is that the current (expired) license remain in effect until completion of dismantling, decontamination and disposal operations, and that UCLA says-it has no idea when--or even if--those operations will ever be completed.b5! All agree it will be "many years in the future."
if ever'. Under the Staff proposal. UCLA would get to keep the license for a very long time, perhaps essentially forever, despita abandoning its renewal application.
- W see June 26 letter. Megat to Denton
. Staff says- there is no reason not to grant U CLA 's requ est to withdraw its application. Nonetheless, it proposes that the Board not do so--not for many, many years, until decomissioning is ,' if ever, complet e. Yet the Staff wishes to Board to give up Jurisdiction over the application and terminate all proceedings related _thereto, although the application would not be withdrawn until .some unnamed year in the future.
g The -Staff's primary argument 'to this effect is that UCLA needs a. license while it decommissions its facility. This is incorrect, as shall be discussed below, but even so badly misses
'the-point. There is a very large distance between needing a license and having a right'to a license. In the case of UCLA, its license
"" expired over four. years ago , and continued possession of its license authority was soley by virtue of having an active renewal application'. actively been litigated. UCLA has no right to continued possession of'any portion of License R-71 unless either one of two .
things occur: L(1) a- finding on the merits favorable to UCLA on all RF ,
. contested issues in the renewal proceeding, or (2) prior to that
- time, a valid. renewal application actively being litigated before
- a"Soard. Staff - however, ' proposes termination of the proceeding
'W ~ L and the Board's jurisdiction, before any merit findings, so
- :neither ' conditioncan ~possibly be met. UCLA, even if it needed a license, no ' longer has any right to R-71. which has essentially
- automatically expired, by action of law. -pursuant to 2.109 w" w.-- .---W r--. w- w
_- =.
w
-7 L
Staff- admits that by -wi thdrawing' the application, the licence 2-71 expires automatically, pursuant to 10 CF3 2.109, but attempts
.to evade the. clear intent and language of the regulation by urging that the Board keep on the docket indefinitely the abandoned application. Note however, the Appeal Board's direction in North Coact against precicely such a practice--abandoned applications
. are not to be kept alive, but to be dismissed, even were there not, as there ,1ji, in the UCLA case. .a request by the Applicant for withdrawal.
The Staff 1 faces an additional dilemma with its proposal:
it wishes the adjudicatory proceeding over the UCLA application, and .CBG 's involvement therein, to end, but it wishes the application to be kept artificially alive. CLEARLY THE STAF'F CANNCT HAVE IT BOTH UAYS. EITHER THE APPLICATION IS NOT WITHDRAUN, IN UHICH CASE THE HEARINGS MUST CDNTINUE, OR IT IS.WITHDRAUN, AND LEENSE R-71 EXPIRES. ONE CANNOT HAVE IT BOTH NAYS.
If the Staff's proposal of indefinitely rejecting UCLA's
. request for withdrawal of its application were to be accepted, then the evidentiary hearings must Pa promptly resumed, which neither Staff nor UCLA want. But 11 the adjudicatory proceedinc is terminated, as they propose, the application i- lated thereto must terminate as well, and with it the expired license kept in force only by virtue.of that application. Staff cannot have p
UCLA granted an indefinite extension of License R-71, as it proposes.
("and maintain") its reactor, and its GNM. after termination of the proccedings and while it complies with decommissioning anc disposal.
This is micleadinz.
.- It is true that an entity requires a license if it wi shes to continue its licensed activities with 3HM or a reactor.
However, if it loses its license--e.g. , by revocation, as under 10 CFR 50.100, or by expiration, under 10 CFR 2.109--then it no longer has the authority to possess either and must return the 3NM to a licensed entity and dismantle the reactor.
(If- one falls behind on one's contractual responsibilities, e.g.
house or car payments, one loses title--legal possession authority--
3 , to Lthe : house or car. It thus must be returned to or retaken by
- whoever is -legally authorized to possess it. Obviously there will b'e a period- prier tb the transfer that ownership has lapsed yet transfer has not been. completed--that is simply why when one loses legal authority to possess something it must be promptly returned-to an entity that has that authority.)
This'is made explicit in 10 CFR 50.101 in the cases of license revocation--the NRC may immediately retake possession of SUM from a licensee whose license has been revoked. It is true that the entity whose license has expired or been revoked no longer
. has authority 'to nossess' 3NM--and it is precisely for that raa ec n
~
that SNM must be promptly returned to an entity who does have said autho ri ty . If one were to accept Staff's argument here, 10 CFR 50.100 and 50.101 would be made null. and void. The Commiscion ,
. could never revoke a license--because the SNM ..ould remain in possession of the entity and, scording to Staff'screative position here, the entity needs a license to possess the SNM. This is s
clearly an entirely circular and specious argument. Furthermore, it is clear that the Commission has the authority to retake 3
possession of items for whicn licenses are requires but valid licenses no longer exist.
pr '
r
~
l s
In this sende. that is what dismantling, decontanination
. and disposal operations are--transferring materials that contain residual radioactivity to a disposal facility that has a license for such materials.
Staff's creative argument would make impossible, for example, ifinding by any Board to deny an application for license renewal.
If a Board were to do so--if this Board were to have done so if the UCLA application were not withdrawn--then the license would have
~
-lapsed and Lthe applicant such as UCLA would be in the position
- UCLA' is in now 'by having with' drawn its application--eith an expired
~
license. Someode with an expired license promptly returns whatever
' had been licensed to someone wno has a valid license.
Staff's argument would thus nullify the entire process of license renewals, making of~them a mockery. If possession of
. a reactor or SNM automatically. grants to one a right to a license.
as Staff claims here, then a facility whose license is soon to expire.need never apply for renewal, because so long as it possesses the items in question it must -have a license. This is a clear lo gical ' fallacy . Staff has__it backwards: a license gives you a_right to possession, possession do es no t give you a right to a
' license. To say that one needs a license in order to possess SiiM t
or a reactor means merely that if one no longe'r has a license, one must give up said possession, it does not mean that the agency
.must grant a continued license as long as.the entity holds on Ltc possession.
If authority to poss_ess laoses, cossession must_be abandoned, under such conditions as the Commission establishes to protect the public. If possession is not to be abandoned, a licence is needed, requiring an application.
-6 5-Need for a license does not mean richt to a licence.
The requirements of the Atomic Energy Act--hearinz, affirmative safety ruling, right to interventicn, etc.--must still be met .
By proposing to end the pro ceedings but maintain the license Staff proposes an extra-legal grant of a license, a license
.which UCLA itself has requested it give up.
Staff asserts by implication that in order for the Commission to retain jurisdiction over UCLA 'to ensure off-shipment
.and dismantling, UCLA mus* retain a license. This is precis ely wrong.- By ~ retaining a license UCLA r.o lonzer is recuir_ed to off-ship or dismantle--because it retains the authority to possess.
(Note that the Staff claims in SECY-84-266 regarding this matter
- and UCLA that so long as UCLA retains a yalid license, the Staff
. 'has no authority to require UCLA's fuel to be off-shipped
.by any particular time. ) Thus, continued license possession denies the Staff of. the ability to require fuel removal or dismantling, because the facility thus still has a legal license for the 15HM and reactor. Only if UCLA's authority to possess lapses, by license expiration, does the Commission have jurisdiction to reclaim L the SNM and radioactive material contaminating the reactor, material which UCLA no' longer is authorized to possess and which must- be removed.
- Note also that Staff's creative argument vould nullify 10 CFR 50 51. which requires that a licence be granted for no
- longer than the estimated useful lifa of the reactor. 5taff proposes that it'ic impermissible for a facility not to retain a license for the useful life of the plant plug the decommissionine period.
p
( ,
_The Commicsion retains jurisdiction over the activitics
~
r of those 'it regulatos by a variety of means. of which licenses are only one. Note that the- Commission has the authority to issue notices of violation to non-licensees, for example.
-See 48 FR 44170. It can seize SNLi from entities which do no t have valid licenses for it.10 CFR 50.101. And it can apply legally binding conditions to withdrawals and revoke any permits L or-licenses that had been in effect due to the proceeding being terminated. 10 CFR 2.107(a) and the many NRC cases cited above.
p 10 CFR 2.-107(a) provides legally binding requirements on entities who wish to withdraw appi. cations. Note that none of the 'HRC cases involved requiring the Applicant who was requesting withdrawal no. in a-. separate action request termination of the existing permits or licenes it had. Boards just revoked. or let expire, those' permits or licenses, but first attached binding conditions that ramained in effect after the licenses or parmits i
c_ eased to exist.
10 CFR 2.107(a) provides all the authority the Commission needs to retain jurisdiction to require its conditions for withdrawal arefcarried out. Conditions upon voluntary withdrawal are essentially
-binding contracts--in exchange for permittinz withdrawal. the Commission requir e: certain site restoration or other activity be taken, and those conditions are legally binding. enforceable by the iiRC Commission and the court.s. (See Bailly, for example.)
The Staff's proposal would thus nullify 50 51. 50.100 50.101, the basic prcmise of renewal proceedings , and most importantly.
2.107(ai, stripping Boards of the authority to set condj tions for wit hdra'tal .
4
- Does UCLA Need (Or Eave Right to) a Reactor License Throuch tne End of tne Dismantline Phase?
3'taff. asserts that UCLA needs a license to " possess and maintain" its reactor while the open-ended license termination process it' proposes is being carried out. It bases its assertion
. cd the r'equirement that one must possess a license in order to
- possess a reactor. As discussed above, event if one needed 4_.
- flicenseL one does not have an automatic right to one, and losing your license means losing your right to a reactor (i.e. , requiring
~
that it be promptly disassembled and removed). However the assertion that UCLA's attempt to dismantle its reactor requ' ires
- a valid reactor license until that is completed has another problem. ,
10 CFR 50.10. states that one must request and bbtain a valid licanse if one wishes to possess a utilization facility,
.which!is defined in 50.2(b) as a reactor. A reactor, however, 11s defined in 50.2(k) as an apparatus, other than an atomic weapon, designed or used-to sustain nuclear ficsion in a self-supporting chain-reaction.
- Thel Board has directed that what used jio be the UCLA Argonaut
- reactor be functionally disabled from being able to " sustain nuclear fission in .a self-supporting chain reaction" and UCLA asserts..it has made the hulk " permanently" incapable of goins critical, as the first of its dismantlement and disposal steps.
4 Onc'e the fuel is remo ved, and the metallic core components.
all:that will remain will be a concrete shell. 'lhen is a concreta 1
.shell a reactor? The regulations tell us--when it is capable of sustal'ning nuclear fission. The UCLA device no loncer is, itc r
sponsorsstell us, and they intend to take further stepe taking it
- apart, howev'er _ they intend to defer many years the completion of
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' theidismantling process. Cn that basic should a concrete shell qpermit UCLA a reactor license, when the shell clearly cannot sustain
-fission as required in the regulatory definitions?
~If Staff's argument were correct that a reactor license is ' required' of anyone who possesses a concrete wall that once was-or may once be a wall of a reactor, then clearly a construction
(~ permit for a nuclear reactor must- constitute a possession license.
Y et all the CF cases involve immediate withdrawal, with site restoration conditions to be' followed thereafter, even thougn all permits are immcdiately revoked. If site redress can occur there without a reactor (or even construction) permit. so too it can under 10 CFR 2.107(a) with a partially di'sassembled facility.
Now, it is clear that the remnants of what was the UCLA Argonaut are ' radioactively contaminated knd require redress.
Even if one were to accept Staff's argument that a valid license is required while that redress occurs, rather than binding 2.107 ,
conditions .there is absolutely no reason why that license should
.be the full R-71 facility license, which authorizes SNM cossession and use, 1 _ actor aossension and use. .UCLA has recognized this
-in part. and has requested amendment of its existing (albeit effectively expired) license to remove authorization for operation. It has recently requested amendment to remove the possession authbri:ation for the . fresh fuel it has . shipped off, and commits to renoving the authorization for the irradiated fuel when it ic removed (these
?hould all be conditions of the license, and tho se asoects of the application related _thereto immediately withdra-n, automatically by force of law terminatine those acracts of_Liennse .-71.);
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- - i STAFF, HO'!EVER,- I3 SILEMT Oil '.lH;T FORTIO!!3 0? LICE
- :S:l R-71 AND THE R2::EMAL AFFLICATION SHOULD BE F73I;ITTED IIi IFFTCT.
Certainly:UCLA cannot be permitted to keep an operatine license foriwhich"it has no need nor right. Certainly it cannot be permitted
.to" keep 'a SNI,1 license for~ fresh Highly Enriched Uranium it has already
~
given up.. Certainly it cannot be permitted to keep any SNI.1 license at uall. as soon as it has ~ complied with the Board directive to
" remove the. fuel as soon as reasonably practicable. And certainly it cannot be permitted'to retain a possession Llaense for a reactor ~ when :the hulk has been permanently made incapable of being a , reactor, as claimed by its sponsors.
At ' best, UCLA may need. a ' by-product license for the residual contamination at the facility while it disposes of
- the con' t amination and decides what to do with the rest. UCLA has' every right to apply for a by-product license to be used
~
N _for_ the purpose of ' and _while it is decommissioning vihat used to berits reactor. BUT IT DOES NOT NEED. NOR DOE 3 IT HAVE RIGHT
'T06 A REA CTOR LICENSE WHICH ~ HA3 T/.PIRED AIID FOR 'lHICH REN~.lAL IS NO LONGER BEIIiG SOUGHT. NOR DOES IT NEED, NOR HAVE RIGHT TO, AN s ,
~ 0 PEN-ZIluiD LICE:ISE .FOR '. LEAF 0HS-GRADE URA"IU:4.
_ If - the Staff's proposal were granted, most of CEG's
-concerns about the _ UCLA facility would remain. Without a date certain: (a reasonable, achievable date, one that is broad snough
'that there is no ' security problem like happened last time 'vhen UCLA published what month -it was shipping, the EEU) for removal of the 10EI'from UCLA and termination of its authority to possess weapons-
+
grade material, essentially all of CEG's security and most of it.m saf ety _ conenrns remain in force.
~
i The HEU can still be stolen; in it-is : irradiate.d material, with 2h-yeurn ~; orth of long-lived isntopen
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< largely-still present, capable of beinz released in accidental Jfire or arson. ;Iithout'expl_ cit condition that the reactor be permanently disabled and not operate again, and without rsvocation of. the operating license and final determination of the operating
. portion of License R-71, timely renewal 2.107 provisions would let UCLA keep .the right to operate, with all the safety issues that. entails. Ey not establishing any dates certain for completion of : ven any.'of the phases of dismantling, decontamination and disposal, or specifying the nature of those activites ( e.g. , will
~the primary coolant be dumped down the drain or more suitably diposed;of?), but only requiring that UCLA submit an application for license tennination, CEG is left with a reactor and SNM in place, . a license in place, and no binding commitments thereon nor any resolution about any of the challenges it has made to the111 cense, the SNM and the , reactor.
EITHER ~.IITHDRA':lU APPLICATION OR CONTINUED HEARINGS--ONE CANNO"'
HAVE I'T_EOTH ilAYS If. 5taff wishes the application to remain effective so -
that UCLA's expired license remains in effect, then the proceedings as .to that application must continue. If Staff wishes UCLA to havc an open-ended license to possess weaponc-grade uranium and
-if.no reasonable date is aet for termination of both the licenaa and the possession, the suspended security hearings muct be immediately r1 sumed. ( A decision on the adequacy of the security arrangements against both. theft and sabotage was supposed to have issued by now, were it no t for the dthdrawal request. ) If Ctaff wishes the application to remain in eff ect for many ycarc, so must CEG 's procedural rights thereto.
10 CFR 50.32 I;ot Applicable __in Application .lithdrreal Proceedings The Staff's second major assumption, in addition to its premise that UCLA "needs" a license, is that the procedures for imposing conditions for withdrawal of applicati,ns and termination of licensing proceedings are found in 10 CFR 50.82 rather than 10 ' CFR ' 2.107, and are matters of sole jurisdiction of the Staff, not the Board, and to which intervenors are not permitted.
This 'is contrary to all the case law, the clear language of the regulations, and fundamental equities.
-2.107 makes clear that requests for withdrawal of applications and ter.nination of licensing proceedings must be directed to licensing boards.if they occur after notice of hearing, and the presiding officer of said boards is toattach such conditions
-as are necessary to such withdrawals and termination.
50 . 82 is an er$irely different matter. 'Jhere there is no application, no licensing proceeding, entities with licences that have not expired or are otherwise subject to on-going hearings may . request .to lay down the license before its expiration date.
50.82 would be applicable if in 1975 UCLA had announced it did not plan to apply for renewal in 1980 but would apply instead under 50.82 for termination of the license, that tcraination to be f
conditioned'on dismantling, disposal, and decontamination. But L when UCLA : applied in 1980.for renewal, and its license continued
-in effect beyond expiration dum to that application, the only provisio,ns applicable are 2.107 If theapplication is withdrawn.
-there is no license to request t+rminations for that reason, 2.107 provides the necessary authority to condition withdrawalc. :otr too that uher0 d thdre/"als have occurrsd involving exictina licenses,
.there is no indication of 50.81 ever being applied. only 2.107
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[If the Board Accepts the 3taff's Proposal F CEO has indicated above that the Staff's proposal is at variance:with essentially all the case law, is totally unnecessary,
.and would L be massively injurious to CBG 's rights. ..e trust othe proposal, 'in' light of the above, will not be accepted.
If, however, the Soard does accept the proposal, is evidentiaryLhearings on the application must be immediately rescheduled
.(due t'o: denying UCLA's request to withdraw the application) and the Board must permit = CBG to make application for fees,
.x expenses, and other disbursements to partially compensate for tne linjury ' occasioned by dismissal under tho se circunctances.
CBG did not apply for litigation expenses as a condition of withdrawal as proposed by UCLA' because UCLA's proposal (that the reactor never operate again, be decommissioned, parmanently disabled, 'and. the weapons-grade material expeditiously
~
removed) produced manageable injury to CSG. manageable by more simple conditionsL such as. dates certain, reporting requirements ,
document preservation, and the like.
But if 5taff's proposal is accepted--giving UCLA the
-license indefinitely in response to UCLA req,u esting to ithdraw the- application for that license--then the injury would be massive and CSG must be in some measure compensated for that injury.
(CSGndoes not now itenize said expenses or the portiens of the application its information has helped cast dou'ct upon, but should be provided opportunity to do so if the Staff's proposal ere ,
accepted.b
. ~ . . -
If the Board Accepts Any '!ortion of Ctaff's pronosal e CBG believes that the 5taff's proposed conditions (or transfer of authority to set the conditions to Staff, with no binding commitments of'specifity _or dates -for initiation or completion) are. wholly injurious and at odds with NRC practice and. procedure. Furthermore, they are totally unnecessary, as- following the established practice provides all the protection and none of the injury occasioned by Sta.ff's approach.
'IfL any part of the proposed conditions are considered by the Board,~ however, the following must also be considered:
y (1) Staff does not indicate what port or portions of the UCLA license and renewal application would continue. UCLA currently has a request for and' 11 cense for up to 5 kg of
-Neapons-grade nuclear material, plus a ' license to possess and 1 operate an Argonaut reactor. UCLA has proposed conditioning 1
the withdrawal on the reactor not operating again, and has assertedly permanently disabled it from doing so. The operatine Jportion of the license and application must .be withdrawn, with clear -language that pursuant to 2.109 they are finally determined.
If 'the- sole purpose of continuing a license is to enable dispost.1, only a license for disposal need continue :and only those linited
. aspects of the . renewal application related thereto need not be
-immediately withdrawn.
( 2)' The S3NM license is for up to 5 kc. UCLA is to rapidly dispose of that .matsrial under Board Order of Jen- 22, commits y
to ?doing so.. and has already removed about 1.4 kg of fresh EEU.
EL 'Ihe licenas muct be tied to raasonable , prompt date~ for off-shiprant
s
. i of the remaining irradiated h2U, and should lapse ;ith each s hipment . In other ;ords, since the fresh fuel is already gone, that porsion of the~ application and license related thersto must be immediately withdrawn, stated explicitly to have been finally
-detwidned pursuant to 10 CFR 2.109 '.! hen the remaininc 3.o kg are shipped, the remaining SSNM possession and use authority in License R-71., and those portions of the Application for renewal thereof, should immediately lapse and be withdrae:n, stated explicitly to have been finally deternined. At that time--which is to occur
- expeditiously, as soon as reasonably practicable--there would be no longer in effect those portions of the application for renewal of License R-71, and thus those portions of the license itself, which authorize either op3 ration of the reactor or possession of 35IiM. All that vould remain given Staff's proposal, would be a reactor possession license and application for renewal thereof, explicitly restricted from ever operating.
(3) If one does not accept the argument that the Argonaut .tul-has ceaced to be a reactor by the permanent disabling already performed by UCLA, clearly it ceasec to be so once the metallic core components have been removed and disposed -of and the fuel gone plus 'the exterior plumbing remo ved. All that remains then is essentially a concrete shell. If a reactor possession license
~
must be kept while dismantling occurn, it must be exclicitiv restricted to decommissioning purposes solely and terminate
.(and the remaining renewal _ application portion finally determined) upon that dismantlement of the core. In other words, when Phases 1 a e
.2 in Jr. .!egst's proposed decommissioning plan of June 26 are complet.d.
any reactor pocsession license for decommissionin: purpor- shoula
e.
terminate as tell. At that time, with all the fu si boy ss , coolant piping, control blades and drives, and the fuel itself removed from the core and the site, all that is left is basically a concrete shell, no t a reactor, and a reactor possession license is unneeded and inappropriate. By that time (one to two yearc at the outside.
CEG would insist), UCLA should be able to have appli ed for a
- by-product license for any remaining residual contamination and thus have a valid license for whatever long-term final disposition it wishes to undertake. This would resolve part of CEG's concern that by keepine the application alive and the license alive. until completion of a process UCLA says eill te many years in the future and may not be completed at all, UCLA could receive almost infinite grant of the license it had formerly requested but now wished to withdraw. Thus, if one permits deferral of withdrawal of 'p art of the application, it should only be for
~
reactor possession, made explicitly only for decommissioning purposes,
' and be only for a relatively short time while the core components are removed and the _ fuel is off-shipped any remainine work can be i- done under an acquired by-product license. (A more reasonable approach micht be to require as an immediate condition application by UCLA for a byproduct license for decommissioninc purposec, application ithdrawal to occur upon said receipt of lic~ nse. e )
e (4) 4E00LUTEL'l ESSE :TIAL--DATES CZRTAII; FOR I?.*ITIATICI' A :D COMFLETI0li I.;UiiT BE I!iCLUDl3 A3 CCI;DITIO:;5' Otherwise there 1 no binding requiremont to do anythinc. (See Eailly and Elack Fox) u
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CEG has propos?d Jar.uary 1.19c5 for all the weapons-crade materials to be.offsite, and for the. decommissioning plan to 'oe filed.
UCIa asserts it cannot commit to either. Ccrtainly here there is so much potential injury to CEG's interests were thc.,e matters 1to be indefinitely delayed, a substantial affirmative showinz of why ths.fual_can't be offsite by nert s is required.
CEG notes that the irradiation level of the fuel is not the bar to committing to a completion date half a year hence: UCLA's Tech 5pecs . say the fuel can be moved three weeks after shutdown (five months have already passed), and UCLA has already committed to handling and removing all the fuel from the core and placing it in storage. pits by November 1 (3ee Uegst letter of July 25 to Denton. Appendix A) . If the fuel can be moved from the core to the pits by November 1 it certainly can be moved from the core to shipping casks by January 1. Earl Rutenkroger, a specialist in nuclear and hazardous materials for' Tri-Stata Motor Transit
. Company, the shipping company UCLA has used for transfers of reactor fuel, is quoted in the UCLA Daily Brulon of June 23 1984, as saying that the existing shut-down period for UCLA's fuel was more than adequate for safe removal, and that fuel removal usually takes "about a day." Ue have confirmed this vith Tri-State.
UCLA informed the Commission (pleading on the Olympics) that it had located at least two shipping casks, althouch it might take two trips to transfer all the fuel. Two trips or even chree r prerent only a few days extra of travels cartainly thnre cannot be ans:cuse there for not being able to remove thn fuel by neyt y4ar.
n S .
- Ihe 3oard har raason to comment a number of times during this proceedin . on why it appears UCLA is so reluctant to part with weapons-grade uranium. One of CEG'c original conte tions
- was that having nearly five kilograms of unirradiated 93l: enriched Uranium 'in storage for a period of a decade for a reactor that burned up about a jgggg per year was unnecessary and dangerous from a safeguards standpoint. ~ It took a very long time, but UCLA eventually removed tha unneeded material. Will re have to : sit that long again?
3ee the discussion in CBG's summary disposition motion on Contention XIII (too much SNM) for a detailed history of how often UCLA had-more SNM than authorized by its license and how'it took ' years in each case for it to come into compliance by o ff-shipping the , exc +ss. On a matter of such central importanco to this case--the risks of' theft or diversion of weapons-grade
. uranium--and with absolutely ~ no showine of any reason to the contrary f by UCLA--ad ' ate certain for completion of off-shipment of the
- re' t aining SNM must--repeat must--be included as a binding condition.
Director of NMSS Sob Burnett h'as committed to er.pediting all HRC paperwork' on the transfer. . and assisting with other acancies just N awaiting the request from UCLA.
C3G has proposed a 'date certain of January 1,1963, nalf
,' a year from. the time UCLA said it started making arrangements for the offchipm'ent. If that is insufficient--and thera is no reacon to indicate it is--then make the completion date nine monthe or even a year '(i .e. April.1 or July 1,1965)--but a binding complotion date for offchipment and tenr.ination of all SI:M llcence and application
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Jimilcrl'y',2if'any portion of the application in to remain Jilive,L and portion of License R-71 thereby, for purposes of dismantlement ~ of the ' Argonaut, dismantlement must 'ce defined andLa completion date set. 11CLA initially said it could not even' commit to -submitting.an application for license termination and decommissioning by 1985, but did so last week. It is true
'that it cannot-' commit to Phase 4 (final' disposition of the
~
concrete shell),4 but it commits now to Phases 1,2, and 3
< :(offshipment of SIE4 removal and- disposal of , exterior plumbinz,
, primaryJcoolant,1and. me,tallic core componentc and
- radiation survey for determining extent or remaining residual
. radiation) . It commits. to by November 1,1984, taking eight 1 steps as part of that. decommissioning process- (Attachment A,-
Jagst lotter. of ' July 25. )- Leaving aside Phase 4, which it .
should do under a byproduct license, not a reactor possession license obtained by indefinite withdrawal of a renewal application
- 'now abandoned; ' there is no reason why reasonable . dates for e,
completion: of_~ the removal and disposal of primary coolant, exterior. plumbing and metallic core components cannot likewise be made. conditions." -They likewise' should be able to do that work
~
by January '1, given they say . they will ctart by Hovemb er 1 if . net
, : sooner but si:: months, a year, or even t'o if thira were ccma terious reason for such a long time, but a date should be set for the initiation and completion of the preliminary phase of dicmantlement. If UCLA cannot commit for many yeara, as
-tr. 'Jegst indicates, to final dispocition of the concrete shell, that 'is one matter, but removal of tne core components is a different story: without completion dates for that, the
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.g reactor r mains. anly 2 few stspu a:.ny from bvinz operstiencl (a utid renovsd here, c sev+ red line rec nnectcd thera).
One other comment is in order. Otaff's proposal is essentially merely that UCLA apply for decommicsionin . It has
-now done. so with the ';!egst application of June 25 and 26.
o,. _The. commitments made therein. need be made explicit conditions o f application withdrawal, with dates certain for the first three ~ short-term phases and some . definition of terms (e.g.
metallic. core components means metallic components riithin the core as' bounded by the concrete shield, that "dicposed of" the UCLA site or " removed" means removed ofE/ s: to a suitable recipient. ,
~
that the concrete chield options are demolition and off-shipment
- or sealing. or use for some non-reactor purpose).
-That U.0LA. apply for decommissioning is an insufficient condition. It must be committed to dismantlement, decontamination and _ disposal. . as a condition of withdrawal, and the Phase 1-3 4 commitments, with a date certain, 55 'aindi:tg conditions of .the application withdrawal.
~
Additionally, it must be said that the parallal requests by UCLA 's tegst - to NRR for amendments to the license muct not deter the imposition of conditions on the application withdra'al.
~
because it is only by virtue of a non-withdrawn (or conditionally p
withdrawn) application that there would even be a continuing
. license to amend. The responsibility for adding these conditionc must be the Eoard's under 2.107: all the commitmente mde byU1A necd be made binding conditions for withdra :al co that 03G dess no t bear the risNc accociated with UCLA failing to comply et.thi
- c'ommitments made in lottars but not included as conditionc.
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The erell-established procedure for withdrac.als ir conditioning -then on site restoration specifics, document production i
or preservation, ' reporting and monitoring requirements, and
- makinc Ine withdrawals and 2 /ascation of all permits and licenses that " exist by virtue of the existence of the terminated proceedine effective immediately, with conditions legally bindinr thereafter, enforceable by the NKO Commission and the courts.
UCLA's proposed conditions--and all four must be explicitly
- included--go a long way toward meeting the standard. CEG 's
-proposed modifications, making them more explicit and enforceable, resolve the' bulk of residual injury to CBG and the public that might occur by such a withdrawal. -
The 5taff's proposal is.directly opposite of all the established precedent in this regard. It would usurp Board responsibility to establish conditions ~, force the Board to keep en its docket an entirely academic application which had been acandoned by its sponsors, remove 1.11 of the rights C3G had by virtue of the proceeding without rithdrawing the application therson,- and most injurious, would give UCLA an unlimited licenas R-71 nore than it could have receivad had it eventually prevailed in11tc ' application, without having to reach thos merit ~iccues, as reward for withdrawing and aban?.oninz the very application in ques-lon.
J3G strenuously prosses the conditions it proposed, which are consistent with the case la*:t and regulations and fundansntal
, fatrn:ss. Go on- vill be injured by C50 's proposal, ma?cive injury clould r: suit fran ataff's.
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V If any of .3taff's proposal is accepted, only that portion of the Application and the License R-71 chould be partitted to star.d absolutely needed for decommissioning. Dates certain must be established- for completien, particularly for removal of the weapons grade ' uranium. The oce*ating license application must
^
be.immediately withdrawn, with clear language that it has been
-zfinally determined pursuant to 10 CFR 2.109
! C3G strenuously recommends that the Board follow the required practice and condition the withdrawal on the kinds cf terms and conditions CEG .had proposed, which are consistent with a long striru; of liRC case law. 3hould the Eoard decline to do so.
CBG respectfully requests that it indicate wiutner the Order constitutes a final decision for purposes of appeal.
9
.f Respectfully submitted.
J uaniel liir sch dated at 3en Lomond, CA this 1st day of August, 1964 r
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. UNITED STATES OF AMERICA NUCIJlAR REGUIATORY CCMMISSION ,
SEFORE THE ATOMIC SAFETY AND LICENSING BOARD E
u e-~
In the Matter of ~
Docket No. 50-142 THE RECElffS OF THE UNIVERSITY 0F CALIFORNIA (Proposed Renewal7,of ' g0 o- P3 :20 Facility License)
(UCIA 'Research Reactor) Wi s a.g 00CM ij.5 4 y,,
uU CH DECIARATION OF SERVICE h.NY C I Oli [T LA"N rdT a. r, 4 . u>RA".lAL in the abovo-captioned pioce;;iing have been served on the following by deposit in the United States anil, first , postage prepaid, addressed as indicated, on this dates . August 1, c4 ,
U- John H. Frye, III, Chairman Christine Helwick Atomic Safety & Licensing Board Glenn R. Woods ;
U.S. Nuclear Regulatory Commission Office of Ceneral Counsel
. . . . 910 University Hall a Dr. Emmoth A. Imebke 2200 University Avenes Administrative Judge Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Mr. John Bay l Vashington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123 l M Glenn O. Bright Administrative Judge Atomic Safety and Licensing Board 4nn Nalihoff Deputy City Attorney U.S. Nuclear Regulatory commission City Hall Washington, D.C. 20555 .
1685 Main Street Chief, Docketing and Service Section Office'of the Secretary Dorothy thospson U.S.' Nuclear Regulatory Commission Nuclear Iaw Center Washington, D.C. 20555 6300 Vilshire 31vd., #1200
, ., Ias Angeles, California 90048 l a. Counsel for NRC Staff U.S. Nuclear Regulatory Commission Ms. Carole- Kagan, Esq.
- Vashington, D.C. 20555 Atomic Safety and Licensing Board Panel attentions Ms. Colleen Woodhead U.S.' Nuclear' Regulatory Conmission
_., Viishington,' D.k20555 a Villiam H. Cormier /
office of Administiative Vice Chancellor -
7/
3 University of California 405 Hilgard Av%ue Los Angeles, Chlifornia 90024 Q ( {,,, , 4 Daniel Hirsch President COMMIITEE TO BRIDCE THE CAP l
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