ML20195D708
| ML20195D708 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 06/07/1999 |
| From: | Block J AFFILIATION NOT ASSIGNED, CITIZENS AWARENESS NETWORK, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20195D684 | List: |
| References | |
| CON-#299-20498 99-754-01-LA-R, 99-754-1-LA-R, LA-R, NUDOCS 9906100029 | |
| Download: ML20195D708 (14) | |
Text
io
)
)..
DOCKETED U91RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 99 JW -8 P 3 :12 Before the ATOMIC SAFETY AND LICENSING BOARD.
Utt il Administrative Judges:
Atli Charles Bechhoefer, Chariman Dr. Thomas S. Elleman Thomas D. Murphy In the Matter of Docket No. 50-029-LA-R YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 99-754-01-LA-R (Yankee Nuclear Power Station)
License Termination Plan FILED: June 7,1999 INTERVENORS' OPPOSITION TO YANKEE ATOMIC ELECTRIC COMPANY'S IYAEC'sl MOTION TO TERMINATE AND PROPOSED FORM OF ORDER FOR EXPENSES, FEES, AND RESPONSES TO DISCOVERY L
INTRODUCTION Intervenors in the above matter, New England Coalition on Nuclear Pollution, Inc., and Citizens Awareness Network, Inc., consolidated by the Panel's Prehearing Order (March 18,1999), hereby reply to YAEC's Motion to Terminate Proceeding (May 26, 1999). Intervenors oppose granting YAEC's withdrawal motion unless the Panel takes action to mitigate the prejudice to intervenors' interests by imposing conditions upon withdrawal. Such action should consist, at a minimum, of the imposition upon YAEC of Intervenors' expenses and reasonable attorneys' fees.
Intervenors have invested l
l D
DO 0500 029
,O PDR l
puu(o 00 uf
+
2 considerable time and money in this matter for over a year.' However, the prejudice to
-Intervenors' interests (which YAEC's precipitous withdrawal of the LTP causes) is not limited to losses of time and money.
1 Intervenors are now are faced with the prospect of once again having to jump the 3
j United States Nuclear Regulatory Commission's procedural hurdles in order to participate l
-i in another LTP approval process.' Moreover, Intervenors, with assistance of experts, will also have to yet again evaluate - if such an opportunity is still available in a decade - an entirely new application based upon a completely different methodological approach. See YAEC's Board Notification (Withdrawal of Application) and Motion to Terminate Proceeding and Dismiss Appeal at n.1 (May 26,1999) [ Motion to Terminate) and attached Letter from YAEC CEO Don Davis To U.S. NRC withdrawing the LTP(May 25,1999) [ Davis Letter).
i YAEC's CEO Davis states that the decision to revise the LTP using the so-called j
i MARSIM protocols "will result in a maior revision to the License' Termination Plan."
i Davis Letter at 1 (emphasis added). It is likely that when YAEC next submits it LTP
- sometime in the next decade (i.e., after 2009), Intervenors will need to find new experts
'(and probably new a new attorney) who are extremely unlikely to have the familiarity with the case material that the two experts (and present attorney) have, given that they have
' Intervenors have costs and am totaling $15,603.00, and attorneys' fees for 442.54 hours6.25e-4 days <br />0.015 hours <br />8.928571e-5 weeks <br />2.0547e-5 months <br /> at
$100.00 per hour totaling $44,254.00
%e combined totals is $59,857.00. Declaration of Frederick Katz and Declaration of Jonathan M. Block, attached hereto as Exhibits 'A' and 'B'.
- Meanwhile, the Commission is considering doing away with such adjudicatory hearings. SECY 99-006, "Re-exammation of the NRC Hennng Process"(January 8,1999). With a decade before the next submission, Intervenors will likely loose more than just money and time. Intervenors may loose the right to an adjudicatory hearing They will certainly need to i=+%.ic standmg again.
i 3
o
< :6
.l 3
reviewed thousands of pages of material in this case. ' Intervenors will not likely be able to.
use' any of the materials or experience they have assembled to date to tackle a new LTP 1
submitted a decade from now.
Finally, the Panel should consider the fact that the public has expressed great
-interest in this matter, as the Panel witnessed at the lengthy, well-attended limited appearance session on January 26,1999. At that proceeding, Region I of the EPA and Franklin County's Council of Government Planning Board expressed interest in the License Termination Plan approval process on behalf of the agencies, governmental entities and interested citizens they represent. In this regard, there is a great interest in the
. information intervenors requested by way of the-discovery. process to satisfy the L
contentions admitted in this prWing l-The public should not have to spend a decade wondering about the level of
. contamination at the Yankee Rowe site. YAEC's initial Board Notification that it intended to withdraw the Final Site Survey Plan (FSSP) -- about 50 % of the License Termination Plan, was issued on May 13,1999.- At that time, YAEC had already requested a'other. week to respond to discovery. See Exhibit 'C', copies of e-mail l
i correspondence between Robert K. Gad III, Esq. and Jonathan M. Block, attached hereto.
l.
On May 13, YAEC requested at least two more weeks extension of discovery deadlines, l
in addition to its initial request for a one week extension on April 23,1999. See genemlly, id.
On May 17,1999, NECNP filed NEPA-related Contentions which raised serious They will lose the curnet Panel that admitted their contentions and issued Notice of Heanng r
i L
E, l
1 4
questions about the adequacy and sufficiency of YAEC's hydrogeological studies of contamination at the Yankee Rowe site, and questioned the legality of the NRC Staff's EA/FONSI in this matter, Just nine days later, on May 26,1999, YAEC informed counsel for the Intervenors that it was withdrawing the entire LTP. Id. Beyond the large amount 1
l of time and money invested in a case that will be based upon an entirely new submission at l
sometime in the next decade, intervenors (and the pubic) have not obtained any reassurances regarding YAEC's records of the nature and extent of contamination at Yankee Rowe. Nor have they obtained any reassurances about the actual levels of l
contamination at the Yankee Rowe site.
Hence, the Panel, in fairness to Intervenors in light of the prejudice done by withdrawal of the LTP at this point in the proceeding, should direct YAEC to pay all expenses and reasonable attorneys' fees, order YAEC to perform proper hydrogeological tests and report the results to the Intervenors and the public, and order that YAEC answer l
l the interrogatories and provide the documents requested by way of discovery.
- IL STATEMENT OF FACTS 1
In May,1997, YAEC filed the LTP in this matter. In August of that year, NRC Project Director Morton Fairtile sent YAEC an acknowledgement of receipt of the LTP and put it up for comment. Within a few months, the NRC Staff had provided comments 1
on the plan, and requested YAEC to provide additional information concerning. By the end of December,1997, YAEC submitted a revision of the original plan.
On or about January 5,1998, the NRC Staff noticed a public meeting on the LTP, l
~ which meeting took place in Buckland, Massachusetts, on January 13,1999.
l l
l r -
5 When the hearing was held, no copies of the revised LTP were available to the public, YAEC had not finished submitting answers to the NRC Staff's questions, and the NRC l
)
LStaff not yet finished evaluating the plan. By the end of January, the NRC Staffissued a q
Notice of Hearing Opportunity. Intervenors in the instant proceeding responded to that notice.
The NRC instituted an' Atomic' Safety and Licensing Board Panel on March 17, 1998 -Intervenors filed petitions. YAEC and the NRC filed answers opposing the petitions. The Panel found that the Intervenors did not have standing to appear in the proceeding. The Intervenors appealed this decision to the Commission, filing appeals and reply briefs in answer to the NRC Staff's and YAEC's continued opposition.-
On October 23,1998, the Commission found that the Intervenors had standing to
- proceed in'the matter. The initial panel chairman was replaced by the present chairman, the Intervenors were ordered to amend their petitions, and a prehearing conference date was set. The. Intervenors amended their petitions following a slight delay in the prehearing schedule to accommodate an intervenor recovering from injuries due to an automobile accident. Contentions were filed by the beginning of January,1999, and the prehearing was set for January 26 and 27,1999, with a limited appearance session to be held at least 5
on'the evening of the first day of prehearing..YAEC and the NRC staff filed answers opposing the admission ofIntervenors' contentions, with YAEC conceding the adndssion of at least one contention.-
^ At the prehearing, Intervenors appeared with their expert, Dr. Marvin Resnikoff.
Representatives of the Franklin Regional Council cf Governments Planning Board were
/
I s
[L f.
1,,
l e
6 i
also in attendance, having' applied for admission to the proceeding as a governmental entity.
Arguments lasted for approximately one and one half days.
The limited appearance session was well attended, including a pre-noticed appearance by the General -
Counsel for Region I of the EPA, who expressed his agency's concerns about the LTP l
approval process and site remediation issues.
~
On March 17,1999 (filed March 18,1999), the Panel found that Intervenors had presented four (4) litigable contentions in the proceeding. The Panel also consolidated the Intervenors. The Panel set a telephonic status scheduling conference for March 31,1999.
A few days before the status conference, YAEC filed with the Panel a Motion to l
\\
l
' Reconsider admission of contention four. On April 1,1999, the day after the conference, YAEC filed with the Commission an appeal of the entire proceeding (which appeal is still 3
' pending).
1 At the status conference, hearing on the merits was set for the last week of September,1999, with a short discovery period, per the licensee's and NRC Staff's
. request, commencing in April and ending 60 days later. Subsequently, Intervenors filed l
oppositions to YAEC's Motion to Reconsider, as well, following YAEC's request for permissive reply, as series of request for permission to reply and replies. Intervenors also filed with the Commission reply briefs opposing YAEC's appeal. Following a one week
[
delay in the commencement of discovery per the request of the intervenor who had been in i
L l
the car accident, discovery commen +i with Intervenors' serving upon YAEC an initial j
~ set ofinterrogatories and requests to produce on April 17,1999.
YAEC replied on April 23,1999, by requesting an additional week to respond to i
1
F, i
7 the discovery. See Exhibit 'C' attached hereto. On May 13, 1999, YAEC filed a Board Notification stating that it was withdrawing about 50 % of the LTP, i.e., the Final Site Survey Plan, to revise it using the MARSSIM protocols. At that time, YAEC requested two more weeks ex tension for filing responses to the Intervenors' first round of discovery.
l Four' days later, Intervenor NECNP filed new contentions dealing with the inadequacies in YAEC's Environmental Report and the NRC Staft's EA/FONSI of the i
i LTP based upon that report and the LTP. The new contentions were supported by two j
i expert declarations. One, by a hydrogeologist Robert J. Ross, found numerous serious flaws, deficiencies, and anomalies in YAEC's hydrogeologic testing and site characterization.
On May 26,1999, YAEC filed another Board Notification which included a Motion to Terminate the goceeding and a Motion to Dismiss Appeal (directed at the Commission).
The instant filing responds to YAEC's Motion to Terminate (May 26,1999).
III.
THIS PANEL HAS THE AUTHORITY AND SHOULD ORDE.R AS CONDITIONS FOR WITHDRAWL WITHOUT = PREJUDICE THAT YAEC PAY INTERVENORS' EXPENSES AND ATTORNEYS FEES, CONDUCT PROPER HYDROGEOLOGICAL TESTS AT THE YANKEE ROWE SITE AND PUBLICALLY REPORT THE RESULTS, AND PROVIDE ANSWERS AND DOCUMENTS REQUESTED IN THE INTERVENOR'S FIRST REQUESTS OF YAEC FOR DISCOVERY.
A.
NRC Regulations Permit Conditional Withdrawal.
Under 10 C.F.R. Q 2.107(a), once a Notice of Hearing has been filed, an applicant, such "as YAEC in this matter, must file a motion to withdraw the application. 10 C.F.R. 2.107(a); see also Vermont Yankee Nuclear Power Corp.
m
p.,
.e 8
(Vermont Yankee Nuclear Power Station), CLI-93-20, 38 NRC 83, 84-85 (1993).
' Moreover, "[w]ithdrawal of an application after the issuance of a notice of hearing aball be on such terms as.the presiding officer may prescribe." 10 C.F.R. {
2.107(a)(emphasis added). In this regard,10 C.F.R. f 2.107(a) tracks the Federal Rules 'of Civil Procedure Rule 41(a)(2). Sequoyah Fuels Corp., LBP-93-25, 38 NRC 304, 315 at n.32 (1993). The Panel is vested with discretion to make a determination as to whether and/or what conditions shall be imposed upon the movant. Id at 315, n.35; Alamance Industries, Inc. v. Filene's, 210 F. 2d 142, 146 (l" Cir.), cert denied 368 U.S. 831(1%1) (purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit imposition of curative conditions).
The right to a voluntary dismissal without prejudice is' generally upon the payment of the non-moving party's costs, unless it appears that the non-movant would' suffer plain legal prejudice other than the mere prospect of a second lawsuit. Eaddy v. Little, 234 F.Supp. 377, 379 (E.D.S.C.1964) (citing Cone v.
West ' Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947)).
As to what r
1 constitutes plain legal prejudice, Courts have said that if a " substantial right" is lost through voluntary, unconditional dismissal, the same should not be granted.
Id (citing Home Owners' Loan Corporation v. Hufman,134 F.2d 314 (8* Cir.
1943)). In Young v. Southern Pac..Co., 25 F.2d 630 (2d Cir.1928), Judge Leamed Hand reasoned that substantial prejudice arises when a party may be i
i
7, 9
p Y
forced to appear before another tribunal which will " apply different rules" and when the purpose of the withdrawal is to maneuver the litigation so that the non-moving party loses its advantage. Id. at 632. The loss of a particular forum itself may be grave prejudice in and ofitself. Id.
In the instant matter, where YAEC has withdrawn the application and states in its motion to end the proceeding that it will submit it again sometime in the next decade, Motion to Tenninate at n.1, there is little doubt that the Intervenors will not have the same Atomic Safety and Licensing Board Panel again. It is also highly unlikely that the Commission's rules and regulations will remain unchanged--in fact, even now, the Commission is considering doing away with Subpart G type proceedings. See, e.g., SECY-99-006, " Reexamination of the NRC Hearing Process, " (January 8,1999) (General Counsel for the NRC arguing to the Commission that formal hearings are not required under fl89a of the Atomic Energy Act). Thus, Intervenors' loss of this forum for the adjudication of the LTP is likely to be_ precisely the kind of loss Judge Hand found to be i
1 substantially prejudicial.
This is a case in which, unlike other NRC cases dealing with conditional withdrawal, Intervenors have sustained a year of costly litigation, invested in
)
experts, a Notice of Hearing has issued, a second set of contentions has been filed, an EA/FONSI issued, and Intervenors' first round of discovery was served upon YAEC over a month prior to the withdrawal and Motion to Tenniante. Compare, e
l 10 e.g.,
circumstances ^ in this case with Northern States Power Company 1
(Independent Fuel Storage Installation), LBP-97-17, 46 NRC 227, 229 (1997);
Energy Fuels Nuclear,1nc., LBP-95-20,42 NRC 197,198 (l995); Sequoyah Fuels l
Corp., CLI-95-2,41 NRC 179 (1995). Under the circumstances in this case, quite distinct from the others in terms of the substantial prejudice to Intervenors' interests here, a reasonable exercise of discretion argues that this Panel impose conditions upon YAEC's withdrawal of the application--including all costs to the Intervenors and other conditions as discussed below.
"The word ' costs' is often used in connection with the conditions imposed on the plaintiffin the granting of such a motion. Terms and conditions are not limited to taxable costs but may include compensation for all the expenses...
j including attorney fees and well as costs and other disbursements." Eaddy v. Little, supra at 380. In this meater, given that there is little likelihood that the Intervenors will have another opportunity for an adjudication of the LTP's adequacy, they have spent much time and money for over a year to anive at this stage, the application is being withdrawn just when they would be expecting to receive discovery materials, they have paid the costs of providing two experts with extensive information about the case, they have paid the costs of obtaining the experts' opinions concerning important aspects of the case, and, most significantly j
damaging, even if there were another hearing opportunity on the LTP, it is highly unlikely that any of the preparations the Intervenors have undertaken to date will
11 be relevant to a,new LTP that has been subject to " major" revision (to use the words of YAEC's CEO Mr. Davis) and submitted again in a decade. Davis Letter at 1 (attached to YAEC's Motion to Terminate); see also Motion to Terminate at 1
n.l.
Given such substantial prejudice, the question is not whether all costs should be imposed, but precisely what conditions in addition to "all costs" may be imposed to ameliorate the prejudice. In this regard, Intervenors have supplied-declarations placing before the Panel the expenses and attorneys' fees incurred in this matter.
Declaration of Frederick Katz, Exhibits 'A', and Declaration of Jonathan M. Block, Exhibit 'B', attached hereto. Expenses and fees in this matter now total S Appropriate conditions, under the Federal Rules of Civil Procedure 41(a)(2), have also been held to include more than just payment of all costs the action. See Holbrook v. Andersen Corp.,130 F.R.D. 516,522 (D.Me.1990)(most compelling reason mitigating against voluntary dismissal is the extreme prejudice of a legal and financial nature); Le BangMotors, LTP. v. Suburu ofAmerica, Inc.,
148 F.3d 680,685 (7'" Cir.1998) (awarding attorneys' fees on voluntary dismissal without prejudice compensates for unnecessary expense of the litigation and also reimburses for a work product that will not be useful in subsequent litigation);
American Cynamid Co. v. McGhee, 317 F.2d 295, 298 (5'h Cir.1963) (awarding i
costs and attorneys' fees within tribunal's discretion); Eaddy v. Little, 234 F.
1
Ic 12 Supp. 377, 380 (E.D.S.C.1964) (to redress prejudice of withdrawal, court orders answers to particular interrogatories and production of documents in addition to attorneys fees and costs); Stevenson v. United States,197 F. Supp. 355, (M.D.
Tenn. 1%1) (to redress. prejudice' of withdrawal, court orders discovery, production of witnesses, costs of transporting witnesses, payment of one-half of
. costs of deposing witnesses, and all of the costs of the action).
)
i In the instant case, the Intervenors should be given the discovery they sought. This material, while unlikely to necessarily be of use in a hearing on the new LTP some ten (10) years down the road, will be useful in providing some reassurance to the Intervenors (and the public) concerning the nature and extent of contamination at the Yankee Rowe site. In this regard, an order for the provision of discovery will also satisfy the need to redress the harm that dissolution of the proceeding will cause to the public. Beyond the two Intervenors, Region I of the EPA 'and the Franklin Regional Council of Government Planning Board expressed serious interests in the resolution of the issues in this case. Additionally, persons from as far off as Maine came to the limited appearance session to express concems to the Panel -- along with a substantial, passionate, and articulate cross section of the local citizenry. Under such circumstances, to allow withdrawal of the license without answering the questions and concerns raised is to do a major disservice to the public.
Intervenors also ask the Panel to carefully review hydrogeologist Ross' n
o, 13 expert declaration.
In it, as highlighted in Intervenor NECNP's NEPA Contentions filing, there are many serious questions raised regarding the scientific propriety'of YAEC's site characterization of groundwater contamination. Mr.
Ross points out procedural and methodological problems with YAEC's testing, as l
well as describing a number of disturbing anomalies in the data and conclusions i
YAEC has concerning subsurface contamination and pollution pathways. In this j
regard, Intervenors believe that the Panel owes a duty to the public to order YAEC to immediately take steps to address each of the issues raised in the Ross
)
i declaration. Intervenors believe that the Panel should also direct YAEC, within a reasonable period of time, to appraise the Intervenors and the public of the efforts 1
l and results taken in this regard, and to provide the Intervenors and the Public Document Room at Greenfield Community College with copies of the scientific and technical reports that support YAEC's statement that it has taken adequate steps to remedy the problems Mr. Ross described.
CONCLUSION For the reasons articulated above, Intervenors ask that the Panel grant YAEC's Motion to Withdraw by imposing conditions, which, at a minimum, i
include: (1) ordering YAEC to pay Intervenors' costs, expenses, and reasonable attorneys fees; and, in consideration of what is necessary for the public good, as well as what is also due to the Intervenors to reasonably mitigate the prejudic.ial
4
^
e 14 effects of YAEC's withdrawal at this stage of the proceeding, (2) order that YAEC conduct proper hydrogeologic tests to account for the inadequacies, anomalies, and unscientific practices in their extant hydrogeological studies of the Yankee Rowe i
site, and send copies of the data and results of such studies to the intervenors and place copies in the Local Public Document Room, and (3) order that YAEC answer the interrogatories and produce the documents that the Intervenors requested by way of their first round of discovery in this matter, provide the material to the Intervenors and their experts, and place copies of the material in the Public Document Room in Greenfield, Massachusetts.
.For canying out the relief herein requested, Intervenors have attached a proposed set of Findings and Order in this matter pursuant to 10 C.F.R. { 2.107(a) and { 2.730(b).
. Respectfully submitted:
NEW ENGLAND COALITION ON NUCLEAR POLLUTION, INC.
CITIZENS AWARENESS NETWORK,INC.
B./
Jonathan M. Block Attorney at Law 94 Main Street P.O. Box 566 Putney, VT 05346-0566 802-387-2646 Dated: June 7,1999 cc: Senice list t
!