ML20207H579
| ML20207H579 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 06/14/1999 |
| From: | Dignan T ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#299-20545 LA-R, NUDOCS 9906180014 | |
| Download: ML20207H579 (20) | |
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2.06hb DOCKE1ED USHRC United States of America ggg Nuclear Regulatory Commiss,on i
before the Atomic Safety and Licensing Board OFU RUL c+.
ADJUi In the Matter of YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)
MOTION OF YANKEE ATOMIC ELECTRIC COMPANY FOR LEAVE TO RESPOND TO i
INTERVENORS' " OPPOSITION T6... MOTION TO TERMINATE [ETC.]"
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Pursuant to 10 C.F.R. $ 2.730(c), and because the pleading to which we seek leave to reply advances (though it is not denominated as such) its own motion for affirmative relief in favor of the Intervenors, Yankee Atomic Electric Company (" Yankee") moves for leave to reply to Intervenors " Opposition to Yankee Atomic Electric Company's Motion to Terminate and Proposed Form of Order for Expenses, Fees and Responses l
to Discovery" (" Motion for Conditions").
Introduction.
Background
In May,1997, Yankee submitted to the Commission for approval a " License Ter-mination Plan" (the "LTP") for Yankee Nuclear Power Station ("YNPS"), pursuant to 10 C.F.R. $ 50.82, as amended by 62 Fed. Reg. 39091 (July 29,1996). Yankee amended the LTP in December,1997. Several entities thereafter sought intervention in the LTP approval proceeding, of which two were held to have standing. On March 17, 1999, this Board rendered a decision admitting four contentions drafted by the Board. Yankee Atomic Electric Company (Yankee Nuclear Power Station), LBP-99-14, NRC 9906180014 990614 r
PDR ADOCK 05000029 G
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(March 17,1999). Yankee appealed the admission of those four contentions to the Commission, which appeal remains pending.
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In connection with LBP-99-14, this Board issued and published a Notice of Hearing in this matter on April 6, 1999. 64 Fed. Reg.17689 (Apr. 6,1999).
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. Yankee's LTP employed a survey methodology based on the " Manual for
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Conducting Radiological Surveys in Support of License Termination," NUREG/CR-5849 (June 1992) (the "5849 Methodology"), which at the time the LTP was submitted was the only Commission-approved methodology for this purpose. Subsequently, the Commission, jointly with a group of other federal agencies, approved an alternative survey methodology, known as " Multi-Agency Radiation Survey and Site Investigation Manual," NUREG-1575/ EPA 402-R-97-106 (December,1997) ("MARSSIM"). MARS-SIM is considered to be more rigorous than the 5849 Methodology, and it enjoys a universality of approval that the 5849 Methodology never apparently achieved.
By a Board Notification dated May 13,1999, Yankee advised the Board and parties that it intended to shift from the 5849 Methodology to MARSSIM. By a subsequent Board Notification dated May 26,1999, Yankee advised the Board and parties that it has withdrawn its application for approval of the previously-submitted LTP and sought termination of these proceedings. The second Board Notification and withdrawal were based on the fact that Yankee had concluded that it would take, at a minimum, several months to determine the nature of the changes that would have to be made to an LTP in order to implement the shift to MARSSIM, during which process any number of other changes to the LTP might be made as well. As Yankee is not required by the
' ' Yankee expects that the Commission will dismiss the appeal as moot, which will have the effect of
' acating (as moot) LBP-99-14. See Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), CLI-v 96-2,43 NRC 13,15 (1996); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-85-16,22 NRC 459 (1985); Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 a' d 2),18 N.R.C.1164 (1983); Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units n
1 and 2), CLI-80 34,12 NRC 407 (1980).
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regulations to obtain approval of an LTP for years,if not decades,2 there is no schedule i
for when another application for approval of a new LTP may be filed.
The Issue Now Before the Board l
As noted above, Yankee was not obligated to submit an LTP for years, if not decades. Nonetheless, it volunteered to make an early effort to address the issue of residual radioactivity on the bulk of the YNPS site (the portion that would not be used for long-term spent fuel storage). It engaged in a substantial amount of site classifica-tion and site remediation; it incorporated by reference the then-standard methodology for site surveys; and it even proposed site release criteria more restrictive than the criterion contained in the governing regulations. Notwithstanding such laudable efforts, approval of its LTP was aggressively opposed, and, in part, the opposition contended that Yankee should have forced on it an even more rigorous site release criterion than the one Yankee had proposed, which was itself more rigotous than that required by law.)
Yankee has now withdrawn its application for approval of the previously-submitted LTP, which it no longer intends to implement. A new LTP will be 2Under 10 C.F.R. $ 50.82, a License Termination Plan is required to be submitted prior to or concurrently with an application to terminate the license. 10 C.F.R. 5 50.82 (a)(9); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185,196 (1998). Yankee's present schedulc calls for license termination in approximately 2019. LTP Fig.1-1. Under the regulations, an application to terminate the license is required until 2052.10 C.F.R. $ 50.82(a)(3).
' Yankee proposed a criterion c,f 15 mrem /yr. to the average member of the critical group, rather than the governing 25 mrem /yr. Yankee's definition of the critical group adopted the " resident farmer" scenario contained in NUREG-5512, which is the most restrictive of the scenarios offered in that guidance. The " resident farmer" scenario, in turn was based on exhaustive data about " residency times" (i.e., amount of time spent indoors, outdoors, and gardening in residential scenarios in the United States).
See " Letter Report: Review of Parameter Data for the NUREG/CR-5512 Residential Farmer Scenario and Probability Distributions for the DandD Parameter Analysis," Sandia (1998), induded in NUREG-1549. The intervenors proposed, with absolutely no factual or literature-based basis whatsoever, that the 15 mrem /yr. pass value be retained but the scale be adjusted to employ a " critical group" that would be hypothesized to spend severalfold the amount of time " outdoors" and " gardening" as the standard scenario. A review of the Letter Report reveals that the scenario for which the Intervenors contended would have exceeded by orders of magnitude the 99th percentile for outdoor and gardening residency times. Letter Report, Table 3.3.7. The effect of employing the intervenors' " critical group" would be to impose a standard of less than 15 mrem /yr. based on the standard definition.
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l submitted at some time in the future, but no schedule has been set. The new plan will be based on a more recent survey methodology.
Unlike an application for a construction permit or operating license, or most l
operating license amendments, an LTP is a mandatory filing (though the timing of it is subject to a very large window that is a matter of the licensee's option). There is no "do nothing" option, and the concept that an LTP approval might be denied simpliciter l
is not a possible result.
l To the contrary,2fone assumedthat an intervenor opposed the approval of a given l
LTP and were entirely successful, the result would not be that a plant wasn't to be built, or if built wasn't to be operated, or some change to its design wasn't to be made, but rather only that, some time (which might be years or decades later), the licensee
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would come back with a new LTP. This process would-of abject necessity-be repeated until an LTP was approved.
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Properly understood, therefore, the withdrawal of the present application, albeit for entirely different reasons, has accomplished for the Intervenors all they might have j
accomplished if They had prevailed on their defense of the admission of the four contentions drafted and admitted by this Board; They had pursued a contested evidentiary hearing and borne the costs of doing so (legal fees and otherwise);
They had prevailed on the merits of the four admitted conten'tions; and They had survived any subsequent appeal.
l Had the Intervenors been so lucky, then they would be faced with exactly what they 1
are faced with now (another application some time later), and they would have had to I
bear all their legal costs-both accrued to date and to be accrued during the rest of the i
proceeding. The Intervenors are, thus, no worse off than if they had " won" (even though they did not).
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t Not content, however, the Intervenors seek an unprecedented order from this Board that would:
Condition termination of these proceedings on Yankee agreeing to give them more than $50,000; Condition termination of these proceedings on Yankee agreeing to the continuation of discovery in respect of contentions that are now moot; and l
Condition termination of these proceedings on Yankee agreeing to engage in new research and analysis to " account for" certain perceived " anomalies" in the implementation of the former LTP, involving factual issues that are now not only moot but were never within the scope of the proceeding in the first place.'
In theory, this Board has three options: (i) it can terminate the proceedings with prejudice, (ii) it can terminate the proceedings without prejudice and without conditions, and (iii) impose conditions on any termination, which means that, if the conditions are acceptable to Yankee, the proceeding will terminate and, if not, presumably it will continue.5 In reality, however, this Board's options are substantially more limited. As a matter of law (not to mention common sense), the proceeding cannot be terminated "with prejudice." See $ I, infra. As a practical matter, denying termination would be a futile exercise, as Yankee would not support the previously-submitted LTP and the only possible result would be an initial decision that says, in i
effect, "Go back and come up with another plan (sometime in the remaining part of l
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- In the alternative, the Intervenors demand that the proceeding not be terminated: "Intervenors oppsed granting YAEC's withdrawal motion unless" their unusual conditions are imposed. Motion for Conditions at 1.
59 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE $ 2366, at 303: "The more common l
practice, however,is for the plaintiff simply to move for dismissal without mentioning conditions. The trial court then will specify on conditions it will allow dismissal. If the conditions are too onerous, the l
plaintiff need not accept the dismissal on those terms." See also, e.g., Marlow v. Winston & Strawn,19 F.3d 300, 304 (7th Cir.1994); Gravatt v. Columbia University, 845 F.2d 54 (2d Cir.1988); Andes v.
l Versant Corp.,788 F.2d 1033,1037 (4th Cir.1986); Lau v. Glendora Unpied SchoolDistrict,792 F.2d 929, l
930 (9th Cir.1986); GAF Corp. v. Transamerica Insurance Co., 665 F.2d 364,367-68 (D.C.Cir.1981).
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i the 60-year period)"-which is precisely the same result as a termination without
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prejudice and without conditions.
The Intervenors' unusual request is entirely unprecedented, as the Commission has never terminated a proceeding upon the withdrawal of an application with prejudice; the Commission has never imposed " costs" upon an applicant as a condition of termination; and the Commission has never imposed any conditions other than site restoration in a construction permit or operating license proceeding. The Intervenors' request is entirely impractical, since Yankee will not accept any of the proposed
" conditions," and the Intervenors do not really want the alternative (a continued proceeding).
Needless to say, this unusual request should be denied.
I.
THIS BOARD LACKS THE AUTHORITY TO TERMINATE THESE PROCEED-INGS "WITH PREJUDICE," WHICH IS, IN ANY EVENT AND IN PRESENT CONTEXT, A MEANINGLESS CONCEPT.
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Implicit in the Intervenors' motion is the concept that this Board has the power either to deny " termination" of the proceedings-and thus, presumably, mandate the continuation of a' contested proceeding about an application that is no longer pressed by the applicant and which the applicant does not intend to support-or to terminate the proceeding "with prejudice." The former is pragmatically vacuous, and the Board lacks the power to do the latter.
A.
The Regulations Do Not Give This Board Authority to Terminate a Proceeding "With Prejudice" After a Notice of Hearing has been Issued.
The Commission's rule on the subject,10 C.F.R. $ 2.107, divides the question of termination of proceedings upon the withdrawa! of an application into two (and only two) classes of cases: those in which withdrawal occurs before issuance of a Notice of Hearing and those in which withdrawal occurs after the issuance of a Notice of Hearing. The salient differences that depend on whether a Notice of Hearing has been issued may be summarized thus:
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Before Notice After Notice Who Acts?
"The Co r sion" "the presiding officer" May Conditions be imposed?
Yes, in the unusual case Yes, in the unusual case in i
in which conditions are which conditions are appro-appropriate.
priate.
May an Application be Dismissed Yes No.
"With Prejudice"?
The regulation provides as follows:
"The Commission may permit an applicant to withdraw an application prior to the issuance ofa notice ofhearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe."
10 C.F.R. 5 2.107(a). The term " presiding officer" used in the second sentence is defined under 10 C.F.R. $ 2.704 to mean this Board, while the term " Commission" used in the first sentence means the Commissioners of the Nuclear Regulatory Commission and the NRC Staff, but not an ASLB.10 C.F.R. $ 2.4; Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-93-20,38 NRC 83, 84-85 (1993).
The express language of $ 2.107 includes a power of dismissal "with prejudice" for applications withdrawn prior to issuance of a Notice of Hearing and excludes, con-spicuously, such a power in the case of a withdrawal of an application after issuance of a Notice of Hearing. As a consequence, this Board lacks power to grant any request for a dismissal "with prejudice" (whatever that means).'
'As might be expected, the Intervenors place a lot of weight upon analogy to Fed. R. Civ. P. 41, but the Intervenors fail to recognize the fundamental difference between civil litigation and contested proceedings before this Commission, which requires that any such analogy be made with care. Once a defendant has been served with process in a civil litigation, the defendant has an interest in a final judgment favorable to him, which (if obtained) precludes any assertion of the same cause of action in any other forum at any time in the future, and which may be thought of as that which the defendant
" purchases" with his invested costs of defense. This was the situation discussed by the Court in Cone
- v. West Virginia Pulp & Paper Co.,330 U.S. 212,217 (1947), cited by the Intervenors without apparently 7
r B.
Apart from the Question of Authority, Dismissal"With Prejudice" is a Result that is Rarely Appropriate and Never Appropriate Where, as Here, There has not Been Any Adjudication on the Merits.
A dismissal of any action "with prejudice" amounts to an adjudication on the merits. Duke Power Co.' (Perkins Nuclear Station, Units 1, 2, 3), LBP-82-21,16 NRC 1128, 1135 (1982). In NRC jurisprudence, the concept of a dismissal "with prejudice" has never been contemplated in any context other than that of an application for a construction permit or operating license for a panicular site. See Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125,1132 (1981), defining dismissal with prejudice to mean "a disposition which prohibits the applicant from filing a new application to construct any type of nuclear reactor at the same site." Even where theoretically possible, dismissal "with prejudice" is an extreme remedy, which is available in NRC practice upon the withdrawal of a licensing amendment application only in rare circumstances, if at all. See Sequoyah Fuels Corp.,
CLI-93-7, 37 NRC 175,179 (1993); Puerto Rico Electric Power Authority (North Coast recognizing the vastly different circumstances under discussion:
"Take the case where a trial court is about to direct a verdict because of failure of proof in a certain aspect of the case. At that time a litigant might know or have reason to believe that he could fill the crucial gap in the evidence.
Traditionally, a plaintiff in such a dilemma has had an unqualified right, upon payments of costs, to take a nonsuit in order to file a new action after funher preparation, unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit."
By no stretch of the imagination was this Board at the verge of issuing a decision on the merits in favor of the In ervenors.
Indeed, in the present context, there is no such judgment that may be purchased, and, therefore, the only " prize" available to an intervenor in opposition to the approval of any given LTP approval application is pretermitting approval of that application (and the submission of another one later).
Withdrawal accomplishes all that might be accomplished by a successful intervention, and the prospect of unfairness that lies behind Rule 41-calling the game on the eve of a defendant's permanent and final victory-simply isn't present.
Stated a bit differently, where costs are imposed as a condition of voluntary dismissal in civil litigation, it is because a second action would be duplicative of the first one: a second trial could not happen if the first one went to conclusion. In the case of an LTP approval application, on the other hand, there will always be a second (and third and possibly more) proceeding unless the first one results in approval of the LTP. Subsequent proceedings in this context are, thus, not the result of the dismissal but rather the result of the opposition.
.s.
4 Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125,1133 (1981). It may be considered only upon a showing of " substantial prejudice to the opposing party or to the public interest in general," ALAB-662,14 NRC at 1133, quoting Philadelphia Electric Co.
(Fulton Generating Station, Units 1 and 2), ALAB-657,14 NRC 967,974 (1981), which showing may not, as a matter of law, be based upon the possibility that a similar or identical application might be filed in the future or the costs expended by an intervenor to date. "[T]he common law rule supporting the withdrawal regulations reflects that an applicant has an unqualified right to have an action dismissed unless the dismissal would legally prejudice other parties in a way other than by instituting a future proceeding of the same kind." Sequoyah fuels Corporation, LBP-93-25,38 NRC 304, 315-16 (1993), aff'd, CLI-95-2, 41 N.R.C.179 (1995), quoting Jones v. Securities and Exchange Commission,298 U.S.1,19-21 (1935)/
Here, Yankee made an elective filing,' which was based on the older of two accepted methodologies for the action in question. Prior to any adjudication beyond the pleading stage, Yankee elected to adopt the newer of the accepted methodologies, a change of substantial and as yet uncharted impact on the nature of the LTP, and so it withdrew the existing LTP in favor of one that may be filed months, years or decades down the road. This does not amount to " substantial prejudice" to the j
'And see Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125,1133,1135 (1981).
'In the sense that Yankee was not obligated to seek approval of an LTP prior to the time it sought termination of its operating license.
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Intervenors' or the public interest" and, therefore, would not support the curious notion of a dismissal "with prejudice" even apart from the question of authority.
C.
In the Case of a Mandatory Submission, such as an LTP, the
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Concept of a Dismissal "With Prejudice" Is Both Meaningless and i
Silly.
The term "with prejudice" arises in the context of the civil litigation of a legal
" claim" or "cause of action." Once adjudicated, either in favor of or adversely to the
'Who volunteered to come into this proceeding. In this context, a distinction must be made between a party who is summoned to defend himself in court by the issuance of process and one who elects to inject himself into a proceeding to which he is not a named party. The analogy to Fed. R. Civ. P. 41 is distended in such a situation, for it simply cannot be said here that the Intervenors were " forced" to expend any amounts on litigation.
The Intervenors mount an argument to the effect that they will be legally harmed by the possibilities that (i) any later LTP may be drawn to an ASLB comprised of different ASLB Panel I
members, or (ii) when a successor LTP is filed, the governing law may different, for which propositions they cite Young v. Southern Pacific Co.,24 F.2d 630 (2d Cir.1928), a decision that pre-dated the Federal Rules of Civil Procedure. Young, whatever its current vitality as authority, does not come close to supporting the Intervenors' odd notions of legal prejudice, for the situation there involved the different procedures (primarily involving the availability of discovery in an equity case) between two courts of concurrent jurisdiction, namely the state and federal trial courts. By contrast, an LTP approval proceeding can only be resolved by the Nuclear Regulatory Commission, and the notion that Intervenors have some vested right in one array of ASLB Panel members versus some other array is as devoid of basis as it is cynical. Likewise, there is no legally cognizable prejudice inherent in the fact that there is a wide window of time within which an LTP may be filed and the fact that during that time the Commission may change the substantive (or procedural) law applicable to such approvals.
"The present situation must also be distinguished from cases, such as Toledo Edison Co. (Davis-Besse
' Nuclear Pow-r Station, Units 2 and 3), LBP-81-33,14 NRC 586 (1981), where the withdrawal of an original licer.se application follows some disturbance of a site in anticipation of the allowance of the application, perhaps with LWA or other Commission approval. If one accepts the notion that, under NEPA, the Commission has some obligation to see to the restoration of such sites to t eir pre-h application condition, then it follows that " conditions" ensuring such site restoration might be in order.
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See Sequoyah fuels Corporation, LBP-93-25,38 NRC 304,316 (1993), affd, CLI-95-2,41 N.R.C.179 (1995):
"In NRC adjudicatory history, there have not been a substantial number of contested license application withdrawal cases. In those proceeding (sic] that have occurred, most have been concerned with reactor construction permits and site restoration." Here there has been no disturbance of an otherwise undisturbed site in anticipation of the approval of the LTP; indeed, the LTP, even if approved, would have granted Yankee no additional license to take any physical steps beyond those for which it already holds outstanding licenses (including a license to complete all the steps required in the decommissioning of YNPS). See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21,48 NRC 185,206 (1998): "[we] rule that any Commission approval of this LTP will not and cannot be construed to approve actions by Yankee Atomic beyond those already authorized."
claimant, that legal claim is extinguished; it is either barred by an unfavorable judgment or merged into a favorable judgment. See, e.g., Lundbom v. Phoenix Leasing, Inc., 91 F.3d 265, 270 (1st Cir.1996);" United States v. American Heart Research Foundation, Inc., 996 F.2d 7,11 (1st Cir.1993); I.A.M. National Pension Fund, Benefit Plan A v.
IndustrialEar Manufacturing Co.,723 F.2d 944,947 n.2 (D.C. Cir.1983)." In general, litigation of civil claims that terminates prior to an adjudication is "without prejudice" in the sense that the claim is not extinguished except in unusual circumstances warranting punitive measures (such as the dismissal of a plaintiff's claim for failure to comply with a Court order).
As applied to an entirely voluntary NRC license application, such as an application to construct or operate a nuclear power plant, the concept of " prejudice" can be imported only awkwardly. See Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657,14 NRC 967 (1981). While it is certainly true that the final decision in an contested proceeding on such an application could lead to collateral estopped as to issues (such as whether a given design complies with a given GDC)," the application is not the assenion of a legal " claim" that is capable of i
extinction in the same sense. A new application for a license to construct a plant on the same site, with enough design changes that someone thinks any prior adverse conclusions have been avoided, could never be the subject of " claim preclusion" in the j
sense in which " prejudice" is generally used.
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" Functionally, this familiar doctrine-known in the past as the merger and bar branch of res judicata and now as claim preclusion-prevents a plaintiff or counterclaimant from splitting its related claims among several suits."
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""Where the final judgment is rendered in favor of plaintiff, the cause of action merges into the i
judgment, and plaintiff may not thereafter maintain another suit on the same cause of action. Where the final judgment is rendered in favor of defendant, plaintiff is barred from suing defendant on the same cause of action. These principles of ' merger' and 'bar' constitute the claim preclusion aspect of res judicata."
"See, e.g., I.A.M., supra,723 F.2d at 947 n.3: "Where a subsequent action is brought on a different claim, the party is collaterally estopped from relitigating issues actually litigated and determined in the prior action."
In the sense of a mandatory filing, such as an LTP, the concept of " prejudice" is downright ' silly. YAEC is, at some time in the next 50-odd years, required by regulation to submit and apply for approval of an LTP. No order of this Board, short of an order approving an LTP, could ever relieve Yankee of that duty or deny it the opponunity. to comply. In shon, the "with prejudice" option-which means "Go home, and don't come back again!"-does not exist in this context."
II.
TIIERE IS NO BASIS FOR THE IMPOSITION OF A " CONDITION" OF THE PAYMENT OF FEES UPON THE TERMINATION OF THIS PROCEEDING.
A.
It is Doubtful that the Commission has the Authority to order that Yankee Pay the Intervenors' their " Attorneys Fees."
The Intervenors seek a substantial award of money damages in respect of their
" attorneys fees" and other litigation costs as a " condition" of the termination of these proceedings.
In the first instance, this Board could not order Yankee to pay the Intervenor's j
legal fees, and there is grave doubt that it has the authority to condition any action upon Yankee's agreeing to pay such fees. See Pacific Gas & Electric Co. (Stanislaus i
i Nuclear Project, Unit 1), LBP-83-2,17 NRC 45, 54 (1983):
"Under the circumstances of the proceeding there is no need to determine whether the Commission has the power to authorize the payment oflitigation expenses as a condition of permitting withdrawal of an application without prejudice, but it would appear not. The i
Commission is a body oflimited powers. Its enabling legislation has no provision empowering it to require the payment of a party's costs and expenses. The regulations the Commission has promulgated does not provide for it. It has no equitable power it can exercise as courts have.
The concept is foreign to the Commission's adjudicatory process."
It is therefore not surprising that there has never been such an award in the history of the Commission.
I "If it did, Yankee might be advocating a dismissal "with prejudice."
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l B.
No Sufficient Basis for Any Such Order has been Shown in Any Event.
l Even were there no doubt about the authority of the Commission to enter such an order,it would not be appropriate here. The prospect of a second proceeding on some later application (which may bear little or no substantive resemblance to the one that has been withdrawn) is not a legally cognizable harm:
"That possibility-another hearing-standing alone does not justify either a dismissal with prejudice or conditions on a withdrawal without prejudice."
l Duke Power Co. (Perkins Nuclear Station, Units 1,2 and 3), LBP-82-81,16 NRC 1128, 1135 (1982), citing Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125 (1981).
Moreover, the paradigm of the situation in which the payment of some portion of a defendant's costs of litigation as a condition upon a plaintiff's withdrawal to
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another day is where the litigation has progressed completely through the pre-trial process and is on the eve of a defendant's judgment-to obtain which, er hypothesi, the defendant will have to go through the process all over again." Here, on the other
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i hand, there is no prospect of any such final " defendant's judgment," since no matter t
what outcome of this proceeding, if the LTP were not approved, there would be another LTP and another proceeding." Moreover, even were this a traditional license "See note 6, supra.
"The fallacy of the Intervenors' reliance upon any analogy to Fed. R. Civ. P. 41 is this: In civil litigation, once a defendant has been dragged into the matter and expended sums in pursuit of a final judgment that would extinguish the plaintiff's claims, the defendant has an interest in the litigation continuing to the point of that final judgment. Here, however, the Intervenors have no interest in this proceeding continuing to a decision on the approval vel non of an LTP that Yankee doesn't intend to implement and no longer supports, nor do the Intervenors have any interest in the continuation of an NRC proceeding in which Yankee intends to take no part, nor do the Intervenors have any interest in the continuation of a proceeding the best possible result of which would be that Yankee would be told to come back with an new LTP, after the Intervenors had spent a good deal more legal fees.
Unfortunately, the Intervenors have submitted their unusual motion without ever considering the following question: What happens if the Board imposes conditions on a termination and Yankee doesn't accept them?"
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1 case (in which, perhaps, the civil action paradigm might be a useful analogy), "the proceeding never even progressed through the discovery stage. It was nowhere near approaching a determination on the merits nor had intervenors developed information which cast doubt upon the merits of the application." Pactfic Gas & Electric Co.
l (Stanislaus Nuclear Project, Unit 1), LBP-83-2,17 NRC 45,53 (1983). At best (and, again, assuming the power to make such an order), the payment of compensation for litigation expenses as a condition of a termination without prejudice is limited to cases in which the Intervenor has already prevailed on specific aspect of the application.
That never happened here.
The Intervenors cite LeBlang Motors Ltd. v. Subaru ofAmerica, Inc., 148 F.2d 680 l
(7th Cir.1998), for the supposedly general proposition that attorneys fees may be awarded as a condition of a dismissal without prejudice under Fed. R. Civ. P. 41. Mo.
tionfor Conditions at 11. What the Intervenors omit to tell this Board is that LeBlang involved the unusual circumstance that the matter was scheduled for trial, that a motion in limine had been granted barring the plaintiff from introducing expert testimony because of inadequate expert witness discovery, and that several motions for relief from the order in limine had been denied-i.e., that the matter was on a firm course leading to an almost certain defendant's victory on the merits-which advantage would be lost to the defendant if the plaintiff were allowed, in essence, to start from scratch.- Likewise, in American Cyanamid Co. v. McGhee,317 F.2d 295,298 (5th Cir.
1963), on which the plaintiffs also rely:
"The suit in the United States District Court came on for trial on the amended complaint and answer. As the jury was about to be called to the box, the plaintiff announced to the court that he was unable to proceed due to the absence of an important witness, and moved for dismissal under Rule 41(a)(2), Federal Rules of Civil Procedure."
Thus, both LeBlang and American Cyanamid were " eve of defeat" cases, the situation l
in neither of which bears any resemblance to what is before this Board in this matter.
l-l In point of fact, the federal courts routinely deny imposing costs as condition of non-1
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suit. Eg., Stevedoring Services ofAmerica v. Armillia International B.V, 889 F.2d 919 (9th Cir.1989); Blackburn v. City of Columbus,60 F.R.D.197,198 (S.D. Ohio 1973).2' l
Finally, the Intervenors' entire premise for this request is incorrect. The potential that they might have to "do it all again in the future" is not a function of the withdrawalof the LTP. Withdrawal of the LTP does not produce expenses that, were l
the LTP not withdrawn, would be avoided. To the contrary, the very prospect of multiple litigations on which the Intervenors rely derives entirely and solely from the f
fact that their intervention carries with it the possibility, however remote, that had the proceeding gone to conclusion, they might have won. The risk of having to do it twice is, in essence, what they asked for when they intervened. That is not " legal harm."
l III. ANY CONDITION BASED ON CONTINUING DISCOVERY IN CONNECTION WITH A TERMINATED PROCEEDING WOULD BE IMPROPER.
The Intervenors have moved for a " condition" on termination that would require Yankee to provide answers to previously-served interrogatories and a response to a previously _ served request for documents.28 This request is apparently premised on the false notion'that " discovery" serves some purpose of public information or dialog beyond the limited purpose of enabling one party to an on-going contested proceeding to seek out evidence to be used at an evidentiary hearing. Thus, while conceding that l
their old discovery is "unlikely to necessarily [ sic] be of use in a hearing on the new l
I 2'"There is nothing in the record which suggests that plaintiff's suit, which was brought under the provisions of the General Civil Rights Act,42 U.S.C. $ 1981 et seq. was not a bona fide effort to seek redress; there is nothing which presently indicates, as suggested in the City's memorandum in support
. of its motion, that this suit was brought to harass, embarrass or abuse either the named defendants or l'
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the civil process; nor is there any evidence in the record which indicates that the plaintiff deliberately sought to increase the defendants' costs by unduly protracting the litigation."
l
' "Actually, the proposed " Order" tendered by the Intervenors would impose duties that go beyond l
those that are imposed by the discovery rules with respect to on-going proceedings, in two respects: (i)
- the Intervenors propose that Yankee be required to provide responses to non-parties, and (ii) the Intervenors propose that Yankee be obliged to provide copies of documents (presumably at Yankee's
- expense), rather than simply to provide inspection and an opportunity for the Intervenors to have copies made (at the Intervenors' expense). See 10 C.F.R. $ 2.741(a)(1); Pennsylvania Power & Light Co. (Susque-hanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317,331 (1980).
15.
E LTP some ten (10) years down the road," the Intervenors defend their unprecedented request on the notion that the answers to interrogatories "will be useful in providing some reassurance to the Intervenors (and the public) concerning the nature and extent l
of contamination at the Yankee Rowe site." Motionfor Conditions at 12."
The infirmities of this request are several. In the first instance, the premise is entirely indefensible. Just as non-mandatory evidentiary hearings exist solely for the purpose of resolving admitted contests about litigable issues material to a pending l
application (and are not held in the absence thereof), discovery is available solely for the l
purpose of searching for evidence to be used in such an evidentiary contest. Thus, there is no right to discovery on the part of a potential intervenor prior to filing his l
petition. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 l
and 2), ALAB-107,6 AEC 188, reconsideration denied, ALAB-110,6 AEC 247, affirmed, CLI-73-12, 6 AEC 241 (1973). Nor may contentions be admitted " provisionally" in order to permit discovery "notwithstanding the Board's determination that the contentions did not satisfy the specificity requirement of 10 CFR 2.714(b)." Duke l
Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460,
(
463, 467 (1982), rev'g LBP-82-16,15 NRC 566 (1982), rev'd in part and affd in part and on this point, CLI-83-19,17 NRC 1041 (1983). Nor does an ASLB have authority to conduct what amounts to discovery in order to determine whether to admit a sua sponte issue. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 23),
L CLI-86-1,23 NRC 1,6-7 (1986). Nor may a movant for reconsideration have discovery to support the motion. Metropolitan Edison Co. (Three Mile Island Nuclear Station, l
"The Intervenors cite Stevenson v. United States,197 F. Supp. 355 (M.D. Tenn.1961), for the l
proposition that on a Rule 41 motion a Court may order continuing discovery. What they omit to I
inform this Board of is the fact that in that case the issue before the Court was whether, in allowing the plaintiff to non-suit his tax refund case so that it could be brought in a different district, the defendant would be hampered by its inability to subpoena (because of the 100-mile rule of Fed. R. Civ. P. 45) l witnesses and documents under the control of the defendant at the second trial. The Coun in Stevenson was not faced with a withdrawal sine die such as the case here, and the Court in Stevenson by no stretch of even a fervent imagination conditioned the non-suit on there being ongoing discovery outside of and prior to the commencement of the subsequent proceeding. In short, the only thing ordered by the Stevenson Court, on an entirely inapposite set of facts, was the where of any future discovery, not the when and what.
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Unit 1), CLI-85-7, 21 NRC 1104,1106 (1985). Nor is a Board entitled in effect to conduct discovery to determine whether all possible grounds for a motion can be ruled out. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1,6 (1986), rev'g in part and remanding in part ALAB-812,22 NRC 5 (1985).
Indeed, were a matter the subject of an admitted contention has been finally disposed of by the Licensing Board, the Board has no jurisdiction later to impose a license condi-tion directed to resolving questions arising out of the discovery and disclosure by the applicant of new information on the same subject. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859,25 NRC 23 (1987). Discovery, rather, is limited to matters relevant to admitted contentions that remain to be resolved. E.g.,
Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP 13,5 NRC 489,492 (1977). That set here is empty.
Beyond the foregoing, it is apparent that the information in which the Intervenors have expressed an interest would not be forthcoming even if the application had not been withdrawn. While, to be sure, many of the Intervenors' interrogatories and document requests called for information about the implementation of the former LTP, Yankee was not obliged to answer them and did not intend to answer them. As both the Commission and this Board have previously ruled, the issues open for litigation in an LTP approval proceeding do not include implementation. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21,48 NRC 185,206 (1998); LBP 99-14 at (slip opinion at 9, 26, 27, 28, 31, 33).
In the present context, moreover, any such " Order" would be futile. In the first instance, for the same reason as pointed out above, it would (and could) be merely in the form of a conditional allowance of Yankee's motion to terminate the proceedings; Yankee would not be obliged to accept any such condition (and would not accept any such condition). The only remedy-proceeding with an evidentiary hearing in which Yankee does not participate-is not realistic (nor genuinely desired by the Intervenors).
Indeed, even were the Board somehow to issue an order compelling discovery and Yankee to decline, the Board would be without power to enter any sanction, since on a motion for sanctions, three considerations are relevant: "due process for the licensee, due process for the [intervenor], with an overriding interest in a complete evidentiary record." Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), LBP-80-17,11 NRC 893,897 (1980). It would violate Yankee's due process rights to impose a discovery obligation in the absence of a live application and contested proceeding; it would hardly violate the Intervenors' due process rights to be denied discovery in the absence of such a proceeding, and manifestly there is no interest, overriding or otherwise, in a complete " record" on a proceeding to be terminated without decision.
IV. THERE IS NEITHER AUTHORITY NOR BASIS FOR A CONDITION "REQUIR-ING [ YANKEE] To ACCOUNT FOR ANY AND ALL ANOMALIES."
This request is doubly flawed. First, this proposed condition amounts to a specialized form of discovery, and for that reason is as impermissible as any discovery in a proceeding that is no longer contested. Second, even were the matter on-going, this form of discovery would transcend the prohibition contained in 10 C.F.R.
$ 2.740(b)(3).
Beyond these problems, the Intervenors' proposed " condition" would in essence continue the very litigation that is being terminated. Yankee does not agree that there are any " anomalies," and the simple assenion by someone who may be lacking in information or expertise does not make it so. The proposed condition, therefore, would require the Intervenors to designate what they contend are " anomalies" and why, I
and it would require this Board to hold a hearing and conclude that such " anomalies" exist. Only then would Yankee be obliged to " account" for the anomalies, whatever that might mean. The fact of the matter is that the issue of supposed " anomalies," like any other issue that may still be around when a later LTP is filed, can be resolved I
when, as, if, and only if, it becomes material to live pending application and should be litigated only at that time.
l Next, it seems plain that the Intervenors' " anomalies" issue would be beyond the scope of this proceeding even were the proceeding still ripe. By definition, the l
Intervenors are seeking to litigate the implementation of a final status survey, since l
what they wish to do is question, litigate and have this Board resolve some perceived 1
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p 1
. question about,'not the methodology, but the results. This Board has already ruled l
implementation to be beyond the scope of an LTP proceeding.
Finally, as-is pointed out in prior contexts, Yankee would not accept such a condition. The' motion, therefore, is that the proceeding not be terminated, which in the case of an abandoned application,is senseless.
Conclusion For the foregoing reasons, the Board should enter an order terminating this proceeding, without prejudice and without conditions.
Res ully submitted f
h Thomas G. Dig n,Jr.
R. K. Gad m Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951-7000 Attorneysfor Yankee Atomic Electric Company Dated: June 14,1999.
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[CsdTIFICA5E3 ~[F[$ERVICE$
, +
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4 I, Robert K. Gad m, one of the attorneys for Yankee Atomic Electric Comkh[dh hIrhby certify that on June 14,1999, I served the within pleading in this matter by United states" Mail (and l
also where indicated by an asterisk, by facsimile transmission) as follows:
Commissiorbt
$ R $ $1 0 3$23l OFFi RLa t '
l ADJL L-fF jij,, g gg M.
The Hon. Charles Bechhoefer The Hon. Thomas D. Murphy Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S.N.R.C.
U.c.RR.C.
Washington, D.C. 20555 Washington, D.C. 20555 FAX: 301-415-5599 FAX: 301-415-5599 The Hon. Dr. Thomas S. Elleman Administrative Judge 704 Davidson Street Raleigh, North Carolina 27609 FAX: 919-782-7975 SPhtsedjj 4
Ms. Deborah B. Katz
+*
Jonsthan M. Block, Esquire Post Office Box 566 Citizens Awareness Network,Inc.
Putney, VT 05346 Post Office Box 3023 Fax: 802-387-2667 Charlemont, MA 01339 Atromeyfor NECNP Fax: 413-339-8768 On Behalfof CAN Mr. Samuel H. Iovejoy Ann P. Hodgdon, Esquire Marian L Zobler, Esquire c/o Franklin Regional Council of Governments Office of the General Counsel 425 Main Street U. S. Nuclear Regulatory Commission Greenfield, MA 01301 Washington, D.C. 20555 Fax: 413-774-3169 FAX: 301-415 3725 On BehalfofTRCOG Attomeysfor the NRCStaff Drhers*
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Office of Commission Appellate Adjudication Office of the Secretary I. S. Nuclear Regulatory Commission aci egulatory Commission Washington, D.C. 20555 ashington,D. 2Q55
- 301-414 2 / :j
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R. K. Gad m
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