ML20217H679
| ML20217H679 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 04/29/1998 |
| From: | Curran D, Walker N AFFILIATION NOT ASSIGNED, CITIZENS AGAINST NUCLEAR TRASH, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#298-19000 91-641-02-ML, 91-641-2-ML, ML, NUDOCS 9804300036 | |
| Download: ML20217H679 (11) | |
Text
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@ 002/012 00CKETED USHiC UNITED STATES OF AMERICA NUCLEARREGULATORY COMMISSION On.
BEFORE THE COMMISSION AD $ <.
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Docket No. 70-3070-ML In the Matter of
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ASLBP No. 91-641-02-ML LOUISIANA ENERGY SERVICES, L.P.
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(SpecialNuclear (ClaiborneEnrichment Oster)
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Materials License)
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April 29,1998 RESPONSE OF CITEENS AGAINST NUCLEAR TRASH (" CANT")
TO LOUISIANAENERGY SERVICE'S MQ))ON TO WITHDRAW LICENSE APPLICATION 1
Intervenor, Citizens Against Nuclear Trash (" CANT") hereby responds to the motion by Louisiana Energy Servic=1, L.P. ("LES") to withdraw its license application and terminate this proceeding, filed on Apdl:!2,1998. Pursuant to 10 C.FA g 2.107(a), the motion should be grante subject to certain condidons necessary to protect CANT against the prejudicial effect of the withdrawal l
FACTUALBACKGROUND This proceeding lu.s been pending since 1991, when CANT requested a hearing and p to intervene. Dunng that time, CANT has expended signdicant time and resources demonstrating t LES's license applicatict fails to comply with Nuclear Regulatory Commission ("NRC") safety regulations, and that LES's and the NRC Staft's environmental analyses of the project fai requirements of the Natknal Environmental Policy Act ("NEPA"). In particular, during 1995, CANT presented extensive testimony demonstrating that LES did not meet the Co 9804300036 980429 PDR ADOCK 07003070 C
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requirements regarding fmancial qualifications and decommissioning funding and that nerther LES nor the NRC Staffhad satisfied NEPA with respect to decommissioning fundmg, environmentaljustice, the relative costs and benefits of the facility, need for the faddy, secondary impacts, or discussion of the no action altamative The Board ruled agninst Applicant on the issues of financial qualifications, need for the fadlity, the relative costs and bene 5ts of the facility, considerstion of the no action attemative, ma idntion of secondary benefits, and faihire of the decommissioning cost estimate to consider the cost of converting depleted uranium hexafk'uride to uranium oxide. The Board mied in favor of CANT on the enGer.
4.1 justice issue, determining that a thorough NRC StaC investigation of the facilny site selection process must be done to determine whether racial discrimination played a role in that process, the Board also nited in fimor of CANC that the NRC Stafflanda=*3y assessed both the disparate adverse impacts of relocaing the Padsh road connecting the African American communities ofForest Grove and Center Springn, and the economic impacts of the facility on property in those communities.
ne Board ruled in favor cf the Applicant on the issue of whether the LES dose impact analysis in the Staff's Environmental Intact Statement ("EIS") supported the decommissioning cost estimate and compliedwithNEPA.
Ob appeal, the Conmission resolved the AnnW qualifications issue in favor of Applicant, but imposed a significant licmse condition requiring the Applicant to obtain firm commitments for full financing before commau:ing the project. The Commission afErmed the Board with respect to the l
L inadequacy of the EIS's discussion of the no action ahomative. With respect to the environmental I
justice issue, the Commission found that the Board's proposed racial discrimination inquiry int 2
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@ 004/018 Man process goes beyoixi the requirements ofNEPA, but remanded the EIS to the NRC Staff for fbrther consideration of di.;parate adverse impacts on tim minority communities ofForest Grove and Center Springs. "Ihe Commission also found that the Board erred in failing to consider some alleged bene 8ts in assessing the need for the project, and remanded for fbrther consideration by the Board.
The Commission also reversed the Board on the issue of consideration of secondary impacts.
. ARGUMENT Pursuant to 10 CIA g 2.107(s), "(w]ithdrawal of an application after the issuance of a notice of hearing shall be on suct.crms as the Presiding Of5cer may prescribe." It appears that wida.w.1-related issues pending befcre the Licensing Board are to be resolved in the first instance by the Board, and issues per.dir,g befon: the Commission are to be resolved by the CW*daa-Duke Pown Company (Perkins Nuclear Station, Units 1,2, and 3), ALAB-668,15 NRC 450, 451 (1982). Here, the Licensing Board almld consider conditions relating to the issue pending befbre it, i.s.,
consideration of the costs and beneSts of the proposed facility. The Commission should consider conditions related to issuca that are pending before it on appeal (iA, decommissioning fimding), issues that were resolved without remand to the Board or Staff (iA, financial quahncariants), and issues that were remanded to the NRC Staff GA, disparate impacts and the no action alternative).
As the Appeal Baird implicitly recognized tin F_a4==w Gas mad Naic (Steding Power Project, Nuclear Unit Nc.1), ALAB 5%,11 NRC 867, 868 (1980), the withditwal of a license application should be acconnplished with "Amdamerital faimess," and should not put the Applicant in a more adv=*=gaaan positican than the intervenor. CANT seeks the impositica ofcertain conditions that 3
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win prevent such prejudice in the event that LES should, at some time in the future, resubmit an application for a license the t is substantially similar to the application that LES now seeks to withdraw.
CANT has expended substantial resources in order to vindicate hs position that LES's license application is inadequate to protect public health and safety, and does not satisfy NRC regulations and the requirements of NEPA. CANT has gone through most of the litigation process in d- ' - Eg this position, up through the taking of full administrative appeals to the Commission. If this case were to continue, CANT was prepared to go forward in defendmg its position in reviewing courts, inelading seekmg review of those 1xxtions of the Commission's decision which nacWiionally approved the t
adequacy ofthe license application.
The courts have n:cogai=d hat withdrawal of a complaint after substantial completion of t
litigation may have a pr. udicial effect on the interests of defendants where they have W j
substantial resources on s. case, and brought it vinually to a conclusion. Sag 9 Charles A. Wright &
Arthur R. Miller, Federa Practice and Procedu_rg, g 2364 (1994), and cases cited therem. In such w ith prejudice" to avoid allowing plaintiffs to force dd-4=-ca to re-litigate cases, the courts dismiss v
claims that have already Nan aired to a significant extent. Ah@ htigation of a license application before the NRC lacks "pinnnffs" and " defendants," intervenors are placed in a similarly priad:ed position where an applicaton is dismissed after substantial completion of the licensing proc ~ ding In this instance, CANT hu expended substantial resources to defend their health and safety and environmentalinterests assinst a license application, and is relatively close procedurally to being able to vindicate its position, eit!v:r before the Commission er the U.S. Court of Appeals. The unconditional dismissal of LES's licanic application would effectively wipe out CANT's pending appeal, and also 4
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@ 006/012 elirninate the possibihty of appealing decisions that mied against CANT. In the event that a new application is 61ed at sorrc time in the fbture, CANT would be put in an unfair position wherein decisions it ch-H= gad or would have chauenged on appeal, become the " law of the case." Thus, the resources expended on devaloping the case to a very late stage would be wasted, and the Applicant would receive an unfair a&antage ifit were to reapply at some time in the future. Furthermore, the blanket vacating of all asputs of the decision would also prejudice CANT, by wiping out all successes it has achieved in virgiksdiig its position '
In order to avoid such an unfair and prejudicial resuh in the instant case, CANT seeks the fouowing relief:
1.
The Commission's decision to knpose license conditions with respect to financial q"=M= :=. and its afBrution of the licensing Board's decision with respect to the inadequacy of the EIS's dimaion of the no action ahemative and the disparate impacts on the minority communities
~ f Forest Grove and Center Springs should be deemed the law of the case, which is as judicata and o
bindmg on all future appliutions by LES.
~ CANT notes that the decisions which call for vacating entire decisions appear to involve cases where the Licensisq; Board ruled in favor of the applicant, the case was on appeal to the Commission by the Intelvenor only, and the applicant moved for withdrawal of its license application. Su g, R;)chester Gas and Flartric Corn.11 NRC 867, United Statae Dent. Of Energy. Project Manague Cornoration. Tanna==aa Vallev Authmitv (Clinch River Breeder Reactor Plant), ALAB-if'5,18 NRC 1337 (1983).- Vacating the decision below was therefore seen as necessary to prew:nt prejudice to the intervenor. In this case, vacating the entire decision regardmg the LES application would create, not cure, prejudice to CANT.
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Those portions of the Commission's decision reversing the U@a Board on the issue of racial discrimination and consideration of secondary benefits should be vacated, on the ground l
that Intervenors were giver..w opportunity to test these aspects of the denian on appeal 3,
b r> weighing of the relauve costs and benefits of the fhcihty, now peding belbre the Licensing Board, should be held to be resolved in favor of CANT, on the ground that CANT will not have the opportunity tc appeal any decision that the Licensing Board would have made on romand.
4.
The Applia.nt's appeal of LBP-973,45 NRC 99 (1997) rugarding the adequacy of j
LES's decommissioning co:a estimate should be dismissed, and that portion of the Ilcensing Board's decision should be held Ins jahcata against any fbture application by LES that is subveann=Hy simdar to LES's current application. Those aspects ofLBP 97-3 now on appeal by CANT should be vacated, on the ground that CANT vms deprived ofits opportunity to vindicate its position on appeal to the commission or the U.S. C< nut of Appeats.
5.
LES shou!ct be required to serve any further core with the NRC Staff regarding the withdrawal cifits application, or any other aspect ofthe final disposition ofits apaW, on counsel for CANT. In addition, should LES submit a new application or notice ofintent to file an application for any nuclear facihty at or near the Forest Grove and Center Springs site, it should be required to give concurrect notice to CANT.
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@ 008/012 Respectfully submitted, Y
Nathalie M. Walker ~
EARTHJUSTICELEGALDEFENSEFUND 400 Ma==dne Street, Suite 401 New Orleans, Louisiana 70130 Telephone: (504) 522-1394 L
Diane Curran HARMON, CURRAN, SPIELBERG & EISENBERG 2001 "S" StreetN.W., Suits 430 Washinsan.D.C. 20009 Telephone: (202) 328-3500 Attorneys forIntervenor, Citizens AgainstNuclear Trash April 29,1998 l
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@009/012 00cKETED
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UFWC 98 Ara 29 P3 :06 UNITED STATES OF AMERICA NUCLEARREGULATORY COMMISSION Rn AD.n L BEFORE THE COMMISSION
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Docket No. 70-3070-ML In the Matter of
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ASLBP No. 91-641-02-ML LOUISIANA ENERGY SERVICES, L.P.
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(SpecialNuclear (Claiborne Enrichment Ce nter)
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Materials License)
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April 29,1998 CERTIFICATE OF SERVICE I hereby certify ths.t copies of the " RESPONSE OF CITIZENS AGAINST NUCLEAR TRASH (" CANT") TO LOUISIANA ENERGY SERVICES MOTION TO WITHDRAW LICENSE APPLICATION
- have been served on this 29th day of April,1998, by facsimile where indicated by an asterisk, anj as follows:
Office ofthe Secretary By first class mail' U.S. Nuclear Regulatory Ccmmission originalplus 2 copies Washington, D.C. 20555-0C01 Attention: Rv!mahgs art.
Adjudication Staff Shirley Ann Jackson, Chairnan By first class mail' U.S. Nuclear Regulatory Ccmmission Icopy Washington,D.C. 20555 i
Kenneth C. Rogers, Comrriisioner By first class mail' U.S. Nuclear Regulatory Ccmmission 1 copy l
Washington,D.C. 20555 l
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@ 010/012 Greta J. Dieus, Commisr. ion:r By first class mail
- U.S.NuclearRegulatory Cammission 1 copy Washington,D.C. 20555 Nils J. Diaz, Commissioner By first class mail
- U.S. Nuclear Regulatory Commission 1 copy Washington,D.C. 20555 Edward McGa. gan, Jr., Ccmmission By first class mail
- 5 U.S. Nuclear Regulatory Cemmission 1 copy Washington,D.C. 20555 Administrative Judge Byfirst class mail
- Thomas S. Moore, Chauman 1 copy Atomic Safety and Licens'uyt Board U.S.NuclearRegulatory Ccmmission Washington,D.C. 20555 Administrative Judge By first class mai1*
Richard F. Cole 1 copy Atomic Safety and Licensi:nBoard U.S.NuclearRegulatory Cdmmission Washington,D.C. 20555 Admuistrative Judge By first class mail
- Frederick J. Shon 1 copy Atomic Safety and Licensig Board U.S.NuclearRegulatory Commission Washington,D.C. 20555 i
Office ofCommission Appliate By first class mail' Adjudication 1 copy
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U.S.NuclearRegulatory Commission Washington,D.C. 20555 Richard G.Bachmann By first class mail' Office of the General Coux.el Icopy U.S. Nuclear Regulatory Commission Washmgton,D.C. 20555 2
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Joseph DiStefano Byfirst class mail Quinn,Racusin & Gazzola 1 copy 1401 H Street, N.W.
Suite 510
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l Wawayan D.C. 20005 1
Marc 2: A. Rowden By first class mail
- Fried, Frank, Ha: Tis, Shriver 1 copy
& Jacobsen 1101 Pennsylvania Avenua N.W.
Suite 900 South J
Washington,D.C. 20004 Diane Curran By first class mail' Harmon, Curran, Spielberg & Eisenberg 1 copy 2001 S StNW Suite 430 Washington,DC 20009 Ronald Wascom, Deputy Asst. Sec.
By first classmail Louisiana Dept. ofEnvtl. QLality 1 copy Office ofAir Quality & Radiation Protection P.O. Box 82135
- Baton Rouge, LA 70884-1135 J.MichaelMcGany,III By first class mail
- Winston & Strawn 1 copy 1400 L Street,N.W.
Washington D.C. 20005 Adjudicatory File By first class mail' Atomic Safc:y & Licensing !!d. Panel 1 copy U.S.NuclearRegulatoy Cammission Wanhinyan,D.C. 20555 Robert W. Bishop By first class mail
- Nuclear Energy Tas*e Icopy 17761 I Street,N.W.
Washington,D.C. 20006 3
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Jay E. Silberg By first dass mail
- Shaw,Pittman, Potts & Tntvbddge
'lcopy 2300 N Street, N.W.
i Washmgton,D.C. 20037 Respectfully submitted, EARTHJUSTICELEGALDEFENSEFUND 400 Magazine Street, Suite 401 New Odeans, Louisiana 70130 Telephone: (504) 522-1394 By:
s NathalieM. Walker Attorneys forIntervenor, Citizens AgainstNuclearTrash 1
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