ML20217K082
| ML20217K082 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 04/30/1998 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | CITIZENS AGAINST NUCLEAR TRASH, LOUISIANA ENERGY SERVICES |
| References | |
| CON-#298-19005 CLI-98-05, CLI-98-5, LBP-97-03, LBP-97-22, LBP-97-3, ML, NUDOCS 9805010085 | |
| Download: ML20217K082 (5) | |
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i UNITED STATES NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
% W 30 P2 :41 Shirley Ann Jackson, Chairman O. R e
Greta J. Dieus pi Nils J. Diaz ADJU1. --
. y. F Edward McGaffigan, Jr.
SERVED APR 30199
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. In the matter of
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Louisiana Energy Services
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Docket No. 70-3070-ML
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(Claibome Enrichment Center)
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CLl-98-5 ORDER Louisiana Energy Services, L.P. (LES), has filed a motion to grant its request to withdraw its application for a combined construction permit and operating license for the Claiborne Larichment Center (CEC), near Homer, Louisiana, and to terminate the proceeding. Pending before the Commission are three petitions for review conceming decommissioning funding and waste disposal. Two of the petitions, one filed by Citizens Against Nuclear Trash (CANT) and the other by LES, seek review of a published Partial Initial Decision istued by the Atomic Safety and Licensing Board, LBP-97-3,45 NRC 99 (1997). CANT's petition also challenges a supplemental Board decision, LBP-97-22,46 NRC 275 (1997). The third petition, also filed by CANT, seeks review of an unpublished Board Memorandum t.nd Order, dated March 3,1995, that denied CANT's petition for waiver of certain waste disposal regulations.
LES's motion to withdraw its license application and terminate the proceeding is granted.
This renders moot all remaining issues in this case. The Commission therefore dismisses the pending petitions for review and vacates LBP-97-3, LBP-97-22 and the Board's March 3,1995, unpublished order. While unreviewed Board decisions do not create binding precedent, where as 9805010085 900430 PDR ADOCK 07003070 pggp c
eon
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here the unreviewed rulings " involve complex questions and vigorously disputed interpretations of agency provisions," the Commission chooses as a policy matter to vacate them and thereby eliminate any future confusion and dispute over their meaning or effect..CL Kerr-McGee Chemical Coro. (West Chicago Rare Earths Facility), CLl-96-2,43 NRC 13,15 (1996). Our decision to vacate the Board orders "does not intimate any opinion on their soundness."Ist CANTS response to LES's motion calls for vacating several of the Commission and Board rulings in LES's favor, and giving taa judicata effect to rulings in CANTS favor. These requests, except for vacating the unreviewed decommissioning rulings described above, are denied. CANT seeks a sweeping vacatur order because LES's withdrawal has stripped CANT of any immediate opportunity to seek judicial review of the rulings in LES's favor, CANT in this instance is no different from a party that finds itself at the end of the proceeding with exactly what it asked for, in this case no license. CANT will have an opportunity to seek judicial review when and if rulings issued in this proceeding are used against it in a future case. Similarly, the taa judicata or other preclusive effect of a previously decided issue is appropriately decided at the time the issue is raised anew.'
In addition to the motion filed here, LES filed an identical motion with the Board to withdraw its license application and to terminate the proceeding. Our order terminating the proceeding renders unnecessary any further Board proceedings, either on the motion to withdraw 1 We deny CANTS request for a Commission order requiring service of future documents exchanged between the Staff and LES after the proceeding is terminated. This seems to us unnecessary and would run counter to NRC practice. S.at Sacramento Municioal Utility District (Rancho Seco Nuclear Generating Station), CLI 93-3,37 NRC 135,152 n.46 (1993). We also deny CANTS request for special notice if LES were to refile its application. The Commission's existing notice requirements are adequate to ensure that CANT has an opportunity to seek participation in any future licensing proceeding.
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3 and terminate or on the issues we recently remanded to the Board in CLl-98-3,47 NRC
. (1998).
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The proceeding is hereby terminated.2 1
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l For the Commission
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John C. Hoyle 9 **+++9 Accretary of the Commission Dated at Rockville, Maryland, this pfday of April,1998.
2 in its capacity as amicus cunae, the Nuclear Energy Institute (NEI) has filed a letter asking that the Commission " clarify that Executive Order 12898 does not, as a matter of law, apply to NRC licensing proceedings." No clarification is necessary, as the Commission has already held that the executive order "by its own terms, established no new rights or remedies.
San E.O 12898, $6-609. Its purpose was merely to ' underscore certain provision [s] of gxiiting law that can help ensure that all communities and persons across this Nation live in a safe and healthful environment'(emphasis added)." CLl-98-3,47 NRC (April 2,1998) (slip op. at 29).
NEl cannot, in any event, advance arguments or bring motions not pursued by any party to the proceeding.
9 UNITED STATES OF AMER (ICA NUCLEAR REGULATORY COMMISSION In the Matter of LOUISIANA ENERGY SERVICES, L.P.
Docket No.(s) 70-3070-ML (Claiborne Enrichment Center SNM License)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM ORDER (CLI-98-5) DTD 4/30 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Comission Appellate Thomas S. Moore, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Frederick J. Shon Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Janice E. Moore, Esq.
Richard G. Bachmann, Esq.
Diane Curran, Esq.
Office of the General Counsel Harmon, Curran, Spielberg & Eisenberg Mail Stop 15 B18 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Comission Washington, DC 20009 Washington, DC 20555 Jay E. Silberg, Esq.
Roland J. Jensen Counsel for NEI President Shaw, Pittman, Potts & Trowbridge Lousiana Energy Services, L.P.
2300 N Street, N.W.
2600 Virginia Avenue, N.W., Suite 608 Washington, DC 20037 Washington, DC 20037
t.
Docket No.(s)70-3070-ML COMM ORDER (CLI-98-5) DTD 4/30 Robert G. Morgan Licensing Manager J. Michael McGarry, III, Esq.
LES - c/o Duke Engineering and Counsel for LES Services, Inc.
Winston & Strawn PO Box 1004 1400 L Street, N.W.
Charlotte, NC 28201 Washington, DC 20005 Ronald Wascom Nathalie M. Walker, Esq.
Deputy Assistant Secretary Robert B. Wiygul, Esq.
Office of Air Quality & Rad. Protection Earthjustice Legal Defense Fund Dept. of Environmental Quality 400 Magazine Street, Suite 401 P.O. Box 82135 New Orleans, LA 70130 Baton Rouge, LA 70884 Dated at Rockville, Md. this 30 day of April 1998 Office of the Secrefary of ttftf Commission l
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