ML20217N285
| ML20217N285 | |
| 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: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#298-19012 91-641-02-ML, 91-641-2-ML, ML, NUDOCS 9805050278 | |
| Download: ML20217N285 (11) | |
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1 00CKETED USNRC UNITED STATES OF AMERICA E i 82;l9 NUCLEAR REGULATORY COMMISSION OF
[% og gr[ f.i {p Before Administrative Judges:
u FF Thomas S. Moore, Chairman Richard F. Cole Frederick J. Shon
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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 Center)
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Materials License) l
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April 29,1998 RESPONSE OF CITIZENS AGAINST NUCLEAR TRASH (" CANT")
TO LOUISIANA ENERGY SERVICE'S MOTION TO WITHDRAW LICENSE APPLICATION Intervenor, Citizens.Against Nuclear Trash (" CANT") hereby responds to the motion by Louisiana Energy Services, L.P. ("LES") to withdraw its license application and terminate this proceeding, filed on April 22,1998. Pursuant to 10 C.F.R.
2.107(a), the motion should be granted, subject to certain conditions necessary to protect CANT against the prejudicid effect of the withdrawal.
FACTUAL BACKGROUND This proceeding has been pending since 1991, when CANT requested a hearing and petitioned to intervene. During that time, CANT has expended significant time and resources demonstrating that LES's license application fails to comply with Nuclear Regulatory Commission ("NRC") safety l
regulations, and that LES's and the NRC Stafi's environmental analyses of the project fail to satisfy the
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requirements of the National Environmental Policy Act ("NEPA"). In particular, during hearings in 1995, CANT presented extensive testimony demonstrating that LES did not meet the Commission's l.
requirements regarding En=acial qualifications and decommissioning funding, and that neither LES nor j
the NRC Staffhad satisfied NEPA with respect to decommissioning funding, environmentaljustice, the relative costs and benefits of the facility, need for the facility, secondary impacts, or discussion of the no action alternative.
l The Board ruled against Applicant on the issues ofEnancial qualifications, need for the facility, the relative costs and benefits of the facility, consideration of the no action alternative, consideration of secondary benefits, and failure of the decommissioning cost estimate to consider the cost of converting depleted uranium hexaflouride to uranium oxide. The Board ruled in favor of CANT on the environmental $stice issue, determining that a thorough NRC Staff' vestigation of the facihty site m
selection process must be done to determine whether racial discrimination played a role in that process, the Board also ruled in favor of CANT that the NRC Staffinadequately aW both the disparate adverse impacts of relocating the Parish road connecting the African American communities ofForest l-Grove and Center Springs, and the economic impacts of the facility on property in those communities.
The Board ruled in favor of the Applicant on the issue ofwhether the LES dose impact analysis in the i
Staff's Environmental Impact Statement ("EIS") supported the decommissioning cost estimate and j
complied with NEPA.
On appeal, the Commission resolved the financial qualifications issue in favor of Applicant, but imposed a significant license condition requiring the Applicant to obtain firm commitments for full j
financing before commencing the project. The Commission affinned the Board with respect to the 2
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inad~; nan of the EIS's discussion of the no action alternative. With respect to the environmental justice issue, the Commission found that the Board's proposed racial discrimination inquiry into the site selection process goes beyond the requirements ofNEPA, but remanded the EIS to the NRC Staff for funher consideration of disparate adverse impacts on the minority communities of Forest Grove and Center Springs. The Commission also found that the Board erred in failing to consider some alleged benefits in assessing the need for the project, and remanded for further consideration by the Board.
The Commission also reversed the Board on the issue of consideration of secondary impacts.
ARGUMENT I
Pursuant to 10 C.F.R. g 2.107(a), "[w]ithdrawal of an application after the issuance of a notice of hearing shall be on such terms as the Presiding Officer may presenh." It appears that withdrawal-related issues pendmg before the Lic=ing Board are to be resolved in the first instance by the Board, and issues pending before the Commission are to be resolved by the Commission. Duke Power comoany (Perkins Nuclear Station, Units 1,2, and 3), ALAB-668,15 NRC 450,451 (1982). Here, the Licensing. Board should consider conditions relating to the' issue pendmg before it,11, consideration of the costs and benefits of the proposed facility. The Commission should consider conditions related to issues that are pending before it on appeal (iA, decommissioning funding), issues that were resolved without remand to the Board or Staff (il, financial qualifications), and issues that were remanded to the NRC Staff QA, disparate impacts and the no action alternative).
As the ' Appeal Board implicitly recognized tin Rochester Gas and Electric (Sterling Power
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Project l Nuclear Unit No.1), ALAB-596,11 NRC 867, 868 (1980), the withdrawal of a license i i li h i
. appl cat on should be accomp s ed w th " fundamental fairness," and should not put the Applicant in a 1
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more advantageous position than the intervenor. CANT seeks the imposition of certain conditions that will prevent such prejudice in the event that LES should, at some time in the future, resubmit an I
application for a license that is substantially similar to the application that LES now seeks to withdraw.
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CANT has expended substantial resources in order to vindicate its position that LES's license 1
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 defending this l
position, up through the taking of full administrative appeals to the Commission. If this case were to E
continue, CANT was prepared to go forward in defending its position in reviewing courts, including seeking review of those portions of the Commission's decision which unconditionally approved the i
adequacy ofthe license application.
The courts have recognized that withdrawal of a complaint after substantial completion of litigation may have a prejudicial effect on the interests of defendants where they have expended substantial resources on a case, and brought it virtually to a conclusion. dec 9 Charles A. Wright &
i Arthur R. Miller, Federal Practice and Procedure. j 2364 (1994), and cases cited therein Insuch cases, the courts dismiss "with prejudice" to avoid allowing plaintiffs to force defendants to re-litigate claims that have already been aired to a significant extent. Ahhough litigation of a license application before the NRC lacks " plaintiffs" and " defendants," intervenors are placed in a similarly prejudiced i
i position where an application is dismissed after substantial completion of the licensing proceeding. In
- this instance, CANT has expended substantial resources to defend their health and safety and environmentalinterests against a license application, and is relatively close procedurally to being able to vindicate its position, either before the Commission or the U.S. Court of Appeals. The unconditional 4
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I dismissal of LES's license application would effectively wipe out CANT's pending appeal, and also eliminate the possibility of appeahng decisions that ruled against CANT. In the event that a new application is filed at some time in the future, CANT would be put in an unfair position wherein decisions it challenged, or would have challenged on appeal, become the " law of the case." Thus, the resources expended on developing the case to a very late stage would be wasted, and the Applicant i
J would receive an unfair advantage ifit were to reapply at some time in the future. Furthennore, the blanket vacating of all aspects of the decision would also prejudice CANT, by wiping out all successes it has achieved in vindicating its position.2 -
In order to avoid such an unfair and prejudicial result in the instant case, CANT seeks the following relief-.
1.
The Commission's decision to impose license conditions with respect to financial qualifications, and its affirmation of the Licensing Board's decision with respect to the inadequacy of the EIS's discussion of the no action alternative and the disparate impacts on the minority communities of Forest Grove and Center Springs should be deemed the law of the case, which is ras judicata and binding on all future applications by LES.
8 CANT notes that the NRC decisions which call for vacating entire decisions appear to involve cases where the Licensing Board ruled in favor of the applicant, the case was on appeal to the Commission by the Intervenor only, and the applicant moved for withdrawal of its license i
application. Seg ag, Rochester Gas and Electric Coro.11 NRC 867; United States Dept. Of Enerrv. Project Management Corocration. Tennessee Vallev Authority (Clinch River Breeder Reactor Plant), ALAB-755,18 NRC 1337 (1983). Vacating the decision below was therefore i
seen as necessary to prevent prejudice to the intervenor. In this case, vacating the entire decision regarding the LES application would create, not cure, prejudice to CANT.
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Those ponions of the Commission's decision reversing the Licensing Board on the issue of racial discrimination and consideration of secondary benefits should be vacated, on the ground that Intervenors were given no opportunity to test these aspects of the decision on appeal.
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The re-weighing of the relative costs and benefits of the facility, now pending before the Licensing Board, should be held to be resolved in favor of CANT, on the ground that CANT will not have the opponunity to appeal any decision that the Licensing Board would have made on remand 4.
The Applicant's appeal of LBP-973, 45 NRC 99 (1997) regarding the adequacy of LES's decommissioning cost estimate should be dismissed, and that ponion of the Licensing Board's f
decision should be held as iudicata against any future application by LES that is substantially similar to LES's current application. Those aspects of LBP 97-3 now on appeal by CANT should be vacated, on the ground that CANT was deprived ofits opportunity to vindicate its position on appeal to the commission or the U.S. Coun of Appeals.
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LES should be required to serve any further conespondence with the NRC Staff regarding the withdrawal ofits application, er any other aspect of the final disposition ofits application, on counsel for CANT. In addition, should LES submit a new application or notice ofintent to file an application for any nuclear facility at or near the Forest Grove and Center Springs site, it should be required to give concurrent notice to CANT.
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'1 Respectfully submitted, h 4'L k.
1 Nathase M. Walker EARTHJUSTICELEGALDEFENSE FUND j
400 Magazine Street, Suite 401 NewOrleans, Louisiana 70130 Telephone: (504) 522-1394
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%M Diane Curran
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HARMON, CURRAN, SPIELBERG & EISENBERG 2001 "S" Street N.W., Suite 430 Washington,D.C. 20009 Telephone: (202)328-3500 Attomeys forIntervenor, Citizens AgainstNuclearTrash April 29,1998 7
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l DOCKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION d 'D '
OFFli[fiF SE'-,1 NF
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Before Administrative Judges:
Thomas S. Moore, Chairman Richard F. Cole Frederick J.Shon
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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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(Special Nuclear (Claibome Enrichment Center)
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Materials License)
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April 29,1998 CERTIFICATE OF SERVICE I hereby certify that copies of the " RESPONSE OF CITIZENS AGAINST NUCLEAR TRASH (" CANT") TO LOUISIANA ENERGY SERVICE'S MOTION TO WITHDRAW LICENSE APPLICATION" have been served on this 29th day of April,1998, as follows:
Office of the Secretary By first class mail U.S.NuclearRegulatory Commission originalplus 2 copies Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudication Staff Shirley Ann Jackson, Chairman By first class mail U.S. Nuclear Regulatory Commission Icopy Washington, D.C. 20555 Kenneth C. Rogers, Commissioner By first class' mail U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 i
s Greta J. Dicus, Commissioner By first class mail U.S. NuclearRegulatory Commission 1 copy Washington,D.C. 20555 Nils J.Diaz, Commissioner By first class mail U.S.NudearRegulatory Commission 1 copy Washington,D.C. 20555 Edward McGaffigan, Jr., Commission By first class mail U.S. NuclearRegulatory Commission 1 copy Washington, D.C. 20555 Administrative Judge By first class mail Thomas S. Moore, Chairman 1 copy Atomic Safety and Licensing Board U.S.NuclearRegulatory Commission Washington,D.C. 20555 Administrative Judge By first class mail Richard F. Cole 1 copy Atomic Safety and Licensing Board U.S.NudearRegulatory Commission Washington,D.C. 20555 Administrative Judge By first class mail Frederick J. Shon 1 copy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington,D.C. 20555 OfBee ofComnussion Appellate By first class mail Adjudication Icopy U.S.NuclearRegulatory Commission Washington,D.C. 20555 Richard G.Bachmann By first class mail Of5ce ofthe GeneralCounsel Icopy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 2
. Joseph DiStefano Byfirst class mail Quinn, Racusin & Gazzola 1 copy 1401 H Street, N.W.
Suite 510 Washington,D.C. 20005 Marcus A. Rowden By first class mail Fried, Frank, Harris, Shriver 1 copy
&Jacobsen 1101 Pennsylvania Avenue, N.W.
Suite 900 South Washington,D.C. 20004 Diane Curran By first class mail Harmon, Curran, Spielberg & Eisenberg Icopy 2001 S St NW Suite 430 Washington,DC 20009 Ronald Wascom, Deputy Asst. Sec.
By first class mail Louisiana Dept. ofEnytl. Quality 1 copy Office ofAir Quality & Radiation Protection P.O. Box 82135 Baton Rouge, LA 70884-2135.
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 Safety & Licensing Bd. Panel Icopy U.S.NuclearRegulatory Commission Washington,D.C. 20555 l
Roben W. Bishop By first class mail l
Nuclear EnergyInstitute 1 copy i
17761 I Street,N.W.
Washington,D.C. 20006 3
JayE. Silberg By first class mail Shaw, Pittman, Potts & Trowbridge Icopy 2300 N Street, N.W.
Washington,D.C. 20037 1
i Respectfully submitted, l
EARTHJUSTICE LEGAL DEFENSEFUND 400 Magazine Street, Suite 401 NewOrleans, Louisiana 70130 Telephone: (504) 522-1394 By-f 3
"Nathalie M. Walker l
Attorneys forIntervenor, Citizens Against Nuclear Trash l
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