ML13176A295

State of New York and State of Vermont Brief Amici Curiae in Support of Petitioner and in Opposition to NRC Staff'S Motion to Vacate the Atomic Safety and Licensing Board'S Full Initial Decision, LBP-13-07

ML13176A295
Person / Time
Site:	San Onofre
Issue date:	06/24/2013
From:	Jeremy Dean, Landis-Marinello K, Sipos J State of NY, Office of the Attorney General, State of VT, Office of the Attorney General
To:	NRC/OCM
SECY/RAS
Shared Package
ML13176A178	List: ML13176A210 ML13176A295
References
50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01, LBP-13-07, RAS FFF-4
Download: ML13176A295 (11)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

KRISTINE L. SVINICKI, WILLIAM D. MAGWOOD, IV, GEORGE APOSTOLAKIS, WILLIAM C. OSTENDORFF, AND CHAIRMAN ALLISON M. MACFARLANE

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x In the Matter of

SOUTHERN CALIFORNIA EDISON CO.

Docket Nos. 50-361-CAL, 50-362-CAL

(San Onofre Nuclear Generating Station, Units 2 and 3) June 24, 2013

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STATE OF NEW YORK AND STATE OF VERMONT BRIEF AMICI CURIAE IN SUPPORT OF PETITIONER AND IN OPPOSITION TO NRC STAFF'S MOTION TO VACATE THE ATOMIC SAFETY AND LICENSING BOARD'S FULL INITIAL DECISION, LBP-13-07

Office of the Attorney General for the State of New York

The Capitol

State Street

Albany, New York 12224

Office of the Attorney General for the State of Vermont

109 State Street Montpelier, Vermont 05609 TABLE OF CONTENTS PRELIMINARY STATEMENT

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..--1 NRC's Transparency Mandate

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.2 ARGUMENT--------------------------...----...-4 The Commission's Vacatur Practice is Based on Outdated and Inapplicable Law

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..-..4 Vacatur of the Board's Ruling is Not in the Public Interest

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..--4 "Controversy" Is Not An Appropriate Ground for Vacatur

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.....5 CONCLUSION

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1PRELIMINARY STATEMENT The State of New York and the State of Vermont ("the States") submit this brief amici curiae in this matter in support of intervenors and in opposition to NRC Staff's motion to vacate the Atomic Safety and Licensing Board's full ini tial decision, LBP-13-07. In that decision, the Licensing Board determined that the Confirmatory Action Letter process between the Staff and the applicant constituted a de facto license amendment proceeding s ubject to a public hearing.

S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3) Memorandum and Order (Resolving Issues Referred by the Commission in CLI-12-20), LBP-13-07, 77 N.R.C. ___ (May 13, 2013) (ML13133A323). This ruling, which mandated that a public hearing be held as required in a licensing action, de facto or otherwise, is consistent with the Atomic Energy Act's

("AEA's") provision for public involvement in NRC decisionmaking. The AEA, the Administrative Procedure Ac t, and NRC's regulations require NRC to provide the public an opportunity to participate in agency proceedings that amend a nuclear power plant operating license, or modify a re gulation governing the operations of a plant.

See, e.g., Atomic Energy Act, § 189, 42 U.S.C. § 2239; 10 C.F.R. § 2.309. As recounted in the States' motion for leave, the States of New York and Vermont take very seriously the public participation provisions laid out by the United States Congress and the Commission, and submit that the Commission's granting of vacatur in this proceeding would run counter to those provisions and Congressional intent, frustrate informed public participation in other proceedings, and improperly skew the development of Commission administrative case law.

Congress enacted AEA § 189 to ensure that the public had a right to participate in federal administrative proceedings concerning the licensing of atomic energy facilities. Senator 2Anderson, one of the drafters of the AEA, made the following statement in support of public participation:

We should establish procedures which are open to all, with a maximum or information disseminated as to the hazards and safety of each proposed design of a reactor, and as to the administrative considerations and actions taken on each application. The public has a substantial investment in the atomic-energy program and has a right to know and analyze the steps being followed by administrative officials.

• * * -because I feel so strongly that nuclear energy is probably the most important thing we are dealing with in our industrial life today, I want to be sure that the Commission has to do its business out of doors, so to speak, where everyone can see it.

Statement of Senator Anderson, 1957 Congressi onal Record 4093-94 (Mar. 21, 1957). Decisions issued by Atomic Safety and Licensing Boards are an integral part of such open and transparent processes. NRC's Transparency Mandate Public transparency has been a stated core value of the NRC for many years, and Commissioners have expressed their dedication to public involvement in NRC decisionmaking in statements made around the world. NRC's effo rts to engage the public have been a priority for Chairman Macfarlane since taking office and "enhancing the NRC's engagement with the public is a high priority." Allison M. Macfarlane, Chairman, Nuclear Regulatory Comm'n, Remarks at the 2013 Fuel Cycle Information Exchange, Rockville, MD (June 11, 2013),

transcript available at http://pbadupws.nrc.gov/docs/ML1316/ML13162A517 .pdf (last visited June 23, 2013). As Chairman Macfarlane stated recently, "[i]n order for our regulatory process to be successful, we must ta ke a broad range of viewpoints into account. Congress, industry, state, local, and tribal governments, non-governmental organizat ions, and the public should feel confident that we are not only hearing their views, but actively considering them."

See Allison 3Macfarlane, Chairman, Nuclear Regulatory Comm'n, Remarks at th e 2013 NRC Regulatory Information Conference (RIC):

The Next 25 Years (Mar. 12, 2013), transcript available at http://pbadupws.nrc.gov/docs/ML1307/ML13071A260.pdf (last visited June 23, 2013). Former Chairmen and Commissioners have echoed these sentiments as well. Chairman Klein has stated that the NRC "continue[s] to emphasize the va lue of regulatory openne ss by ensuring that our decisions are made in consultation with the publ ic, our Congress, and other stakeholders" and that "[w]e view nuclear regulati on as the public's business and, as such, we believe it should be transacted as openly and candidl y as possible." Dale E. Klein, Chairman, Nuclear Regulatory Comm'n, Remarks at the Report to the Conventi on on Nuclear Safety, Vienna, Austria (Apr. 15, 2008), transcript available at http://pbadupws.nrc.gov/docs/ML0810/ ML081070367.pdf (last visited June 23, 2013); see also Jeffrey S. Merrifield, former Commissioner, Nuclear Regulatory Comm'n, Speech at the NRC 2001 Regulatory Innovation Conference: A Vision of Tomorrow, A Plan for Today (Mar. 14, 2001 NRC News # S-O1- 005) ("The Commissi on has a significant responsibility to provide fair and meaningful opportunities for public involvement in our licensing proceedings"); Peter B. Lyons, Commissioner, Nuclear Regulatory Comm'n, Remarks at the Trombay Colloquium: Perspectives on Nu clear Regulation and the Global Interest in Nuclear Energy (Mar. 27, 2006, NRC News # S 011) (in speaking about the "opportunity for public hearings," stressing how very seriously the agency takes its "responsibility for public participation" because "when the public has an opportunity to . . . participate in our decisionmaking process, nuclear sa fety is enhanced and public confidence in the NRC as a fair, stable and strong nuclear re gulator is strengthened"), quoted in Shaw Areva MOXServices (Mixed Oxide Fuel Fabrication Facility), 66 N.R.C. 169, 2007 WL 4976933, n.81 (Oct. 31, 2007).

4ARGUMENT The Commission's Vacatur Practice is Based on Outdated and Inapplicable Law The Commission has stated that it is not bound by judicial pract ice, including that of the United States Supreme Court. See Kerr-McGee Chem. Corp. (West Chicago Rare Earths Facility), CLI-96-2, 43 N.R.C. 13, 15 (1996). Yet, the Commission began the practice of granting vacatur in reliance on dicta in the 1950 case United States v. Munsingwear, Inc., 340 U.S. 36 (1950)1 despite the Supreme Court's clear statements in that decision that its ruling addressed only civil cases from a court in the federal system; it did not address administrative decisions.

Munsingwear, 340 U.S. at 39-40. Insofar as the Commission relies on Munsingwear as the foundation for its vacatur decisions, and subsequently declines to revisit the issue in light of over six decades of updated federal court decisions, the States submit that the Commission's "practice" is in fact unsuppor ted absent an analysis of Munsingwear

's progeny, including U.S. Bancorp Corp. v. Bonner Mall Partnership, 513 U.S. 18 (1994).

Vacatur of the Board's Ruling is Not in the Public Interest The States assert that no vacatur of this ruling is warranted, and that Staff has not met its burden for showing why removing this decision from public access is in the public interest. The States submit that the public interest would be not be served by a vacatur. Judicial and administrative precedents and persuasive authorities are valuable and important to the public. Granting Staff's motion would run counter to the public interest by preventing the public from examining and relying upon the reasoning in the Board's decisi on, rendered after full briefing by interested parties, as persua sive authority. In support of its motion, Staff argues that

1 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 N.R.C. 41, 55 (1978), remanded on other grounds, sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979)); see also U.S. Bancorp Corp. v. Bonner Mall P'ship, 513 U.S. 18, 26-27 (1994) (observing that "the portion of Justice Douglas' opinion in Munsingwear describing the "established practice" for vacatur was "dictum").

5"participants in other cases can cite to unreviewed Board decisions to support their positions in NRC licensing litigation" and that "Boards have relied on decisions of other Boards for guidance." NRC Staff's Motion To Vacate The Licensing Board's Full Initial Decision, LBP-13-07 (June 14, 2013) ("Staff Motion") at 5. Such citation and reliance is entirely appropriate and consistent with American legal practice; Licensing Boards and parties in other proceedings are capable of distinguishing binding from non-binding precedent, and indeed have been doing so since the inception of the NRC's adjudicatory proceeding regulations. As LBP-13-07 is an unreviewed Board decision, it is not binding preced ent, and therefore, not harmful to Staff, which "will have an opportunity to seek judicial review when and if rulings issued in this proceeding are used against it in a future case."

La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-98-5, 47 N.R.C. 113 (1998). "Controversy" Is Not An Appropriate Ground for Vacatur The States are particularly concerned about Staff's position that because the ruling is "controversial" it must be vacated. Staff Motion at 5. As an initial matter, no caselaw Staff cites uses the term "controversial." The States submit that such a content-based standard is inconsistent with the Commission's commitment to meaningful public participation in fair, open, and transparent adjudicatory proceedings. The Staff's motion cites to Kerr-McGee Chem. Corp. 43 N.R.C. at 15 (holding that under the circumst ances in that case, wherein the Board's ruling "involve(d) complex questions and vi gorously disputed interpretations of agency provisions," the Commission chose as a policy matter to vacate the decision and thereby eliminate the decision as precedent). However, the States submit that decisions on issues that "involve complex questions and vigorously disputed interp retations of agency provisions" are not the same as 6"controversial," and the public, NRC Staff, and applicants can benefit from examining the well-considered, fully-briefed explor ation of these issues by duly qu alified Licensing Board panels. Staff's motion interferes with the incremental development of administrative common law before this Commission. In 1962, Congress amended the AEA to provide for the Commissioners' referral of matters to Atomic Safety and Licensing Boards and for such boards to issue "intermediate or final decisions."

AEA § 191, 42 U.S.C. § 2241; Pub. L.87-615, § 1 (approved Aug. 29, 1962). In the San Onofre Confirmatory Action Proceeding, the three administrative judges - all impartial judges employed by the federal government for just this purpose - issued a decision following a formal referral from the Commissioners and briefing by the parties. In short, the preparation and issuance of LBP-13-07 used federal financial resources and followed a regular administrative process initiated by the Commissioners and authorized by the AEA. The fact that the Staff's position was not accepted by the San Onofre Board or that the Staff may not like the Board's ruling is no reas on to vacate and expunge the ruling. Indeed, Congress' creation of Atomic Safety and Licensing Boards means that the Staff sometimes does not prevail, and those decisions have important value as persua sive authority, as do decisions when Staff's position does prevail. In applying the "complex questions and vi gorous dispute" standard, the Commission must be mindful of not harming public participation in NRC decisionmak ing, since intervention is one manner in which matters can and may appropriately be "vi gorously disputed."

See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-99-24, 50 N.R.C. 219 (1999);

La. Energy Servs., L.P., 47 N.R.C. 113, and the instant matter. Surely, neither Staff nor the Commission believes that the only time an issue is complex is when a Board agrees with an intervenor position that conflicts with Staff's approach. To the c ontrary, it is the value of public 7involvement - and the ability of the public to raise valid issues resulting in positive changes towards public safety and environmental protection - that underlie the Commission's public participation policies and regul ations to begin with. CONCLUSION The State of New York and the State of Vermont respectfully request that the Commission deny Staff's motion a nd let the Licensing Board's or der stand for what it is - a persuasive, but not binding, admini strative decision entitled to no more or less weight than any other Licensing Board decision rendered in any proceeding on any issue. The public has the right to access this Licensing Bo ard decision in the future. Respectfully submitted, Signed (electronically) by Signed (electronically) by Janice A. Dean Kathryn Liberatore Laura Heslin Assistant Attorneys General Office of the Attorney General for the State of New York 120 Broadway New York, New York 10271 (212) 416-8446 Lisa Covert, Legal Intern John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Signed (electronically) by Kyle H. Landis-Marinello Assistant Attorney General Office of the Attorney General for the State of Vermont 109 State Street Montpelier, Vermont 05609 (802) 828-3171 June 24, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the Matter of )

)

SOUTHERN CALIFORNIA EDISON CO. )

Docket Nos. 50-361-CAL, 50-362-CAL )

(San Onofre Nuclear Generating Station, )

Units 2 and 3) ) June 24, 2013

) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoi ng State of New York and State of Vermont Motion for Leave to File Brief Amici Curiae In Support of Petitioner and In Opposition To NRC Staff's Motion To Vacate The Licensing Board's Full Initial Decision, LBP-13-07 and State Of New York and State of Vermont Brief Amici Curiae in Support of Petitioner and In Opposition To NRC Staff's Motion To Vacate The Licensing Board's Full Initial Decision, LBP-13-07 have been served on the below parties via electronic mail because the State of New York is not a party to this proceeding and not on the Electronic Information Exchange.

Office of Commission Appellate Adjudication

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23

Washington, DC 20555-0001

E. Roy Hawkens Chief Administrative Judge E-mail: roy.hawkens@nrc.gov

Anthony J. Baratta Administrative Judge Email: anthony.baratta@nrc.gov

Gary S. Arnold Administrative Judge Email: gary.arnold@nrc.gov

U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission

Mail Stop O-16C1

Washington, DC 20555-0001

Hearing Docket E-mail: hearingdocket@nrc.gov

Southern California Edison Company

Douglas Porter, Esq.

Director and Managing Attorney

Generation Policy and Resources Law Department 2244 Walnut Grove Ave., GO1, Q3B, 335C Rosemead, CA 91770 Email: douglas.porter@sce.com

Counsel for Licensee

Morgan, Lewis & Bockius, LLP 1111 Pennsylvania, Ave. N.W.

Washington, D.C. 20004

Paul M. Bessette, Esq.

Kathryn M. Sutton, Esq.

Stephen J. Burdick, Esq.

Steven P. Frantz, Esq.

William E. Baer, Jr.

Mary Freeze, Legal Secretary

Lena M. Long, Legal Secretary E-mail: pbessette@morganlewis.com sburdick@morganlewis.com ksutton@morganlewis.com wbaer@morganlewis.com sfrantz@morganlewis.com mfreeze@morganlewis.com llong@morganlewis.com

U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop - O-15 D21

Washington, DC 20555-0001 Edward Williamson, Esq.

David Roth, Esq.

Catherine Kanatas, Esq.

David Cylkowski, Esq.

Jeremy Wachutka, Esq. Email: edward.williamson@nrc.gov david.roth@nrc.gov

catherine.kanatas@nrc.gov

david.cylkowski@nrc.gov jeremy.wachutka@nrc.gov

OGG Mail Center: ogcmailcenter@nrc.gov

Friends of the Earth

Ayres Law Group 1707 L St., NW

Suite 850

Washington, D.C. 20036

Richard E. Ayres, Esq.

Jessica L. Olson, Esq.

Kristin L. Hines, Esq.

Email: ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com hinesk@ayreslawgroup.com

Natural Resources Defense Council

Geoffrey H. Fettus, Esq.

1152 15th Street, NW

Suite 300

Washington, DC 20005 Email: gfettus@nrdc.org

Signed (electronically) by

_____________________

Janice A. Dean Dated at New York, New York

this 24th day of June 2013