ML13176A295
| 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: |
| 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
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
x STATE OF NEW YORK AND STATE OF VERMONT BRIEF AMICI CURIAE IN SUPPORT OF PETITIONER AND IN OPPOSITION TO NRC STAFFS MOTION TO VACATE THE ATOMIC SAFETY AND LICENSING BOARDS 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PRELIMINARY STATEMENT..1 NRCs Transparency Mandate.2 ARGUMENT......4 The Commissions Vacatur Practice is Based on Outdated and Inapplicable Law....4 Vacatur of the Boards Ruling is Not in the Public Interest..4 Controversy Is Not An Appropriate Ground for Vacatur.....5 CONCLUSION..7
PRELIMINARY 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 Staffs motion to vacate the Atomic Safety and Licensing Boards full initial 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 subject 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 Acts (AEAs) provision for public involvement in NRC decisionmaking.
The AEA, the Administrative Procedure Act, and NRCs 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 regulation 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 Commissions 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 1
Anderson, 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 Congressional Record 4093-94 (Mar. 21, 1957). Decisions issued by Atomic Safety and Licensing Boards are an integral part of such open and transparent processes.
NRCs 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. NRCs efforts to engage the public have been a priority for Chairman Macfarlane since taking office and enhancing the NRCs engagement with the public is a high priority. Allison M. Macfarlane, Chairman, Nuclear Regulatory Commn, 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 take a broad range of viewpoints into account. Congress, industry, state, local, and tribal governments, non-governmental organizations, and the public should feel confident that we are not only hearing their views, but actively considering them. See Allison 2
Macfarlane, Chairman, Nuclear Regulatory Commn, Remarks at the 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 value of regulatory openness by ensuring that our decisions are made in consultation with the public, our Congress, and other stakeholders and that [w]e view nuclear regulation as the publics business and, as such, we believe it should be transacted as openly and candidly as possible. Dale E. Klein, Chairman, Nuclear Regulatory Commn, Remarks at the Report to the Convention 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 Commn, 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 Commission has a significant responsibility to provide fair and meaningful opportunities for public involvement in our licensing proceedings); Peter B. Lyons, Commissioner, Nuclear Regulatory Commn, Remarks at the Trombay Colloquium: Perspectives on Nuclear Regulation and the Global Interest in Nuclear Energy (Mar. 27, 2006, NRC News # S-06-011) (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 safety is enhanced and public confidence in the NRC as a fair, stable and strong nuclear regulator 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).
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ARGUMENT The Commissions Vacatur Practice is Based on Outdated and Inapplicable Law The Commission has stated that it is not bound by judicial practice, 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 Courts 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 Commissions practice is in fact unsupported absent an analysis of Munsingwears progeny, including U.S.
Bancorp Corp. v. Bonner Mall Partnership, 513 U.S. 18 (1994).
Vacatur of the Boards 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 Staffs motion would run counter to the public interest by preventing the public from examining and relying upon the reasoning in the Boards decision, rendered after full briefing by interested parties, as persuasive 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 Pship, 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).
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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 Staffs Motion To Vacate The Licensing Boards 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 NRCs adjudicatory proceeding regulations. As LBP-13-07 is an unreviewed Board decision, it is not binding precedent, 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 Staffs 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 Commissions commitment to meaningful public participation in fair, open, and transparent adjudicatory proceedings. The Staffs motion cites to Kerr-McGee Chem. Corp.
43 N.R.C. at 15 (holding that under the circumstances in that case, wherein the Boards ruling involve(d) complex questions and vigorously 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 interpretations of agency provisions are not the same as 5
controversial, and the public, NRC Staff, and applicants can benefit from examining the well-considered, fully-briefed exploration of these issues by duly qualified Licensing Board panels.
Staffs 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 Staffs position was not accepted by the San Onofre Board or that the Staff may not like the Boards ruling is no reason 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 persuasive authority, as do decisions when Staffs position does prevail.
In applying the complex questions and vigorous dispute standard, the Commission must be mindful of not harming public participation in NRC decisionmaking, since intervention is one manner in which matters can and may appropriately be vigorously 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 Staffs approach. To the contrary, it is the value of public 6
involvement - and the ability of the public to raise valid issues resulting in positive changes towards public safety and environmental protection - that underlie the Commissions public participation policies and regulations to begin with.
CONCLUSION The State of New York and the State of Vermont respectfully request that the Commission deny Staffs motion and let the Licensing Boards order stand for what it is - a persuasive, but not binding, administrative 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 Board decision in the future.
Respectfully submitted, Signed (electronically) by Signed (electronically) by Janice A. Dean John J. Sipos Kathryn Liberatore Assistant Attorney General Laura Heslin Office of the Attorney General Assistant Attorneys General for the State of New York Office of the Attorney General The Capitol for the State of New York Albany, New York 12224 120 Broadway (518) 402-2251 New York, New York 10271 (212) 416-8446 Lisa Covert, Legal Intern 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 7
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 foregoing 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 Staffs Motion To Vacate The Licensing Boards 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 Staffs Motion To Vacate The Licensing Boards 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 Email: gary.arnold@nrc.gov Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary of the Commission E-mail: ocaamail@nrc.gov Mail Stop O-16C1 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Hearing Docket Mail Stop - T-3 F23 E-mail: hearingdocket@nrc.gov Washington, DC 20555-0001 Southern California Edison Company E. Roy Hawkens Douglas Porter, Esq.
Chief Administrative Judge Director and Managing Attorney E-mail: roy.hawkens@nrc.gov Generation Policy and Resources Law Department Anthony J. Baratta 2244 Walnut Grove Ave., GO1, Q3B, 335C Administrative Judge Rosemead, CA 91770 Email: anthony.baratta@nrc.gov Email: douglas.porter@sce.com Gary S. Arnold Counsel for Licensee Administrative Judge Morgan, Lewis & Bockius, LLP
1111 Pennsylvania, Ave. N.W. Email: edward.williamson@nrc.gov Washington, D.C. 20004 david.roth@nrc.gov Paul M. Bessette, Esq. catherine.kanatas@nrc.gov Kathryn M. Sutton, Esq. david.cylkowski@nrc.gov Stephen J. Burdick, Esq. jeremy.wachutka@nrc.gov Steven P. Frantz, Esq. OGG Mail Center: ogcmailcenter@nrc.gov William E. Baer, Jr.
Mary Freeze, Legal Secretary Friends of the Earth Lena M. Long, Legal Secretary Ayres Law Group E-mail: pbessette@morganlewis.com 1707 L St., NW sburdick@morganlewis.com Suite 850 ksutton@morganlewis.com Washington, D.C. 20036 wbaer@morganlewis.com Richard E. Ayres, Esq.
sfrantz@morganlewis.com Jessica L. Olson, Esq.
mfreeze@morganlewis.com Kristin L. Hines, Esq.
llong@morganlewis.com Email: ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com U.S. Nuclear Regulatory Commission hinesk@ayreslawgroup.com Office of the General Counsel Natural Resources Defense Council Mail Stop - O-15 D21 Washington, DC 20555-0001 Geoffrey H. Fettus, Esq.
Edward Williamson, Esq. 1152 15th Street, NW David Roth, Esq. Suite 300 Catherine Kanatas, Esq. Washington, DC 20005 David Cylkowski, Esq. Email: gfettus@nrdc.org Jeremy Wachutka, Esq.
Signed (electronically) by
_____________________
Janice A. Dean Dated at New York, New York this 24th day of June 2013