ML20195K406

Memorandum & Order.* North Atlantic Energy Services Corp Granted Motion to Withdraw Proposed Amends & Dismiss Related Adjudicatory Proceedings as Moot.Board Decision LBP-98-23 Vacated.With Certificate of Svc.Served on 981124

ML20195K406
Person / Time
Site:	Seabrook
Issue date:	11/24/1998
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:	NORTH ATLANTIC ENERGY SERVICE CORP. (NAESCO)
References
CON-#498-19741, CON-#498-19742 CLI-98-24, LA, LA-2, LBP-98-23, NUDOCS 9811270010
Download: ML20195K406 (8)

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WlG 00CuiED UNITED STATES OF AMERICA US*RC NUCLEAR REGULATORY COMMISSION COMMISSIONERS: 98 E 24 Ali :08 Shirley Ann Jackson, Chairman 0:

Greta J. Dicus gL Nils J. Diaz ADI, - F Edward McGaffigan, Jr.

Jeffrey S. Merrifield

) M M'2 4 lip /8 in the Matter of )

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NORTH ATLANTIC ENERGY )

• SERVICE CORPORATION ) Docket No. 50-443-LA -

) 50-443-LA2 (Seabrook Station Unit No.1) )

1 CLI-98-24 MEMORANDUM AND ORDER The North Atlantic Energy Services Corporation (NAESCO) has filed a motion to withdraw two license amendment applications and to terminate related adjudicatory proceedings. The amendment applications were part of a series of proposed amendments to change the Technical Specifications for the Seabrook Nuclear Station to accommodate an .

1 extended fuel cycle. NAESCO is requesting withdrawal of the applications because it has revised its schedule to conduct its next refueling outage at the Seabrook Station consistent with the schedule in the existing Technical Specifications.

The adjudicatory proceedings were initiated by two intervention petitioners, the Seacoast Anti-Pollution League (SAPL) and the New England Coalition on Nuclear Pollution (NECNP). In one proceeding, the Atomic Safety and Licensing Board granted intervention to p SAPL and denied intervention to NECNP. LBP-98-23,48 NRC (Sept. 4,1998). The Board i

also requested the parties to provide further information on SAPL's argument against

" segmentation," M, its claim that license amendment applicants should not be permitted to  ;

9811270010 991124 4 PDR ADOCK 05000443 O PDR g

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-2 effectuate a major operational change requiring several license amendments through separate amendment requests rather than through a single request. SAPL reasoned that without reviewing the change as a whole, the NRC may be unable to assess accurately the safety implications of the overall change. Jd2 , slip op at 21. The Board ordered the second Seabrook amendment proceeding held in abeyance pending resolution of the " segmentation" question.

Before the Board reached a decision on the admissibility of the " segmentation" issue, the Commission exercised its inherent supervisory authority over the conduct of adjudicatory proceedings to take sua sconte review. See CLI 98-18,48 NRC (September 17,1998).

The Commission stated that the segmentation issue is " novel and has broad implications for this and other proceedings." The Commission set a briefing schedule and held all further l proceedings before the Board in abeyance. Subsequently, at the parties' joint request, the Commission deferred the briefing schedule to accommodate settlement negotiations. However, no settlement was reached. Instead, NAESCO filed the present motion to withdraw its  !

amendment applications and to terminate adjudicatory proceedings.

I SAPL and NECNP acknowledge that NAESCO's decision to withdraw the applications l would " appear to moot the need for any further proceeding." Response to Motion By NAESCO to Withdraw Applications and to Terminate Proceeding, at 2 (Oct. 26,1998).' Nevertheless, they " oppose mooting the proceeding," unless the Commission institutes a process to resolve the " segmentation" issue on a generic basis and affords meaningful public participation. !d at 3.

' On October 30,1998, NAESCO filed a Motion for Leave to File Reply to SAPL and NECNP's Response. That motion is hereby granted.

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A moot adjudicatory proceeding is clearly not the forum to decide a novel issue like

" segmentation."2 As SAPL and NECNP themselves recognize, NAESCO's abandonment of its i

amendment requests has rendered the current adjudications moot. Based on the present j record, we are disinclined to commit scarce Commission resources to the initiation of a public process to consider the segmentation issue on a generic basis outside the adjudicatory setting.

Although a final adjudicatory decision on segmentation might have proved a significant adjudicatory precedent, the legal questions surrounding segmentation remain inchoate. The parties had not yet briefed the issue before the Commission at the time NAESCO decided to abandon its amendment requests, and neither the Board nor the Commission had considered l whether " segmentation" was even an appropriate matter for litigation. We see no harm to SAPL or NECNP from our decision to terminate formal consideration of the se; mentation issue. ,

i They remain free to challenge any future licensing action that they deem to involve segmentation, just as they did here.

In conclusion, we grant NAESCO's motion to withdraw its proposed amendments and dismiss the related adjudicatory proceedings as moot. We also follow our customary practice and " wipe the state clean" by vacating the Board decision, LBP-98-23, that we had not yet l reviewed at the time the case became moot. See Louisiana Enerav Services (Claiborne Enrichment Center), CLI-98-5,47 NRC 113,114 (1998); Kerr-McGee Chemical Corp. (West l

8 Among other policy factors, we are reluctant to ask parties to a moot proceeding to incur the expense and inconvenience of preparing briefs and arguments.

4 Chicago Rare Earths Facility), CLl 96-2,43 NRC 13 (1996).

The proceedings are hereby terminated.

IT IS SO ORDERED.

Rf00 For the Commission 4 +x e

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o k l' Mb y, John 6. Hoyle O y [ Secretary of thei Comm,ss,on i

Dated at Rockville, Maryland, this t dday of November,1998.

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l 8 Commissioner Diaz was not available for the affirmation of this Order. Had he been present, he would have affirmed the Order.

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[ UNITED STATE OF AMERICA NUCLEAR REGULATU?Y COMMISSION l

In the Matter of

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NORTH ATLANTIC ENERGY SERVICE Docket No.(s) 50-443-LA CORPORATION (Seabrook Station, Unit No. 1)

CERTIFICATE OF SERVICE l

I hereby certify that copies of the foregoing COMM MEMO & ORDER (CLI-98-24) l 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 Commission Appellate B. Paul Cotter, Jr., Chairman Adjudication Atomic Safety and Licensing Board Panel U,S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Charles N. Kelber Administrative Judge Atomic Safety and Licensing Board Pand Linda W. Little Maf1'Stop - T-3 F23 ASLBP U.S. Nuclear Regulatory Commission Sf40 Hermitage Drive Washington, DC 20555 Raleigh, NC 27612 Steven R. Hom, Esq. Robert A. Backus, Esq.

Office of the General Counsel Backus, Meyer, Solomon, Rood & Branch Mail Stop 15 B18 P.O. Box 516 U.S. Nuclear Regulatory Commission Manchester, NH 03105 Washington, DC 20555 Lillian M. Cuoco, Esq. David A. Repka, Esq.

, Senior Nuclear Counsel Winston & Strawn

! Northesst Utilities Service Company 1400 L Street, N.W.

P.O. Eox 279 Washington, DC 20005 Hartford, CT 06141

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. l Docket ko.(s)50-443-LA COMM MEMO & ORDER (CLI-98-24) l l

Dated at Rockville, Md. this l 24 day of November 1998

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office of the Secretary of thii Commission l

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of NORTH ATLANTIC ENERGY SERVICE Docket No.(s) 50-443-LA-2 '

CORPORATION (Seabrook Station, Unit No. 1)

CERTIFICATE OF SERVICE l

l' I hereby certify that copies of the' foregoing COMM MEM0 & ORDER (CLI-98-24) 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 Commission Appellate B. Paul cotter, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commissich Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Charles N. Kelber Administrative Judge Atomic Safety and Licensing Board Panel Linda W. Little Mail Stop - T-3 F23 ASLBP U.S. Nuclear Regulatory Commission 5000 Hermitage Drive Washington, DC 20555 Raleigh, NC 27612 Steven R. Hom, Esq. Robert A. Backus, Esq.

Office of the General Counsel Backus, Meyer, Solomon, Rood & Branch Mail Stop 15 B18- P.O. Box 516 U.S. Nuclear Regulatory Commission Manchester, NH 03105 Washington, DC 20555 I

Lillian M. Cuoco, Esq. David A. Repka, Esq.

Northeast Utilities Servica Company Winston & Strawn l P.O. Box 270 1400 L Street, N.W.

Hartford, CT 06141 Washington, DC 20005 l

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l DocketNo.(s)50-443-LA-2 COMM_ MEMO & ORDER (CLI-98-24)

Dated at Rockville, Md. this i 24 day of November 1998 W

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Office of the'3ecretary 4f the Commission l

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