ML20211N523

Memorandum & Order (CLI-99-24).* Grants Util Motion to Withdraw Without Prejudice Pending Appeal of ASLB Memorandum & Order LBP-99-14 & Vacates LBP-99-14 & LBP-99-17.With Certificate of Svc.Served on 990910

ML20211N523
Person / Time
Site:	Yankee Rowe
Issue date:	09/10/1999
From:	Vietticook A NRC OFFICE OF THE SECRETARY (SECY)
To:	YANKEE ATOMIC ELECTRIC CO.
References
CON-#399-20810 CLI-99-24, LA, LBP-99-14, LBP-99-17, NUDOCS 9909130013
Download: ML20211N523 (6)

Text

n .,

, ]0

. *t DOChETED UNITED STATES OF' AMERICA U3poC r NUCLEAR REGULATORY COMMISSION

'99 SEr 10 Pi2:09

- COMMISSIONERS:

' Greta oy Dicus, Chairman ,

Nils J. Diaz ' ADJjEk. ,qp Edward McGaffigan, Jr.

.. Jeffrey S. Merrifield .

~

ERVED sep 1 o 1999

, . . . , , ).

in the Matter of... ).

) .

, YANKEE ATOMIC ELECTRIC COMPANY ') Docket No. 50-029-LA

)

,(Yankee Nuclear Power Station) )

)

CLl-99-24 MEMORANDUM AND ORDER

_ The Commission grants the motion of licensee Yankee Atomic Electric Company

(" Yankee Atomic" or " licensee") to terminate without prejudice its pending appeal of the  ;

Licensing Board's Memorandum and Order (LBP-99-14,49 NRC 238, reconsid'n denied.

LBP-99-17,49 NRC 375 (1999)) in which the Board admitted four contentions. The Commission also vacates both Board orders as moot.

BACKGROUND' This proceeding concems a license amendment application in which Yankee Atomic sought approval of its License Termination Plan ("LTP") for the Yankee Nuclear Power Station l l

(" Yankee Rowe'). On May 26,1999, in a pleading supported by the NRC staff, Yankee Atomic j submitted to the Ucensing Board a motion seeking leave to withdraw its LTP application without

.. i prejudice and, in the same filing, asked that the Commission dismiss without prejudice Yankee Atomic's pending appeal of LBP-99-14. Responding to the latter request,intervenors Citizens l l

9909130013 990910 .

PDR ADOCK 05000029 1 0 PDR p 3

g

+.'

Awareness Network ("CAN"), the New England Coalition on Nuclear Pollution ("NECNP") and .

Lth$ Franklin Regional Council of Govemments ("FRCOG") agreed that the Commission should l dismiss the pending appeal, but asked that the dismissal be "with prejudice."

in parallel filings before the Board, intervenors similarly argued that the Board should terminate the entire proceeding "with prejudice."' They also asserted that the Board should '

require Yankee Atomic to reimburse CAN's and NECNP's litigation expenses and provide intervenors with various kinds of information regarding the decommissioning of Yankee Rowe.

/On July 28,1999, the Board issued LBP-99-27,50 NRC . rejecting these arguments and :

. terminating, without prejudice or conditions, all portions of the proceeding -- except for the instant pending appeal. Intervenors chose not to petition for Commission review of LBP-99-27.2 Consequently, the only remaining portion of this proceeding is Yankee Atomic's appeal of

' LBP-99 a matter we have held in abeyance pending the August 17* conclusion of the L~

l appeal period for LBP-99-27. For the reasons set forth below, we dismiss the appeal without -

prejudice (as moot) and vacate both LBP-99-14 and LBP-99.-17.

DISCUSSION .

1. Reauested Dismissal of Aooeal With Preludice -

l Intervenors' request that we dismiss Yankee Atomic's appeal with prejudice suffers from two serious flaws. First, the dismissal of an appeal with prejudice (similar to termination of a proceeding with prejudice) generally implies that we have ruled on the merits of the appeal --

. clearly not the situation here. Sag Philadelohia Elec. Co. (Fulton Generating Station, Units 1 l'

and 2), ALAB-657,14 NRC 967,973 (1981).

' NECNP later clarified that it was not asking the Board to dismiss the proceeding with prejudice. _ NECNP's . Reply to LBP-99-22, dated June 24,1999, at 2 n.2.

- 8 The Commission is also declining to take review sua sponte of the Licensing Board's Memorandum and Order (LBP-99-27) terminating, without prejudice or conditions, all portions of the proceeding except for the instant appeal of LBP-99-14.

l: ~

L L

g 3

Second, dismissal with prejudice (again like termination with prejudice) is a severe

)

l sanction reserved for unusual situations involving substantial prejudice to an opposing party or  !

to the public interestin general-See Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, Unit 1), ALAB-662,14 pmC 1125,1132-1133 (1981); Fulton,14 NRC at 978-79 and n.14. We see here no prejudice (much less substantial prejudice) to either the intervenors' or the public's interest. The admitted contentions were focused on alleged deficiencies and '

inadequacies of the withdrawn LTP. Moreover, the intervenors will be in precisely the same position in any subsequent proceeding as if they had prevailed not only on their instant appeal but also on the subsequent meritssi mtion of this proceeding, Le , they will be faced with Yankee Atomic returning to the Commission in the future with a second proposed LTP which intervenors may oppose if they wish.8 For these reasons, we decline to dismiss the appeal with prejudice. Rather, we dismiss it as moot.

2. Vacation of LBP-9914 and LBP-99-17 We exercise our inherent authority over adjudications and vacate LBP-99-14 and LBP-99-17. As we indicated in Louisiana Enerav Services. L.P. (Claiborne Enrichment Center),

CLI-98-5,47 NRC 113,114 (1998):

i l

8 "[Tjhe possibility of future litigation with its expenses and uncertainties ... is precisely the consequence of any dismissal without prejudice. It does not provide a basis for departing from the usual rule that a dismissal should be without prejudice." North Coast.14 NRC at 1135  !

(emphasis in original), citing Jones v. SEC,298 U.S.1,19 (1936), and 5 Moore's Federal l Practice 41.05[1] at (pagesj 41-72 to 41-73 (2d ed.1981). See also Fulton 14 NRC at 979 l

("it is well settled that the prospect of a second lawsuit -- or, in this case, another application to  !

construct a nuclear reactor at Fulton -- does not provide the requisite quantum of legal harm to  !

warrant dismissal with prejudice"(citing Jones, suora)). (Both North Coast and Fulton are decisions of the Atomic Safety and Licensing Appeal Board, an entity which the Commission abolished in 1991. However, despite its defunct status, the Appeal Board's decisions still carry precedential weight. Seauovah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLl- l 94-11,40 NRC 55,59 n.2 (1994).)

F 4

While unreviewed Board decisions do not create binding precedent, where as here the unreviewed rulings " involve complex questions and vigorously disputedinterpretations 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 _Qf Kerr-McGee Chemica1 Coro. (West Chicago Rare Earths Facility), CLI-96-2, 43 NRC 13,15 (1996). Our decision to vacate the Board orders "does not intimate any opinion on their soundness." hL CONCLUSION For the reasons given above, the Commission (1) grants Yankee Atomic motion to withdraw without prejudice its pending appeal of the Licensing Board's Memorandum a.,o Order (LBP-99-14) and (2) vacates LBP-99-14 and LBP-99-17.

Therefore, the proceeding is terminated.

IT IS SO ORDERED.

1 ago For the Commission -

/4 '

+9 Annette L. Vietti-Cook 4*k 4 V+ Secretary of the Commission Dated at Rockville, Maryland, this Aday of September,1999.

G UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION L

In the Matter of . )

. )

YANKEE ATOMIC ELECTRIC CCMPANY ) Docket No. 50-029-LA

. . )

(Yankee Nuclear Power Station) .)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER -

(CLI-99-24) have been served uponthe following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Office of Commission Appellate - Administrative Judge

' Adjudication Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555

. Administrative Judge Administrative Judge Thomas D. Murphy Thomas S. Elleman -

Atomic Safety and Licensing BosniPanel 704 Davidson Street l Mail Stop - T-3 F23 Raleigh, NC 27609 )

I U.S. Nuclear Regulatory Commission Washington, DC 20555 i Ann P. Hodgdon, Esq. Diane Curran, Esq.

Office of the General Counsel Harmon, Curran, Spielberg Mail Stop 15 D21 & Eisenberg, L.L.P.

U.S. Nuclear Regulatory Commission 1726 M Street, NW, Suite 600  ;

Washington, DC 20555 Washington, DC 20036 l i

i l

I w_

?

gl

' i;  : c.

Lp 3

1. 2~

Docket No. 50-029-LA l COMMISSION MEMORANDUM -

AND ORDER (CLI-99-24)

Thomas Dignan, Esq. Jonathan M._ Block, Esq.

' Ropes and Gray . Main Street -

' One intemational Place P.O. Box 566

Boston, MA 02110 - Putney,VT 05346

-James L. Perkins, President Adam Laipson

'New England Coalition on Franklin Regional Council

_ Nuclear Pollution, Inc. '

of Govemments

P.O. Box 545 425 Main St.

. Brattleboro, VT 05302 Greenfield, MA 01301

~ Samuel H. Lovejoy, Chairman, FRPB Deborah B. Katz, President Franklin Regional Council- Citizens Awareness Network, Inc.

. of Govemments - P.O. Box 3023

' 425 Main St. . Charlemont, MA 01339

. Greenfield, MA 01301 i

L: _

Office of the Secretary of th'e Commissidi Dated at Rockville, Maryland, .

this 10* day of September 1999 t -

v ,

.