Maine Yankee v . Bonsey, et a l . CV-00-113-M 05/04/00 P UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Maine Yankee Atomic Power Company, Plaintiffs
v. Civil N o . 99-279-P-C (ME) Civil N o . 00-113-M (NH) Osmond C . Bonsey, Chair of Opinion N o . 2000 DNH 106 the Board of Environmental Protection and Martha Kirkpatrick, Commissioner, Maine Department of Environmental Protection, Defendants
O R D E R
Plaintiff Maine Yankee Atomic Power Company (“Maine Yankee”)
brought this suit to challenge the jurisdiction asserted by the
State of Maine’s Board of Environmental Protection (“BEP” or “the
Board”) and Department of Environmental Protection (“DEP” or “the
Department”) over Maine Yankee’s planned transfer of spent
nuclear power plant fuel from one on-site storage facility to
another. The planned new storage system is referred to in the
nuclear regulatory field as an “independent spent fuel storage
installation” or “ISFSI”. Maine Yankee seeks (1) a declaratory judgment – holding that the regulation of nuclear fuel storage is
a field entirely preempted by federal law; and (2) an injunction
precluding defendants from requiring, issuing or enforcing any
state permit or license related to Maine Yankee’s ISFSI under
Maine’s Site Location of Development Act (“Site Law”), M e . Rev.
Stat. Ann. tit. 3 8 , §§ 481-490 (West 1989 & Supp. 1999). Before
the court are defendants’ motion to dismiss, plaintiff’s motion
for partial summary judgment, and Friends of the Coast - Opposing
Nuclear Pollution’s (“Friends of the Coast”) motion to intervene,
as well as its answer, counterclaims, and motion to dismiss.
Background
Maine Yankee owns, and until recently operated, a commercial
nuclear power plant in Wiscasset, Maine. It operated the plant
under an Atomic Energy Commission (“AEC”) licence issued pursuant
to 42 U.S.C. § 2134(b) and 10 C.F.R. Part 50 (a “Part 50
operating license” or “operating licence”). The Wiscasset
facility’s nuclear reactor was shut down on December 6, 1996, and
eight months later Maine Yankee’s board of directors voted to
2 permanently cease operation of the plant. After filing required
certifications, see 10 C.F.R. § 50.82(a)(i) and ( i i ) , with the
Nuclear Regulatory Commission (“NRC”) (the AEC’s successor),
Maine Yankee began the process of decommissioning the nuclear
plant. Decommissioning is proceeding under Maine Yankee’s Part
50 operating license. See 10 C.F.R. § 50.51(b).
In decommissioning the nuclear facility, Maine Yankee is
required by its operating license to ensure the “storage, control
and maintenance of the spent fuel, in a safe condition.” 10
C.F.R. § 50.51(b)(1). It expects to comply with that obligation
by transferring its spent radioactive fuel, currently held in a
water-filled “spent fuel pool” inside the plant, to an ISFSI
employing a dry cask storage system. The storage system Maine
Yankee proposes to use - the Universal Multi-Purpose Canister
System (“UMS™”) - is subject to NRC approval, and is currently
being reviewed. As part of that review, NAC International, Inc.,
the developer of UMS™, has submitted a Safety Analysis Report
(“SAR”) on the system for the NRC’s consideration.
3 Maine’s Site Law requires approval by the Department before
construction or operation of “any development of state or
regional significance that may substantially affect the
environment.” M e . Rev. Stat. Ann. tit. 3 8 , § 483-A (West Supp.
1999). Because the Site Law did not become effective until after
construction of Maine Yankee’s plant was substantially underway,
no state development permit was ever requested or issued. When
minor alterations to the facility were made in 1992, however,
Maine Yankee sought and obtained a Site Law permit, but expressly
reserved its right to later contest application of the state’s
Site Law on federal preemption grounds.
On May 4 , 1999, Maine Yankee applied for an amended permit
under the Site Law and Maine’s Natural Resources Protection Act
(“NRPA”) 1 in connection with the proposed ISFSI. On August 1 9 ,
1999, the DEP recommended that the Board assume jurisdiction over
Maine Yankee’s application, pursuant to Me. Rev. Stat. Ann. tit.
1 The NRPA, codified at M e . Rev. Stat. Ann. tit. 3 8 , §§ 480-A to Z (West 1989 & Supp. 1999), requires prior approval from the Department to engage in certain activities in or adjacent to protected natural resources such as wetlands.
4 3 8 , § 341-D(2)(West Supp. 1999), which authorizes the Board to
assume jurisdiction over an application that has “generated
substantial public interest.” On August 19, 1999, the Board
accepted the DEP’s recommendation and voted, over Maine Yankee’s
objection, to assume jurisdiction. The Board issued a procedural
order on October 7 , 1999, requiring Maine Yankee to provide
copies of its Site Law application and the Safety Analysis Report
it filed with the NRC to intervenors in the state proceeding2 by
October 1 3 , 1999. On September 1 5 , 1999, Maine Yankee filed this
suit challenging the state’s authority to regulate any aspect of
its decommissioning activities.
Friends of the Coast is a non-profit organization
incorporated in the State of Maine. Its purpose is “to advocate
and educate with respect to the organization’s goal of ending the
risk of nuclear accidents and nuclear pollution in Maine, and in
particular in relation to [Maine Yankee’s] facility in
Wiscasset.” (Aff. of Raymond Shadis at ¶ 2.) As noted
2 The Board had granted petitions to intervene filed by the Town of Wiscasset and Friends of the Coast.
5 previously, Friends of the Coast was permitted to intervene in
the state administrative proceeding before the Board.
Discussion
I. Defendants’ Motion to Dismiss
The state defendants move to dismiss this suit on grounds
that the court lacks subject matter jurisdiction; that even if it
has jurisdiction, the court should abstain from interfering in
the Board’s consideration of Maine Yankee’s Site Law application;
and, that Maine Yankee has failed to state a claim on which
relief can be granted. Maine Yankee objects.
Defendants first say that while the Board assumed
jurisdiction over Maine Yankee’s application, it did not
“decid[e] whether or not it has decision-making authority over
. . . radiological issues,” but instead reserved that issue for
“further discussion and debate.” (Tr. of 8/19/99 Board meeting
at 8 1 , Ex. G to Dec. of Mary Ann Lynch (quoted language is from a
question posed by DEP Commissioner Brook Barnes, answered
affirmatively by Board member Andrew Cadot).) Defendants argue
6 that since the Board has not yet decided whether it has any
regulatory authority over radiation-related aspects of the ISFSI,
potential issues of federal preemption are not ripe for review.
Defendants assert that “Maine Yankee may never have a live
controversy because the Board may issue a Site Law permit which
comports with Maine Yankee’s views [of preemption].” (Defs.’
Mot. to Dismiss at 9 ) .
A similar argument was made in Kerr-McGee Chemical Corp. v .
City of W . Chicago, 914 F.2d 820 (7th Cir, 1990), a case in which
the plaintiff chemical company sought to enjoin, on federal
preemption grounds, West Chicago’s application of local Erosion
and Sedimentation Regulations to plaintiff’s construction of a
disposal cell for radioactive waste. The city argued that the
case was not ripe: “Since the City, if given the opportunity,
might find Kerr-McGee’s plans in complete compliance with the
City’s Code, the City submits that Kerr-McGee’s suit is
premature.” Id. at 823. The court rejected the argument, noting
that “Kerr-McGee’s claim is ripe because the City is prepared to
apply its Code immediately in a way that may affect the project.”
7 Id. at 827. Maine Yankee’s claim is ripe for the same reason:
the Board has asserted jurisdiction to apply Maine’s Site Law to
Maine Yankee’s planned construction of the ISFSI, and its
application threatens to affect Maine Yankee’s plan to move its
spent fuel.
The court also rejects defendants’ argument that Maine
Yankee’s voluntary compliance with the state’s Site Law approval
process in the past, and its filing the application at issue
here, waives any claim that the Board lacks jurisdiction over the
“environmental aspects” of the ISFSI project. (Defs.’ Mot. to
Dismiss at 9.) Maine Yankee has consistently maintained that the
state’s authority is limited by complete federal preemption of
the fields of nuclear power operation and safety. It has not
waived exclusive federal control over all nuclear aspects of the
plant’s construction, safe operation, and decommissioning (and
even if it purported to “waive” federal authority, the state
would not thereby obtain any ability to regulate in those areas
since Congress has reserved that power to itself).
8 Defendants next argue that the court should dismiss the case
on Younger abstention principles. See Younger v . Harris, 401
U.S. 37 (1971). Under the Younger doctrine, a federal court
should refrain from exercising jurisdiction over a claim that
implicates vital state interests and is the subject of ongoing
state judicial or administrative proceedings, unless the
opportunity to raise federal constitutional claims in the state
proceeding is clearly lacking. See Chaulk Servs., Inc. v .
Massachusetts Comm’n Against Discrimination, 70 F.3d 1361, 1368
(1st Cir. 1995). The doctrine is based on principles of comity
and a “‘proper respect for state functions.’” Id. at 1367
(quoting Younger, 401 U.S. at 4 4 ) .
Courts generally decline to apply the doctrine, however,
when it appears that the subject matter of the ongoing state
proceeding is preempted by federal law. See e.g., Chaulk, 70
F.3d at 1370. As the Court of Appeals for the Eighth Circuit
noted in Middle South Energy, Inc. v . Arkansas Pub. Serv. Comm’n,
772 F.2d 4 0 4 , 417 (8th Cir. 1985), the principles of comity
underlying Younger are “not strained when a federal court cuts
9 off state proceedings that entrench upon the federal domain.” It
is readily apparent, even on this concededly abbreviated record,
that the Board’s authority to regulate Maine Yankee’s
decommissioning activities is preempted, and the Board’s current
course could well take it into preempted waters. S o , Younger
abstention would not be appropriate. Chaulk, 70 F.3d at 1370.
The state defendants also suggest that the Anti-Injunction
Act, 28 U.S.C. § 2283, precludes this court from enjoining
defendants from seeking to enforce Maine’s Site Law in state
court proceedings. The Anti-Injunction Act provides that “[a]
court of the United States may not grant an injunction to stay
proceedings in a state court except as expressly authorized by
Act of Congress, or where necessary in aid of its jurisdiction,
or to protect or effectuate its judgments.” 28 U.S.C.A. § 2283
(West 1994). The short answer, of course, is that no state court
proceeding is pending: Maine Yankee’s application is pending
before the Board, a state administrative agency. The Anti-
Injunction Act does not prevent a federal court from enjoining
either pending proceedings before a state administrative agency,
10 or the commencement of a state court proceeding not yet pending.
See SMA Life Assurance C o . v . Sanchez-Pica, 960 F.2d 274, 276
(1st Cir. 1992)(noting, though not needing to decide the issue
for this circuit in order to resolve the case before i t , that
“the appellate courts seem to agree that the [Anti-Injunction]
Act applies only to state courts” and not to state administrative
agencies); Dombrowski v . Pfister, 380 U.S. 479, 485 n.2 (1965)
(Anti-Injunction Act does not “preclude injunctions against the
institution of state court proceedings, but only bar[s] stays of
suits already instituted.”); Hyde Park Partners, L.P. v .
Connolly, 839 F.2d 837, 842 n.6 (1st Cir. 1988)(same). Moreover,
plaintiff’s complaint alleges a cause of action under 42 U.S.C. §
1983, which brings the action within the Anti-Injunction Act’s
exception for injunctions “expressly authorized by Act of
Congress.” 28 U.S.C.A. § 2283 (West 1994); see Gibson v .
Berryhill, 411 U.S. 564 (1973)(noting that § 1983 actions are
exempt under the Anti-Injunction A c t ) . So, the Anti-Injunction
Act does not bar the injunctive relief sought here.
11 Defendants’ final procedural argument is that the doctrines
of primary jurisdiction and failure to exhaust administrative
remedies bar this suit. Defendants urge the court to allow the
Board to complete its administrative proceedings and determine
whether or not to issue a Site Law permit, before the federal
courts intervene in the matter. The argument is unavailing,
however, where the pending question is whether the Board’s
proceedings constitute an effort by the state to impose its
regulatory authority in a field preempted by Congress. See
Association of Int’l Auto. Mfrs., Inc. v . Commissioner,
Massachusetts Dep’t of Envtl. Protection, 2000 WL 298563, at *3
(1st Cir. March 2 7 , 2000)(finding that the court’s initial
invocation of the primary jurisdiction doctrine was unwise where
“the ultimate legal determination of whether the Massachusetts
regulations are preempted by the [federal Clean Air Act] is a
question of federal preemption law for the courts alone to
decide”); Volkswagen de Puerto Rico, Inc. v . Puerto Rico Labor
Relations Bd., 454 F.2d 3 8 , 41 (1st Cir. 1972)(holding that
plaintiff was not required to exhaust its administrative remedies
12 before the Puerto Rico Labor Relations Board “before invoking the
jurisdiction of the federal courts to determine whether the
Board’s assertion of jurisdiction was proper”).
The state defendants also move to dismiss plaintiff’s
complaint for failure to state a claim on which relief can be
granted. Defendants argue that because Maine Yankee’s claims are
not ripe for review, it has neither stated a claim under the
Declaratory Judgment Act nor presented a “live controversy”
sufficient to meet Article III’s case or controversy requirement.
The court has found, however, that plaintiff’s claims are ripe,
so this argument necessarily fails as well.
Finally, the state defendants say that Maine Yankee has not
described a viable claim for injunctive relief, because it has
failed to 1 ) allege irreparable harm or demonstrate that it lacks
an adequate remedy at law; (2) show that the balance of harms
favors granting an injunction; and (3) show that an injunction
will not adversely affect the public interest. Maine Yankee did
not address these points, probably because it took the position
that its claim for injunctive relief need not be considered
13 immediately in light of the Board’s stay of the administrative
proceedings pending the outcome of this suit. Maine Yankee
reserved its right to reassert its claim to injunctive relief,
however, should the Board dissolve its stay and bring the
administrative proceedings forward.
The Board subsequently did lift its stay, albeit at Maine
Yankee’s request (see letter from Attorney James T . Kilbreth to
Judge Carter of 2/25/00 (document n o . 18)). Nevertheless, this
court deems it inadvisable to consider the claim for injunctive
relief sua sponte, or rule on the motion to dismiss i t , until
Maine Yankee is afforded a meaningful opportunity to be heard on
the matter and a complete factual record can be developed. That
portion of defendants’ motion to dismiss i s , therefore, denied
without prejudice to renewing it in the context of a developed
factual proffer. (It remains unclear precisely what the state
board expects or intends to d o , though the tone and tenor of the
argument suggests that it intends to regulate the proposed spent
fuel transfer to the full extent of its authority to do so.)
14 II. Plaintiff’s Motion for Partial Summary Judgment
Maine Yankee has also moved for partial summary judgment on
Count I of its complaint – its request for declaratory judgment.
It asks the court to declare, inter alia, that “any attempt by
defendants to assert jurisdiction over the radiological health
and safety aspects of the ISFSI is prohibited under and preempted
by federal law.” (Pl.’s Motion for Partial Summary Judgment at
1.)
Under the Supremacy Clause of Article VI of the United
States Constitution, the “Laws of the United States” preempt
state law.
“Pre-emption occurs when [1] Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, [2] when there is outright or actual conflict between federal and state law, [3] where compliance with both federal and state law is in effect physically impossible, [4] where there is implicit in federal law a bar[r]ier to state regulation, [5] where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or [6] where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. . . . The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law.”
15 Hyde Park Partners, 839 F.2d at 848-49 (citations omitted)
(quoting Louisiana Public Service Comm’n v . Federal
Communications Comm’n, 476 U.S. 355 (1986)).
Maine Yankee first argues that as an “Agreement State” under
42 U.S.C. § 2021(b), 3 Maine is expressly prohibited from
licensing an ISFSI by 10 C.F.R. § 72.8, which provides:
“Agreement States may not issue licenses covering the storage of
spent fuel in an ISFSI or the storage of spent fuel and high-
level radioactive waste in an MRS [Monitored Retrievable Storage
Installation].” Maine Yankee appears to contend that any permit,
approval, or authorization a state may require in connection with
an ISFSI (e.g., the Site Law permit at issue here) qualifies as a
“license” prohibited under 10 C.F.R. § 72.8.
Section 72.8 probably should not be read so broadly.
Section 72.1 of 10 C.F.R. provides that “[t]he regulations in
this part establish requirements, procedures, and criteria for
3 That section “authorized the NRC, by agreements with state governors[,] to discontinue its regulatory authority over certain nuclear materials under limited conditions.” Pacific Gas and Electric C o . v . State Energy Resources Conservation & Development Comm’n, 461 U.S. 190, 209 (1983).
16 the issuance of licenses to receive, transfer, and possess power
reactor spent fuel and other radioactive material associated with
spent fuel storage in an [ISFSI] and the terms and conditions
under which the Commission will issue such licenses . . . .”
Thus, 10 C.F.R. Part 7 2 , by its terms, deals with licenses
authorizing the storage of spent nuclear fuel. The state
proceeding does not, strictly speaking, involve authorizing
plaintiff to receive, transfer, or possess spent nuclear fuel,
but seeks to regulate, in some manner, the site development
necessarily associated with its construction of an ISFSI to store
spent fuel. That i s , notwithstanding authorization from the NRC,
the state apparently believes that unless the proposed ISFSI also
meets its own site development standards, the transfer project
cannot go forward. That may be s o , in a very limited way – but
the real question is whether the state expects to impose “site
development criteria” in a manner that will frustrate or
undermine the NRC’s anticipated approval of the spent fuel
storage transfer.
17 Section 72.8, of course, merely recognizes that the
radiological hazards associated with spent fuel storage place
that subject outside the limited areas of regulation ceded to
Agreement States in 42 U.S.C. § 2021(b). In proposing the
regulations codified at 10 C.F.R. Part 7 2 , the NRC explained:
Licenses covering the storage of spent fuel in an ISFSI will not be issued by Agreement States because of the significant quantities of special nuclear materials involved. Agreement States are prohibited by section 274b(3) of the act [now codified at 42 U.S.C. § 2021(b)(4)] from licensing special nuclear material in quantities sufficient to form a critical mass.
43 Fed. Reg. 46309 (1978) (supplementary information to proposed
regulations later codified at 10 C.F.R. pt. 7 2 ) . Thus, the NRC
unquestionably retains full regulatory authority over the
radiological health and safety aspects of spent nuclear fuel
storage. See id.; see also 42 U.S.C.A. § 2021(c)(4) (West 1994)
(NRC to retain authority and responsibility to regulate “the
disposal of such other byproduct, source, or special nuclear
material as the Commission determines by regulation or order
should, because of the hazards or potential hazards thereof, not
be so disposed of without a license from the Commission.”).
18 Nonradiological aspects of spent fuel storage, however, are
still subject to some regulation by the states pursuant to 42
U.S.C.A. § 2021(k) (West 1994), which provides that “[n]othing in
this section shall be construed to affect the authority of any
State or local agency to regulate activities for purposes other
than protection against radiation hazards.” S o , the Site Law
permit at issue here, properly construed, is not the type of
license contemplated or prohibited by 10 C.F.R. § 72.8. That
does not mean, of course, that the state can indirectly regulate
plaintiff’s handling of spent nuclear fuel under the guise of
regulatory site development (e.g., landscaping, slopes, drainage,
soil erosion, e t c . ) .
Plaintiff also argues that the Board’s jurisdiction is
preempted because the federal government has occupied the fields
of spent fuel storage and nuclear safety in general. Congress
has legislated extensively in the field of nuclear power
generation. See the Atomic Energy Act (“AEA”), 42 U.S.C. § 2011
et seq.; the Energy Reorganization Act (“ERA”), 42 U.S.C. § 5801
et seq.; the Nuclear Waste Policy Act (“NWPA”), 42 U.S.C. § 10101
19 et seq. In addition, it has granted the NRC broad rule-making
and licensing authority in the field, see, e.g., 42 U.S.C.A. §§
2131-2141, 2201(p) (West 1994 & Supp. 1999), § 5841 (West 1995),
& § 10153 (West 1995). Nevertheless, Congress has not purported
to occupy the entire field of nuclear power regulation, but has
“preserved the dual regulation of nuclear-powered electricity
generation” by the federal and state governments: “the federal
government maintains complete control of the safety and ‘nuclear’
aspects of energy generation; the states exercise their
traditional authority over the need for additional generating
capacity, the type of generating facilities to be licensed, land
use, ratemaking, and the like.” Pacific Gas, 461 U.S. at 211-12.
Relying upon this distinction, the state defendants suggest
that because they do not intend to directly regulate the
radiological safety aspects of the contemplated ISFSI, and
readily concede that they have no authority to do so under either
the Site Law or the NRPA, their jurisdiction is not preempted.
In other words, like the statute at issue in Kerr-McGee Chemical
Corp. v . City of West Chicago, 914 F.2d at 826 (internal
20 quotation marks omitted), the Site Law and the NRPA “on [their]
face[s] concern[] matters that are unrelated to radiological
hazards.” Like the plaintiff in Kerr-McGee, however, Maine
Yankee is legitimately concerned that defendants “plan[] to use
the [Site Law and NRPA] to frustrate the NRC licensing program.”
Kerr-McGee Chemical Corp. v . City of West Chicago, 914 F.2d at
827.
What defendants actually plan to regulate, and how, is
hardly clear from the record before the court. One might take a
hint from the Board’s apparent interest in matters nuclear – its
demand for the safety report on the proposed storage system for
example. But, even giving appropriate deference to defendants’
representations – that they do not intend to directly or
indirectly regulate any radiological operational, or
decommissioning aspects of Maine Yankee’s ISFSI project – a
substantial legal issue still remains. That is because even
state laws aimed at those aspects of nuclear power plant
regulation left to the states are, nevertheless, preempted if
compliance with those laws and federal law is impossible, or if
21 state compliance “stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”
Pacific Gas, 461 U.S. at 204 (internal quotation marks omitted).
Thus, the Supreme Court in Pacific Gas “took great pains to make
clear that state regulation of matters directly affecting the
radiological safety of nuclear plant construction and operation,
even if enacted out of nonsafety concerns, would nevertheless
infringe upon the NRC’s exclusive authority.” English v . General
Electric Company, 496 U.S. 7 2 , 84 (1990) (internal quotation
marks and brackets omitted).
Specifically, in Pacific Gas the court noted that a state’s
attempt to “regulate the construction or operation of a nuclear
powerplant . . . even if enacted out of non-safety concerns,
would nevertheless directly conflict with the NRC’s exclusive
authority over plant construction and operation.” Pacific Gas,
461 U.S. at 212 (emphasis added). Accordingly, notwithstanding
the state’s authority over “land use” issues, Pacific Gas, 461
U.S. at 212, defendants cannot, under the guise of its radiation-
neutral Site Law and environmental regulations, interfere with
22 those aspects of Maine Yankee’s proposed ISFSI project that
remain exclusively within the province of the NRC. Defendants
have no role to play, for example, in determining whether Maine
Yankee should use dry cask storage on the Wiscasset site or some
other storage vehicle, as that use is authorized under Maine
Yankee’s operating license. See 10 C.F.R. § 72.212. Nor does
the state have any authority to prevent an on-site transfer of
the spent fuel – clearly an operational and nuclear safety issue.
Nor does the state have any say in the selection, or
specifications regarding construction of the dry cask storage
containers, see 10 C.F.R. § 72.214 (List of approved spent fuel
storage casks), or regarding whether the site and the
installation, including the cask storage pads, are adequate to
withstand the weight of the casks, or threats posed by natural
phenomena such as earthquakes and tornados, or the threat of
sabotage. See 10 C.F.R. § 72.212.
Moreover, while defendants have claimed authority to
consider Maine Yankee’s “financial capacity” (e.g. to deal with
future economic contingencies related to spent fuel disposal) in
23 determining whether to issue a Site Law permit, they of course
cannot employ a “financial capacity” requirement to indirectly
regulate in the field of spent nuclear fuel storage. Cf. United
Nuclear Corp. v . Cannon, 553 F. Supp. 1220, 1232 (D.R.I. 1982)
(holding that state statute requiring nuclear processing plant
that had ceased operations to post a ten million dollar, twenty
year bond to cover any expenses incurred by the state in
decontaminating areas surrounding the plant was preempted by
federal l a w ) . That i s , the state cannot stand in the way of
Maine Yankee’s operational fuel storage plans, once they are
approved by the NRC, on grounds that the cost of future transfer
or handling of the spent fuel may be high and plaintiff cannot
post security satisfactory to the state to cover any economic
contingencies. Cf. 10 C.F.R. § 72.30 (requiring licensees to
keep certain records including “[r]ecords of the cost estimate
performed for the decommissioning funding plan or of the amount
certified for decommissioning, and records of the funding method
used for assuring funds if either a funding plan or certification
is used”).
24 Defendants may, however, insist that the ISFSI comply with
state requirements that do not impermissibly infringe on
radiological, operational, construction, or safety issues, such
a s , for example, aesthetic landscaping requirements, or flood or
soil erosion control measures. See M e . Rev. Stat. Ann. tit. 3 8 ,
§ 484 (West 1989 & Supp. 1999); see also Kerr-McGee Chemical
Corp. v . City of West Chicago, 914 F.2d at 827 (“The City does
indeed have the power to say ‘no’ to aspects of the project” that
fail to comply with the City’s regulations, “if they do not
directly involve radiation hazards (including those ‘inextricably
intermixed’ with nonradiation hazards) and are not selected for
scrutiny by the City merely to delay or frustrate the project as
a whole.”). (A normal and customary performance bond
requirement, designed to ensure completion of site grading,
landscaping, drainage, etc., would probably be permissible, for
example.)
As in Kerr-McGee, this court is reluctant to prematurely
speculate that defendants intend to use Maine’s Site Law to
indirectly regulate what they concededly cannot regulate
25 directly. It has not been shown at this juncture that the state
has acted, or intends to act beyond the scope of its legitimate
authority (though plaintiff has reason to be concerned). “The
mere exercise of [some form of] jurisdiction by the [defendants]
does not create an irreconcilable conflict with the objectives of
federal law.” Id. Therefore, plaintiff’s motion for partial
summary judgment is necessarily denied, for now. Perhaps the
state’s conduct of its administrative proceedings will reveal a
transparent effort to exercise regulatory authority reserved to
the federal government. Perhaps not. Time will tell. If s o ,
declaratory and injunctive relief will surely and swiftly follow.
III. Friends of the Coast’s Motions
The final issues before the court relate to Friends of the
Coast’s motion to intervene and its answer and motion to dismiss.
Maine Yankee objects to the motion to intervene, arguing that
Friends of the Coast is not entitled to intervene as of right
under Fed.R.Civ.P. 24(a)(2), and should not be permitted to
intervene under Fed.R.Civ.P. 24(b).
26 Four conditions must be met to intervene as of right under
Fed.R.Civ.P. 24(a)(2) 4 :
First, the application must be timely. Second, the applicant must claim an interest relating to the property or transaction which is the subject of the action. Third, the applicant must be so situated that the disposition of the action may as a practical matter impair or impede her ability to protect that interest. Fourth, the applicant must show that her interest will not be adequately represented by existing parties.
Travelers Indem. C o . v . Dingwell, 884 F.2d 629, 637 (1st Cir.
1989). Maine Yankee argues that Friends of the Coast meets none
of the four conditions. However, as “[a]n applicant who fails to
meet any one of these requirements cannot intervene as of right
under Rule 24(a)(2),” id., the court need only address the last
requirement.
Friends of the Coast says it has an interest in this suit
because the outcome “will determine whether Friends of the Coast
will be able to participate in the environmental decision-making
of the [Board],” in order to protect the environmental and
4 Friends of the Coast does not purport to intervene by authority of a federal statute as allowed by Fed.R.Civ.P. 24(a)(1).
27 property interests of its members. (Friends of the Coast’s Mot.
to Intervene at 2 (underlining omitted).) S o , the interest
asserted is that of ensuring that the Board’s and Department’s
authority to require Maine Yankee’s ISFSI to meet the state’s
Site Law and NRPA requirements is recognized. Assuming, without
deciding, that this interest meets the second and third
requirements for intervention as of right, it fails to meet the
fourth.
Friends of the Coast’s claimed interest in this case is
indistinguishable from that of the state defendants, and that
interest is fully represented by them. Friends of the Coast has
not persuaded the court that the state defendants have failed to
argue for the broadest jurisdiction legally available to them.5
Accordingly, Friends of the Coast is not entitled to intervene as
of right.
5 The court finds Mr. Shadis’ averment that in January, 2000, he “developed concerns that the State’s will to address the concerns of Friends of the Coast was being eroded through constant lobbying by Maine Yankee” (Shadis Aff. at ¶ 16.) too ambiguous and speculative to raise a material issue regarding inadequate representation or conflict of interest.
28 Permissive intervention, on timely application, is
authorized under Fed.R.Civ.P. 24(b)(2) “when an applicant’s claim
or defense and the main action have a question of law or fact in
common.”6 Even assuming that condition is met here, however,
intervention is still at the court’s discretion. See
Massachusetts Food Ass’n v . Massachusetts Alcoholic Beverages
Control Comm’n, 197 F.3d 560, 568 (1st Cir. 1999), cert. denied,
2000 WL 249207 (U.S. May 1 , 2000). Permissive intervention is
unnecessary here, as Friends of the Coast’s limited legitimate
interests in this case are adequately protected by the state
defendants.
However, Friends of the Coast may participate in this case
as amicus curiae, if it wishes to do s o . That status will enable
it to present any pressing legal argument of concern to it that
the state defendants have not addressed or emphasized. See id.
(finding that district court did not abuse discretion in denying
permissive intervention where it “reasonably concluded that the
6 Friends of the Coast does not seek intervention based on a conditional right to intervene under federal statute, as provided for under Fed.R.Civ.P. 24(b)(1).
29 Commonwealth was adequately representing the interests of
everyone concerned . . . and that any variations of legal
argument could adequately be presented in amicus briefs”).
Accordingly, Friends of the Coast’s motion to intervene is
denied. Although its answer, counterclaims, and motion to
dismiss have not been objected t o , the court necessarily strikes
those pleadings sua sponte, as Friends of the Coast is not a
party to this suit. However, Friends of the Coast shall be
provided with copies of all pleadings filed by the parties, all
orders and notices, and may file briefs or legal memoranda in the
capacity of amicus curiae.
Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(document n o . 4 ) , plaintiff’s motion for partial summary judgment
(document n o . 1 0 ) , and Friends of the Coast’s motion to intervene
(document n o . 20) are denied. Friends of the Coast’s answer,
including defenses, counterclaims and motion to dismiss for lack
of jurisdiction (document n o . 21) is stricken.
30 SO ORDERED.
Steven J. McAuliffe United States District Judge, by designation
May 4 , 2000
cc: James T . Kilbreth, Esq. Dennis J. Harnish, Esq. John S . Campbell, Esq. William S . Brownell, Clerk, (Original) U.S. District Court, Maine James R. Starr, Clerk, (Copy) U.S. District Court, New Hampshire Friends of the Coast