ML18026A055
| ML18026A055 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 10/21/1976 |
| From: | Silberg J Shaw, Pittman, Potts & Trowbridge |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| Download: ML18026A055 (8) | |
Text
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October " , 1976 UNITED STATES OF AMERICA >OCK~
NUCLEAR REGULATORY COIRIISSION USNRq (l OCT2L fS78), 5 Before The'ommission '0 Cca oV)S Oy%gyes p C
IN THE MATTER OF )
)
PENNSYLVANIA POWER & LIGHT ) ,Docket Nos. 50-387 COMPANY' 50-388 (Susquehanna Steam Electric )
Station, Units 1 & 2) )
PENNSYLVANIA POWER'& LIGHT COMPANY'S RESPONSE TO MOTION OF VERMONT YANKEE NUCLEAR POWER CORPORATXON DATED'EPTEMBER.'27,1976 In a document dated October 13, 1976, the Secretary of the Commission invited the parties involved in all pending show cause proceedings on fuel cycle issues to respond to a motion filed on September 27, 1976, by the Vermont Yankee Nuclear Power Corporation in Docket No. 50-271. This motion sought the recall of those portions of the General Statement of Policy - Environmental Effects of the Uranium Fuel Cycle, 41 Fed. Reg. 34707 (August 16, 1976) which directed Atomic Safety and Licensing Boards, Atomic Safety and Licensing Appeal Boards, and the NRC Staff (in show cause proceedings) to consider the suspension or modification of any nuclear power plant license on fuel cycle grounds.
The October 13, 1976, document also stated that the Commission was considering the suspension of all pending show cause proceedings on fuel cycle issues in light of the October 8,
1976, order of the U. S. Court of Appeals for the D. C. Circuit staying the issuance of the mandate in- Natura'1 Resou'r'ces Defense Council.,- Inc. v. NRC and in light of the publication by the Commission of a supplement 'o its Environmental Survey of the Nuclear Fuel Cycle and a notice of proposed rulemaking looking towards the adoption of an interim fuel cycle rule..
Pennsylvania Power & Light Company, the holder of construc-tion permits for the Susquehanna Steam Electric Station, Units 1 and 2, submits the following comments o'n the Vermont Yankee motion. By letter dated September 21, 1976, to.the Director of Nuclear Reactor Regulation, the Company responded to the "Petition for Intervention"- filed by the Environmental Coali-tion on Nuclear Power which requested the suspension of the construction permits for the Susquehanna facility.
As the Commission recognized in its August 13, 1976, General Statement of Policy, the Court of Appeals in NRDC, notwithstanding the defects which it found in the fuel cycle rule, did not suspend the operating license of the Vermont Yankee facility involved in that case. Nor did the court in the companion case of Aeschliman v. NRC suspend the Midland Plant construction permits notwithstanding the same perceived defect. As the Commission noted, "the court refused an ex-plicit request to set aside these licenses." 41 Fed. Reg. 34707.
The NRC did, however, view the Court's ruling as calling for the Commission to resolve the question of suspending or modifying
existing licenses "pending the issuance of new fuel cycle regu-lations on a case-by-case basis where 'such a suspension or modification was requested.: This case-by-case determination was to be based on-the equitable factors outlined in the General Statement of Policy. 41 Fed. Reg. at 34709. Absent such a request, the Commission announced that it would 'sua ~sonic determine whether to initiate show cause proceedings for all outstanding licenses'ased upon information in the revised environmental survey. Id.
The October 8, 1976, order of the'RDC Court, we believe, indicates that the Commission erred in its view that the Court expected the NRC to consider suspending existing operating licenses and construction permits. That order stayed the issu-ance of the mandate of the'RDC decision. The operative language of the order is as follows:
[I]t is . .
Court, that
. FURTHER ORDERED, by the the foregoing motions for stay of mandate are granted, and the Clerk is directed not to issue the mandate herein prior to October 31, 1976, on condition that the United States Nuclear Regulatory Commission shall make any licenses granted between July 21, 1976, and such time when the mandate is issued subject to the out-come of the proceedings herein. l/
Since a pete.txon for cert'.orarz. of the NRDC deca.sxon has been filed by Vermont-Yankee Nuclear Power Corporation and docketed in the Supreme Court, the mandate cannot now issue pending further order of the Supreme Court. 'ule 41, Fed. R.
App. P.
The clear import of this language is 'that new licenses can be issued notwithstanding the'RDC decision so long as those licenses are "subject to the outcome of the proceedings 2/
herein." If the NRDC decision permits the Commission to issue new licenses pending the outcome of the remanded fuel cycle rulemaking proceeding, it logically follows that the Commission is -neither obligated nor ought to consider suspen-sion of the ~existin licenses pending the completion of the remanded rulemaking proceedings. It would certainly defy reason for 'the Court of Appeals to permit NRC to issue new licenses after NRDC (subject to condition) and at the same time to intend the NPJ3C decision to be the possible cause for the sus-pension of licenses issued before'RDC. Thus, the appropriate course of action for NRC at this time would be to delete from the General Statement of Policy those provisions relating to suspension of existing licenses on fuel cycle grounds and to suspend all pending show cause/suspension proceedings based 3/
on fuel cycle issues.
2 Thx,s provxsxon zndxcates that the Commissar.on's General State-ment of Policy went beyond the dictates of the NRDC decision when it barred the issuance of new full-power operating licenses, construction permits and limited work authorizations.
3/ The October 8, 1976, order even raises the question whether the Court intended the'RDC decision to apply to existing licenses at all. By only requiring that licenses issued after NRDC be subject to the outcome of the remanded rulemaking, that licenses issued before'RDC are not to it be at least subject implies to that outcome. If that is the case, then reconsideration of existing licenses after the rulemaking has been completed would be inappropriate and unnecessary.
The staying of the mandate is obviously ample 'grounds for modification by. the Commission of its suspension instruc-tions set forth in the General Policy Statement. The Commission 4
itself recognized that a motion to rec'all its decision to con-vene proceedings to consider suspension of existing licenses would be appropriate if the mandate were stayed. See Commission Memorandum and Order,'ermont't'ahe'ucl'ear'ower Co'r . (Vermont Yankee Nuclear Power Station) and'onsumers'ow'er .'Com an (Hid-land Plant, Units 1 and 2), September 14, 1976, slip op. at 7.
In testimony before the 'Joint Committee on Atomic Energy on August 27, 1976, the Chairman of the Commission stated that, depending on the results of the revised environmental survey,
.the NRC might seek a .stay of the mandate which if granted could 4/
serve as the basis for additional licensing action. Thus, the Commission has recognized that a stay of the mandate would be cause. to change its NRDC implementation policies. The staying of'he mandate serves to 'maintain the status duo for the dura-tion of the stay. Al on uin Gas Transmission Co. v. ~Townshi of Somerset, 112 F. Supp. 86, 90 '(D. N.J. 1953). As the Supreme Court held more than sixty years ago the appeal must be regarded as pending and undisposed of until a man-date issues.
Merrimack River Savin s Bank v.'it o'f 'Cla 'Cen't'er, 219 U.S.
4 Statement oj, Marcus, A. Rowden, Chairman, U. S. Nuclear Regu-latory Commission, before the'Joint Committee on Atomic Energy, August, 27, 1976, p. 9.
527, 536 (1910). If an appeal must be considered as "pending and undisposed, of", it would obviously be inappropriate for an agency to take the drastic step of-suspending an existing license based on such incomplete'judicial action. Absent the issuance of the Court s mandate, there is no .official judicial action. As stated by the Eighth Circuit, "this court,'as does any appellate court, acts formally and officially only through its mandate". ~Baile v. Henri'ee, 309 F.2d 840, 844 (8th Cir.
1962). More recently,'he Ninth Circuit distinguished between the immediate effectiveness of a memorandum issued in response to a motion and the ability to stay a "judgment" through a stay of mandate., York Int'em'ationa'l 8ni1din , Inc. v. ~Chanc 522 F.2d 1061, 1066 (9th Cir. 1975) . The Commission would not be warranted in using a judicial pronouncement not in effect as the basis for the suspension of existing licenses.
Further support for amending the General Statement of Policy and suspending pending show cause proceedings can be found in the rulemaking proceeding recently commenced by the Commission. As shown in the notice of proposed rulemaking, "Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste Management", 41 Fed. Reg. 45849 (October 18, 1976), the environmental 'impacts of reprocessing and waste management as described in the revised -interim table set forth in the notice are not significantly different from those in Table S-3, except for the burial of solid wastes (without their
I a release to the environment) rathe'r than their storage in retrievable form. As noted'in the Commission's press release f
accompanying" the notice of proposed rulemaking, the environ-mental impacts of fuel reprocessing and waste management as they relate to individual nuclear plants continue to be small, even when impacts which were not completely accounted for in the past are considered. The Commission has also indicated that the'nterim fuel cycle rule could'be in place within three 5/
months. Given these factors and the Commission's judgment that its present analysis of reprocessing and waste management impact is unlikely to be dramatically in error, a suspension of existing licenses. pending promulgation of an interim fuel cycle rule would not be sensible administrative policy.
For the reasons set forth above, Pennsylvania Power & Light Company respectfully requests that the Commission modify its General Statement of Policy by deleting those portions relating to the suspension of existing licenses and suspending all pending show cause/suspension proceedings based on fuel'cycle issues.
Respectfully submitted, SHAN, PITTMAN, POTTS 6 TROWBRIDGE By 'W C..<~i Jay P/. Sxlberg Coun/el for Pennsylvania 9 Power 6 Right Company Dated: October 21, 1976
'I 5 See statement by Marcus A. Rowden, Chairman, NRC, xn Press Release No.76-221, October 13, 1976.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before The'ommi'ss'ion In the Matter of )
)
PENNSYLVANIA POWER 6 LIGHT ) Docket Nos. 50-387 COMPANY ) 50-388 (Susquehanna Steam Electric )
Station, Units 1 & 2) . )
CERTIFICATE OF 'SERVICE I hereby certify that copies of the foregoing "Pennsylvania Power 6 Light Company's Response To Motion Of Vermont Yankee Nuclear Power Corporation Dated September 27, 1976" were served as follows:
BY HAND DELIVERY: DEPOSITED IN THE U.S. IIAIL:
Office of the Secretary Office of the Executive Legal U. S. Nuclear Regulatory Commission Director Washington,'. C. 20555 U. S. Nuclear Regulatory Commission Docketing G Service Section Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Chauncey Kepford 2576 Broad Street York, Pennsylvania Ms. Judith H. Johnsrud 433 Orlando Drive State College, Pennsylvania Jay E.j Silberg
/ X<~ v Dated: October 21, 1976