ML19209A331
| ML19209A331 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 08/03/1979 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19209A326 | List: |
| References | |
| NUDOCS 7910030614 | |
| Download: ML19209A331 (4) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-295
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50-304 (Zion Station, Units 1 and 2)
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MEMORANDUM 0F LAW ON MINNESOTA v. NRC The Board requested the parties to brief the 3colicability of the recent opinion of the District of Columbia Circuit in Minnesota v. NRC, r.2d
,' Nos. 78-1269, 2032 (May 23,1979) to the instant proceeding. The NRC Staff brief follows.
Minnesota involved an appeal from the decision of the Appeal Board (the Commis-sion declined review) granting two separate spent fuel pool expansion applications.
The court remanded the case to the Comission for such proceedings as it deems appropriate to determine "whether there is reasonable assurance that an off-site storage solution will be available by the years 2007-09, the expiration of the plant's operating licenses and, if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates."
Slip 02 at 14.
In so doing, the court endorsed the Commission's position that such a determination could be reached in the context of a " generic" proceeding such as rulemaking and then " apply its determination in subsequent adjudicatory proceedings."
M. at 10. Significantly, the court declined to vacate or stay the license amend-ments at issue (which it noted would effectively shut down the plants), Id. at 14, and neither explicitly nor implicitly directed that future individual spent 1;085 181
. fuel pool expansion proceedings be prohibited or deferred until completion of the contemplated " generic" proceeding on waste disposal. Had the court desired to achieve this result, it could have so indict.ted.
Moreover, the court was careful not to disagree with the Second Circuit's decision in NRDC v. NRC, 582 F.2d 166 (2nd Cir.1978), affinning the conclusion that " Congress did not intend, in en-acting the Atomic Energy Act, to requiie a demonstration that nuclear wastes could safely be disposed of before licensing of nuclear plants was pennitted" (Emphasis added).
Similarly, no such requirement should be implied in the Minne-sota opinion.
The decision of the D. C. Circuit itself in an analogous case is instructive.
In the case of Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.
197,4), petitioners argued, in part, that it constituted a denial of due process when the Commission denied them the opportunity to litigate their challenges to tha 'nterim acceptance criteria (IAC) for emergency core cooling systems in an individual operating licensing proceeding to which they were a party and instead invited their participation in rulemaking proceeding on the acceptability of the IAC being conducted simulataneously.
It was further argued tnat the Commission should have either deferred licensing action pending the outcome of rulemaking or imposed certain license restrictions. The Court squarely rejected these arguments.
The Commission is in the process of deciding the manner in which to handle the case on remand.
In the meantime, the first license amendment authorizing a spent fuel pool expansion following the Minnesota decision issued on June 19, 1979.
It involved the Oconee facility. 44 F.R. 40457 (July 10,~1979).
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. The licensing action taken in the instant matter would be subject to whatever conditions the Commission may later impose as a result of its future generic waste disposal proceeding. Alternatively, an interested party could seek appro-priate legal action with respect to such action pursuant to 10 CFR 52.206 upon consideration of the outcome of the Commission's generic proceeding.
This would serve as a post-decisional vehicle to aisure the continuing validity of the li-censing action taken herein.
Accordingly, the Staff does not believe that Minnesota should affect the immediate outcome of this proceeding.
Respectfully submitted, Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of August, 1979.
108S.183 O
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UNITED STATES OF R ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENS'NG BOARD In the Matter of COMMONWEALTH EDIS0N COMPANY
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Docket Nos. 50-295 50-304 1
(Zion Station, Units 1 and 2),
CERTIFICATE OF SERVICE I hereby certify that copies of " NUCLEAR REGULATORY COMMISSION STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN THE FORM OF AN INITIAL DECISION", " MEMORANDUM 0F LAW ON MINNES0TA v. NRC" and "NRC STAFF PROPOSED TRANSCRIPT CORRECTIONS", in the above-captionea proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 3rd day of August,1979:
Atomic Safety and Licensing Board John F. Wolf, Esq., Chairman Panel 3409 Shepherd Street U.S. Nuclear Regulatory Conmission Chevy Chase, Maryland 20015 We hington, D. C.
20555 Dr. Linda W. Little Atomic Safety and Licensing Appeal Research Triangle Institute Board Panel P.O. Box 12194 U.S. Nuclear Regulatory Commission Research Triangle Park, N. Carolina 27709 Washington, D. C.
20555 Dr. Forrest J. Remick Docketing and Serv'ce Section 305 E. Hamilton Avenue U.S. Nuclear Regulatory Commission State College, Pennsylvania 16801 Washington, D. C.
20555 Philip P. Steptoe, Esq.
Isham, Lincoln and Beale One First National Plaza Chicago, Illinois 60603 Susan N. Sekuler, Esq.
Assistant Attorney General Environmental Control Division 188 West Randolph Street, Suite 2315
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m Chicago, Illinois 60E01 RichardJ.fodd'ard Mr. Rick Konter Counsel fpf NRC Staff 617 Piper Lane g
Lake Villa, Illinois 60046 1085 184 8
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