ML19210B683
| ML19210B683 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley, Peach Bottom, Salem, Hope Creek, Susquehanna, Seabrook, Limerick, Vermont Yankee, Callaway, Midland, Crane File:NorthStar Vermont Yankee icon.png |
| Issue date: | 10/22/1976 |
| From: | Engelhardt T NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7911110150 | |
| Download: ML19210B683 (10) | |
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-t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VERMONT YANKEE NUCLEAR POWER CORPORATION
)
Docket No. 50-271 (Vermont Yankee Nuclear Power Station)
PUBLIC SERVICE ELECTRIC & GAS COMPANY Docket Nos. 50-272 (Salem Nuclear Generating Station, Units 1 & 2) 50-311 PHILADELPHIA ELECTRIC COMPANY (Peach Bottom
)
Docket Nos. 50-277 Atomic Power Station, Units 2 & 3)
)
50-278
" M'ETROPOLITAN EDISON COMPANY, ET AL. (Three Docket Nos. d L)
Mile Island Nuclear Station, Units 1 & 2)
)
50-320 CONSUMERSPOWERCOMPANY(MidlandPlant, Docket Nos. 50-329 Units 1 & 2)
)
50-330 DUQUESNELIGHTCOMPANY,ETAL.(Beaver Docket Nos. 50-334 Valley Power Station, Units 1 & 2)
)
50-412 PHILADELPHIA ELECTRIC COMPANY (Limerick Docket Nos. 50-352 Generating Station, Units 1 & 2) 50-353 PUBLIC SERVICE ELECTRIC AND GAS COMPANY and
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Docket Nos. 50-354 ATLANTIC CITY ELECTRIC COMPANY'(Hope
)
50-355 Creek Generating Station, Units 1 & 2)
)
)
PENNSYLVANIA POWER AND LIGHT COMPANY
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Docket Nos, 50-387 (Susquehanna Steam Electric Station,
)
50-388 Units 1 & 2)
)
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Docket Nos. 50-443 ET AL. (Seabrook Staticn, Units 1 & 2)
)
50-444
)
UNION ELECTRIC COMPANY (Callaway Plant,
)
Docket Nos. STN 50-483 Units 1 & 2)
)
STN 50-486 STAFF RESPONSE TO COMMISSION DIRECTIVE OF OCTOBER 13, 1976 October 22, 1976 Thomas F. Engelhardt Deputy Executive Legal Director 1586 116 7911110 / E h
On October 13, 1976 the Commission noted that it was considering suspending further actions in the above-referenced dockets in light of certain recent events and circumstances which will be referred to in the discussion follow-ing. -1/
The parties in these dockets were then directed to respond to a 2/
pending motion to the effect that such actions be taken.
Background
A rather complex series of events and circumstances has led to the present question of whether to suspend further proceedings in these dockets.
First of all, on July 21, 1976 the U.S. Court of Appeals for the District of Colum&ia Circuit handed down a decision in the case of Natural Resources Defense Council v. NRC.
This decision declared the Commission's rule for treating two aspects of the fuel cycle - reprocessing and waste manage-ment - inadequately supported by the rulemaking record.
In a General Statement of Policy -5/ (GSP) responding to the court's action, the Commission l/ Letter from Secretary of the Commission to all parties in these dockets, dated October 13, 1976.
-2/ Motion of Vennont Yankee Nuclear Power Corporation dated September 27, 1976 and docketed (in Docket No. 50-271) on October 1,1976.
3/ CADC Nos. 74-1385 and 74-1586 (July 21, 1976).
J/ Table S-3 included in 10 CFR Part 51.
5/ 41 Fed. Rec. 34707 (August 16, 1976).
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. said it was going to reopen the proceedings directly affected by the decision. -6/ The Commission said, further, that it would resolve the question of how to deal with other licensing proceedings that might be impacted by the court's decision on the basis of its evaluation of estab-lished equitable factors. These dockets are the cases which have either already been reopened or in which reopening is being sought on Table S-3 grounds. -7/
Subsequent to the GSP, Supreme Court review was sought by one of the affected licensees (Vermont Yankee) of the Court of Appeals holding and motions were filed with the Court of Appeals seeking a stay of its mandate.
The Court of Appeals granted a stay of its mandate on October 8,1976, thus effectively postponing its issuance until the Supreme Court acts on the pending petition for a writ of certiorari.
Five days later, on October 13, 1976, the same day it issued the directive to which this pleading responds, the Commission issued a notice of proposed
_6] The Vermont Yankee and Midland proceedings.
-7/ These dockets have been referred to loosely as involving show cause proceedings.
In reality they are in various procedural postures.
However, since the particular procedural status of each docket is of no importance to the basic question raised by the Commission's October 13 directive, the Staff's response is generic and directed to all the dockets.
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- E rulemaking which proposed interim revisions to Table S-3 on the basis E
of a completed Staff survey also issued that day.
In proposing an interim rule on the basis of the values in the Staff supplemental survey, the Commission expressed the view that the supplemental survey " represents a full and candid discussion of spent fuel reprocessing and waste management impacts" and that it "can serve as an adequate foundation" for an interim rule.
The Cdimission also stated its present judgment that the impact values in the survey were unlikely to prove to be dramatically in error.
The foregoing events and circumstances essentially comprise the factual matrix giving rise to the issue of whether to suspend the pending show cause type. proceedings.
For the reasons which follow, it is the Staff's view that the Comission should as a matter of sound policy require such suspensions pending an effective interim rule.
FOUR FACTORS WARRANT DECISION TO SUSPEND FURTHER PROCEEDINGS 1.
Suspension of further proceedings makes sense in light of the court's stay of its mandate.
The Gourt's order of October 8,1976, staying the mandate for its decision on the waste management and reprocessing aspects of Table S-3, is undeniably 8/
" Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste Management," 41 F.R. 45849 (October 18,1976).
9/
4
" Environmental Survey of the Reprocessing and Waste Management Portion of the LWR Fuel Cycle" NUREG-Oll6 (Supplement to WASH 248).
~
- Delphic in tone.
We can say with some assurance, however, that the courts action removed any doubt on the question whether licenses could in fact be legally issued subsequent to July 21, 1976, the date of its decision.
Licenses can be issued if they are made subject to the outcome of "the proceedings herein."
Since appropriately qualified licenses clearly can now be issued - where it wasn't clear before - it would incon-sistent with the court's action to call existing licenses into question on Table S-3 grounds. Therefore, the proceedings in these dockets to do 11J just that should be suspended.
Since the mandate has not issued, the decision issued on July 21, 1976, does not, of itself, legally compel Comission action in Ver.nont Yankee or any other case.
The question of the appropriate action to take in this period is thus a policy one, to be decided in light of the best information available and all the relevant circumstances. A similar question was presented to the Comission when the GSP was issued, and the chain of events leading to initiation of these proceedings begun.
At that time, the Commission decided that requests to suspend existing license permits, and LWA's would be entertained on their merits.
The facts and circumstances are now changed and, we submit, sound policy considerations now dictate that these pro-ceedings be suspended.
-10/By the quoted phrase the court presumably means the proceedings in the cases before the court.
11/ In the Midland proceeding, the remanded issues include the consideration of energy conservation alternatives and clarification of the ACRS report as well as the fuel cycle issues.
Only the fuel cycle should be suspended.
The other issues should be allcwed to proceed to resolution, 15S6 1og 6
. 2.
Suspension of further proceedings makes sense from a timing standpoint.
The Commission's August 13 GSP noted that if a supplemental survey of adequate quality and breadth could be developed by the end of September, 1976, an interim rule "might be promulgated as early as December,1976."
This schedule has slipped approximately two weeks.
Nevertheless, on the present schedule, an interim rule could be in place by mid-January.
Such a rule would obviate the pending Table S-3 issues because it would remove uncertainties regarding the values to be used for spent fuel reprocessing and waste management impacts in individual cost-benefit analyses.
Moreover, the practical likelihood that these show cause type actions could be brcught to completion before mid-January is negligible.
Finally, if the matters were allowed to continue there would be a substantial expenditure of time and effort which would be wasted as a result of an effective interim rule's preemption of the issues.
3.
Suspension of further proceedings makes sense in light of the quality of the servey.
The Comission should act upon the best available information.
The supplemental environmental survey of reprocessing and waste management impacts is the best available information.
It is described in the notice of proposed rulemaking of October 13, 1976, as " full," " candid," " thorough,"
and as "an adequate foundation" for a revised Table S-3.
The Comission said in that notice that its present judgment was that the values in the survey would not likely be found to be dramatically wrong.
Since show cause proceedings should be based on the interim rule as adopted if they
)%h
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. can be justified in light of revisions to Table S-3, ad, hoc proceedings which get'under way only to be foreclosed by the adoption of the interim 12_/
rule are ill-advised.
Suspension of outstanding licenses should await and be based upon the ultimately adopted Table S-3.
This result is dictated by a need to efficiently use Comission resources.
4.
Suspension of further proceedings makes sense because the cost-benefit balance is not likely to be tilted.
The fuel cycle impacts attributable to an individual reactor's cost-benefit assessment--particularly those which would occur over the next few months--are relatively small.
The waste management and reprocessing portions of the fuel cycle are a fraction of the total impacts of the fuel cycle.
Thus, any differences, even large differences, in values for these impacts between existing Table S-3 and proposed Table S-3, (including any appropriate revisions thereto as a result of the rule-making process) will not likely show up as large differences in the overall cost-benefit analysis for an individual reactor.
Since any overall perturbation 12/
- However, it is noted that a decision on the interim rule will be based on the surveys as modified by those public comments which the Comission finds to be persuasive.
During the period of notice and coment, the parties can direct their attention to the rulemaking proceeding.
After the airing of these issues, it may be appropriate for the Comission to review these dockets on its own motion at the conclusion of the interim rulemaking process.
In the event the Commission is persuaded that the comments show a need to reactivate show cause type proceedings on S-3 issues, it could do so at that time.
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. for Table S-3 reasons can as a practical matter only be minor, it could only tilt an individual cost-benefjt balance in a different direction if that balance were in virtual equipoise.
None of the balances that have been struck in the cases in these dockets have been found to be in such a state.
Suspension is a Matter of Discretion,Not of Law In view of the Staff's conclusion that the Comission should suspend further show cause type actions in these dockets, we did not find it necessary to reach the point raised in the motion of Vermont Yankee Nuclear Power Corporation to the effect that it would be contrary to law not to do so. Generally, the Comission has broad discretion in the exercise of its regulatory authority.
Siegel v. Atomic Eneroy Comission, 400 F.2d 778 (CADC; 1968), see also, FCC v. Pottsville Broadcasting Company, 309 U.S. 134 (1940).
Also, it is true, generally, that while a specific agency action is undergoing judicial scrutiny the agency is powerless to act with respect to that specific action.
Jaffe, Judicial Review of Administrative Action, 711 (1965).
These general principles make clear, however, that an agency is legally free to exercise its regulatory authority in matters related - even closely related - to the specific agency action undergoing judicial scrutiny.
Thus, to.take a hypothetical example, general Comission concern based on new information n7
- over the numerical values for the reprocessing or waste management impacts could properly trigger an exercise of regulatory authority by the Comission resulting in license suspensions.
If broad-scale license suspensions were dictated by such infomation-13/
the suspensions could properly be imposed, even with respect to Vemont Yankee.
For regardless of whether the Supreme Court might ultimately find that the old Table S-3 values were adequately supported at the time they were developed that would not have been the issue triggering suspension; new infomation would have been the basis.
It, therefore, seems clear that as a matter of law the Commission retains the discretion to pemit the show cause type proceedings to continue based upon the new infomation developed in the supplemental survey.
For the sound policy reasons enumerated above it should not do so.
Conclusion In view of the court's action staying its mandate, the issuance of the notice of proposed rulemaking, the publication of the supplement to the environmental survey, and the Commission's stated expectation that an interim rule will be
.11/ Of course, as noted elsewhere herein, there is no reasonably conceivable way as a practical matter that the relatively minor effects which the numerical values for these impacts represent. in individual impact state-ments could actually change so as to warrant broad-scale license suspensions.
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in place in the near future, the Commission should suspend all show cause type proceedings requested or initiated on the basis of the Commission's policy-statement or the Court of Appeals decision in NRDC v. NRC.
Orderly conduct of licensing proceedings and effective public interest regulation can best be accomplished by deferring action on these matters pending the adoption or rejection of an interim rule.
Respectfully submitted, I'
V mm Thomas F. Engelhardt Ddhuty Executive Legal Director Dated at Bethesda, Maryland this 22nd day of October, 1976.
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