ML19220A506
| ML19220A506 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee, Crane File:NorthStar Vermont Yankee icon.png |
| Issue date: | 10/21/1976 |
| From: | Trowbridge G SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 7904230036 | |
| Download: ML19220A506 (9) | |
Text
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October 21, 1976
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Ccmmission IN THE MATTER OF
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METROPOLITA'I EDISON COMPANY,
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JERSEY CENTRAL POhTR & LIGHT COMPANY, )
and
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Docket No. 50-320 PENNSYLVANIA ELECTRIC COMPA'iY
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(Three Mile Island Nuclear Station,
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Unit 2)
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APPLICANTS' RESPONSE TO MOTIC.N OF VERMONT YANREE NUCLEAR POWER CORPORATION DATED SEPTEMBER 27, 1976 In a document dated October 13, 1976, the Secretary of the Ccmmission invited the parties involved in all pend-ing 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 di-rected Atcmic Safety and Licensing Boards, Atomic Safety and Licensing Appeal Boards, and the NRC Staff (in'shcw cause proceedings) to consider the suspension or modification of any nuclear power plant license on fuel cycle grounds.
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1976, document also stated that the The October 13, 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 C. Circuit staying the issuance of the mandate i
for the D.
Inc. v. NRC_ and in in Natural Resources Defense Council, light of the publication by the conmission of a supplement 1
and j
to its Environmental Survey of the Nuclear Fuel Cycl 2 a notice of proposed rulemaking looking towards the adop-i j
tion of an interim fuel cycle rule, i
Metropolitan Edison Company, Jersey Central Power i
(" Appli-
& Light Company, and Pennsylvania Electric Company are applicants for an operating license for Three cants")
for which a construc-Mile Island Nuclear Station, Unit 2, tion permit has been issued.
Applicants have previously responded to a Petition for Intervention filed by the Envi-ronmental Coalition on Nuclear Power sccking the suspension of construction and operation of Three Mile Island, Unit 2 See Applicants' Response to Petition for Intervention, dated September 9, 1976, and Applicants' Supplemental Re-dated September 20, sponse to Petition for Intervention, 1976, both filed with the Atomic Safety and Licensing Board.
- 1976, As the Commission recognized in its August 13, uhe Jourt of Appeals in MRDC, General Statement of Policy, USA'Qq
notwithstanding the defects which it found in the fuel cycle rule, did not suspend the operating license cf the Vermont Yankee facility involved in that case.
Nor did the court in the co anion case of Aeschliman v. NRC suspend the Mid-land Plant construction permits notwithstanding the same perceived defect.
As the Commission noted, "the court re-fused an explicit request to set aside these licenses."
The NRC did, however view the Court's r
ruling as calling for the Commission to resolve the question of suspending or mcdifying existing licenses pending the issuance of new fuel cycla rngulations 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.
34 Fed. Reg. at 14709.
Absent such a request, the Commission announced that it would sua sponte determine whether to initiate show cause proceedings for all out-standing licenses based upon information in the revised environmental survey.
Id.
The October 8, 1976,. order of the NRDC Court, we be-lieve, 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 issuance of the mandate of the NRDC decision.
G5193
-a The operative language of the order is as follows:
[I]t is
. FURTHER ORDERED, by the Court, that the foregoing mocions 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 Regulat'ory Cc= mission shall make any licenses granted be-tween July 21, 1976, and such time when the mandate is issued subject to 37 the outcome of the proceedings herein.
The clear import of this language is that new licenses can be issued notwithstanding the NRDC decision so long as those licenses are " subject to the outcome of the proceed-9' ings harcin. '
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 suspension of existing 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 NRDC decision to be the possible
-1/ Since a petition for certiorari of the NRDC decision has been filed by Vermont Yankee Nuclear Power Corporation and docketed in the Supreme Court, the mandate cannot ncw issue pending further order of th.. Supreme Court.
Ru l.e 41, Fed.
R. App.
P.
~2/ This provision indicates that the Commission's General Statement of Policy went beyond the dictates of the N20C decision when it barred the issuance of new full-power operating licenses, construction permits and limited work authorizations.
65 194
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cause for the suspension of licenses issued before NRDC.
Thus, the appropriate course of action for NRC at this time would be to delete trom the General Statement of Policy those provisions relatiig to suspension of existing licen-ses on fuel cycle grounds and to suspend all pending show cause/ suspension proceedings based on fuel cycle.ssues. /
3 The staying of the mandate is obviously ample ground for modification by the Commissica of its suspension in-structions set forth in the General policy Statament.
The Commission itself recognised that a motion to recall its decision to convene proceedings to consider suspension of existing licenses would be appropriate if the mandate were stayed.
See Commission Memorandum and Order, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Muclear power Station) and Consumers Power Company (Midland 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 URC might seek a stay of the mandate which if granted could serve as i
~3/ The October 8, 1976, order even raises the question wheth-er the Court intended the NRDC decision to apply to exist-ing licenses at all.
By only requiring new licenses to be subject to the outcome of the remanded rulemaking, it at least implies that existing licenses are not to be subject to that outcome.
If that is 'the case, then recon-sideration of existing licenses after the rulemaking has been completed would be inapprop.riate and unnecessary.
U{} 1@[.5 the basis for additional licensing action.4/
Thus, the Commission has recognized that a stay of the mandate would be cause to change its NRDC implementation policies.
The staying of the mandate serves to maintain the status quo for the duration of the stay.
Alconcuin Gas Transmission Co. v.
Townshio of Somer3ct, 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 mandate issues.
Merrimack River Savincs Bank v. City of Clay Center, 219 U.
S.
527, 536 (1910).
If an appeal must be considered as "pending and undisposed of",
it would obviously be inappro-priate 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."
Eailey v. Henslee, 309 F.
2d 840, 844 (8th Cir. 1962).
More recently, the Ninth Circuit distinguished between the immediate effective-ness of a memorandum inaued in response to a motion and the
-4/ Statement of Marcus A.
Howden, Chairman, U.
S. Nuclear Regulatory Commission, before the Joint Committee on Atomic Energy, August 27, 1976, p. 9.
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ability of a " judgment" to be stayed through a stay of mandate.
York Interrational Building, Inc. v. Chaney, 522 F.2d 1061, 1066 (9th Cir. 1975)..The Cc= mission would not be warranted in using a judicial pronouncement not in effect as the basis for the suspension of c::Isting licenses.
Further support for an.ending the Gencral Statement 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" (October 13, 1976), the environmental impacts of reprocessing and waste management as described in the revised interin table set forth in the notice are not significantly different frcm th6se in Table S-3, except for the burial of solid wastes (without their release to the environment) rather than their storage in retrievable form.
As noted in the Commission's press re-lease accompanying the notice of proposed rulemaking, the environmental impacts of fuel reprocessing and waste man-agement 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 interim fuel cycle rule could be in place within three months.5/
Given these factors and 5/ See statement by Marcus A.
Rowden, Chairman, NRC, in Press Release No.76-221, October 13, 1976.
Ub 107 the Commission's judgment that its present analysis of re-processing 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, Applicants respect-fully request ti.it the Commission modify its General State-ment 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, SHAW, PITTMAN, POTTS & TROWBRIDGE
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6@dbrgy F.'Trowbridge d'
Counsel for Applicants Dated: October 21, 1976 G5 198
os
.- e UNITED STATES OF Id4 ERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER CF
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METROPOLIT7di EDISON CCMPTdIY,
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JERSEY CENTRAL POWER & LIGHT COMP 7dIY, )
and
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Docket No. 50-320 PENNSYLVANIA ELECTRIC CCMP7diY
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(Three Mile Island Nuclear Station,
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Unit 2)
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CERTIFICA"'E OF SERVICE I hereby certify that copies of " Applicants' Response to Motion of Ver,ont Yankee Nuclear Power Corporation Dated Septem-ber 27, 1976," dated October 21, 1976, were served by hand upon those persons marked with an asterisk and by United States mail, postage prepaid, upon the other parties, this 21st day of Octo-ber, 1976.
Edward Luten, Erg., Chai ran Henry J. M::Gcxren, Esq.
Atmic Safety anl Licensing Ecard Office of the E:cacutive L2 gal Director U. S. IMclear F gulatory Canissicn U. S. Nuclear Pegulatcry Cc =issicn Washington, D.C.
20555 Washingten, D.C.
20555 Mr. Gustave A. Linenbercer Karin W. Carter, Assistant Attorney Atanic Safety and Licensing Board Gr.cral U. S. BMclear Pagulatcry Cc=issien Office of Envircnrrnt Washingtcn, D.C.
20535 Depa;.L..ent of Envircnnrr.tal R2scurces 709 Health and Welfare Building Dr. Ernest O. Salo Harrisburg, Pennsylvania 17120 Professor, Fisheries R2 search Institute, Mi-10 Attic Safety and Licensing Board Panel University of Washingten U. S. IMclear Pc<;ulatory Cc=issica Seattle, Washington 98195 Washing =:n, D.C.
20355 Mr. Chauncey R. Ecpford Atcaic Safety and Liccnsing Appeal Eccrd 2586 Broad Street U. S. Nuclear Pegulatory Canais2icn York, Pennsylvania 17404 Washingtcn, D.C.
20555 Judith H. Jchnsn:d
- Ibcketing and Service Section (21) 433 C-lando Avenue Office of th2 Secretary State College, Pennsylva"la 16801 U. S. :Mclear Pcculatcry Carissicn Kr$.gton, D.C.
20555 u
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