ML19257B660
| ML19257B660 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 01/08/1980 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Grossman H, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001180060 | |
| Download: ML19257B660 (1) | |
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UTJITED STATES 8 'y ',,.y'%
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'g NUCLEAR REGULATORY COMMISSION E E WASmNGTON, D. C. 20555 o, q. Hsj s' E b.,
8 Janu m 8, 1980 Herbert Grossman, Esq.
Dr. Oscar H. Paris Atomic Safety and Licensing Atomic Safety and Licensing B ard Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Mr. Frederick J. Shon Atomic Safety and Licensing Board Panel
'J.S. Nuclear Regulatory Commission In the Matter of CONSUNERS POWER COMPANY (Big Rock Point Nuclear Power Station)
Docket No. 50-155 Gentlemen:
Enclosed for your information is a copy of a letter dated January 2,1980 from Samuel J. Chilk containing the Commission's decision to deny the petition of Christa-Maria for reconsideration of the October 25, 1979 notice of proposed rulemaking (44 Fed. Reg. 61372).
Sincerely, T Q fl( $ b b b-Janice E. Moore Counsel for NRC Staff Enclosure As stated cc w/o encl. :
cc w/ encl.:
Karin P. Sheldon, Esq.
Mr. John O'Neill, II Judd L. Bacon, Esq.
Mr. John A. Leithauser Joseph Gallo, Esq.
Atomic Safety and Licensing Philip P. Steptoe, Esq.
Board Panel Christa-Maria Atomic Safety and Licensing Appeal Board Panel Docketing and Service Section 176B 06 8001180 [fd
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Dear Ms. Shr:
ldon:
On flovember 7,1979, Christa-Maria, an intervenor in the Big Rock spent fuel expansion proceeding, moved the Commission to reconsider its decision that pending spent fuel pool expansion proceedings could continue during the waste confidence rulemaking sub.iect, however, to retroactive applica-tion of whatever determinations are reached in the rulemaking.
Tnat decision was announced as part of the notice of proposed rulemaking in that confidence proceeding. 1/
Your motion argues that the decision in State of Minnesota v. f4RC, 602 F.2d 412 (D.C. Cir.1979) held that the f;RC's consideration of the possibility of long-term on-site storage of spent fuel has been legally inadequate under l' EPA and the Atomic Energy Act, and that adequate consideration is legally required orior to approval of any new spent fuel pool expansion.
Since under the rulemaking notice long-term storage will not be considered
-in individual proceedings, you argue that the individual proceedings must be suspended until the rulemaking is completed.
The Commission believes that your position is based upon a misreading of the State of Minnesota decision.
Judge Leventhal was quite careful not to "make law" in that case.
His opinion for the court was consciously limited to a remand to the Commission for further consideration in licht of new information and did not accept petitioners' cententions that the Cormission had erred both procedurally and substantively in declining to consider the possibility of long-term on-site storage.
Judge Leventhal concluded his opinion by writing "[t]he court confines its action at this time to rejec-tion of certain contentions by cetitioners, notably the claim of need for an adjudicatory proceeding." 2/ The court explicitly held that it would neither " vacate or stay the license amendments, which would effectively shut down the plants. " 3f The court's decision was based on its belief that before it decided the broader legal cuestions pressed on it by peti-tioners, "in the interest of sound administration" it should remand these proceedings to the f4RC for further consideration in lignt of tne S-3 1/
44 FR 61373 (October 25, 1979).
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602 F.2d at 419 (ecohasis added).
c 3f 602 F.2d at 418..
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2 rulemaking and the IRG report. 4f Even Judge Ta./s concurring opinion which squarely decides that both HEPA and the Atcaic Energy A:t recuire the Commission to determine whether it is reasoubly probable that an offsite fuel repository will be available when the plant operating licenses expire, does not call for a halt te spent fuel expansion.
Indeed Judge Tamm takes pains to explain that his views are consistent with the Second Circuit which " held that the Commission need not halt licensing of nuclear plants pending a determination that an approved method of permanent nuclear waste disposal exists." Concurring opinion at 419-20.
Despite all this your motion simply asserts, that the court " rejected" NRC's position as set forth in ALAB-455, the Appeal Board decision under review 5/ and therefore that future spent fuel expansions cannot be a pproved.
To the contrary, it should be emphasized that the position set forth in the notice of proposed rulemaking will put future spent fuel pool expansions in exactly the same position as the Vermont Yankee and Prairie Island spent fuel pool expansion approvals that were the subject of the court's decision.
All of these expansion proceedings could be decided, but would remain subject to the results of the generic rulemaking.
Your motion seeks to draw an analogy to the Commission's actions following the Court of Appeal's decisions in the S-3 case 6/ and its actions in connection with the consideration of the environEental effects of radon.
Neither avails here.
Tne major and decisive distinction between those earlier cases and that presented now by spent fuel expansion proceedings is that in the earlier cases it had been determined that the Commission's method of evaluating environmental effects was either substantively in error or was insufficient as a matter of law.
As noted above, the State of Minnesota case does not entail any such finding of error on the part of ne Commission.
inat alone removes the usefulness of S-3 and radon as ;otential anologies.
Secondly, as earlier noted the State of Minnesota court explicitly recognized that it was not imposing a licensing halt.
Furthermore, in connection with the S-3 analogy, it also might be noted that subsequent to the Commission's August 13, 1975 suspension of license issuance, the court of appeals stayed issuance of its mandate in Vermont Yankee and approved resumption of its license issuance on' the sole condition tnat the Commission would "make any licenses granted between July 21, 1975
[the date of the court's original decision] and such time when the mandate is issued subject to the outcome of the proceedings herein."
Order of October 8,1976 ouoted in. Public Service Comoanv of New Hamoshire (Seabrook Statfon, Units 1 and 2), CLI 76-17, 4 NRC 451, 457 (1976).
We tnink it not
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"n'e need not consider what course we would have followed, if this were all thu were before us."
602 F.2d 417.
5/
5 NRC 41 (1978).
6/
NR_D v. NRC, 547 F.2d 633 (D.C. Cir.1976), rev'd sub nom. Vemont Uldee Nuclear Power Coro. v. NRDC, 435 U. S.
519 (1978).
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unlikely that the ccurt of appeals dispositicr. cf the State of "ir.resota case was intended to avoid the uncertainties c:verninc license iss;Ences which had been encendered by the S-3 decision up untii the time that the D.C. Circuit stayed its mandate.
Accordinoly, if it is relevant at all, the S-3 example you cited also sugcests that conditioning licenses on the outcome of the remanded proceeding is permissible for spent fuel expansion approvals as well.
For the above reasons, the Commissicn has decided to deny Christa-!! aria's November 7 petition for reconsideration.
Sincerely,
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Secretary of the Com.~iission e
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