ML19319B879
| ML19319B879 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 02/17/1976 |
| From: | Goldberg J, Lessy R, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8001280733 | |
| Download: ML19319B879 (21) | |
Text
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n UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
_BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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THE TOLEDO EDISON COMPANY and NRC Docket No. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING COMPANY (Davis-Besse Nuclear Power Station, Unit 1)
)
NRC STAFF'S APPELLATE BRIEF IN OPPOSITION TO APPLICANTS' MOTION FOR DETERMINATION THAT DAVIS-BESSE UNIT 1 IS " GRANDFATHERED" FOR PURPOSES OF OPERATION Joseph Rutberg Benjamin H. Vogler Antitrust Counsel Assistant Chief Antitrust for NRC Staff Counsel for NRC Staff Roy P. Less'y, Jr.
Counsel for NRC Staff Jack R. Goldberg Counsel for NRC Staff February 17, 1976 80012:0733 L
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TABLE OF CONTENTS TABLE OF AUTHORITIES 1
I.
INTRODUCTION 1
II.
ARGUMENT.
3 A.
SECTION 105C OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED, DOES NOT PERMIT THE ISSUANCE OF AN OPERATING LICENSE FOR THE DAVIS-BESSE UNIT 1 PRIOR TO THE ISSUANCE OF AN INITIAL. ANTITRUST DECISION BY THE LICENSING BOARD.
3 B.
THE LEGISLATIVE HISTORY OF SECTION 105C DOES NOT SUPPORT APPLICANTS' MOTION 11 C.
dECTION 105C(6) DOES NOT SUPPORT APPLICANTS' MOTION 15 III.
CONCLUSION 16 f
9 8
TABLE OF AUTHORITIES Adams Express Co. v. Kentucky 238 U.S. 190 (1915).
6 Addiscn v. Holly Hill Fruit Products, Inc.
322 U.S. 607 (1944).
5,6 Anderson v.. Wilson 289 U.S. 20 (1933) 7 Armstrong Paint & Varnish Works v. New Enamel Corp.
305 U.S. 315 (1938).
9 Bate Refrigerating Co. v. Sulzberger:'
157 U.S. 1 (1895) 5 Caminetti v. U.S.
242 U.S. 470 TT3T6).
5 Crooks v. Harrelson 282 U.S. 55 (1930) 9 Denn v. Reid 33U.S.ITUPet.) 524 (1936).
5 DeRuiz v. DeRuiz
'88 FT2d 732 (D.C. Cir. 1936) 8 George Van Camp & Sons Co. v. American Can Co.
278 U.S. 245 (1929).
6 Schwegmann Bros. v. Calvert Distillers Corp.
341 U.S. 384 (1951).
6 Sturges v. Crowninshield 4 Wheat.122, 4 L.Ed. 529 (1816).
8 Treat v. White IETU.S. 23TT1901).
9 Unexcelled Chemical Corp. v. U.S.
345 U.S. 59 (1953) 10 U.S. v.. Concentrated Phosphate Export Ass'n.
273 F. Supp. 263 (1967) 6 Ya tes v. U.S.
M.S. 25T(1957).
6 i
9 STATUTORY AND LEGISLATIVE MATERIALS Section 104(b), Atomic Energy Act of 1954, as amended, 42U.S.C.52134(b).
4 Section 105c(3), Atomic Energy Act of 1954, as amended, 42 U.S.C. 52135c(3) 4,5,6,13 Section 105c(5), Atomic Energy Act of 1954, as amended,
-42U.S.C.52135c(5) 15 Section 105c(6), Atomic Energy Act of 1954, as amended, 42 U.S.C. 52135c(6) 15,16 Section 105c(8), Atomic Energy Act of 1954, as amended, 42 U.S.C. 52135c(8) 1,3,4.6,10,11,12,15,16 Report By The Joint Committee On Atomic Energy Accompanying 14141 at 29, Senate Report No. 91-1247, (September 29, 1970) 12, 13 Report By The Joint Committee On Atomic Energy Acccmpanying'84141 at 31, Senate Report No. 91-1247 (September 29, 1970) 15 116 Cong. Rec. 9446-7 (daily ed. September 30,1970)
(Statement of Congressman Hosmer).
14 116 Cong. Rec. 9449 (daily ed. September 30,1970)
(Statement of Congressman Price) 15 NRC RULES OF PRACTICE 10C.F.R.32.718(i).
2 OTHER:
Frankfurther, Some Reflections On The Reading Of Statutes, 47 Colum. L. Rev. 527 (1947) 7,14 ii
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of THE TOLEDO EDISON COMPANY and NRC Docket No. 50-346A THE CLEY. ELAND ELECTRIC ILLUMINATING )
COMPANY (Davis-Besse Nuclear Power Station, Unit 1)
NRC STAFF'S APPELLATE BRIEF IN OPPOSITION TO APPLICANTS' MOTION FOR DETERMINATION THAT DAVIS-BESSE UNIT 1 IS " GRANDFATHERED" FOR PURPOSES OF OPERATION I.
INTRODUCTION On November 4, 1975, Applicants moved the Licensing Board to enter an order affirming "the authority of the Commission to issue a license authorizing the operation of the Davis-Besse Nuclear Power Station, Unit 1 prior to the completion of the antitrust review presently in progress".
--1/
The NRC Staff filed an answer with the Licensing Board oppcsing Applicants' motion on November 26, 1975.
Answers also opposing the motion were separ-ately filed by the Department of Justice and the City of Cleveland on
' i vember 28, 1975.
An antitrust hearing involving this unit -2/commenced on 1/ On the same date, Applicants filed a motion with Appeal Board. requesting that it direct certification of this issue.
The Appeal Board denied
. Applicants' Motion on November 5, 1975, in order to allow the Licensing Board "at least reasonable opportunity" to pass on the question after first obtaining the views of the interested parties.
ALAB-297, NRCI 75/11 727 (November 5, 1975).
2/ In the Matter of The Toledo Edison Company and The Cleveland Electric
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Illuminating Company (Davis-Besse Nuclear Power Station, Units 1, 2 & 3)
NRC Docket Nos. 50-346A, 50-500A, 50-501 A and In the Matter of The Cleveland Electric Illuminating Company, Et A1. (Perry Nuclear Power Plant, Units 1 & 2) Docket Nos. 50-440A and 50-441A.
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December 8, 1975.
On January 7,1976, the Licensing Board issued its i
" Memorandum and Order of the Board on Applicants' Motion for Determination That Davis-Besse Unit 1 is Grandfathered for Purposes of Operation" (here-inafter cited as Memorandum and Order), which held that section IG5c of the Act does not permit Davis-Besse Unit 1 to be licensed for operation prior to the completion of the antitrust proceedings in progress.
In that Memorandum and Order the Licensing Board also certified the question to the Atomic Safety and Licensing Appeal Board fo" its consideration pursuant to10CFRsection2.718(i).
By order of January 8,1976, this Appeal Board
" accepted that referral" and requested that all parties address the following points in their briefs:
(a) The considerations relied upon by the Licensing Board in reaching its decision, including those set out in footnote 3 on page 7 of its memorandum and order; (b) The legislative history of section 105c insofar as it bears on the question presented, including the inferences to be drawn from and weight to be given to the remarks of Representative Hosmer which appear at 116 Cong. Rec.
9446-47 (daily ed. September 30, 1970); and (c) Whether section 105c(6) of the Act permits the licensing
-of a nuclear power facility even though unfavorable antitrust consequences might result therefrcm if the Commission deems it necessary to protect the public interest and, if _so, the implications this has for the question presented.
3f In so doing, it should be noted that the Staff is focusing on the issue of whether or not the Commission has the authority to "granfather" the Davis-Besse Unit 1 operating license, ar.d is not considering the question of whether Davis-Besse Unit 1 should be " grandfathered" for purposesof operation if it is determined that there is authority to " grandfather" the operating license.
Similarly, while Staff disagrees in several respects with' Applicants' discussion of the events pursuant to which the grandfathering question has been presented, those matters will not be addressed in this pleading pursuant to the Appeal Board's diru tion to omit such matters. The Staff believes that such matters are irrelevant to the issue of whether the Commission has authority.to grandfather the operation of the Davis-Besse
' Unit 1.
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. II. ARGUMENT A.
SECTION 105C 0F THE ATOMIC ENERGY ACT OF 1954, AS AMENDED, DOES NOT PERMIT THE ISSUANCE OF AN OPERATING LICENSE FOR THE DAVIS-BESSE UNIT 1 PRIOR TO THE ISSUANCE OF AN INITIAL ANTITRUST DECISION BY THE LICENSING BOARD.
It is the Staff's view that section 105c(8) of the Act (the grandfather clause) does not permit the issuance of an operating license for the Davis-Besse Unit 1 prior to the issuance of an initial decision on antitrust matters by the Licensing Board.
The language of the Act makes it clear that section 105c(8) is applicable only to (1) certain applications for construction permits pending at the time of the enactment of that section into law, not here relevant, and (ii) a very restricted class of operating license applications.
Under the Act an operating license may be issued prior to completion of an antitrust review only when a construction permit was issued under section 104b of the Act and someone intervened or sought to intervene in the construction permit proceeding to obtain a determination of' antitrust considerations as provided for in section 105c(3) of the Act.
Section 105c(8) states:
l (8) With respect to any application for a construction permit l
on file at the time of enactment into law of this subsection, which permit would be for issuance under Section 103, and with respect to any application for an operating license in connection with which a written request for an antitrust review is made as provioed for in paragraph (3), the Comission, after consultation with the Attorney General, may, upon determination that such action is necessary in the public interest to avoid unnecessary i
delay, establish by rule or order periods for Comission notiff-cation and receipt of advice differing from those set forth above and may issue a construction permit or operating license in advance of consideration of and findings with respect to the matters covered
e4-in this subsection: - Provided, That any construction permit or operating license.so issued shall contain such conditions as the Comission deems appropriate to assure that any subsequent findings and orders of the Comission with respect to such matters will be given full force and effect. (Empharis added).
The above quoted section clearly states that only those operating license applications covered by section 105c(3) of the Act fall within the scope of the grandfather clause and "may" be grandfathered.
Section 105c(3) states:
(3) With respect to any Comission permit for the construction i
of a utilization or production facility issued pursuant to subsection 104b. prior to the enactment into law of
.this subsection, any person who intervened or who sought by timely written notice to the Comission to intervene in the construction permit proceeding for the fccility to obtain a determination of antitrust considerations or to advance a jurisdiction basis for such determination shall have the right, upon a written request to the Comission, to obtain an antitrust review under this Section of the application for an operating license.
Such written request shall be made within 25 days after the date of initial Commission publication in the Federal Register of notice of the filing of an application for an operating license for the. facility or the date of enactment into law of this subsection, whichever is later.
It is important to note that the construction permit for Davis-Besse 1 was issued on March 24, 1971.
Section 105c(3) grants the Commission authority to grandfather an erating license only when the construction
)
permit was issued " prior to the enactment into law" of section 105c(3) and section 105c(8), which date of enactment (for both sections) was December 19, l
1970.
Therefore, Applicants who previously had been issued a grandfathered
]
construction permit for Davis-Besse 1 cannot now be issued a grandfathered
- operating license pursuant to section 105c(8) because the construction permit j
was issued subsequent to the enactment into law of the grandfathering clause.
4] There is no statutory duty to grandfather applications within the specified classes as Congress has employed the term "may".
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A reading of the foregoing passages (sections 105c(3) and 105c(8))
i in light of the above dates makes it clear that the Commission has no express authority under section 105c(8) to issue the Davis-Besse Unit 1 I
operating license application prior to the issuance of an initial antitrust decision by the Licensing Board.
Section 105c(8), in precise and unambiguous terms, provides two, and only two, circumstances under which the Commission is authorized to grandfather a construction permit or operating license.
As that section does not embrace a third such circumstance, the reasons, if discernible, why Congress did not include other circumstance (s) within the purview of section 105c(8) are not relevant.
The legal position taken by the Licensing Board below is supported by 5
the case of Denn v. Reid, /
where the Supreme Court held:
i where the language of the act is explicit, there is great danger in departing from the words used, to give an effect to the law which may be supposed to have been designed by the Legislature....[ Ut is not for the court to say, where the language of the statute is clear, that it shall be 50 construed as to embrace cases, because no good reason can be assigned why they were excluded from its provisions.
We are unable to say why the benefits of this statute were given to those who held under deeds proved by the acknowledgment of the grantor.
In most cases, if not in all, proof by acknowledgment would be deemed more satis-factory than by witnesses: but the Legislature having made a distinction between the cases-whether it was intentional or not, reasonable or unreasonable-the courts are bound by j
the clearly expressed language of the act. 6/
l 5/ 35 U.S. (10 Pet.) 524 (1836).
6/ Id. at 627, quoted and cited with approval in Bate Refrigerating 72I. v.- Sulzberger,157 U.S.1, 37 (1895).
See also Addison v.
Rolly Hill Fruit Products, 322 U.S. 607- (1944); Caminetti v. United States, 242 U.S. 470 (1916).-
t
Since the meaning of the Act is clear on its face, Staff also agrees with the Licensing Board that resort to the legislative history is un-2/
necessary.
The intention of the legislature is to be collected from the words they employ.
Where there is no ambiguity in the words, there is no room for construction.
The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words...
in search of an intention which the words themselves did not suggest.
To determine that a case is within the intention of a statute, its language must authorize us to sayso.Of Staff further agrees with the Licensing Board that the statute would have to be rewritten in order to express the effect which Applicants contend was intended by Congress.
The interpretation of 6105c(8) so as to in-clude a category not expressly provided for by Congress is in effect a rewriting of the statute which would violate a fundamental principle of statutory construction.
~ ]/ " Resort to legislative history is only justified where-the face of the Act is inescapably ambiguous..."
Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (concurring opinion);
"We do not inquire what the legislator meant; we ask only what the statute means." Mr. Justice Holmes in The Theory of Legal Interpre-tation, 12 Harv. L. Rev. 417, 419.
"It is elementary that the first resort, with a view to ascertaining the meaning of a statute, is to the language used.
If that is plain thereis an end to construction, and the statute is to be taken to mean what it says." Adams Express Co. v. Kentucky 238 U.S.190,199 (1915).
See also George Van Camp TTons Co. v. American Can Co., 278 U.S. 24TT1929T (reports of l
legislative committees cannot be considered in the construction of a statute free from ambiguity).
l
_8] Yates v..U.S., 354 U.S. 298, 305 (1957).
l J Addison v. Holly Hill Fruit Products, suora, note 6 ; U.S. v.
Concentrated Phosahate Export Ass'n, 273 9. Supp 263 (S.D.N.Y. 1967).
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. Mr. Justice Frankfurter --10/
has addressed the matter of judicial rewriting as follows:
Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of-interpretation.
They are under the constraints imposed by the judicial function in our democratic society.
As a matter of verbal recognition certainly, no one will gain-say that the function in construing a statute is to ascertain the meaning of words used by the legislature.
To go beyond it is to usurp a power which our democracy has lodged in its elected legislature.
The great judges have constantly ad-monished their brethren of the need for discipline in observing the limitations.
A judge must not rewrite a statute, neither to enlarge nor te contract it.
Whatever temptations the statesmanship of policy-making might wisely suggest, construc-tion must eschew interpolation and evisceration.
He must not read in by way li creation.
He must not read out except to avoid patent nonsense or internal contradiction.
This duty of restraint, this humilf of function as merely the translator of another's command, is a constand theme of our 1
Justices.... Cardozo put it this way:
We do not pause to con-sider whether a statute differently conceived and framed would yield results more consonant with fairness and reason..We take this statute as we find it.
(Citing Anderson v. Wilson, 289 U.S. 20, 27 (1933)).
Applicants at paragraph 32 of their Appellate Brief acknowledge that
" Congress may have failed to make explicit provisions to insure that the energy shortage... wouid not be aggravated." Thus, Applicants conclude "indeed that [ legislative history], as well as statutory provisions re-lating to Section 105c reveal that Congress had g principled ooposition to grandfathering an operating license in these circumstances..."
l_0f Frankfurter, Some Reflections On The Reading Of Statutes, :7 Colum.
0 L. Rev. 527 at 533-534 (1947).
11/ Applicants' Appellate Brief (Applicants' Brief) In Support Of Their Motion For Determination That Davis-Besse Unit 1 is " Grandfathered" For Purposes of Operation", dated January 23,1976 (docketed January 27,'1976) p. 24. (Emphasis added).
~.
8-Leaving.the legisl:tive history briefly aside, Applicants appear to
. - point to but two factors in order to convince this Appeal Board that H105c(8) authorizes the Commission to grandfather the Davis-Besse 1 operating license.
Those factors-are: (1) that Congress did not consider.he possi-bility of the need for a grandfathered operating license after a construction permit had already been grandfathered ---12/
and (2) that the absence of
~ grandfathering may cause a hardship on Applicants. ---13/
The question then becomes: What factors must be present to justify reading a statute in such a manner as to permit activity not expressly contemplated by Congress? In answer to this question, Staff relies on DeRuiz v. DeRuiz, 88 F.2d 752 (D.C.
Cir.1938) at p. 754, wherein the Court of Appeals identified those instances where a departure from the obvious meaning of words may be justifiable:
In Sturges v. Crowninshield, 4 Wheat. 122, 202, 4 L.Ed. 529, Chief Justice Marshall announced the following rule which has been generally followed by the courts of this country:
"Where words con-flict with each other, where the different clauses of an instrument bear upon each other,~and would be inconsistent, unless the-natural and common import of words tue varied, construction becomes netessafy, and'a departure from the obvious meaning of words, is justifiable.
But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the
-case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application."
12/; Applicants' Brief paras. 9, 21 and 22.
13/ See p. 9__ infra.
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The difficulty which confronts the courts in their attempt to apply Marshall's. rule and find justification for giving the words of a statute a meaning which literally they do not bear in order to escape absurd consequences, so nearly approaches the twilight zone between the exercise of judicial power and legislative power as to call for great care in avoiding usurpation of the latter.
We are not convinced that the absurdity in the literal interpretation of the language of the instant statute is so monstrous or so gross as to shock the general moral or common sense... 14/
As to Applicants' argument that the absence of grandfathering may cause a hardship, the Staff notes that under present schedules, no such I
hardship will occur.
The fuel-loading for Davis-Besse 1 is currently
- scheduled for late 1976.
The antitrust hearing is currently in progress
. with the Staff's affirmative case completed, and Justice's case well advanced.
1 Thus, there is every likelihood that an initial antitrust decision will b'e
- rendered by fuel-loading.
These events, which have occurred since Applicants filed their original motion, makes less ripe the need for decision at this time by this Appeal Board.
To the extent the issues are not ripe and that there will be no delay, there is little danger of any hardship to these 15/
Applicants.
~
14/ A hard or even unexpected result does not necessarily justify re-
-writing the statute by interpretation, Crooks v. Harrelson, 282 U.S.
55 at 60 (1930); Armstrong Paint & Varnish Works v. New-Enamel Corp.~, 305 U.S. 315 at 333 (1938).
15/ The only other case where this issue ~may arise'is In the Matter of Alabama Power Comoany-(Joseph M. Farley Nuclear Plant, Units 1 and 2)
-NRC Docket Nos. 50-348A and 50-364A.
Similarly, Staff does not believe that a hardship will occur there either.
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I 9.
There is'one further point with respect to statutory construction which the Staff believes is also dispositive of Applicants' motion.
Where an issue is considered by Congress and is made the subject matter of a statute in precise and unambigous language, that language is the final authority on the issue, legislative history and " congressional intent" to the contrary notwithstanding.
The issue of excepting certain construction permits and operating licenses from the prelicensing antitrust review amend-ments to the Act was considered by Congress and made the subject matter of section10Sc(8).
It follows that the precise and unambigous language of that section should be the final authority on which types of construction permits and operating licenses may be excepted from prelicensing antitrust review.
Therefore, the Licensing Board properly considered the case of Unexcelled Chemical Corp. v. U.S. --16/
16/ 345 U.S. 59 (1953).
Where the Court stated at p. 64,
" Arguments of. policy are relevant when for example a statute has an hiatus that must be filled or there are ambiguities in the legislative language that must be resolved.
But when Congress, though.perhaps mistakenly or, inadvertently, has used language which plainly brings a subject matter into a statute, its word is final --
save for questions of constitutional power which have
~
not even been intimated here."
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11-The Staff also supports the Licensing Board's determination that even if section 105c(8) did provide authority for post-licensing antitrust rev,iew, it could not grant the relief Applicants seek because Applicants have not demonstrated compliance with the proviso clause contained in section105(c)(8).
The Licensing Board correctly noted that the proviso of section 10Sc(8) requires a grandfathered operating license to "contain such conditions as the Commission deems appropriate to assure that any subsequent findings and orders of the Commission with respect to such matters will be given full force and effect."
Pursuant to that statutory duty, the Conmission clearly can require as the Licensing Board notes, " proposed interim conditions" and "a record upon which this Board may... determine
-17/
which if any conditions might be appropriate." -
Applicants' motion neither considers nor proposes either appropriate interim license con-ditions or a procedure pursuant to which appropriate license conditions could be considered.
B.
THE LEGISLATIVE HISTORY OF SECTION 105C 0F THE ACT DOES NOT SUPPORT APPLICANTS' MOTION Although, as Staff contends it is not necessary to resort to the legislative history to interpret section 105c(8), in this case even if the legislative history of that section of the Act were considered, that legislative history would not lend substantial support to Applicants' motion.
JZ/ Memorandum And Order Of The Board, p. 7, n. 3.
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. The legislative history, to the extent it is relevant, makes it clear that Congress considered and authorized only two xceptions to prelicensing antitrust review.
Those exceptions are as follows: (1) a construction per-mit could be grandfathered when the application for the construction permit was pending at the time the 1970 amendments was enacted into law; and (2) an operating license could be grandfathered only when the Applicant therefor had been issued a construction permit prior to the enactment into law of section 105c and the other requirements of section 105c(3) were satisfied.
The Report of the Joint Committee on Atomic Energy, which accompanied the 1970 legislation, set forth the conditions upon which a construction permit could be grandfathered.
Section 105c(8) of the Report states:
Paragraph (8) endeavors to deal sensibly with those applications for a construction permit which, upon the enactment of the bill into law, would have to be converted:to applications under section 103.
In -some cases,-there might well be hardships caused by delays due to the new requirement for a potential antitrust review under revised subsection 105c.
Paragraph (8) would authorize the Commission, after consultation with the Attorney General, to determine that the public inter-est would be served by the issuance of a permit containing conditions to assure that the results.of a subsequently conducted antitrust review would be given full force and effect.
Paragraph (8) similarly applies to applications
-for an operating license in connection with which a written request for an antitrust review is made as provided for in paragraph (3).-[91st Cong. 2d Sess., Senate Report
.No. 91-1247, pp. 31-32].
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In that same Report the Committee set forth the conditions upon which an operating license could be grandfathered.
In its comment 1
on section.105c(3) the Committee commented:
Paragraph (3) provides that with respect to any Com-mission permit issued under subsection 104b, before enactment of the bill into law,- any person who inter-vened~or who sought by timely written notice to the Commission to intervene in the construction permit proceeding to raise the prelicensing antitrust issue will have the right to obtain an antitrust review under this subsection; to do this, such person must make a written request to the Commission within 25 days after
~
the date of initial Commission publication in the Federal Register of notice of the filing of an application for an operating license for the facility or the date of enactment into law of this subsection, whichever is later.. It is the committee's intent that such potentially
. eligible intervenors must be persons who could have qual-ified as intervenors under the Commission's rules at the time of the initial attempt to intervene if prelicensing antitrust review were then properly for Commission con-sideration (91st Cong. 2nd Sess., Senate Report No. 91-1247, p. 30).
It is-Staff's position that the legislative history of the Act leaves little room for doubt that the Davis-Besse Unit 1 operating license cannot be issued under the' authority granted by section 105c(8) prior to the completion of the antitrust review because it does not fit within the two explicit exceptions to prelicensing antitrust review considered by Congress and subsequently provided expressly for in the Act.
'With respect to the remarks of Representative Hosmer which appear i
at 116 Cong.- Rec. 9446-47 (daily ed. September 30, 1970), those remarks.
to' the extent they are relevant in a case where tne statute is clear-should be understood to mean exactly what they say, which is, in short, that the two explicit exceptions to prelicensing antitrust review which are contained in section 105c(8) are intended to avoid unnecessary delays and hardships in the scheduling of needed power plants.
The concluding l
words of Representative Hosmer make it clear that his concern for delay was in the context of the two explicit exceptions, and obviously not in the context of an exception not.even considered by Congress:
I want to make it perfectly clear that the prin-ciple of no impediment and no delay... applies equally to pending construction permit applications and to pending operating license proceedings.
There is need for expediency in both instances. 18/
Further, as to the weight to be given the remarks, it is generally recognized that legislative committee reports are generally accorded sub-stantially more weight than an oral statement by an individual legis-lator.
18f 116 Cong. Rec. 9446-47 (daily ed. September 30, 1970).
19/ See Frankfurter,- supra, note 10 at p. 543 Ig
. C.
.SECTION 105C(6) DOES NOT SUPPORT APPLICANTS' MOTION
^
Section 105c(6) of the Act provides as follows:
In the event the Commission's finding under para-graph (5) is in the affirmative, the Commission shall also consider, in determining whether the license should be issued or continued, such other factors, including the need for power in the affected area, as the Commission in its judgment deems necessary to protect the public interest.
On the basis of its findings, the Commission shall have the authority to issue or continue a license as applied for, to refuse to issue a license, to rescind a license or amend it, and to issue a license with such conditions as it deems appropriate.
Although section 105c(6) permits the licensing of a nuclear plant notwithstanding an affirmative finding under section 105c(5), section
.105c(6) is not applicable by its terms to the grandfathering issue since 105c(6) assumes that the antitrust review is complete and the Commission has made.its section 105c(5) finding.
Thus, under 5105c(6) Congress has confirmed the Commission's ultimate authority to make final determinations as to the issuance of licenses - whether conditioned or not - in light of the need for power as well as antitrust considerations.
Staff believes that the exercise of 5105c(6) authority is for determinations after an affirmative finding has been made pursuant to section 105c(5) (i.e. based on a complete record) that a situation inconsistent with the antitrust 20/
-laws will be created or. maintained by the activities under the license.
2_0/ Though the statute is clear and legislative history need not be re-sorted to, that history identified this power as an extraordinary power to be used only in extraordinary instances.
Report By The Joint Committee On Atomic Energy, at 31 (September 29,1970).
- Indeed, Congressman Price in commenting upon 105c(6) noted that "there may be i
situations where the Commission might conclude that the public interest j
would be better served by delaying the issuance of a license until antitrust problems are solved.
116 Cong. Rec. 9449 (September 30, 1970).
Of course, in this proceeding, there is every likelihood that an initial antitrust decision will be issued ' prior to fuel-loading.
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, If the Commission were to invoke such power pursuant to its interpretation of the_ grandfather clause of 9105c(8), without the benefit of a public hearing and without the benefit of an affirmative finding of a situation inconsistent with the antitrust laws under 5105c(8) re-flected in an initial decision, this could be interpreted as disregarding the plain meaning of both the grandfather clause as well as 9105c(6).
III. CONCLUSION It is the Staff's position that the points and authorities discussed herein fully warrant this Appeal Board affirming the Memorandum and Order of the Licensing Board dated January 7,1976.
Respectfully submitted, chi, b Roy P.(Lessy, Jr V 'ff 8 Counsel for NRC Staff A
JaAk R! Goldberg C6unsel for NRC Staff I
l 62/8B7 d9 B 6jamin H. Vogler - p s 9
Assistant Chief Antitrust Counsel for NRC Staff Dated at Bethesda, Maryland
-this 17th day of February 1976.
)
a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
THE TOLED0 EDISON COMPANY and NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING )
50-500A COMPANY 50-501A (Davis-Besse Nuclear Power Station, Units 1, 2 & 3)
)
THE CLEVELAND ELECTRIC ILLUMINATING )
NRC Docket Nos. 50-440A COMPANY, ET AL.
)
50-441A (Perry Nuclear Power Plant,
)
Units 1 & 2)
)
CERTIFICATE OF SERVICE i
I hereby certify that copies of NRC STAFF'S APPELLATE BRIEF IN OPPOSITION TO APPLICANTS' MOTION FOR DETERMINATION THAT DAVIS-BESSE UNIT 1 IS " GRAND-FATHERED" FOR PURPOSES OF OPERATION, dated February 17, 1976, in the cap-tioned matter, have been served upon the following by deposit in the United States mail, first class or air mail, this 17th day of February 1976:
Douglas V. Rigler, Esq.
Docketing and Service Section Chairman, Atomic Safety and Office of the Secretary Licensing Board U.S. Nuclear Regulatory Comission Foley, Lardner, Hollabaugh Washington, D.C.
20555 and Jacobs 815 Connecticut Avenue, N.W.
Joseph J.
Saunders,. Esq.
Washington, D.C.
20006 Antitrust Division Department of Justice Ivan W. Smith, Esq.
Washington, D.C.
20530 Atomic Safety and Licensing l
l Board Steven M. Charno, Esq.
U.S. Nuclear Regulatory Commission Melvin G. Berger, Esq.
Washington, D.C.
20555 Janet R. Urban, Esq.
P. O. Box 7513 l
John M. Frysiak, Esq.
Washington, D.C.
20044 i
Atomic Safety and Licensing Board Reuben Goldberg, Esq.
l U.S. Nuclear Regulatory Comission David C. Hjelmfelt, Esq.
l Washington, D.C.
20555 Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania tvenue, N.W.
l Atomic Safety and Licensing Suite 550 Board Panel Washington, D.C.
20006 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
~
1 James B. Davis Terence H. Benbow, Esq.
Director of Law A. Edward Grashof, Esq.
Robert D. Hart Steven A. Berger, Esq.
1st Assistant Director of Law Winthrop, Stimson, Putnam City of Cleveland
& Roberts 213 City Hall 40 Wall Street Cleveland, Ohio 44114 New York, New York 10005 Gerald Charnoff, Esq.
Thomas J. Munsch, Esq.
1 Wm. Bradford Reynolds, Esq.
General Attorney i
Robert E. Zahler, Esq.
Duquesne Light Company Jay H. Bernstein, Esq.
435 Sixth Avenue i
Shaw, Pittman, Potts &
Pittsburgh, Pa.
15219 Trowbridge 1800 M Street, N.W.
David Olds, Esq.
Washington, D.C.
20036 William S. Lerach, Esq.
Reed, Smith, Shaw & McClay Frank R. Clokey, Esq.
Union Trust Building Special Assistant Box 2009 Attorney General Pittsbt.rgh, Pa.
15230 1
Room 219 Towne House Apartments Lee A. Rau, Esq.
i Harrisburg, Pa.
17105 Joseph A. Rieser, Jr., Esq.
Reed, Smith, Shaw & McClay Donald H. Hauser, Esq.
Madison Building - Rm. 404 Victor F. Greenslade, Jr., Esq.
115515th Street, N.W.
The Cleveland Electric Washington, D.C.
20005 Illuminating Company 55 Public Square Edward A. Matto, Esq.
Cleveland, Ohio 44101 Richard M. Firestone, Esq.
Karen H. Adkins, Esq.-
Leslie Henry, Esq.
Antitrust Section Michael M. Briley, Isq.
30 E. Broad Street, 8th Floor Roger P. Klee, Esq.
Columbus, Ohio 43215 Fuller, Henry, Hodge & Snyder P. O. Box 2088-James R. Edgerly, Esq.
Toledo, Ohio 43604 Secretary and General Counsel Pennsylvania Power Company i
Russell J. Spetrino, Esq.
One East Washington Street Thomas A. Kayuha, Esq.
New Castle, Pa.
16103 Ohio Edison Company 47 North Main Street Paul M. Smart, Esq.
Akron, Ohio 44308 Fuller, Henry, Hodge & Snyder 300 Madison Avenue Toledo, Ohio 43604
, John Lansdale, Esq.
Michael D. Oldak Cox, Langford & Brown Goldberg, Fieldman & Hjelmfelt
- 21 Dupont Circle, N.W.
1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20036 Suite 550 Washington, D.C.
20006 Michael R. Gallagher, Esq.
630 Bulkley Building Alan P. Buchmann Cleveland, Ohio 44115 Squire, Sanders &-Dempsey 1800 Union Commerce Building Cleveland, Ohio 44115 Alan S. Rosenthal, Esq.
Chairman Atomic Safety and Licensing Appeal Board U.S. Nucitar Regulatory Commission Washington, D.C.
20555 Richard S. Salzman,. Esq.
Atomic Safety and Licensing Appeal _ Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Y 1% b'.,JR.L,
i Counse/ Lessy, Jrt/ '
Roy P l for NRC Staff 4
.a
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