ML19319C576
| ML19319C576 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 11/26/1975 |
| From: | Goldberg J, Lessy R, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002191012 | |
| Download: ML19319C576 (16) | |
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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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NRC Docket No. 50-346A THE TOLED0 EDISON COMPANY and THE CLEVELAND ELECTRIC ILLUMINATING) ctf so,
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(Davis-Besse Nuclear Power Station,)
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h 28 1975l ANSWER OF NRC STAFF TO APPLICANTS' MOTION FOR o=44,i g DETERMINATION THAT DAVIS-BESSE UNIT 1 IS b
GRANDFATHERED FOR PURPOSES OF OPERATION s,
On November 4,1975, Applicants filed a motion asking the Licensing Board to conclude that it was within "the authority of the Commission to issue a license authorizing the operation of the Davis-Besse Nt. clear Power Station, Unit 1 ~... prior to the completion of the ant _itrust review presently in progress" as provided in Section 105(c)(8) of the Atomic Energy' Act of 1954, as amended'(the Act). E ;y Order of November 7,'1975, the Board re-P quired responses to Applicants' Motion to be filed by November 28, 1975.
Pursuant to that Order, the Staff herein submits its response. E lf On the same date, Applicants filed a motion with the 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 to pass on the question after first ob-taining the view of the other parties.
y It should be noted that a question similar to that raised by Appli-cants here was also presented to the Licensing Board in Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2)on October 6, 1975, in " Staff's Memorandum of Law on the Application of Section 105(c)(8) of the Atomic Energy Act of 1954, as amended, to the Issuance of Operating Licenses for the Farley Nuclear Plant."
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. Contrary to the Applicants' position, it is the view of the Staff that Section 105(c)(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 initial decision of this Board. 3_/ The language of the Act makes it clear that Section 105(c)(8) is applicable only to certain pending applications for construction pennits and 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 104(b) of the Act and someone intervened or sought to intervene in the construction permit proceeding for the facility to obtain a determination of antitrust con-
, siderations as providad for in Section 105(c)(3) of the Act.
Section 105(c)(8) states:
(8) With respect to any application for a construction pennit on file at the time of enactment into law of this subsection, l
which permit would be for issuance under Section 103, and with J
respect to any application for an operating license in connection with which a written request for an antitrust review is made as provideo for in paragrapn (3), tne commission, atter consuitation with the Attorney General, may, upon determination that such action is necessary in the public interest to avoid unnecessary delay, establish by rule or order periods for Commission notifi-cation and receipt of advice differing from those set forth above and may issue a construction permit or operating license in ad-vance of consideration of and findings with respect to the matters covered in this subsection: provided, That any construction permit or operating license so issued shall.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. (emphasis added) 3/ It cannot be said with certainty that the present fuel loading schedule will hold or that this proceeding will not be concluded, either by agency decision or by settlement, before Davis-Besse Unit 1 is jn, fact ready for fuel loading.
. The above quoted Section clearly states that only those operating license applications covered by Section 105(c)(3) of the Act fall within the scope of the grandfather clause. Section 105(c)(3) states:
(3) With.
ect to any Commission permit for the construction 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 Commission to intervene in the construction permit procceding for the facility to obtain a de-termination of antitrust considerations or to ad-vance a jurisdiction basis for such determination shall have the right, upon a written request to the Commission, 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.
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A fair reading of the foregoing passages from the Act makes it clear that J
the Davis-Besse Unit 1 operating license application is not covered by the
" grandfather" clause. While it is generally unnecessary to resort to the i
legislative history of an act when its meaning is clear on its face, in this case the legislative history of the foregoing Section of the Act leaves no doubt that the language of th,e Act mu:,t be so read. Schwecmann Bros. v.
Calvert Distillers Coro., 341 U.S. 384,.395 (1951) (concurring opinion).
With respect to applications for operating licenses, the legislative history shows that the intent of Section 105(c)(8) was to avoid delay caused by the antitrust review of those applications which (1) had received
4 a construction permit at the time the 1970 amendments were enacted and (2) fit within the standard set forth in Section 105(c)(3) of the Act.
Only those operating license applications which met these criteria were to be subject to the grandfather clause.
Prior to enactment of the 1970 amendments to the Act, Section 104(b) permitted the issuance of licenses for the " conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or comercial purposes." No antitrust review was required for applications issued under the former language of the Section. [See Cities of States-ville v. AEC, 441 F.2d 962 (D.C. Cir.1969)]. The Report of the Joint Comittee on Atomic Energy, which acccmpanied the 1970 legislation, in comenting on Section 105(c)(8), indicated:
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 i
antitrust review under revised subsection 105c.
Paragraph (8) would authorize the Comission, after consultation with the Attorney General, to determine l
that the public interest would be served by the j
issuance of a permit containing conditions to assure
' that the' results of a subsequently conducted anti-
-trust review would be g^ n 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 ittee comented on Section 105(c)(3) as follows:
Paragraph (3) provides that with respect to any Com-mission pennit issued under subsection 104b, before enactment of the bill into law, any persen who in-tervened or who sought by timely written notice to the Commission to intervene in the construction per-mit 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 quali-fied as -intervenors under the Comission's rules at the time of the initial attempt to intervene if prelicensing antitrust review were then properly
. f.or Commission consideration (91st Cong. 2nd Sess.,-
' Senate Report No. 91-1247, p. 30).
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It is Staff's position that the legislativ.. history of the.Ac.t as discussed e
above leaves no room for doubt that the Davis-Besse Unit 1 operating license cannot be issued prior to the completion of the antitrust review under the authority granted by Section 105(c)(8). Accordingly, on the basis of the foregoing discussion it is Staff's position that Applicants' motion must be denied.
Although the Davis-Desse Unit 1 operating license application is not subject to the " grandfather" clause of the Act there is available an alter-native form of relief which would permit the issuance of the operating license prior to the completion of antitrust review. The Staff refers the Board to the two Comission decisior.s oncerning the Waterford application [In the
. Mattcr of Louisiana Power and Lig,ht _Companv (Waterford Steam Electric Generating Station, Unit 3), 6 AEC 48 and G AEC 619 (1973)].
In its first decision, the Conmission denied the Applicant's motion for the issuance of a construction permit prior to a prelicensing antitrust review. Although Waterford involved a construction permit the Staff believes In Waterford that the rationale is equally applicable to operating licenses.
the Comission stated:
...As for applicant's Alternative Motion, the Ccamissicn believes that section 105c of the Atomic Energy Act would not support the issuance of a construction permit at this time prior to a prelicensing review, withcut thn aorcoment of all parties involved. Accordingly, applicant's / Uter-native Motion Is denied.
[ emphasis cdded] [6 AEC 48 at 50,
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n.2 (1973)].
Upon a, Motion for Reconsideration the Commission affirmed its denial of the applicant's motion for issuance of the construction permit.
... Applicant furthe'r ' moved for reconsideration of our denial of its Motion for an Order Directing that the Issuance of a Construction Permit not be Delayed by Antitrust Considerations. We adhere to the view that section 105c would not support the issuance of a con-struction permit prior to a prelicensing antitrust review, without the agreement of all the parties in-volved...[6 AEC 619 at 621-22 (1973)].
In accordance with the foregoing Con:nission positionkit would appear that a " grandfathered" operating license for Davis-Besse Unit 1 could be issued by the Comission only upon stipulation of all oarties to the proceeding forpost-licensingantitrustreview.5/
y It should be noted that the Commission, in stating that post-licensing review was available, did not indicate that it was suggesting that such an approach was appropriate in every situation.
5] This stipulation would, of course, be limited to the question of the impact of the prelicensing antitrust review and assumes that questions concerning the health, safety, and environmental matters are resolved so that a license would otherwise issue.
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. The Staff has suggested this alternative course of action to the parties and indicated its willingness to enter into such a stipulation with respect to Davis-Besse Unit 1 at the appropriate time and upon appropriate conditions.
To date the Staff has been unable to obtain such a stipulation.
Applicants have also included in their motion a due process argument which, when examined, proves to oe entirely without merit. They argue that while they require more time to prepare "a vigorous and full defense" in this proceeding, they cannot request the necessary additional time because of " plant schedules" and " financial costs", and hence they are being denied due process.
(Applicants' Motion, p.14) -
Applicants' decision not to ask for additional time for preparation of their defense because of their desire to meet existing schedules and/or keep costs down is their choice. As.such it should not be used as a basis for grandfathering the Davis-Cesse Unit 1 operating license or for a finding that Applicant's have been denied due process. Applicants have a right to request additional time if they need it, and their failure to do so reflects on no one but themselves and their abilities to prepare for a hearing based on iscues set by the Board in July,1974.
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FFTSr to August 14, 1974, the Staff met with Counsel for Applicants and discussed (1) settlement, (2) limitation of issues, (3) limi-tation of parties, (4) post-licensino antitrust review, and (5) stipulations of fact.
. Although the Applicants have alleged delay in this matter, an exabun-ation of the record shows that those allegations are unsupported by the facts. At the time the advice letter from the Department of Justice con-cerning Davis-Besse Unit 1 was received by the Commission (AEC), there was pending before the Federal Power Commission the question of interconnection between CEI and the City of Cleveland. The Staff believed that the reso-lution of that issue by the FPC could materially aid the AEC in the resolu-tion of the dispute between CEI and the City. Therefore Staff, while noting that an antitrust hearing was required, recommended to the AEC that since a construction permit had been grdnted under Section 105(c)(8) of the Act, the antitrust hearing should be held in abeyance until the FPC decided the interconnection question.-7/
By following this procedure, the Staff noted that the record in the FPC proceeding and the conclusions reached therein would be avaflable to assist t'he AEC in considering the antitrust
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contentions raised in this matter. This procedure would also obiviate any duplication of effort.
It is significant to note that Applicants did not object to tais procedure. During this period Staff made an effort to re-solve the issues including numerous meetings with the parties and on March 1,1973 held a meeting with all the parties herein. On March 9, 1973 the FPC denied the City's request for a rehearing and on April 3,1973 the Staff filed a supplemental pleading recommending to the AEC that this matter j
be noticed for an antitrust hearing.
_7) " Answer of AEC Regulatory Staff to Petition of the City of Cleveland to Intervene for a Hearing," February 7,1972.
9 Following additional pleading, the Commission on January 21, 1974 issued its " Memorandum and Order" in this matter. The record shows that since January 21, 1974, Apolicants have contributed substantially to delay in this proceeding. An example concerns the Applicants' conduct of the discovery request made by the Staff on August 23, 1974. The Staff and the Department of Justice in connection with their joint discovery requested that the Applicants serve certain documents upon the Staff and the De-partment of Justice at their respective offices in Washington, D.C.
On September 9,1974, Applicants filed objections to the Joint Request but did not object to _ delivery in Washington.
On October 11, 1974, the Board issued its " Order on Objections to Interrogatories and Document Requests." On October 23, 1974, Applicants moved for a thirty day extension
'of t.ime within which. to t raduce the documents in' order. to assure a proper i
and complete document production".
[ Motion for Extension of Time, p. 2]
Again, no ob'jection was made to delivery in Washingt'on. Th'is extension was granted on November 4,1974, when the Board revised the previously set schedule -8/
and provided that November 30,19,4, was the date for ccm-7 pletion of all documentary discovery. On December 3, 1974, Applicants hand delivered their Responses to the Joint Request. In disregard of the express language of the Joint Request and the Board's Order, Applicants' responses simply stated that the documents were located in Cleveland, Toledo, Akron, New Castle, and Pittsburgh, and access could be had in those cities. This response came as a complete surprise to the Staff and Department of Justice 8/ See Attachment for tne schedule as it appeared in Prehearing Conference Order No. 2 dated July 25, 1974, which set May 14, 1975, as the date for consnencement of hearing.
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10-since Applicants had not praviously objected to delivering documents in P-h-ington. Applicants' response also did not list documents nor did it identify the documents pursuant to which a privilege had been asserted, contrary to the Board's Order. The Applicants' failure to comply with the Joint Re-
- quest and the Board's Order was particularly objectionable because Appli-cants were given the additional 30 days they requested to " assure a proper and complete document production". The Applicants' conduct in this in-stance contributed at least a six month delay to this proceeding.
The record further shows that Applicants have repeatedly asked for ex-tensions of time to meet prehearing schedules set by the Board. As a result, the Board had to postpone the initial commencement date of the hearing to December 1, 1975. On November 14, 1975, Applicants once aaain requested additional time to file their pretrial brief.. Applicants also requested 1
Accordingly, as we in-that.the hearing not begin until December 1.,.1975.,
terpret the record of this proceeding, we see no bas:s for the Applicants' argument that due process has been denied because of procedural matters entirely out of their control. The record here is clear that Applicants have themselves contributed substantially to any delays which may have occurred and cannnt now cry out for relief which cannot be supported under the law.
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d 1 Respectfully submitted, njamin H. Vogler
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f Assistant Chief Antitrust Counsel for NRC Staff f n.,.l'.:','.'.',
Roy P.'Lessy, Jr.
Counsel for NRC Staff G.L "
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.0ack R. Goldberg,
' Counsel for NRC Staff DatedatBethesda,Marjl'nd' a
this-26th day of November lf?S.
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supported with ampic good cause.
In addition, any party i
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not filing a response to a Board Order or one required by I
the Rules will be deened to have waived all rights in re-I gard thereto.
A continuing failure to thus participate in -
the proceeding will lead to en o' der to shou cause why that r
i party should not be dismissed frca the proceeding.
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Schedule All Parties, c:< cept AMP-0, have submitted proposed schedules fo: the future milestones.in this proceeding.
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After'censidering these proposals and the discussion at the Second Prehearing' Conference, the Bo~ard sets the' fol-
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Einal Date:
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August 1,1974 Discovery begins.
i August 26, 1974 Discovery requests (other than admissiens).
Septenber 9,1974 Written objections to discovery reques ts.
September 13, 1974 Hearing on objections, if needed.
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Cleveland's motion dated July 17, 1974, for leave to
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file an untimely, supplemental brief in support of its proposed schedule is herchy denied in vieu of our earlier rulings on such " supplementary" filings.
As stated, absent a showing of substantial good cause --
not found here -- rulings will be strictly adhered to.
~l December 15, 1974 completion of all protrial y
discovery.
.Ianuary 10, 1975 Sectements en ultimate issues to be heard.
January 20, 1975 Responses to Statcaents on ultimate issues.
January 25, 1975 Prchearing Conference No. 3 February 20, 1975 Uritten Testimony (Justice, Staff, '.Intervenors)
March 12, 1975 Uritten Testimony, Applicant
' April 2, 1975,
Filing of any Motions for Summary Disposition.
April 14,1975 Filing of any responses to Motions for Su=.ary Disposition.
2 April 18, 1975 Prehearing Conference No. 4 s
' April 30, 1975-Filing of Pre-trial Briefs May 14, 1975 Hearing Cc=mences t
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' 20 ' days following filing Hearing on reubetal.
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'E ATOMIC SAFETY AND LICENSDIG BOARD v...;
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Issued at Bethesda, Maryland, this 25th day of July 1974
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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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THE TOLED0 EDISON COMPANY and
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NRC Docket Nos. 50-345A THE CLEVELN!D ELECTRIC ILLUMINATING )
50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 & 3)
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THE CLEVELAND ELECTRIC ILLUMINATING )
NRC Docket Ncs. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
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Units 1 & 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of N SWER OF NRC STAFF TO APPLICANTS' MOTION FOR DETERMINATION THAT DAVIS-BESSE UNIT 1 IS GRANDFATHERED FOR PURPOSES OF OPERATION, dated November 26, 1975, in the caption-ed matter, have been served upcn the following persens by hand delivery to those persons in the Washington, D.C. area and by mail to all others via the United States mail, first class or airmail, this.26th day of. November 1975:
Douglas V. Rigler, Esq.'
Melvin G. Berger, Esq.
Chairman, Atomic Safety and Joseph J. Saunders, Esq.
Licensing Board Steven Charno, Esq.
Foley, Lardner, Hollabaugh Ruth Greenspan Cell, Esq.
and Jacobs Janet Urban, Esq.
Schanin Building P. O. Box 7513 815 Connecticut Avenue, N.W.
Washington, D.C.
20044 Washington, D.C.
20006 Docketing and Service Secticn Ivan W. Smith, Esq.
Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Ccc-inicn U.S. Nuclear Regulatory Commission
-Washingtcn, D.C.
20555 Washington, D.C.
20555 John Lansdale, Esq.
Mr, Jchn M. Frysiak Cox, Langford & Brown Atomic Safety and Licensing Board 21 Dupent Ci rcle, N.W.
U.S. Nuclear Regulatory Comission Washington, D.C.
20035 Washington, D.C.
20555 Reuben Goldberg, Esq.
Atomic Safety and Licensing Board David C. Hjelaifelt, Esq.
Panel 1700 Pennsylvania Avenue, N.'.l.
U.S. Nuclear Regulatory Comissicn Washington, D.C.
20005 Washington, D.C.
20555 D
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. Donald H. Hauser, Esq. -
James B. Davis, Director Victor F. Greenslade, Jr.
of Law
- The Cleveland Electric Robert D. Hart, Esq.
Illuminating Company City of Cleveland P. O. Box 5000 213 City Hall Cleveland, Ohio 44101 Cleveland, Ohio 44114 Leslie Henry, Esq.
Joseph A. Rieser, Esq.
Fuller, Henry, Hodge & Snyd. '
Lee A. Rau, Esq.
300 Madison Avenue Reed, Smith, Shaw & McClay Toledo, Ohio 43604 Suite 404 Madison Building, N.W.
Thomas A. Kayuha Washington, D.C.
20005 Executive Vice President Ohio Edison Company Alan S. Rosenthal, Chairman 47 North-Main Street Atomic Safety and Licensing Akron, Ohio 44308 Appeal Board U.S. Nuclear Regulatory Coc.missica Thomas J. Munsch, Esq.
Washingten, D.C.
20555 General Attorney Duquesne Light Company Michael C. Farrar 435 Si;.th Avenue Atomic Safety and Licensing Pittsburgh, Pennsylvania 15219 Appeal Board U.S. Nuclear Regulatory Csm.iss in Karen H.< Adkins, Esq.
Washington, D.C.
20555 Richard M. Firestone, Esq.
Antitrust Section Richard S. Sal. man 30 East Broad Street,15th Floor Atomic Safety and Licensing Colun6us, Chio '43215
' Appeal Board U.S. Nuclear Regulatory Ccmaissica Mr. Raymond Kudukis, Director Washington, D.C.
20555 of Public Utilities City of Cleveland Michael M. Briley, Esq.
1201 Lakeside Avenue Roger P. Klee, Esq.
Cleveland, Ohio 44114 Fuller, Henry, Hodge & Snydar 300 Madison Avenue David McNeil Olds, Esq.
Toledo, Ohio 43604 William S. Lerach, Esq.
Reed, Smith, Shaw & McClay Terence H. Benbcw, Esq.
747 Union Trust Building A. Edward Grashof Esq.
P. O. Box 2009 Steven A. Berger, Esq.
Pittsburgh, Pennsylvania 15230 40 Wall Street New York, New York 10005 Gerald Charnoff, Esq.
Wm. Bradford Reynolds, Esq.
Shaw, Pittman, Potts &
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Trowbridge
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910-17th Street, N.W.
Washington, D.C.
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A'.,q Roy P. Lessy, Jr.
oo Counsel' for NRC Staff D
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