ML19326B053

Brief in Support of Coalition for Safe Nuclear Power for Reconsideration of Ruling Re Specific Contention & to Require Addl Info from Applicants Under 10CFR50.Motion Should Be Granted

ML19326B053
Person / Time
Site:	Davis Besse
Issue date:	01/25/1971
From:	Baron R BRANNON, TICKTIN, BARON & MANCINI, COALITION FOR SAFE NUCLEAR POWER
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19326B045	List: ML19326B044 ML19326B050 ML19326B053
References
NUDOCS 8003060831
Download: ML19326B053 (4)

Text

'

• 22G3. E. WL EAC. 50A 4 b

~

t- i <a , , ,

p ... q gegKliED Q WG .t T ~-

J AH251971 "

r , e. s.- ,,

pant FremW

% W tr'"

/p '

ERIE IN SUPPORT OF MOTION ru .- On January 2,1971, Saction 50 3h of Title 10 Code of Federal Regulations beca=e effective. The full text can be found in Volume 35 Federal Register, pages 13367-8, December 3,1970.

Under Subsection b (3) of this new regulation an applicant for a license to ccustzuct a nuclear power reactor must provide "a general des-cription of the provisions for packaging, storage, and shipment offsite of solid vaste containing radioactive materials resultin6 from treatment of gaseons and liquid effluents and from other sources." In other vords, by.

what =ethods and routes vill used nuclear fuel rods and other vastes be shipped for disposal; through what communities vill the vehicles pass; with what frequency; what precautions and safeguards vill be employed to protect the public frcm ham?

TLe 32nd paragraph of the Amended Petition of the Coalition raised this issue of vaste transportation but said paragraph was declared irrelevant and outside the scope of the L censing i

hearing since under regulations existing at the time of the filing of the application herein, I

such informatien was not required.

Is the new section retroactive in operation or merely prospective?

l Must this Licensing Board enlarge the issues of this hearing and require the <

l Applicant to present the items called for in Subsection (a) (b) and (c)?

Clearly the problem of transporting vastes is of su7h paramount importance in relation to Davis-Besse because of the probable routes avaihble for l

transportation from the site to warrant such actics on the part of this

Board.

The Board must detemine what hazards vill exist in transportin6 the l

i. 8 0 03 o 8 0 8N

s 3 -., , , ,

probable quantities of vaste material before it issues a license to construct to Applicant.

Equally important for the protectica of the public from inimical ham that might occur frc= the issuance of a construction license, are the additional requirements imposed upon Applicants by Subsections (a) and (b) of 50 34a. Testimony on the subject covered by these new subsections was elicited by the Coalition during cross-examination of Applicant's vitnesses, without objection by Applicants to said line of questioning. A review of the testimony indicates that Applicants have done as little investigation and made as little effort to protect the public in the areas covered by Subsections (e) and (b) as Applicant made with re6sid to obtaining assurances fzum the military authorities and T.R.W., Inc. in connection with armaments testing in the area. The Camission has anticipated such carelessness and now makes it mandatory upon Applicants to provide infomation on these issues prior to obtainic6 a construction pemit.

This Board must take the position that Section 50 34a has retro-spective application. No where in the text of the new section is there any indication that its application is only to be prospective. .

Although there have been decisions of the United States Supreme Court that retrospective application of a regulation, or amendment thereto,

' will not occur unless c clec.:- intent for such effect unequivocally appears, such decisions did not involve a matter as potentially dangerous and inimical

to the health and safety of the public as exists in this hearing. They are not applicable here. In the case of Miller v. United States, 294 U.S. 435, (1935), the issue of retrospective application of a regulation was dealt 2

, . . . . . . ~ ~ - . . - . . . .

e

. . . . . . .. . . . . , . . , . . . a. - . ....pe .

._.- . t

'j

q

][

+-.. .

With in respect to the War Risk Insurance Act and how the new regulation

. would effect benefits due a totally disabled verteran. I d  !

Although this case states that an administrative regulation is subject to the zule that there is no retrospective application unless the intention to that effect unequivocally appears, it, must be pointed that the facts of the case were such that the regulation in question had been adopted eleven years after the claimant's insurance policy had lapsed and his cause of action had fully matured.

t In the case of Thorpe v. Housing Authority of the City of Durh:m, 393 U.S. 268 (1969) the Court held that a circular of HUD did apply retro-spectively "so as to apply to eviction proceedings ccamenced before its issuance under the general rule that a court must apply the law (here that of an administrative agency acting pursuant to legishtive authorization) in effect at the time it renders its decision..."

At page 262 the Court applies the language of Chief Justice .

i Marshall in the case of U. S. v. Schooner Peggy,1 Cranch 103, 110:

If subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which govems, the lav must be obeyed, or its obligation denied. If the law be constitutional,

...I know of no court which can contest its obligation.

- It is true that in mere private cases between individuals, a court will and ought to struggle hard against a constrie-  ;

1 tion which vill, by a retrospective operation, affect  !

the rights of parties, but in great national concerns.. . '

the court must decide according to existing hws, and if it be necessary to set aside a Juag=ent, rightful vhe'n rendered, but which cannot be affiz=ed but in l violation of law, the judgment must be set aside. i (emphasis added)

Going further on this point, the Court in Thorpe states:

i This same reasoning has been applied where the change vas constitutional, statutory, or judicial. Surely _ '!

l it applies with equal force where the change is made l l

-.3 - --.- - - - * -

u

, aneur . . .

• ee w*-* * - ' * * *

• e '

.. . 8"**&****. ~~

"'*F***- *** *P***

• SP M i -

p-

, :l q . , 3 i

s .

a . ... ..:=-. - z.. -.. - --==-:.=~=:-------====="'

by an a6::inistrative agency acting pursuant to legislative authorizatica. (empnasic added)

This language should be borne in mind in this hearing.

Much logic and wisdom is found in the admonition of Justice William O. Douglas in his dissenting opinion in the case of Power Reactor.

Develon=ent Company v. Internation Union of Electrical, Radio & Machine Workers, 367 U.S. 396 (1961) where he stated that "...the time when the issue of "' afety'" mast be resolved is before the Co:: mission issues a construction permit." ,

The Coalition's Motion should be granted.

Respectfully submitted, BRANNON, TICICIN, BARON & MANCINI ,,

h ,

i

)

. //Y e j' SSELL Z. BARON / I Cc>unsel for Th / alition for Safe Nuclear I Pcyer l 930 Keith Building l Cleveland, Ohio M115 l 216-781-3858 l e

e g

d

.k- .

I