ML19326D140
| ML19326D140 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/27/1978 |
| From: | Chanania F, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8006060711 | |
| Download: ML19326D140 (9) | |
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BEFORE THE C0f411SSION f
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In the Matter of
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URC Occket ilos. 50-31_9A (Midland Plant, Units 1 and 2)
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50-330A NRC STAFF RESPONSE TO COMMISS10ti ORDER OF jai;UARY 13, 1978 I.
BACKGROUND On December 30, 1977, the Atcmic Safety and Licensing Appeal Board issued its decision in the above-captioned matter (ALAB-452) in which it reversed the Licensing Scard.
The Appeal Board also remandad the proceeding to the Licensing Board for a supplemental evidentiary hearing on appropriate relief. On January 4, 1978, Consumers Power Company filed a motion for an extension of time in which to file its petitien for Cc:r;nission review of ALAB-452 and for an enlargement of page limi-tations on briefs.
On January 13, 1978, the Commission ordered the parties, including the URC Staff, to submit their respective views en the possibility of deferring Commission review of ALAB-452 until after the supplemental evidentiary hearings before the Licensing Board took place and the Appeal Board reviewed the results.
In additicn, the NRC Staff was requesad to su:nnarize the status of other pending antitrust hearing; and appeal, which might be affected by such deferral of Commission review and to provide an estimate of the significance of any such effects.
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- II. THE C0f'11ISSION SHOULD CEFER REVIEU OF ALAB-452 The NRC Staff believes that the Commission should defer review of ALAB-452 until the supplemental remand hearing on relief mandated by ALAB-452 has been completed and the Appeal Board has had an opportunity to review the results. The NRC Staff believes that there are practical considerations which weigh strongly in favor of such deferral.
First, duplicative effort and time delay would be likely to occur if the Commission reviews ALAB-452 prior to completion of the remand hearing.
If the Ccmmission were to review ALAB-452 at this time, it would not have before it any license conditions which might be appropriate as relief since that matter has been remanded to the Licensing Board.
No license conditions appear in the record because the Licensing Board found no situatica inconsistent with the antitrust laws and the Appeal Board directed that the record be, supplemented before imposing licence conditions.
Hence, unless the Commission reverses ALAC-452 completely, a sup,nlemental remand hearing on relief will be held. The results of the remand hearing would.then also be subject to review by the Appeal Board and appeal to the Commission.
For the Commission to review effectively the results of the remand hearing, it is likely that significant portions of the record underlying ALAB-452 wculd have to be re-examined. Thus, duplicative effort by the Commissicn wculd be a strong possibility under this " piecemeal" approach.
The Staff contends that the least time-consuming and most efficient approach is to permit the remand hearing to go forward prior to any Commission review. The remand hearing is essantially supplemental in natu're and, therefore, likely to be much more abbreviated in scope and
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- duration than either the initial phase of an antitrust hearing or Commission review of ALAG-452 at tnis point.
Thus, there would be a discernible savings in both time and agency resources if the Commission chooses to avoid the " piecemeal approach" by deferring its review of
- ALAB-452.
Second, if the Commission elects to review ALAS-452 at this time under the " piecemeal approach," that Commission would not have a complete record before it; the record would lack both a full hearing record and the Appeal Board's views on appropriate liccnse conditions.
The rer.edy or relief phase of an f!RC antitrust proceeding is crucial to any review of the entire record in determining what license conditions, if any, are appropriate to remedy a given factual situation.
Accordingly, deferral of review of ALAB-452 would enable a full and complete record to be daveloped prior to any Ccemission review.
The NRC Staff also believes that there would be no prejudice to Consumers Power Company or any other party to this proceeding by per-mitting the remand hearing to go forward at this time while deferring Commission review of AL b-452.
The construction permits for Midland Units
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1 & 2 have been issued, and their continued effectiveness would not be affectea by deferral of Commission review since these units were " grand-fa thered. " Accordingly, there will be no delay in the licensing or construction of the units if the Commission accepts the Staff's position.
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. The NRC Rules of Practice,10 CFR Part 2, would not prevent the remand hearing from proceeding concurrently with the Commission's review I
of ALAB-452.
However, such concurrent actions would be inadvisable,in the Staff's view,since Commission review might make the efforts expended in the remand hearing either unnecessary,.duplicative, or misdirected.
Given the probability of an. abbreviated scope and ddration of the remand b'_aring and the desirability of a full and complete record for Commission review, the Staff believes that the remand hearing should precede any Commission review.
The Staff concludes that the interests of avoiding piecceeal review avoiding wasted effort, conserving agency resources, and the lack of prejudice to any of the parties weigh heavily in favor of deferring Commission review at this time. The Staff finds no countervailing interests which would require that the Commission review ALA3-452 now.
This can be seen, in part, by the Staff's summary of the effects upon ongoing cntitrust proceedings which appear below.
III. STATUS OF OTHER PENDING AMTITRUST HEARINGS AND APPEALS A.
The follcwing antitrust proceedings are in the early stages of the antitrust review process or before an~ Atomic Safety and Licensing Board (ASLB):
(1)
Pacific Gas and Electric Company, Stanislaus Nuclear Project, Unit No. 1, URC Okt. No. P-564A: intervention granted; discovery under way; hearing dates not yet set.
(2) Houston Liahting and Power Company, South Texas Project Unit Nos. I and 2, NRC Dkt. Nos. 50-498A, 50-499A:
awaiting Attorney General's advice letter; any hearing, if necessary, to commence thereafter.
(3)
Florida Power & Liaht Comoany, St. Lucie Unit 2, NRC Okt. No. 50-389A: intervention granted by ASLB; affirmed by Appeal Board; awaiting decision by Commission en its revicu of Appeal Board decision on intervention.
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_ (4) Detroit Edison Company, Enrico Fermi 2, NRC Dkt. No. 50-341A: awaiting intervention ruling by ASLB.
B.
The.following two proceedings are presently pending befora the Atomic Safety and Licensing Appeal Board (ASLAO):
(1) Cleveland Electric Illuminatina Comoany et al., Perry Nuclear Power Plant, U.'i ts 1 and 2, Davis-Besse Nuclear Power Station, Uni ts 1, 2 and 3, NRC Dkc. Nos. 50-440A, 50-441A, 50-346A, 50-500A, an? 50-501A: briefs subiiitted; oral argument completed; awai ting ASLAB decision (ASLB found situa tion inconsistent with the antitrtst laws and ordered license conditions).
(2) Alabama Power Cocoany, Joseph M. Farley Huclear Units 1 and 2, HP.C Dkt. Hos. 50-343A and 50-354A: final briefs due to ASLAG by April 13, 1978; cral argumeit to follca thereaft2r (ASLB found situction inconsistant with the antitrust laws and ordered license conditions).
C.
In assessing the effects of Commission daferral of its review of ALAB-432, it is the Staff's view that:
(1) There will be no adverse impact on the licensing, constr;ction, or operation of any of the nuclear units which are the subject of the above pending antitrust proceedings before a: Licensing Board or an Appeal Board.
The absence of adverse effects stems frcm: (a) the " grandfathered" nature of scme of the proceedings (Davis-Gesse and Farlev); (b) agreement of the parties that the construction permit could issue subject to later antitrust proceedings (St. Lucie 2); and (c) the construction permit or operating license has issued after an initial decision of an ASLB (Perry and Farley).
In addition, Fermi Unit 2 has a construction permit, and the intervention-proceedings are' in the context of a post-construction permit amendment to add new co-owners. South Texas is also being constructed pursuant to a construction permit, and any pro-
ceedings in that matter would be in the context of an operating license application. The Stanislaus proceeding is an anticipatory antitrust review, and the health, safety and environmental aspects of the construction permit appli-cation have not yet been filed.
(2) The only acverse impact which the Staff can perceive is on the applicaticn of substantive antitrust law standards to the various proceedings before the respective Licensing and Appeal Boards. However, there would be no adverse procedural
. impact on or delay of those proceedings.
For example, the Appeal Board could decide Perry. Daviz-Besse in accordance with its present vicw on the substantive law, much as the Licensing Boards have ruled in other proceedings before any guiding decision was rendered by the Appeal Board.
Certainly,
the Appeal Boards and Licensing Boards would be benefitted by the Ccmmission's guidance on the application of substantiva antitrust law standards, but deferral of Commission review in ALAB 452 would not prevent those Boards from 9:iding 4
matters before tham based on existing precedent.
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On ba:ance, therefore, the Staff believes that the benefits to be gained by avoiding piecemeal review and waste of agency and other parties' resources outweigh any adverse effects which flow from deferral of Com-mission review of ALAB-452.
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CONCLUSI0!!
For the reasons stated above, the Staff urges the Comission to defer its review of ALAS-452 until such' time as the supplemental evidentiary remand hearing on relief is held before the Licensing Scard and the Appeal Board
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reviews the outcome of that proceeding.
Respectfully submitted, a
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Denjamin 11. Vogler i
Deputi Director Antitrust Division, OELD o.L;D. L a Fredric D. Chanania Counsel for NRC Staff Dated at Bethesda, Maryland this._27th day of January 1978.
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U, IiUCLEAR REGULAT0iJ CCrAISSIC.l 94
- [/f BEFORE THE C0"MISSIO.'l (b
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In the Matter of J
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CONSUMERS POWER COMPANY
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NRC Docket Mcs. 50-329A (Midland Plant, Units 1 and 2)
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50-333A CERTIFICATE 6/ SERVICE I hereby certify that copies c f NRC STAFF RESPONSE TO COMMISSION ORDER OF JANUARY 13, 1978 in the above captioned proceeding have been served on th: following by deposit in the United States mail, first class or air mail, cr, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 27th day of January 1978:
Alan S. Rosentha', Chairman Jerrre Saltzmsn, Chief Atomic Safety and Licensing Antitrust and Inderaity Groun Appeal Board U.S. Nucicar Regulatory Commission U.S. Nuclear Regulatory Cc=nissicn Washington, D.C.
20555 Washington, D.C.
20555
- Donald L. Flexner. Esc.
Michael C. Farrar David A. Leckie, Esq.
Atenic Safety and Licensing Forrest Bannon, Esc.
Appeal Board P.O. Box 481 U.S. Nuclear Regulatory Cc=nission Washington, D.C.
20044 Washington, D.C.
20555
- Honorable Frank Kelly John F. Farr.akides Attorney Caneral Atomic Safety and Licensing State of Michigan Appeal Board Lansing, Michigan 48913 U.S. Nuclear Regulatcry Ccmmission George Spiegel, Esq.
Washington, D.C.
20555
- Robert A. Jablon, Esq.
Hugh K. Clark, Esq.
James Carl Pollock, Esq.
Atomic Safety and Licensing Board 2600 Virginia Avenue, N.W.
P.O. Box 127A Washington, D.C.
20037 Kennedyville, Maryland 21645 Atomic Safety and Licensing Board Dr. J.V. Leeds, Jr.
U.S. Nuclear Regulatory Conaission P.O. Box 941 Washington, D.C.
20555
- Houston, Texas 77001 Dccheting and Service Section William Warfield Ross, Esq.
Office of the Secretary Keith S. Watson, Esq.
U.S. Nuclear Regulatory Commissicn j
Wald, Harkrader & Ross Washington, D.C.
20555
- 132019th Street, N.W.
Washington, D.C.
20035
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. I Chairman Hendrie i
Office of the Commission 1
U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Commissioner Gilinsky Office of the Commission i -
- U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- 1 Commissioner Kennedy
- Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- i Ccmmissioner Bradford Office of the Commission U.S. Nuclear Regulatory Commission Washin2 ton, D.C.
20555
- s0_<
J-AA.C-t U
'redric 0. Chanania Counsel for NRC Staff I
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