ML19329D114
| ML19329D114 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 02/17/1976 |
| From: | Bell R JUSTICE, DEPT. OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002240105 | |
| Download: ML19329D114 (34) | |
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THIS DOCUMENT CONTAINS POOR QUALITY PAGES UNITED ST w.
4 2.,
t NUCLEAR REGULATORY COI: MISSION Before the Atomic Safety and Licensing Apocal Board In the Matter of
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THE TOLEED EDISON CO:!PANY and-
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THE CLEVELAUD ELECTRIC ILLUGINATING
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URC Do'cl:e t No. 5 0-34 6 A COMPANY
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(Davis-Bosse Nuclocr Pouer Station,
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Unit 1)
MEMORhCDUM OF TIHF DEPART:*EUT OF JUSTICE Ii OPPOSITIOU TO APPLICANTS' I:OTIOD FOR DETE:U1ID?. TION kHAT DAVIS-DESSE UDIT 1 IS " G GUDFATS I: RED" FOR PURPOSES CP OPERATTOU IM'fRODUCTIO::
On January 8, 1976, the Ato:aic Safety and Licensing Appeal Board accepted for review the ruling by the Atomic Safety and Licensing Hearing Board that Davis-Besco Unit I is not " grand-fathered" and that Applicants therefore may not commence operation of that unit prior to completion of antitrust revieu.
This memorandun is submitted to address the issues raised by the appeal, and the three issues which 'the Appeals Board re-quested each party to address specifically.
The facts of this case are not difficult or in dfspute.
In March 1971, the Atomic Energy Commission, nou the Nuclear Regulatory Commission, issued a construction permit, CPPR-80, for the Davis-Besse Unit I station.
The permit contained a
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condition which made it subject to an antitruct review by the
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Attorney General pursuant to scction' 105c of the Act.
Section 105c of the Atomic Energy Act of 1954, 42 U.S.C.
S.2011, el seq., was amended effective December 19, 1970.by Public Lau 91-560 to give the Commission discretion in two specific instances to grant opera. ting licenses in advance of' antitrust review, subsection 105c(8).
The ins tant application plainly fits uithin neither statutory exception.
- Instead, Applicants ask this Appeal Board to create a new exception, not enumerated by the Congress, to the requirem.cnt of pro-licensing antitrust. review, and further to find tha t App.1.icor,tc '
fact situatica uarrantp ap' plication of LPc new exception.
ARGUHTUT I.
THE PLAIN LANGUAGE OF SECTION 105c(8) OF THE ATOMIC ENCRGY ACT DOES NOT PROVIDE FOR THE KIHD OF RELIEF REQUESTED BY APPLICAUTS.
Subsection 105c(b) of the 1 tomic Enc.rgy Act does not 3
authorize this Commission to issue these l pplicants an operat-ing liconso in advance of antitrust review.
Section 105c of the Act, as amended, establishes a pro-gram of prelicennina antitrust review, */ and provides that in
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The Joint Committee Report on the 1970 Amendments is cap-tioned:
" Amending the Atomic Energy Act of 1954, as Amended to eliminate the Recuirement for a Finding of Practical Value, to Provide for Prelicensino Antitrust Reviou o'f Production and l
Utilization :acilitics, anc to drrectuate Cer tain utner 1urpcaes Pertaining to huclear Facilities".
H.R.
Rep. No. 91-1470, 91st Cong.,.2d Sess. (1970)_(emphasis added).-
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certain upccific.and limited instances the Commission 'may deviato' from this norm.
Thus, Congrecc mado.it clear that prolicencing I
review of nuclear facilitics is required, except under two cir-cumstances, both of which are set out specifically and explicitly in subsection 105c(8), the co-called "Grandf ather Clauce'".
The innuance of an operating license for Davic-Besse Unit 1, prior to the completion of the anti,truct revieu which is presently in progress, is not permitted by either of there. cxceptions.
Subsection 105c(3) provid:c:
With recpect to Ony z.pplication for a construc-tion permit on file et tha tir.e of enactment into lau of this cubacetion (Decer.:bar 19, 1970), u:Tich permit vould be for icsur.nce unf.er sect ioa 103, and uith respect to nny t.pplication for ca operating license in connection uith which a uritten ;cquest for cn antitrent review ic m:dc :s provided for in paragraph (3), the Commiccica, 4f ter concultation uith the Attorney General, may, upon datermination that such action is necessary in the public interest. to avoid unnecessary delay, establish by rule or order periods for Commission notification and. receipt of advice differ ing from 'those set forth above and may issue a constructica permit or operating license in advance of ' consideration. of cnd findings with renpect to the matters covered in this subsection:
PROVIDED, that any conctruction permit er cperating license so issued shall contain such conditions as the Commis-sion deems appropriate to assure that any subsecuent findings and orders of the Commicsion with respect to such matters will be given full force and of fect.
The first explicit exception to the statutory requirement of pre-licensing antitrust review concerns the issuance of construction permits and is, therefore, wholly inapplicabic on its face to
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Applicants' instant motion which concerns the incuance. of an oper-ating licence. */
The cocond explicit exception contained in subsection 105c(8)
~ concerns the issuance of a specific,. limited class of operating licenses without prior antitruct review.
The operating licence for Davis-Becco Unit 1, clearly f alls outside the clacs defined
.by Congrecc in this exception.
This clacs is limited to "cny application for an operating licence in connection with which a written rcquect for antitruct trunt r.cView in 'made as provided in paragraph (3)
Subccction 105c(3) -- the " paragraph (3)" referred to -- providcc for antitruct review of a limitcJ number of cperatin:: licence application in
,cuations where (1) conattection permits have been iccued prior to cmendment of secticn 105c in December 1970~ nnd (2) pornon had timely nought
'to intervene in the construction permit ' proceeding to obtain a determination of antitrust issucc. **/. As noted previously,
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We note in passing that Applicantc, uboco conctruction p2'rmit for Davis-Becsc, Unit 1, uas on file on Deccuber 19, 1970, tool; advantage of this exception.
In 11 arch 1971, the then Atomic Energy Commission issued Applicants a construction permit for Davis-Besco Unit 1, prior to antitrust rev ie w, and conditioned the permit to allow its continuance, rescission, or amendment to include appro-priate antitruct conditions (CPPR-80).
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Subsection 105c(3) states:
With respect to any Commission permit for the construction of a utilization or production f a c il'ity issued pursuant to subsection 104b prior to the enactmont into law of th is subsect ion, any person who intervened or who sought by timely written notice to the Commission to intervene in the construction l
permit proceeding for the facility to obtain a deter-mination of antitrust considerations or to advance a j
[ footnote continued on next page]
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p the Davis-Desse Unit 1 construction permit was issued in 11 arch of 1971.
Thus,' Applicants lack a necoscary prcrcquisite to this
., exception.
In summary, subsection 105c(8) provides only two very limited exceptions to. the prolicensing bntitrust review norm.
It reachos only so far as to permit (1) the issuance of
[ Footnote from previous page, continuc' ]
d jurindictional basis for such determinatica shall have the right, upcn a written request to the Commic-sion to obtain en antitrust revicu under this coction of the hpplicaticn for cn opercting license.
Such j
vritten request shall be rando within 25 days af ter the date of initial Cctimisnien pub)icaticn la the
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Federal Regist r of notice of the filing of an appli-cation for an operating licence for.the fccility or the date of encetmcat in to leu of.thic subsection, whichever is later.
The Joint Comaittee Report c::plained this provision as i
.follous:
Paragraph (3) provides that with respect to any Commission permit issued under subsection 10<b before enactment of the bill into law, any person who in te r -
vened or who sought by timely uritt,en notice to the Commission to intervene in the construction permit proccoding to raise the prolicensing antitrust issue will have the right to obtain an antitrust revieu under this subsection; to do this, such person nust make a written request to the Commission within 25 days af ter the date of initial Commission publicdtion 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 qualified as intervonors under the-Commission's rules at the time ' of the initial attempt to intervene if prelicensing antitrust review were l
then properly for Commission consideration.
!!. R. Rep.
j No. 91-1470, 91st Co'ng., 2d Sess.i 30 (1970).
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s con 'struction permits where applicationc for thoce permits ver'c
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on file on December 19, 1970, and (2) the issuance of operating 1.icenses where con'struction permits had. been isnued prior to December 19, 1970, and where antitrust intervention by third persons had been attempted at the ' construction permit stage.
Subcection 105c(8) dccs not permit iscuance of both a conctruc-tion permit and an operating license for the same nuclear unit prior to the completion of antitrust revicu.
The Joint Committee Peport clearly c amonstrates the absence of overlap between subcection 105c(S)'s' two e;:ceptions:
Paragraph (0) endeavors to deal censi-bly dith thoce applicationc for a construction permit ubich, upon the enactment of the r,ill into.lcu, would have to be converted to applications unscr section 103.
In sone cace, there might vell be. hardships cauced
,by delays due to the.neu requirement for a potential n'ntitruct reviou under rr/iPed cub.;cetion 105c.
Paragraph (8) would authorize the Com.niccion, cfter concultation with the' Attorney General, to determine that the public interest would be served by the issuance of a permit containing conditions to assure that the results of a subscouently conducted anti-truct revicu uould be given full force.and effect.
Paragraph (0) cimilarly applies to applications for an operating license in connection with which a written request for an antitrust revicu is,made an provided for in paragraph ( 3).
H.R.
Rep. No. 91-1470, 91st Cong., 2d Sess., 31-32 (1970).
The first exception unc intended to permit alleviation of poccible hardships cauced by delaying the construction of nuclear f acilities for which permits had already been applied when the 19.70 amendments
~were enacted.
However, it was clearly not intended to relieve an 6
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applicant of antitrust review by the Commission prior to issuonce' of both a construction permit and an operating licence. */
The Joint Codmittec and the Congress recognized the advantogec
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of prelicensing antitrust review, notwithstanding arguments oppoc -
ing such review during the hearings leading to the 1970 Amendrents, and adopted prelicencin'g review as a meanc of incuring.that "the development, use, 'and coptrol of atomic energy shall be directed no as to.
strendthen free competition in private caterpriro".
Atomic Energy Act, S1 (CcngreLLional Declaration of l'ol icy ).
Ecthing in the ctatute, the.Comuittee Report oc the oth r logiclative history evidence: any 3cciclative hitent to permit any
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Sub:ection 105c(2) further confirms he icgislative intent en this natter.
It niod ifics r.u;,section 10.~ c (1) ( under whi ch p';c.11-consing ratitruct revieu 10 initiated) eo ac to preclude a cacc.n5 antitruct revieu at tha operating'licene str.ca when c conci~iEEi.
. permit hos been incued for a commercial nuclect facility with antitrust review af forded under-the 1970 Amendments, unlers the Commisnion determinos that'such revicu is advisabic becauce of significant changes in the Applicant's t ctivitics or propoced activities " subsequent to the previous' revieu by the Attorney General and the Commiscion under this subsodtica in connection with the construction parait for tho. facility. "
The cecond prelicencino antitrust review, then,. mt.y b2 avoided
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only when there has been a first reviou by the Attorney General cod the Commission -- which presumably includes an opportunity for t.h e Attorney General to submit to the NRC edvice; a finding by the Commission 'as to antitrust inconsistency when recuired uiid3F~ich-section iT5c(5); subsequent NRC findinas under subsection 305c(6) uhen recuired; possible judicial rev iou '-- and only then insuance of a construction permit..Given thic procedure, it would be inconsistent to construe subsection 105c(8) as permitting the NRC to issue an operating licenso prior to ' completion of onc ontitrust review "by the Attorney General and the Commission" where the con-struction permit.was issued prior to complet' ion of a first anti-truct revicu.
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application for a construction parait pending at the time o3
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to 1ca'ld,to an issued operating license unices the enactment Commission can first make, a finding as to whether the activiti
-under the license would create or maintain a situation incons int. :.r with the antitrust laws. */
In sum, there is in fact nothing in the languose of the t.at,
its legislative history, its policy or its administration, which would furnish the slightest justification for departing from the Act's plain langucce and creating'a nov cxception.
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The Com.nission's decision in Lcuislenn re ir and Licht C~r--
~{Uateriord Steam Clectric Conercting Stat on, i,n it 3) an.o cup;<
this position.
Tao re, the Cermission denied Louisiana Power Light's r.:ction for. issuance of n coc.;truction percit pricr to prelicensin3 cntitrust revieu, and c:: pres 4ed its belief:
[T) hat Section 105c of the Atc. ic Enarcy Ict vould not support the issuance o this time prior to the,f a construction permit at pr elice r.G ing antitrust revier, without the agreemant of all parties involved.
6 A.E.C.
48, 50,
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Subsequently, the Commissicn affirmed its denial of Louisiana Power and Light's motion, saying:
Applicant further moved for reconsi'deration of our denial of its Moticn for an Order Directing that the Issuance of a Construction Fermit not be Delayed by Antitrust Considerations.
1:e adhere to the view that section 105c would not support the issuance of a construction permit prior to a prelicensing anti-trust revicu, without the agreement of all the parties involved.
6 A.E.C.
G19, 621-22 (1973).
The Waterford 3 construction permit application did not, of course, f all within subsection 105c(8) in any respect; the Com-mission there was dealing with the prelicensing antitrust revicu of a construction permit not on file on December 19, 1970, which therefore fell outside the. Act's explicit exceptions.
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II.
THIS C0!!!!ISSION CANNOT CARVE OUT EXCEPTIOMS
'IO Tile PRELICCHSING ANTITEUST,nUVIEW PROCESS Tr.AT !! AVE NOT DECN AUT:!ORI7,CD BY CONGRCSS.
The language of subcection 105c(8) is plain and unambiguous.
It sets out for this Commission a plan of prelicensing antitrust review and allous the Commissica diceretion, in two circumstances, to concider uhether a licence chould be icnued in advcnce of antitrust review.
1 In no rerpect doec the legiclative history er any rule of statetory construction warrant deviation from this clear atttu-tory schema.
Indeed, there is cvery evidence that section 10Lc as a whole.*/ rep:ccents a careful br. lance of tihe need for electric poucr cnd the Congrecs' e:prescip interest in rein-forcin.g, in the conte::t of tha Atomic Energy Act, the fund::-
mental economic 1:olicies contained in the entitruct laws.
4 Moreover, section 105c in effect contains instructions from Congrecc to thic administrative body about how this body should carry out its duties.
Adminir.trative bodien are purely creat'urt of legiul'ation; they do not have discretion to en1arge or diEin-
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Ish their powers, even when it is. felt that such changen might be beneficial.
Since thic Commission ha,s c1carly not been authorized to broaden the c$:ceptions contained in subsection
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- See, e.a., Remarks of Mr. Factore, 116 Cong. Rec. 19253 Tdaily ed.,
December 2, 1970), emphasizing that the final legislative product represented a " carefully perfected compro-
' mise" and a " balanced, moderate framework for a reasonable licensing re' view procedure."
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105c(G), granting' of Appilcants' motion would be contrary to this agency's commission'from Congrec's.
Finally, since tho' facts procented by Applicante vould not warrant the exercise of discretion by this Commicsion to
" grandfather" the Davis-Decce, Unit I, even if this Comaincion ucre clearly authorized to do co by the precice Congressionel language, the Commission should not reach to do so when it lacks such Congressional authorization.
A.
!!o aspect of the logislative hintory indicates that Congres.c intended 'to c.orvo more then tuo except.ioc.:
into the lec iciative sche ae cont +.ined in section IS"e.
There is no evidenco'in thc-Icgisictive hictory that Con-gress intended to carvt nore than two exceptions in the co; rc-1.cncive legislative schere contained in noction 105c.
- Indeed, there in every evidence that Congress was aware, when it acted, that. the Courts had read the then exis. ting statutory scheme to require th'e Ccmnidsion to 0:: amine catitrust aspects prior to issuance of operating permits, Cities of Stater;,vi,1,le, et 70..
v.
Atomic Encrev Commission,, 4 41 F. 2d 9 6 2 -( D. C.
Cir.,'1969).
In the Stat'enville caso, the Court of Appeals held that, when an -
, operating permit'was requested, the Congressional ccher.c cllowed no. exceptions to a 1cgislative plan which required antitrust i
r'eview in advance of issu.ance of the operating permit.
The Congress was aware of the Statesville.docision when it deliberated the 1970 amendments to the Act, and of the " step by step" proccGure
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which required antitrust revleu in advance of icsuance of an operating license.
Indeed, the case was reprinted in the legislative history.
!! earings on Prelicenbing Antitrust Review of Nuclear Pouerplants before the Joint Con:mittee on Atomic Energy, 91st Cong., 2d Sess., at 193-253.
See alco, Statement of Char 1cc A.
Robinson, Jr., Staff Counsel to the General Manager, National Rural Cloctric Cooperative Associa-tion and cubsequcnt e:: change uith Mr. Hosmer, id. at 421-22.
Every chatercnt made concerning the provisions of 105c(0) reinforecc the findii.g that Congrosc intend'ed just what it r.:t forth in the statute -- to grant. thic Corxaisnion the' discre-tion or "fle::ibility" to make two except!ons tolprelicencing reviev, where the underlying ft: cts narren':.
Indood, th ic concl'u~c ion is reinforced ul)cn on:' reads the ctatel.:cnt of.uc.
Hosmer, who noted that paragraph (8) ent. bled the Commission "to avoid delaying the issuance of licences in certain cases, pon' ding the antitruct revicu".
(Emphacic~ndded.)
116 Cong.
Rec. 9446.
If Congress had intended other exceptkons to prelicencing antitruct review, it could have placed the power in the Commis-sion to act accordingly.
It did not.
Moreover, Congress tempered the exceptions which it did grant so that, far from being automatic or required exceptions, they are grants of discretion in this Commission to weigh two competing policios when the need for electric power is placed in sharp conflict 11 O
with a delay in the antitruct review process.
Holther.of thoco conditions portain.hcre,asSection I"I of tnis memorandum shous.
B.
No rule of statutory construction allous this Commission to engraft further excep-tions onto nubsection 105c(8).
Applicante argue that, decpite the c3ent language of the statute, this Comminsion chould engraf t a third e::ception on the statute. They argue that the excep'tions contt.ined in cub-coction 10Sc(8) are of a remedial naturc., ubich should be broadly conchrued and liberally applied, and that the Cor :ala-uion should read e::ceptions into the st:.tute when neccesary to effcctuate its purpose..
Applicants' argument flies in the idtc of the legic3 n...;ve hictory, diccussed abe.ec, and ::nkc thic Commiccica to deput frora well understood rules of statutory conctruction.
is a commonpkac'c of 'ctatutory construction, and good It sence, that "[t]he enumeration -f exclusions from the opera-tion of a statute indicates.that it should apply to all canos not specifically excluded.
Exceptions strengthen the. force of the general law, and enumera tion
' weakens it as to things not expresced.
'[ Footnote omitted)"
2A Sutherland Stctutory Construction g 47.23 ( 4 th ed. 1972).
Judge Weinfeld rejected an argument similar to that mado here by Applicant, in Herzberg v.
Finch, 321 P, Supp. 1367, l
1369 (S.D.
N.Y.
1971), stating in language applicable to j-the question presented to this Board:
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Ilouover' compelling the facts may be in' the instanc case, the court does not.have the power to amend the legislative act' in order to rect.ify the alleged Congraccional ' oversight.'
To do so re-quires the court to legislate and not to interpret a statute which is. clear and unaubiguous.
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a general rule, '[w]here a statute makes specific exceptions to its general provisions, it is generally safe to assume that all other execptions were intended to be excluded [ Footnote omitted]. '
As this court has stated, while 'the Act is to be construed so as not to defeat its intended objectives th is does not metin the courts are empowered to define the
,langunga of the Act so as to legiclate ubero Congress has failed to da so [Pootnoto cuitted.] '
Applicants' argument before thin Appeal Board in bacc0 net on specific Congrocciont1 lingence, but in some vaguo not.ica
- t. hat it vould have been better policy if Congress had authc:-ired
'a third c::ception.
Ent if' t.he Cemissio;, does, not have the pouer to cr:he the orcoption, ':1.he fccu thac it hight ha beneficid in immater ial, 111 Atv D':cde; Co. v. _ Coll ir:7, 80 Cal. App. 2d /.30, 199 p.2d 34, 42 (1948).
Moreover,vearepresendedherc.uithastatutowhichsets out the boundarios of the power 3:hich this agency may excreire.
Administrative bodies should be particularly cautious when asked, as here, to exerciye powers which have not boon speci-fically authorized.
Administrative bodios are creatures of statute; they have no common law pouers and possess only such powers as may be ' conferred upon them by the legislature.
- See, e.g.,
Gardner v.
Ewing, 88 F.
Supp. 315, 321 (E.D. Chio),
aff'd, 185 P.2d 781 (6th Cir. 1950), modified on other crounds,
- 341 U.S. 321 (1951).
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The. authority claimed by Applicants for the broad.propon i-tion that the gener.cIly recognized rulon of statutory conntruc-tion', which have been quoted, are "under attack" cnd chould be diccarded, !!ational Petroleum Refiners Ass'n v'.
F.T.C.,
432 F.2d 672 (D.C. Cir.}, cert. d en i e d, 415 11. S. 951 (1973), in fact illustrates the caution with chich co~ur tc approach legisictIve grants of power to cdministrative bodi.es.
Deciding uhether the Federal ' trade Commiccion hcd authority to prc:mulgcto trcde regulation rules, JudC6 Uright too?. a hard look at th e F. 'f. C. ' 9 -
authorizing logiclatica, and found cpeciJ.'Jc Congrcccioncl aut.horizat'lun for the ou:..rc clcinad by t'a ege:Jcy, in a sec -
J tion ellouing the F.T.C. i.o un::e rules an't regu'lat ions to ec.u y out itc other dut'ien.
i.:o r e o v e r,. the court e::t. mined the prret.ic:
of other agencies with similcr atttutory p;ovidions to find prev.ious Supreme Court approval of 'clocely analogous claims, 482 F. 2d at 678.
Here, in, contrast, Applicants can point to no direct or analogous statutcry authority, and hang their arguz:nt instead on argunents about what ought,to be and brocd language unrelated to the actual holding of the case they cite.
The correct rules in this regard ha.ve boon set out by the Hearing Board, which relied on IAdison v.
Iiolly Fruit Pr o d u c t ":,
322 U.S.
607, 617 (1944).
The language of Justice Frankfurter l
in that case, interpreting the Fair Labor Standards Act, controls here:
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In short the Administrator was not lef t at large..
A new national policy was bere formulated with exceptions, catalogued with particularity and not left uithin the bro.ad dispensing power of the Administrator.
Exeuptions cade in such detail prec1ude their enlargement by imp 1ication.
III.
APPLICANTS DO NOT PRESENT THIS BOARD h FACT SITUATIC;? OF SUFFICICHT URGi;1?CY 'IG MARONT
' Tile CONSIDE'iATION CF POSSIBLE POST ' LICl:2SI;;G ANTITRUS5' RiLVIEU.
Although Applicents-have node allegations of great urgency in setting this issue. before tho' Appaals Scard, upon examina t ".On,
these al3egations prove to be hig'O y sp: t nlative.
7n fact., th ic Bocrd is not even confronted with a fact,itun t ion which p :, een ta i
a c) car conflict betwcon ' the c.nt i'.rnct revleu process and the urgency of mahir.g electric p.ower av:.il'e61. to consumers.
T ht'r,
even if one escuand, t s the Dept.r t,.wr.t of course dcas not, that the stetute permits the Commit,sion to formulate further excep-tions to the prelicensing antitrust review norm, the Board certainly should not consider formulating cruch r.n exception or cpplying it' to the Applicantin en the bat,is of 1.he undevelcped fact situation here procented.
A.
The facts presented this Board are not sufficiently ripe to provide a basis for foruulation of env further excentions.
The facts which under'11e Applicants' motion ind ica te that at some time, presumably seven months in the futt$re, Appl'icants anti-cipate that the ' Davis-Besse plant Unit I, will be ready for fucl I
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loading.
Between the time these memoranda are being filed and the projected date for fuel loading, tlicro exists the real pocsibility that the antitruct review may have-run its cource.
If it has not, Applicants are free to renew' their motion at a time uhen the conflicts between the need for pouer and the ctatutory requirement of prelicensing antitruct revice are draun more charply into contract.,
At thic time, houever, the problem ubich has been presented this Board is neither real and present nor isminent, and Applicenta uculd be hard precced to cho: that the ir interects are cubje :ted to or imminentl-f threatened uith cubrtantial injury. */
This Doord rhould not reach'to foruolate cxecptionc to an unambigecuc plainly worded ctatuto dtfining t.n instance of regulatory diccretic;n to dcviate from a clearly set forth scheme of antitrust revieu, when 'the issues are still nascent and not sufficiently c1crified and whou, in the cource of the regulatory procecc, it may never b2 r.ccessary to face thic question, cf. nescuo Arnv v. Municip,1 Cour.t, 331 U.S.
549 (1947).
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This is the standard for ripeness enunciated by the Supreme Court in such case's as Public Utilitics Coirmiscica v.
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Un i teci States, 355 U.S. 534 (195u); point Ajit i--Fi. s e"i c t etucce Committee v.
McGrath, 341 U.S.
123 (1953); Pierce v.
Society or sisters, 260 U.S.
510 (1925); Village of buclid v.
Ambler Realty Co.,
272 U.S. 365 (1926).
. Compare Applicants' statesent tha t "[t]he undecirable delay 1
will occur, heuever, if uoon comoletion of the construction of Davis-Besse Unit 1 on3 before cc:tolerien of antitruct review, a grandf athe. red operating licence is not granted by the Commiscion."
Applicants' Memorandum at p.
25.
(Emphasis a'dded.)
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l There is no necd for thic Board.to take cuch action with all the implications this decicion wiil have for other licensing proceedings in tho' future, in the conte::t' of. a case which does
".not even precent sharply the dual public polic-ies involved:
the~. imminent need for electric power and the fundenental national interest in economic competition..
If-Appli~ccuts in this c cc ucre to recolve a favorable interpretation of the utatute ca the basis of the factc horn procented, it is not difficult to inaginc "grandfathatir.g" motions bol:.9 peccent d ut carlict and ctrlicr ntcgcc in liconsir.3 proceediics, cn the stronyth of unsubstantiated allegationr of dntec for f.usi lunding.
Such r.:ot. ion; vould un6arcut. the licensing prce:Sure by reducing applicant.a' incentive to c::pedito pre-h. -Tring p'roccCare.s and uould slo.' the hecringc themsciven.
A dacisica.to grant, or even entertain such mot ~ ions, would. clearly fly in the face
' of the statutory scheme, which anticipctes thct even ubere the need for pouer is'ctrong, "there may.bc situations where the Com:aission might conclude that the public interect vould be better served by delay,ing the iscuance of a license until antitrust problems ar'c solved."
116 Cong. Rec. 9449 (daily od., September 30, 1970) Incmarks of Mr. Price of Illinois).
The Department urgcc that this Board def er answering its Question (c) until such time as it is presented with a factual
- procentation which puts these questions nore s'harply into issue.
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B.
The facts presented by Applicanto do not present a situation of. cufficient urgency to reauire " grand-f a th er in(j, " cvon if Applicents otherwise fit within the ctatutory clacs entit1;d to such an oncention.
Moreover, even if 'these Applicants had 'chown that they clearly fit within one of the two cicar ctatutory exceptions to prelicencing antitruct review, issuance of an operating peruit prior to reyion would by no means be automatic.
Sub-coction 10Sc(S) only provides that in certain instances the Commissicn nly, "upon determinatica that auch actic-n is neccccary in the public in;.orent to c.vo16 u;mc cessary delay,"
act.
Thus, eve:. then the conditim.. of that cubcoction are met, the Cormission munt utill mat.o a det:erminz.' tion that pan; licei ning review ic in the public intere$t, a finGi:c thc.t : t c',
j be cet into the content of the conurns n cing Congress i: hen l '.
enacted thic section.
When Congrecs act_ed, the nation was faced with brounouts and blackouts which indicated that there was insufficient electric.poucr to serve the nal-ion's demand.
Ma61-festly, the Congress envicioned the possibility of a conflict between the need for power and dela is. in the antitrust revieu.
Subsection 105c(8) placed in the Commiscion a certain "flexi-bility"; further, the sponsors of the provision expressed the
. Congress' hope ~ that it would be " benevolently and sensibly used to help avoid unnecessary delays in the scheduling of
. needed pouer plants."
116 Cong. Rec. 9446 (Remarks of Mr.
Ilosmer. )
Mr. Ilosmer went on to state that, "[w] hat the com-mittee is talking about here is things that mi~ght delay or 18 6
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impeac bringing necoscary and desirable power to the utility system."
In chort, the Congrecs uns concerned cbout a clear conflict betueen the immediato provicion of ' electric power and the antitrust review process.
1 o such conflict is precented to thic Appeal Board.
As we have noted in Section IIIA nbove, lippl icant allegcc*that the plant in question vill be re:.ly for. the londing of fuel in
' Scpter.bor 1976.
This is the latest in c serics of projected detec Ior inel Icedir.g readinc.%.
Even.:nsuning thct Appli-cents are chle te moet thin latest projectcd date, it is still nore than a hcif yedr auny.
- 3y the t.ia
- the pli:n t is rerCy for fuel leading, ccedover, the antitruct. review proceeding nay vall Love bcen cc,cp.icted.
Ind.cS.
th.. Ucar ing 1:ourd itael anticipates'that tha hecring vill be cocple tef in. ::ay and Applicant allegos a'May-June date.
The hearing can easily be t
completed cnd an' opinion iscued by the end of the summer. f/
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An noted by the Hearing'Peard in its Order isoned January
/, 1976, any decisien that pect licensing review uould be appropriate in this case could not be reached without firct satisfying the. statutory proviso that an operating license so issued contains inter im conditions suf ficient to insure that cubsequent findings and orders "will be given full force and effect."
(Order at p. 7, n. 3).
The Hearing Board further noted that no acceptable interia conditions have been proposed and that there is presently no record upon which such condi -
tions coulo be based.
M. hen the Hearing Board icsues its opinion, an adequato evidentiary record upon which to ' base interim conditions will have been compiled.
Indeed, any condi-tions ' formulated by the H. ear ing Board could voll be employed on an interim bacic if it wcc then felt necessary to iscue the operating license for Davis-Desse, Unit 1, prior to the te r m in-ation of this proceeding.
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e e
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Applicants are, in effect, acl:ing this Appeal Board to enti-cipate the IIearing Doard's decision,' cs ucll as its tiraetab3 e
. for decision, when it a's!rs at this ctage that cn operating permit be allowed to issue in advance of antitrust review. */
In suta, even if Applicants ucro metabers of the class for which the c:-:coptionc vero fanhicned in section -105c(C), an of
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cc,uccc they clearly are not, the fcets' of this ccca wou]( not Ucrrcnt. thic Cocc.tission to c::crcise its diccretion to grcnt en c::ception to prelictncing 2:nti truct revie" at this very preif:LturO s tilg c.
i
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Applicar)t argues that this Ilear ing Board 's timetable is not possible, and points to the Connur.orn cose.
It should be noted that one member of the !!aaring licard in that cano died durisig deliberations.
- 1. good deal of the delay in that pro-cocding can be attributed to thct unucual circumstance.
In any case, the evidence is that this llearing Board in mooting its schedule.
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CONCLUSIOli For the.foregoin'g reasons, the Departm'ont urgcc the f.ppeal Board to affirm the Order of the IIcar ing Board, of January 7, 1976.
Rospectfully cubmitted, STEVEH M.
CilARMO.
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74
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Attor.ey:
Antitrust. Di<i." ion Dep:':tuent ci Jnctice B
February.17, 1976 e
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a CERTIPICATE OF SERVICE I hereby certify t' hat copies of MEIIORANEU 1 OF Ti!E DEPART 1E :T t
OF JUSTICH IN OPPOSITION TO APPI.ICANTS' MOTION FOR 1;ETEnli1NhTIOM TIlAT DAVID-BESSE UNIT 1 IS "CRANDPATHSJ:ED" POR PURPOSES C? OPERA-j' TIGN have bcon served upon all of the parties 'Isted on the attachment her.7to eit.her by deposit in Cic Uni ted Staten r.: ail, firct clacs or c?rranil, or by hand c'clivery, this 17th My c:
Febt.uary, 197G.
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P' t
f, ;/z M
ew.p-Iluth Greentpan lic1.L httorney,. Antitrust Division Departnicnt of Justica G
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ATTACUMENT Douglas V. Rigler, Esq.
Gerald Charnoff, Esq.
Chairman, Atomic Safety and Wm. Dradford neynolds, Eng.
Licensing Doard Rol>crt E.
Zahler, Esq.
Foley, Lardner, Hollabaugh Jay H. Bcrnstein, Esq.
and Jacobs Shaw, Pittman, Potts &
815 Connecticut Avenue, N.W.
Trowbridge Washington, D.C.
20006 1800 M Street, N.W.
Washington, D.C.
20036 Ivan W.
Smith, Esq.
Atouic Safci;j and Licensing Frank E.
Clokey, Esq.
Board Special Assistuut, Attorney l'ucleza.. Regulatory Connission General Washingtori, D.C.
20555 Room 210 Towne nouce Ape.rtents John M. Fryriak, Esquira Harris:aurg, Penr.nylvan '.
.'.7105 1stca. tic Saf ct./ and Licencing roard Donr l d: H. H aun m, Eng.
Nuc:.nar negv3 otory Ccaric: lon Victor A.
Greerrlcde, Dr., 1%.g.
^
Wi:ahing ton, D.C.
20.75S The C3.cv. Innd !.:.lectric Illeni6c.;.ing CU :pt.ry Atc?. c Safet:,' and Liccncing 55-PuM.ic Iqua.c l'. card Pnnal Clevelan0., Ohio 44102.
Noclccr Regp3atory Cortatincion Ut.shington, D.C.-
20555 Leslin He::49, Ena.
Michar:1 F.. B.ciluy, Ucy.
Dochetine; ar.d Earvica Scal-ion Rogcr P.
Kice, Eng.
Office of the Secretary Paul M.
Smart,. Ecq.
Nuclocr Regulatory Comaission
. Fuller, Henry, Hodge & Snyder Washington, D.C.
20555 Post Office Don 2088 Toledo, Ohio 43604 Reuben Goldberg, Esq-Spotrino, Ecq.
Dav.id C.
Djclnfelt, Esq.
Russc.1 J.
)
Goldberg, FielCann &
Thort.r.c A.
Kayuha, Esq.
Hjelniiclt Ohio 1:dison Company 1700 Pennsylva::ia Avenue, N.W.
47 North nain Strcot Suite 550 Akron, Ohio 44300 Washington, D.C.
20006 Terence H.
Denbow, Esq.
James B.
Davis, Director of A.
Edward Grashof,'Esq.
Law
^
Steven A.
Berger, Esq.
Robcrt D.
Hart,,1st Assistant Winthrop, Stimson, Putnam Dircctor of Law
& Roberts City of Cleveland 40 Wall Street 213 City Hall New York, New Yor!r 10005 Cleveland, Ohio
_44114
-- - - -- - Th oma s J. 14unsch, Esq.
Atomic Safety and Licensing General Attorney Appeal Board Panel Duquesne Light Company Nuclear Regulatory Co:ralission 435 Sixth Isvenue Washington, D.C.
20555 Pittsburgh, Pennsylvania 15219 e
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David Olds, EE..
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Willimu S. Lorsch, Esq.
Reed,_ Smith, Shaw & McClay Union Trust Building Box 2009 Pittsburgh, Penne Ivania 15230 Leo A.
Rau, Esq.
Joseph A.
Rieser, Jr., Eng.
Reed, Sr. tith, Shaw & McClhy Madison Buildinr3 - Rcem 404 1155 151.h Strcet, N.W.
Washington, D.C.
20005 Edward A.
Matto, Psg.
Richard M.
Firc:ri one, Esq.
Karen H.
4dkinn, r:q.
Antitrust Section
-30 E. Brxd Street 15i:h Picar Coltmhus, Ohio 43215 Christo?h'er R.
Schraff, Ung.
J.csist::n L Attorney Gcnorai Environwntal Lrt.-'Section 3G1 E.
D;c ud S bract.
I'th Ploer Columbun, Ohio 43215 James R. Edgerly, Esq.
Secretary and General Counsel Pennsylvania Pcwor Company One Enct Washington Street Ucw Castle, Pennsylvania 16103 John Lansdale, Esq.
Cox, L.mgford & Drown 21 Dupont Circle, N.W.
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Washington, D.C.
20036 Michael R.
Gallagher, Esq.
Gallaghcr, Sharp, rulton,'
Norman & Mollison 630 Bulklcy Building Cleveland, Ohio 44115 Jack R.
Goldberg, Esq.
Benjamin H. Vogler, Esq.
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Roy P.
Lessy, Jr., Esq.
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Office of the General Counsel Nuclear Regulatory Commission Washington, D.C.
20555 r