ML19329F598
| ML19329F598 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/13/1971 |
| From: | Lowenstein R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8007020753 | |
| Download: ML19329F598 (11) | |
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UNITED STAT!'S 07 A"2EICA ATOMIC ENERGY CON!"1SSION In the Matter of
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CONSUFEES POFER COMPANY
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Docket !!os. 50-329
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50-330 (Midland Plant, Units 1 and 2) )
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.j, PIMORA';DU:1 OF APPLICANT IN OPPOSITION TO SAGI!A*1 INT"RVENC3S' S'OTTON SERVED AUGUST 3, 1971 The Saginaw intervenors have moved for an order rascindi: g Applicant's authority to do any further construction pursuant to the cunptien granted to it under 10 CFR 550.12 and fcr an crder preventing any further procurement or manuf set' Ira of ccraponents for the prep 0 sed plant. As this motion has nothing to do with tha questien of whether or not a construction per.it shculd issue, Applicant believes that it is not within the Board's jurisdiction. Moreover, the Saginaw intervenors were of the view last Decerber that purely legal issues should be disposed of early in the proceeding (Tr. 306). While it would not be fair to treclude them frem raising now legal issues which are based on new developments, such. as Calvert Clif f s, insofar
- The first sentence of the notice of hearing in this case states that "a hearing will be held.
to consider the application filed under S104 b of the Act by the Consumers Power Co. (the applicant), for construction permit 0 for two pressuri=ed water nuclear reactors, each designed to cperate 1
initially at 2,452 mecanatts (thermal) to be 3ccated at the applicant's site in Midland Township, Midland County, :tich."
l THIS. DOCUMENT CONTAINS POOR QUAllTY PAGES 67) 8007020
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as this motion is based on the contention that AEC regulations are in conflict with the Atomic Energy Act, a proposition which should have been equally anparent nine months ago, it comes too late and should not be considered. We will nevertheless proceed to deal with the motion on its merits.
I.
Applicant stepped all construction at its Midland site on November 9, 1970.
On November 14, 1970, it vice president, Mr. Russell C. Youngdahl, stated publicly:
"[W]e have performed most of the construction work we had planned to do before the issuance of the permit. We therefore are closing down the job until the permit is receivcd."
This is still the Applicant's intention. Consequently, that part of the Saginaw Intervencrs' motion which seeks to revoke Aoplicant's authority to engage in further construction under its exemption is academic.
II.
That part of Saginaw Intervenors' motion seeking to prohibit any rurther procurement or manufacture cf corponents for the Midland plant is contrary to a Commission regulation. 10 CPR 550.10 (b) provides, insofar as is relevant:
"(b) No person shall begin the construction of a production or utilization facility on a site on which the facility is to be operated until a construction pernit has been issued. As used in this paragraph, the te rm ' construction' shall be deemed to in-clude pouring the foundation for, or the installation of, any portion of the permanent facility on the site, but does net include:
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" (2) Procurement or manufacture of com-ponents of the f acility;"
The Saginaw intervenors recognize the applicability of the regulatien and give three alleged reasons for granting their motion despite it.
First, they argue that the regulation is in conflict with Sections llec(2), 101, 10 3 (a), 185 and 189 of the Atomic Energy Act and is therefore invalid. They clain that these sections,
"when read together, expressly require a hearing prior to con-struction of or manufacture of important compenent parts of a utilization facility." This centention is erroneous.
Secticn 101 of the Act makes it unlawful to manuf acture "any utilization or producticn f acility except under and in accordance with a license issued by the Commission pursuan*:
to section 103 or 104."
Section 11cc of the'Act provides:
"The term ' utilization facility' means (1) any equipnent or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of scecial nuclear material in such quantity as to be of significance to the connon defense and security, or in such manner as to affect the health and safety of the public, or ceculiarly adapted for making use of atomic energy in such quantity as to be of sig-nificance to the common defense and security, or in such manner as to affect the health and safety of the public; or (2) any imoortant
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comoonent aart esnecially desicned for such equir-ment or device as deterntned by tne Commicsion. "
(Emphasis added).
The first comprehensive set of Part 50 regulations proposed by the Commission af ter the enactment of the Atomic Energy Act of 1954 (20 Fed. Peg. 2426, April 15, 1955) provided, in 550.10:
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"Except as orovided in 550.11, no person within the United States shall transfer or receive in interstate conmerce, manufacture, produce, transfer, acquire, possess, use, import, or export any production or utilization facility except as authorized by a license issued by the Commission."
It also stated, in S50.2:
"As used ir. this part:
" (b) 'Utilizatien facility' neans any nuclear reactor other than ene designed cr used primarily for the forration of plutonium or U-233.
NOTE : Purnuant to sections lip. and liv.,
respectively, of the act, the Cenmission may fron time to time add to, or otherwise alter, the foregoing definitions of production and utilizatien facility. It may also include as a facility an incertant conocnent cart especially designed for a fccility, but has not at this time included any component parts in the definitions."
These proposed regulatiens were put into effect at the beginning of 1956 (see 21 Fed. Peg. 355 (Jan. 19, 1956)) and 550.2 (b) is still che sane except for the sections of the Act referenced, which have been redesignated. In 1960, 550.10 was expa ded n
to encompass the explicit language now contained in S50.10 (b) (2).
The Commission, in promulgating the new regulation, clearly implied that it did not represent a new development in Commission policy, stating rather that it was designed to provide for
" clarification of work permitted or prohibited with resoect to any production or utilization facility prior to the issuance of a construction pe rmit. " 25 Fed. Reg. 8712 (Sept. 9, 1960).
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The Corcnission has not determined that any component part of a utilization facility should be included within the definition of " utilization facility". Applicant is not engaged in the manufacture of a utilization facility as this term is defined in the Atemic Energy Act and Commission regulations. Therefore, contrary to the contentions of the Saginaw intervenors, Applicant is not in violation of Section 101 of the Atonic Energy Act.
As we have shown, the Comnission's views on this question i
have been consistent from the beginning and,. even if the Act itself were anbiguous with respect to it, they would be persuasive. Consistent interpretation by an agency of a statute which it administers is entitled to great weight.
9rotherhood of Maintenance cf May Employees v. United States, 26G U.S.
- 169, 179 (1961). This is particularly true " shen the hdministrative practice at stake ' involves a contemporaneous construction of a statute by the men charged with the respcnsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new'."
Po'ter ReactIer Develocment Co. v. International Union of Electrical, Radio and Machine Workers, 367 U.S.
396, 408 (1961).
Moreover, on October 20, 1955, the Commission sent a communication to the Panel on the Impact of the Peaceful Uses of Atomic Energy, which had been established by the Joint Committee on Atomic Energy, stating in part:
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'On April 15, 1955, a draft regulation was published in the Federal Register as 10 CFR Part 50 under a Notice of Proposed Rule Making.
The facilities to be licensed under the proposed regulation include all reactors, gaseous diffusion and other isotope separation plants, chemical processing and fuel element fabrication plants.
The facilities regulation applies only to complete production or utilization facilities and not to conponent parts such as centrol mechanisns, instruments, pumps, and similar items."
This communication was transmitted by the Panel to the Joint Cormittee in January of the following year.
BACKGROUND PATERIAL FOR THE REPORT OF THE PANEL ON TIiE IMPACT OF THE PEACEFUL USES OF ATOMIC ENERGY TO THE JOINT COMMITTEE CN ATOMIC ENERGY, PEACEFUL USFS OF ATOMIC ENERGY, Vol. 2 at p. 637, 84th Cong., 2d Sess.
(Comm. Print 1956). Again, in 1960, the Joint Comnittee on Atomic Energy was informed of the proposed.new S50.10 (b) which explicitly pernits the procurement or manufacture of components prior to the issuance of a construction permit. Develcoment, Growth, and State of the Atonic Enercy Industry, Hearings Before the Joint Comnittee on Atonic Enercy, 86th Cong., 2d Sess. 101-02 and 144 (1960).
In its Annual Report,to Congress for 1960, at
- p. 236, the Commission informed Congress that this mmendment had become effective on October 10, 1960.
Although "it may often
- It is worth noting, especially with regard to the Maoleton intervenors' motion to disniss dated August 9, 1971, that AEC Commissioner Graham, in his testinony at o.
102 of those hearings, stated that one of the items which an apolicant could procure before the issuance of a construction permit could be a pressure vessel.
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be shaky business to attribute significance to the inaction of Congress," in view of "the peculiar responsibility and place of the Joint Committee on Atomic Energy in the statutory scheme," we submit this is evidence that Congress acquiesced in the Commission's consistent view that the Act gives it discretion to permit the procurement or manuf acture of com-penent parts before the issuance of a construction permit.
See Power Reactor Develorment Co. v.
International Unicn, etc.,
367 U..S.
396, 408-09 (1961).
The Saginaw Intervenors' second argument in support of that part of their motion seeking to prohibit the procurenent and manufacture of components (Motion, pp. 2-3) is that such procurement and manufacture " creates an atmosphere of under-lying pressure upon the Board" because Applicant's investment in them will make the Board "less inclined to say
'N0' to the Applicant than it might if Applicant had not made such an investment."
A similar argument was made and rejected in Power Reactor Develoonent Co. v. International Union, etc., 367 U.S. 396 (1961).
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The issue there was whether the AECi in issuing a constructicn l
permit for a nuclear reactor, had to make the same definitive finding of safety of operation as it would have to make before granting an operat'.g license.
Id. at 398.
Although the D.C.
Circuit had held that it did, the Suoreme Court held that it did i
not.
The intervenors there made an argument " tantamount to an insistence that the Ccmmissica cannot be counted on, when the i
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l time comes to make a definitive safety finding, wholly to exclude the consideration that PRDC will have made an enormous inves tment. "
Id. at 414-15.
The Supreme Court disagreed. It pointed out that "the Commission is absolutely denied any authority to consider this investment when acting upon an application for a license for operation", that the Applicant was on notice of this and that an operating license could not be issued unless the ACRS and the AEC, after a hearing if requested by anyone, had i'
satisfied themselves that the plant net the safety standards imposed by law.
It concluded by saying:
"We cannot assure that the Commission will exceed its powers, or that these many.
safeguards to protect the public interest will not be fully effective."
Id. at 415-16.
Finally, the Saginaw Intervenors contend (Motion, p.3) that the orocurement or manufacture of conoonents for a nuclear power plant constitutes an " irreversible ' and irretrievable commitment of resources" within the meaning of NEP'A.
This is patent nonsense. Parts and comoonents not yet built into a plant can either be sold for use elsewhere or used at another site, if need be.
While some money may be lo'st, there is no " irreversible and irretrievable commitment of resources." Even more signi-j ficantly, the procurement or manufacture of components does not
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In addition, since as we have shown, AEC licensing is not required for it, the procurement or manuf acture l
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f of components for a nuclear power olant does not involve any action on the part of the Federal Government. For these reasons, S102 (2) (C) of NEPA has no application to the procurement or manufacture of components and there is thus no basis for the Saginaw intervenors' request (Motion, p.5) that the Board prohibit "further manufacture and procurement of components for the facility until such time as the detailed MEPA statement has been submitted and reviewed by this Board and the parties."
The Saginaw Intervenors further argue (Motion, pp, 4-5) l that the D.C. Circuit's recent coinion in Calvert Cliffe Coordinatina Comnittee v.
U.S.A.E.C.
"nado quite clear that a full and f air enforcement of NEPA would require the granting of the motion nou being made by Intervenors." The first sentence of the alleged quotation at the bottom of p.4 of the Saginaw motion reads:
"... rather, before envirennental damage has been irrecarably done by full censtruc-tion of a facility, (or final orocurement and manufacture of comconents), the Cemnission must consider alterations in the plans."
The unedited and unabridged version of that sentence is:
"We hold that the Conmission may not wait until construction is entirely. completed and consider environmental factors only at the operating license hearings; rather, before environmental damage has been irreparably done by full construction of a facility, the Commission must consider alterations in the plans."
The insertion in that sentence by the Saginaw Intervenors of the brecketed phrase "or final orocurenent and nanufacture of components " is unjustified by anything i-the coinien.
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. A reading of the paragraph cuoted f ron in its entirety makes it clear that the Court was saying that, where a plant has been granted a construction permit without a NEPA review, the Commission may not wait until the conpletion of construction before conducting such a review but must do so promptly.
Of course, the Court also held that, in a case such as the one at bar, in which a construction permit has not yet been granted, there must be a full NEPA re iew before it is granted. The Court said nothing at all about the procurerent or manuf acture of component parts and did not even hint or imply anything about it.
As this issue was not bef ore it, it is not likely that the Court had it at all in mind in writing its opinion.
CO::CLUSIrn For all of the foregoing reasons, the notion should be denied.
August 13, 1971 Respectfully subnitted, "Mv
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&k LOWE:ISTEIN MJD !;EE"AN l
1100 Connecticut Avenue, N.W.
Washington, D.C.
20036
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Attorneys for Applicant Consumers Power Company Of Counsel:
Robert Lovenstein Harold P. Graves John K.
Pestrick Jerone E. Sharfran Richard G.
Smith
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UNITED STATES OF AMERICJ i
ATOMIC ENERGY COMMISSION In the Matter of
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CONSUMERS PONER COMPA'lY
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Docket Nos. 50-329
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50-330 (Midland Plant, Unit 1 and 2)
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CERTIFICATE OF SEPVICE I hereby certify that copies of the " Memorandum of Applicant in Opposition to Saginaw Intervenors' M0 tion Served August 3, 1971",
dated August 13, 1971, in the above-captioned matter has been served en the follouing in oorson or by deposit in the United States mail, first class or airmail, this 13th day cf August.
Arthur U. Murphy, Esq., Chairran Milton R. Fessel, Esq.
Atomic Safety and Licensing Board Kaye, Scholer, Fierman, Hays Columbia University School of Law and Handler Box 38, 435 West ll6th Street 425 Park Avenue New York, New York 10027 New York, New York 10022 i
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Dr. Clark Goodman James N. O'Connor, Esq.
Professor of Physics The Dow Chemical Connany University of Houston 2030 Dew Center l'
Houston, Texas 77004 3801 Cullen Boulevard Midland, Michigan 48640 Myron_M. Cherry, Esq.
Dr. David B. Hall 109 N.
Dearborn Street,
Los Alanos Scientific Laboratory suite 1005 P.O. Box 1663 Chicago, Ill.
60632 Los Alamos, New Mexico 87544 Algie A. Wells, Esq., Chairman William J.
Ginster, Esq.
Atomic Safety and Licensing Suite 4 Merrill Building
. Board Panel U.S. Atomic Energy Commission Saginaw, Michigan 48640 Washington, D.C.
20545 James A. Kendall, Esq.
Stanley T. Robinson, Esq.
135 N. Saginaw Road Chief, public Proceedings Branch Midland, Michigan 48640 Office of the Secretary of the Commission Anthony Z. Roisman, Esq.
U.S. Atomic Energy Commission Berlin, Roisman and Kessler Washington, D.C. 20545 1910 N Street, N.W.
Washington, D.C.
20036 Irving Like, Esq.
200 Pest Main Street Thomas F. Engelhardt, Esq.
Babylen, N.Y.
11702 U.S. Atomic Energy Conmission h(
/;w-G(D jfk7 Washington, D.C.
20545
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(' / Jerome E.
Sharfman U
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