ML19330A213
| ML19330A213 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/13/1971 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007150982 | |
| Download: ML19330A213 (5) | |
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so:Kitta UNITED STATES OF AMERICA 9
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ATOMIC ENERGY COMMISSION 4
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD to N
In the Matter of
,,g CONSUMERS POWER COMPANY h
Docket Nos. 50-329 h
50-330 (MidlavdPlant, Units 1and2)
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ANSWER OF AEC REGULATORY STAFF TO "MDTION OF SAGINAW VALLEY NUCLEAR STUDY GROUP, ET AL. FOR THE RESCINDING OF :XEMPTION TO DO SITE CONSTRUCTION AND PROHIBITING FURTHER PRCCUREMENT OR MANUFACTURE OF COMPONENTS UNTIL AFTER HEARING AND ISSUANCE, IF ANY, OF A CONSTRUCTION PERMIT" On August 3,1971, intervenors Saginaw Valley Nuclear Study Group et
& (intervenors) filed a motion seeking (1) "an order withdrawing the exemption for site construction and procurement of components for the facility until such time as the detailed NEPA LNational Environmental Policy Act of 196f statement has been submitted and reviewed by this Board and the parties" and (2) a ruling "that the cost-benefit analysis that must be made under NEPA should not give any consideration to costs thur far incurred or to be incurred by applicant in connection with construction or manufacture or procuremens of components." '
In support of their motion the intervenors conterd that the regula-I tions under which the challenged activities have bien or are being conducted,10 CFR 50.10(b)(2) and 50.12, are in conflict with sections 11 cc.(2),101,103(a),185 and 189 of the Atomic Enerp Act of 1954, as amended (Act), and are therefore invalid; that even if the validity of those regulations is assumed, "the continuation of such construction, manufacture nd procurement creates an atmosphere of underlying THIS DOCUMENT CONTAINS
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. pressure upon the Board...and a very real built-in prejudice to Intervenors receiving a fair hearing"; and further, that " continuation of construction and manufecture and procurement is the kind of irre-versible and irretrievable commitment of resources which section 102(2)(C)(v) of NEPA requires to be analyzed prior to its being made."
l We note at the outset that the applicant long ago suspended construc-tion activities authorized by the exemption it received from the AEC on July 30,1970.0 Since the intervenors claim no resumption of such activities, we suggest that the issue raised by their motion, insofar as it seeks revocation of the applicant's exemption, is moot and should, accordingly, be denied by the Board.
As regards the intervenors' motion for prohibition of further pro-curement or manufacture of components by the applicant, we call to the Board's attention the fact that 10 CFR 50.10(b)(2) specifically pennits such procurement or manufacture.U Therefore, in our view, O The halt in construction at the Midland site is documented in l
AEC Division of Compliance Reports Nos. 329/71-1 and 330/71-1, I
in evidence in this prnceeding as part of Intervenors' Exhibit No. 36.
U n any event, the Board lacks jurisdiction to enter an order I
prohibiting procurement or manufacture of components by the applicant, or, for that matter, an order revoking the applicant's exemption. See Memorandum and Order of the Atomic Safety and 1.icensing Appeal Board dated January 22,1971 In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1). Docket No. 50-322.
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_ the Board should deal with the intervenors' motion as a challenge to a Comission regulation in accordance with the guidelines enunciated by the Comission in its Memorandum dated August 8,1969. In the Matter of Baltimore Gas and Electric Conrany (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-317 and 50-318. These guidelines orovide in part that "if the board believes there is a substantial question presented on the record as to the validity of a challenged regulation the beard should certify that questian to the Comission for guidance prior to rendering [a]... decision." (erphasis added)
However, as the record now stands, we see presented no substantial question as to the validity of section 50.10(b)(2).
First, with respect to their contention that section 50.10(b)(2) is in conflict with specified sections of the Act, the intervenors offer essentially no more than the bare assertien that "[t]hase sections, when read together, expressly require a hearing prior to construction of or manufacture of important cocponent parts of a utilization facility." We, on the other hand, see no express requirement in the Act that a hearing be held prior to procurement or manufacture of the components. As pointed out above, we see no reason for the Board to reach the question as to the legality of the now suspended activities at the si's.
Secondly, the intervenors' suggestion of possible prejudice ("[F] aced with the fact of millions of dollars of invest:nent by aoplicant, the
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.. board will be less inclined to say 'N0' to the Applicant than it might if Applicant had not made such an investment.") is not persuasive. See Power Reactor Development Company v. Electrical Workers, 367 U.S. 396 (1961). where the sarne argument was rejected by the United States Supreme Court.M The intervenors likewise present no substantial question as to the validity of section 50.10(b)(2) through their third argument, which is based on section 102(2)(c)(v) of NEPA and relies heavils on the recent decision in Calvert C11ffs' Coordinating Comittee v. AEC (CADC Nos. 24.839 and 24.871. July 23,1971). In that case, however, the court's attention was focused on the possibility that construc-tion of a facility at its site might proceed to completion prior to environmental review by the AEC. The court did not consider the significance of such lesser commitments by an appitcant as procurement and manufacture of component parts. But even as to tne matter of actual construction of the facility, the court clearly refrained from holding that the Comission must halt an applicant's activities pending environmental review. Rather, under Calvert Cliffs, the Com-mission must consider whether such action is necessary in order that "the envirtmeental review be as full and fruitful as possible."
E *The petitioners concede that the Commission is absolutely denied any authority to consider [the applicant's] investment when actin upon an application for a license for operation [or construction]g....
We cannot assume that the Comission will exceed its powers..."
367 U.S. at 415-16.
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. The intervenors' motion is deficient in that it does not show why future procurement and manufacture of components by the applicant would in fact prevent an environmental review that is as full and fruitful as possible. In effect, the intervenors invite the Board to reach this conclusion as a matter of law. We do not agree that the intervenors' legal proposition is self-evident. In point of fact, the record in this proceeding already suggests that the appit-cant's 1,rocurement expenditures are, in the main, " recoverable."O Finally, we submit that the intervenars' motion is academic insofar as it requests an advisory ruling that in any cost-benefit analysis pursuant to NEPA no cons 1@ ration may be given to costs incurred or to be incurred by the applicant in connection with construction or manufacture or procurement of components. The applicant has not, and perhaps may never, apply for such consideration of its investment.
For the reasons set forth above, we urge the Board to deny the intervenors' motion.
Respectfully submitted, V
David E. Kartalia Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland, this 13th day of August,1971.
NApplicant's Exhibit No. 36 (response to Dr. Goodman's question at Tr. 2494).
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