ML19331A203
| ML19331A203 | |
| Person / Time | |
|---|---|
| Site: | Palisades, Midland  |
| Issue date: | 01/11/1970 |
| From: | Cherry M MCDERMOTT, WILL & EMERY |
| To: | Goodman C, Hall D, Murphy A Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19331A206 | List: |
| References | |
| RULE-PR-50 NUDOCS 8006180651 | |
| Download: ML19331A203 (5) | |
Text
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THIS DOCUMENT CONTAINS
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POOR QUAUTY PAGES January 11, 1970 f
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Arthur!.' Murphy, Esq., Chairman Cl IT.
Atomic Safety and Licensing Board Columbia University School of Law 435 West ll6th Street, Box 38 m
A Dr. Clark Goodman 6
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University of Houston WeEC 3801 Cullen Boulevard g
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rg' Houston, Texas 77004 ome or misseretur Dr. David B. Hall
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A Los Alamos Scientific Laboratory N
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Post Office Box 1663
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Los Alamos, New Mexico 87544 Re:
Consumers Power Company -
Midland Plant Units 1 and 2 -
Docket Nos. 50-329 and 50-330 Gentlemen:
Enclosed is a copy of our Brief in support of Intervenors' Motions of December 1 and in opposition to certain submissions made by Applicant and Dow Chemical Company of December 15, 1970.
He understand that Chairman Murphy has recently sent a letter to the parties setting down a briefing schedule for UEFA issues.
We are not yet in receipt of a copy of that letter.
However, we do understand that the letter delays until sometime in February the briefing of the :: EPA issues.
Accordingly, we have not in this brief argued any of our motions dealing uith these environmental issues but will do so at a reasonable time designated by the Board.
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Arthur W. Murphy, Esq.
Dr. Clark Goodman Dr. David B. Hall January 11, 1971 Page two However, in anticipation of our NEPA briefs, we should like to call attention to the recent Report by the Joint Committee on Atomic Energy (S. Rep. No. 91-1247, 91st Cong., 2d Sess. 1970) which we believe is significant and revealing in light of the AEC's position (which we believe erroneous) that the National Environmental Policy Act does not require the AEC to consider all environmental issues in the course of its licensing proceedings.
At pages 3 and 4 of this recent Report, the JCAE was discussing the legislative history of the recently enacted so-called practical value legislation.
The Committee stated that during the first session of the 91st Congress certain bills were introduced by various members of the Joint Committee and others dealing with the practical value guestion and also dealing with legislative proposals to confer upon the Ccmmission regulatory authority to control the thermal effects of heated effluents discharged from nuclear power plants. "
The JCAE went on to state that because the passage of the National Environmental Policy Act and the Water Quality Improvement Act of 1970 added "certain functions concerning environmental matters to the licensing activities of Federal agencies," the JCAE no longer felt it necessary to continue inquiry into legislation to so
" expand"1/ the AEC's jurisdiction.
The exact language from pages 3 and 4 of the Report is as follows:
During the first session of the 91st Congress, several legislative measures were introduced concerning prelicensing review of nuclear powerplants; S. 212 was introduced on January 15, 1969, by Senator Anderson, for himself and-Senator Aiken; H.R. 8289 was introduced on March 5, 1969, by Representative Holifield, for himself and Representative Price; H.R. 9647 was introduced on March 27, 1969, by Representative
~1/ Of course, we have taken the position and still do, NEPA notwithstanding, that the Atomic Energy Commission always had jurisdiction as to certain environmental matters, such as thermal effects, by virtue of its obligation to regulate all forms of " atomic energy."
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Arthur W. Murphy, Esq.
Dr. Clark Goodman Dr. David 3. Hall
. January 11, 1971 Page three Holifield, by request (H.P. 9647, and the identical companion bill, S.1883 introduced by Senator Pastore on Apr. 18, 196,9, are the AEC bills ; and S. 2768 was introduced on August 4,)1969, by Senator Tydings.
S. 212, H.R. 8289, and H.R. 9647 would eliminate from the Atomic Energy Act of 1954 the requirement that a finding of the " practical value" of a type of utilization or production facility be made before such typ'ccmmercial."y may be licensed e of facilit by the AEC as Under these legis-lative proposals, practically all nuclear power-plants would be subject to a prelicensing anti-trust review by the Cormnission, with the advice of the Attorney General, pursuant to a revised subsection 105c.
S. 212 also would confer upon the Commission regulatory authority to control the thermal effects of heated effluents discharged from nuclear powerplants.
S. 2768 would declare the protection of the environment to be a purpose of the Atomic Energy Act and would authorize the Commission to establish "such standards to protect and promote the preservation of environmental quality" as the Commission deems appropriate.
The National Environmental Policy Act of 1969 (Public Law 91-190) and the Water Quality Improve-ment Act of 1970 (Public Law 91-224) were enacted into law subsequent to the introduction of the above-mentioned bills.
These statutes add certain functions concerning environmental matters to the licensina activities of Federal agencies.
In light of the recent laws the Joint Committee princitally fccused its current attention on the advisability of deleting the existing crerecuisite to licensing under section lO3-a finding of "urac,-
tical value"-and on a suitable statutorv process for the " commercial licensing of nuclear facilities that includes aue regard for antitrust considerations.
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Arthur W. Murphy, Esq.
Dr. Clark Goodman Dr. David B. Hall January 11, 1971 Page four This appears to us to be a clear pronouncement by the JCAE that UEFA and WQIA have indeed conferred upon the AEC jurisdiction over environmental matters.
Later on in the Report the JCAE was explaining the underlying reasons for amending section 191 of the Atomic Energy Act.
One reason advanced by the JCAE was that since the proposed revision of the practical value legislation might require the Commission to involve itself in antitrust matters, two of the three members should have "such technical or other qualifications as the Commission deems appropriate to the issues to be decided."
Id. at page 15 The Report went on to state, however, that the amend-ment to section 191 of the Act was not directed solely to the fact that the Commission would now have to consider antitrust issues.
Thus the Report states at page 15:
The committee believes that the flexibility that would be provided by the proposed amend-ment [section 191] may well turn out to be useful in connection with other matters within the orbit of the Commission's licensing process.
This once more is a clear statement by the JCAE that NEPA and WQIA have expanded the Commission's jurisdiction.
We have taken the liberty of pointing out these recent JCAE pronouncements so that the Board can consider them in light of the NEPA issues raised in the Midland hearing.
It would appear to us that the legislative history of NEPA and WQIA, coupled with the quotations from the recent JCAE Report, leave no doubt as to what Congress had in mind when it required all federal agencies to consider environmental effects.
Accordingly, since the Jommission has not yet had an opportunity, other than by way of its Appendices D, to consider its obligations pursuant to NEPA, we believe it
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l Arthur W. Murphy, Esq.
Dr. Clark Goodman Dr. David 3. Hall January 11, 1971 Page five may be a sound procedure for the Board to certify these questions now and have the matter briefed before the Commission initially rather than go through the procedure of filing two sets of briefs on these issues, first to the Board and then to the Commission.
We think that this suggestion is a proper subject for inquiry.at the next prehearing conference.
Resp ctfully, stkobhe[ryK F rf M.
MMC:ca Enclosure cc:
All counsel of record Secretary, U.S. Atomic Energy Commission
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