ML19331A451

Response to Applicant 770304 Motion for Stay of Orders in Light of Changed Circumstances.Nrc Unable to Support Applicant Motion & Urges Commission to Call for Views of Parties Re Further Proceedings.Certificate of Svc Encl

ML19331A451
Person / Time
Site:	Midland
Issue date:	03/15/1977
From:	Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
NUDOCS 8007170697
Download: ML19331A451 (14)

Text

-

t,--

_ _ _.._____ _ m.. _ _.

.j 3:

~

q'.

..- t 3/15/77 UtilTED STATES OF AMERICA NUCLEAR REGULATORY C0fEISSI0fl h,.{

. -:: o?

BEFORE THE COMMISSION W

WSg ? TS7I%

12 9'1 cg,[* f

j In the Matter of

)

Docket Nos. 50-329 %

6 CONSUMERS POWER COMPANY

{

f 50-330 4 IW (Midland Plant, Units 1 and 2)

NRC STAFF'S Af1SWER TO APPLICAf1T'S MOTION FOR A STAY OF ORDERS Ill LIGHT OF CHANGED CIRCUMSTANCES Introduction t

Consumers Power Company (Licensee) by its " Motion for Stay of Orders in Light of Changed Circumstances" (Motion) filed before the Commission on liarch 4,1977, urges the Commission to stay the orders it issued in j

this proceeding on August 16,1976 (CLI-76-11, NRCI-76/8, 65); September 14, 1976 (CLI-76-14, NRCI-76/9, 163); September 14, 1976 (unreported order);

and November 5, 1976 (CLI-76-19, NRCI-76/11, 474).

For the reasons set forth in this response, the Staff is unable to support that motion.

1 l

(

l l

By the Commission's Memorandum and Order of August 16,1976,1/ the Commission l

1 j

reconvened the Licensing Board in this proceeding and directed it to con-sider the fuel cycle issue remanded by the Court of Appeals for the l

District of Columbia Circuit in ?!elson Aeschliman, et al. v. U.S. Nuclear i

Regulatory Commission, flos. 73-1776, 73-1876 (July 21, 1976) (Aeschliman).

1/

onsumers Power Company (Midland Plant, Units 1 and 2), CLI-76-11, C

NRCI-76/8 65 (August 16,1976).

4

'80071706 77

[

I I

i

/

~

i That decision remanded a number of issues to the Commission for consideration, specifically the fuel cycle issue adjudicated by the United States Court of Appeals for the District of Columbia Circuit in Natural Resources Defense Council, et al. v."U. S. Nuclear Reculatory Commission, Nos. 74-1385 and 74-1586 (July 21, 1976), the issue of energy conservation, the issue

,...... sof. a., glarif,ied ACRS '.etter., and,the.,i,ssue,0f.ch.ange,d circumstances.wi,th.,.,,

regard to the Dow-Consumers relationship.

H,owever, in its Memorandum and Order of. August 16,1976, _the Commission.,instru.cted. the.Lic, ens-ing Board in this proceeding to treat only the fuel cycle issue.

4 The mandate in the Aeschliman case issued on September 3, 1976, and

i.:.i t::<.v.. ;,rg..upon issuan~ce..the Commission'. expanded 4ts instructions-tp ithe L{ce.nsi.ng,. %.,f.p.,. g Board by its Memorandum and Order of September 14,1976.2/ There, the l

Commission directed the Licensing Board to consider all issues remanded to the Commission by Aeschliman. The Commission's, instructions to the t

i Licen. sing Board to continue its inquiry into the Aeschlfman issues, with the exception of the fuel cycle issue, were reaffirmed by the Commission's l

tiemorandum and Order of November 5,1976.5/ Thh Commission's direction there was explicit:

2/ ConsumersPowerComoany(MidlandPlant,bnits1and2),CLI-76-14, NRCI-76/9 165, 167 (September 14,1976).

S/ Consumers Power Comoany (Midland Plant, Units 1 and 2), CLI-76-ll, HRCI-76/ll 474, 475 (November 5,1976).

,.,.,-,s

w

~

In this case, however, examination of the first three issues listed above must continue.

As to these issues, as we have indicated previously in our Memorandum and Order of September 13, 1976, the mandate of the Court of Appeals in the Aeschliman case has issued.

The Aeschliman decision is now fully effective and cinaing on the Commission, which must proceed'to implement it. At page 475.

nhnt to Puh..... 'thi si,. : :. ;.,. :di'rection,theLicEns'ingBoardinitiatEd'hea'r1ngs'inthi,s...

~%...

J.

. i.

' r.. -

~

~ ~

proceeding which have been conducted in Midland, Michigan and Chicago, Illinois, resulting in the development of an extensive record, presently

~

exce'eding 4,500 pages of written ' transcript.

Both Licensee and Staff have

~

presented their pre-filed testimony.O Intervenor has pre-filed its direct written testimony and cross-examination of.Intervenor's w'itness is

.M.':.9.?.:p s.~ x:: s. ;y~p;;;..c.;. :.c-+; ~... n. :: ;. 6. ya c.4,:v.i.pg;.;.vy :c;r n.u v~.44p.,;p.

,.c.:(.-pt :i9:. bin, -

scheduled to commence March 21, 1977.

(

Subsequent to, the Aeschliman decision, the Licensee filed a " Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit" ia the Supreme Court of the United States.

On February 22, 1977, the Supreme Court issued an order granting the petition for certiorari and thereby taking review of every issue remanded for proceedings before this Commission U Both Licensee and Staff contemplate presenting supplemental direct and rebuttal testimony and have filed such testimony with the Board.

9

j.

.!.c

.l _

by the Court of Appeals decision.

On March 4, 1977, the Licensee filed its Motion before the Commission seeking a stay of orders in light of the changed circumstances, namely, the grant of certiorari by the Supreme Court.5/

... /. l......

., 3,.,

.. r....

a.N.f h.a e. -,..;> eq. 3 3... ;,,.. g ;c,:.4,,. t..:,;..l,.y. e :...gf., y, g r

. g,,,.f.. g.,, g y;,. g. p,.,.,..,..,,g h

0/ Licensee has also filed before the Atomic Safety and Licensing Board

'f conducting these proceedings, a " Motion to Continue Proceedingi-filed on March 4, 1977 urging the Licensing Board to continue those

- proceedings until the Comission rules upon the motion before it for On March 10, 1977, the EC Staff filed its answer

-a stay of orders.

to applicant's motion to continue proceedings arguing that the proceedings before the Licensing Board must go forward until.the Comission acts and that Licensee's Motion for a continuance be denied.

~

l j _

, ARGUMENT I.

The Commission Should Not Stay Its Orders in Light of the Grant of Certiorari The Court of Appeals issued its mandate in AescF.iiman on September 3, i

1977 after having denied Consumers' motion for a stay pending the Supreme Court's disposition of its contemplated certiorari petition.

On the two previous. occasions when Consumers has.sugcested holding up.

. the;, remanded.,pr.oceedings pending, a Supreme Court., ru)ing,. he, 3

Comission has attached major significance ;to the fact that a stay motion was _ submitted to the Court of Appeal.s and denied... In. ' i ts.

Memorandum and Order of September 14, 1976 it regarded the issuance of that mandate as requiring it to proceed with the necessary pr'oceedings on remand, even though it explicity recognized that petitions for n:.<..: vsp::..<..p. 5 r:;..c4rti orari1 mi gh t? b ei.f-i:1ed.: !' y^~ -i.@.M 'ud 29 :..i ';.'NWa.M;.'*d:.9.%rN.%. r:+Cn 1

(

l After Consumers had filed its certiorari petition, it renewed its

' motion that the Commission defer'its proceedings on remand pending Supr.eme Court action.

By order of November 5, 1976, the Commission i

determined that its proceeding on remand with respect to all issues otiice than the fuel cycle should go forward notwithstanding the

-7/

pendency of the certiorari petition.

6 f NRCI-76/9, supra, 163, 166.

See also, NRCI-76/11, supra, 474, 475.

l 7/ NCRI 7611, suora, at 475 and note 1.

t l'

l i

.~,

t.

n f

)

i

-- s The Licensee conced's that the Court of Appeals mandate is not with-e drawn by the granting of certiorari but nonetheless argues that this Comission may now unilaterally decide to suspend its implemer.htion (Motion p.10).

The argument appears to rest upon the Licensee's assumption that the Court of Appeals would not expect its mandate to be carried out during the pendency of Supreme Court review..While we have been unable to find any case la$ which bears directly on the

^

.)

, s

.r question, we do not believe that the Ucensee's argument is consis-tent with prevailing concepts of the role of ai administrative agency vis a vis the courts.

fleither the filing nor the granting _of ~a petition for cert 13rari

<c q:. c

.?:2.:.A.n.'.:.tc.,: :op rates'.automaticallybt6 s.tay.hhe ishdance 6fTCour6 of2 Appeal s. ? +'h.'^W

~

mandate. b Manifestly, there can be -- and are -- cases in which a Court of Appeals mandate is issued and followed despite the pendency of Supreme Court review.

But, a Court of Appeals has the authority i

I to stay its own mandate, and it could determine in a particular case that j

the possibility of Supreme Court review upon certiorari petition orovides l

(

l sufficient reason to grant such a stay.

In this case, the Court of Appeals was asked to grant such a stay in the liaht of Consumers' intention to seek supreme Court rev iew and it declined to do so.

8f Stern & Gmssman, Supreme Court Practice (1969), p. 564 t

e

,a j

r I

q -

As the Comission ~has twice pointed out, that a'ction necessarily implied an expectation by the Court that the Commission would pro-ceed to carry out the mandate.

t!e do not think that this Commission can properly assume the function of speculating whether the Court of

~

Appeals would have a different expectation now th.a,t certiorari has

.been granted.

It might. or it might not.

In our view, the Commission.,,..,,3..;

.v,.-.,.

has.a substantial measure of discretion to d,etermine the schedule under

, which the. remanded, proceedings,are conducted in the light of all relevant circumstances, but it is'not authorized to substitute its judgment for that of the courts as to whether those proceedings should go forward at 9

all.

w.,;f:,.q:1.c.:< ; u.s..e ::e.q:s.r.,.Qm. p.?...q. :.,.y... j:4...s ;.,,,. ;. ;,..y : r.;.. :...,g.. g:.,.y.,,,.;,..;,.,. g.;_g. p, :.r.;

i None of the authorities and precedents relied upon by the Licensee support h

the. exercise by the Commission of authority to suspend implementation

.I of a Court of Appeals mandate.

The two cases cited at page 9 deal with l

the wholly different question of when a criminal proceeding is " final" --

i a question which becomes relevant,because certain major changes in decisionallawaremadeapplicableonlyprospeckively,i.e.,to'casesin l

which there is not a " final" decision.

The question which arose earlier in this proceeding prior to issuance of the mandate was completely different.9/

E ee CLI-76-14, supra Licensee -refers at pages 10-11 of its Smotion to a Seabrook order of November 5, 1976.

Yet the citation offered by the Licensee is to the Midland proceeding.

- - -.. -. = -

d There the Commission was facing the question of whether it could proceed to remedy the defects identified in the Court of Appeals decision in the absence of a mandate. The Commission's opinion that it could go forward in the absence of a mandate from the Court of Appeals provides no. support for the' contrary proposition that the Commission can suspend proceeding's on n'd ~% 'fhe' &ei'ene d a Court of AppeaFs~ mandate. ' *:

. *.' c

~

e..

..s,.c Nor dcas the Administrative-Procedure Act (APA) support the Licensee's Potion.

Licensee argues that.Section.1.0(d) of the APA (5 U.S.C. E705) provides the Commission with the authority to stay its orders in the face of the-Court of Appeals mandate.

Section 10(d) applies to the

g. ga -

w.' p?se:'cc..

+

functions pending judicial review of that act' ion or to the context of

^

l reviewing court staying the effectiveness of such an agency actidn.

The Section reads in full:

When an agency finds that justice so requires, it may postpone the effective date of actioq taken by it, pend-ing judicial review.

On such conditions as may be re-quired and to.the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the ef-fective date of an agency action or to preserve status or rights pending conclusion of the review proceeding.

Litigation under this Section makes clear that it appl-ies to agency action in the normal course and not agency actic1 in response to a Court of Appeals mandate.

No authority to the contrary is offered by the Licensee.

.m J

l-

_g.

While we cannot join in the Licensee's legal position, we recognize the merit in its argument that the continuation of these complex proceedings may be "aromalous, inequitable and wholly inconsistent with efficient administrative practice."E The anamoly. lies in

' moving' forward with the litigation of issues which may render Sdp~reme

! ' - " "'" '. ' Codrt re' view m60tUr which mahbe"inoodh on Yevi w bv ~th'at'kou'rti'"-

~ " "

~

TheinequityliesinjeopardizingtheLicenEeetotheextentof

' p6ssibly'suspendirig construction of the Midland facilit'y when in

~

l l-fact its construction permit.may be found to be legally adequate in l

l its present form.

The administartive inefficiencies are manifest.

Complex. administrative proceedings 'are going forward when there may

y m...Z*. ?- ~; d -: s1. ' y < u. :s. ;-:~ :

c...,. ' :.,.-s iy :.w.< :.%.Cv Sv., gqs**W'i:..r'~~. *Mn W.a.%-; 4:.4C %.D.:.. 9,1 a

be no need for them.

i i

I These difficulties are very real but the solution does not lie in i

i l

the Commission's unilaterally staying the operation of the Court of

~

Appeals mandate.

Appropriate courses of action are to open to the i

j Licensee.

g I

Supreme Court procedure.provides for a stay o'f proceedings below.

The Licensee, upon denial of its motion for a stay before the Court

-l of Appeals, could have moved for a stay of mandate before the Supreme i

Court.

See Rule 27 and 28 U.S.C. s2101(f).

The Licensee did not avail j

itself of that remedy.

E Licensee's Motion, page 8.

. _.. 3

..-. ; ]

~

Now that certiorari has been granted, Licen.see may still move the Supreme Court to stay the mandate.

The Supreme Court has the power to stay the execution or enforcement of a final judgment of a Court of Appeals under its general power to issue all writs necessary for the exercise of. its jurisdiction.

See Magnum Imoort Co. v.'Coty,

..262.U,.. S..1.59,.163 ().923);

,,g.,,...,

Hence, if, in its discretion, this court con-

~ceives that, upon the showing made, it should order the suspension or modification of a judg-ment or decree of the circuit court of appeals, interlocutory or final, to preserve or secure a status of the case for full and satisfactory exercise of its reviewing power ovar it, it may make the necessary order of sumension or modi-

..yl,.: g %. :.:.qn:...;.;.g.i..:.,o p,ficatiom upop such.. terms as.sgem.,, equi tabl e;,ucon..;,,,,; ;,,,. 9.g.3,,,,,,

the filing of ~ the petition for certiorari, aWd' pending its disposition.

So much on the question of the power.

i I

And Supreme Court Rules 18 and 51 pravide for the application for such a stay.

A second remedy may well be available.

This is a motion to the Court of

\\

Appeals for a recall of its mandateM No specific rule of the Court of Appeals governs the recall of a mandate but the authority has been exercised when necessary to prevent injustice.

See Gradsky v. United "l

States, 367 F.2d 993 (5th Cir. 1967).

l i

i

$ See Moore's Federal Practice, Vol. 9, p. 4404.

..J r.

The Staff reiterates its concern that, on most issues, moving forward with these proceedings may be unwi.se, inefficient and even pointless.

The Supreme Court may reverse the Court of Appeals on some or all issues.

Different standards may be ennunciated.

No hearings may be required.

Or future hearings may be required in circumstances differ-

..ing from. thos,e.today,., But ap.propriate,, remedies e,xist sh.o,uld,the.,,

.e.

u....

. e u, s e Licensee choose to seek them, and a Comissip,n determination to stay these proceedings by its own act would be. inappropriate.

II.

Should the Effect of the Aeschliman Decision be. Stayed, Further Proceedinas Before the Commission may be in Order

.. r.v r..,t..~.,-l.Th'ejiressn't'.'Woceddingsnare' thevdirect sesult of.the.Courtc.of Appeals.. -.a......i...)

determination that there were defects in the construction permit f

proceeding and its issuance of a mandate to remedy those defects.

This Commission, however, retains a continuing authority and obligation to.

I consider whether an outstanding license should be modified, suspended i

or revoked.

Should the effectiveness of the mandate be stayed by the Court of Appeals or the Supreme Court, we believ<e that the Commission should

+

then address the question to whether it is necessary or appropriate to continue any portion of this proceeding within the context of that broad

'l authority and obligation.

i

]

= -...-

?m

~....:.

12-The proceedings before the Licensing Board have explored the remanded issues of energy conservation, clarification of the ACRS letter and changed circumstances affecting the Dow-Consumers relationship.

An extensive record has been developed.

In the Staff's vieu, the information pontained in,.the record to date does not warrant modification, suspension

.... revoc.ation.of the Midland construction permits'.

This judgment in the or Staff's view is amply supported by the record.cn all issues inquired into' with the exception of Dow's commitment to take nuclear steam from Midland.

While the Staff feels that an adequate commitment by Dow

~

is shown, the question may be considered close.

In any event, we recognize that the substantive and procedural issues are important and

. 53.n.9. !.vg. gcomplex.enough. to warr. ant, a.ful1..pp,pof tugi.tgfon.,, he.,suhm, s,s.,on,,of,al1,.,

..j,

.,3 t

i i

parties' views in the light of the then existing circumstances.

Thus, l

l the Staff would urge the Commission to call for the views of the parties i

~

as t6 the need for further proceedings should the Aeschliman mandate i

be stayed.

Respectfully submitted, t

l j

I ichard K..Hoefling -

Counsel for NRC Staff l

f l

l I

Dated at Bethesda, Maryland I

this 15th day of March,1977 1

l l

n y-,,-..,a w

a

--.-,-r r--

---n-.

n s,

t UNITED STATES OF AMERICA NUCLEAR. REGULATORY C0NISSIO!!

BEFORE THE CCMMISSIO'l

. In the Matter of

)

)

CONSUMERS POWER COMPANY

)

Docket Nos. 50-329

)

50-330 (Midland Plant, Units 1 and 2).

)

~

~

~ CERTIFIC' ATE OF SERVICE

~

~ ~

. l..=..

. ".. '.~...;....... _

_ _... };... 4 I hereby certify that copies of "NRC STAFF'S ANSWER TO APPLICA?iT'S MOTION

~'..

FOR A STAY OF ORDERS IN LIGHT OF CHANGED CIRCUMSTA!!CES," dated March 15, 1977 in the above-captioned proceeding have been served on the.followinc by deposit in the United States mail, first class or air mail, this 15th day of !'. arch,1977:

Frederic J. Coufal, Esq., Chairman Honorable Curt T. Schneider Atomic Safety and Licensing Scard Attorney General U. S. Nuclear Regulatory Cc: mission State of Kansas Statehouse

.c. W./@.v S ash.ington,;D..C. 2.0555...y.f

f.,. _. :..,,.. -T.opeka vKaopsp.66512.2..y, y.c; j.y, W

Dr. J. Venn Leeds, Jr.

Ms. Mary Sinclair Atomic Safety and Licensing Soard 5711 Su cersec Street j-10807 Atwell Midland, Michigan 48540

~

Houston, Texas 77095 Harold F. Reis, Esq.

Dr. Emeth A. Luebke Robert Lowenstein, Esq.

Atomic Safety and Licensing Ecard Lowenstein, Newman, Reis &

I U. S. Nuclear Regulatory Cc::nissien Axelrad Washington, D. C.

20555-1025 Connecticut Avenue Washington, D. C.

20035 Myron M. Cherry, Esq.

L. F.,Nute, Esq.

t 1 IBM Plaza

~-

' Chicago, Illinois 60511 Dow Chemical, U.S.A.

~

Michigan Division '

Judd L. Bacon, Esq.

Midland, Michigan 48640 j

Consumers Pcwer Ccepany

.Mr. Steve Gadler 212 West Michigan Avenue Jackson, Michigan 49201 2120 Carter Avenue St. Paul, Minnesota 55103 I'

?

1

i -

R. Rex Renfrow, III, Esq.

Atomic Safety and Licensing David J. Rosso, Esq.

Appeal Panel Isham, Lincoln & Beale U. S. Nuclear Regulatory Commission One First National Plaza Washington, D. C.

20555 Suite 4200 Chicago, Illinois 60603 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Board Panel Washington, D. C.

20555

'U.. S. Nuclei r Regulatory Commission Washington, D. C.

20555

.c.

u S

n. 'Y.. D j' *:n h; ;y:c v ? : : -

r:.c. ?.. %.y. -:r.a w J-;,*:'v..e.~. :4.>.p n= k.O. v..~

.&n. w i r

l @ vl

. %f.

..g Richard K. Hoefling l

Counsel for NRC Staffi

/

~

..n