ML19331A522
| ML19331A522 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/04/1977 |
| From: | Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19331A521 | List: |
| References | |
| NUDOCS 8007180623 | |
| Download: ML19331A522 (21) | |
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D NUCLEAR REGULATORY COMMISSION 4
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In the Matter of
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S0-330 (Midland Plant, Units 1 & 2)
MOTION FOR STAY OF ORDERS IN THE LIGHT OF CHANGED CIRCUMSTANCES
. Consumers Power Company here'by moves the Commission to stay the orders it issued in this proceeding on August s
.16, 1976 (CL1-76-ll, NRCI-76/8, 65); September 14, 1976 (CL1-76-14, NRCI-76/9, 163, "first September 14 order");
September 14, 1976 (unreported, "second Septiember 14 order") ;
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and November 5, 1976 (CL1-76-19, NRCI-76/ll, 474).
All of the orders were issued to implement the July 21, 1976, decision of the United States Court of Appeals for the District of Columbia Circuit in Nelson Aeschliman et al. v. U.
S. Nuclear Reculatory Commission, Nos. 73-1776, 73-1867 ("Aeschliman"), and provided that the construction permit proceeding remanded as a result of-the decision go forward.
The ground for this motion is the significa~nt change in circumstances effected by the order of the Supree.e Court of the United States issued on February 22, 8007180 Q g
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V 1976, in Consumers Power Company v. Aeschliman, No. 528.
That order granted a petition for certiorari filed by Consumers Power Company.
It thereby provided for Supreme Court review of every issue remanded for proceedings before this Commission by the Aeschliman decision of the Court of Appeals.
The uration.of the stay here requested is until the Supreme Court completen its. review.
The compler of actions by and proceedings before the Commission triggered by the Aeschliman decision and the companion decision of the United States Court of Appeals for the District of Columbia Circuit in Natural Resources Defense Council, et al. v U. S. Nuclear Regulatory Commission, Nos. 74-1385 and 74-1586 ("the fuel cycle decision"), need not be set forth in detail in this plead-ing.
The history is contained in a number of documents issued by the Commission following the decisions.1/
For present purposes reference to only parts of that history is necessary.
f 1/
See the orders referred to above and the General State-ment of Policy issued in RM-50-3 on August 13, 1976
~
- (41 F.
R. 34,707, August 16, 1976);__ Notice of Proposed Rulemaking relating to the revision of Table S-3 of 10 l
CFR Part 100, dated October 13, 1976 (41 F.
R.
45,849, October, 18, 1976); Supplemental General Statement of Policy, dated November 5, 1976 (41 F.
R.
49,898, November 11, 1976); Public Service Company of New Hampshire (Seabrook Station, Cnits 1 and 2), CL1-76-17, NRCI-76/ll, 451, November 5, 1976; Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), CL1-76-18, NRCI-76/ll, 471, November 5, 1976.
/
Together the decisions held that the Commission's treatment of the incremental environmental effects upon the nuclear fuel cycle attributable to the operation of a nuclear power reactor did not meet the requirements of the National Environmental Policy Act ("NEPA" ; 4 2 U. S.C.
- 4321, et seq) and that such effects have to be treated adequately either generically or in individual licensing proceedings.
The Aeschliman decision also required that, upon remand to j
the Commission, the licensing proceedings which led to the issuance of the construction permits for the Midland units on December 15, 1972, be reopened for clarification of a report of the Advisory Committee on Reactor Safeguards, to consider issues relating to energy conservation and to restrike the cost-benefit balance in view of the reconsider-ation.of the' fuel cycle and energy conservation issues.
The court then went on to state:
"As this matter requires remand and reopening of the issues of energy conservation alternatives as well as recalculation of costs and benefits, we assume that the Commission will take into account the changed circumstances regarding Dow's need for process steam, and the intended continued operation of Dow's fossil-fuel generating facilities." 2/
~ The August 31, 1976 General Statembnt of Policy consti-tuted the Commission's initial action to implement the July 21 decisions.
There it expressed its intention to reopen the 2/
Aeschliman, Slip op., p. 21
r rulemaking~pt Jeedings on the environmencal effects of the uranium fuel cycle with a view toward curing the defects found by the Court of Appeals; however, since completion of the necessary procedures "could take fully a year," the Commission indicated that it had also initiated steps aimed at the possible adoption of an interim fuel cycle rule in a shorter period of time.
The Commission also stated that, for the time being, it would not issue any full power operating licenses, construction permits or limited work authorizations.
The General Statement of Policy expressed the view that while the " extended rulemaking" is in progress the Commission would also have to decide whether previously granted licenses should be suspended, modified or set aside.
With respect to the Midland licenses, involved in the Aeschliman decision, and the Vermont Yankee license, involved in the fuel cycle decision, the Commission concluded that proceedings should be conducted by licensing boards to determine wheth'er those licenses should be continued, modified or suspended untilfan interim fuel cy.cle rule has been made effective.
The Commission stated the same question would also be raised on a request for a show cause order seeking the suspension or modification on fuel cycle rulemaking grounds of licenses issued for any other nuclear power 1
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P ant.
The question of suspension or modification would l
in each case turn on " equitable factors well established in prior practice and case law...," which were enumerated by the Commission.
In addition, the commiss' ion expressly noted that "An evidentiary hearing on other issues will be required in Midland, barring further review.
That hearing, however, should not be commenced until the Midland decision has become final."
41 F.
R.
supra at 34,709, n.
2.
Accordingly, the Commission's order of August 16, 1976, NRCI-76/8, supra at 65, directed that a Licensing Board be reconvened "for the limited purpose of considering...
whether the construction permits for the (Midland) incility should be continued, modified, or suspended until an interim fuel cycle rule has been made effective.
...No hearing on the merits of the other issues assigned for reconsideration by the court of appeals in the Aeschliman v.
NRC decision will be appropriate until
- he decision of the court of appeals has become final."
Shortly thereafter the government filed a Mction for I
Stay of Mandate so that the Solicitor General could have sufficient time to determine whether to seek a writ of certiorari, and Consumers Power Company filed a similar motion making the unqualified statement that it intended to file such a petition.
However, on September 2,197 6, the Court of Appeals denied those motions, stating that it p
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l did not appear that the issuance of the " mandate would affect the right of any of the parties to petition the Supreme Court of the United States for writ of certiorari..."
and issued its mandate.
In its first September 14 order the Commiss;on read l
the issuance of the mandate as an indication "that the Court l
l expects the commission to proceed with all remanded issues l
promptly and without awaiting Supreme Court disposition of whatever patitions for certiorari may be filed."
The Commission also stated that:
"Now the decision in Aeschliman is final and consideration of all issues remanded to the 1
Commission by the court of appeals is appropriate."
NRCI-76/9, supra at 166, 167; footnote'omitted.
Accordingly, in its second September 14 order, the Commission directed "that the reconvened Atomic Safety and Licensing Board should consider all issues which have been remanded to the Commission by the court of appeals."
Following the issuance of the General Statement of Policy other relevant events also occured, including the l
, initiation of seven show cause proceedings in addition to those involcing the Midland and Vermont Yankee Plants.
However, a new Staff survey of the environmental effects of
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the reprocessing and waste management aspects of the fuel cycle was thereafter completed and a proposed interim rule
^
was publish.ed. 3/
The Commissionfthought it likely that an interim fuel cycle rule would be in place within a short period of time and that the nature of the Staff survey was such as to make it likely that the interim rule 4
as ultimately adopted would closely resemble the proposed interim rule.
Moreover, on October 8, 1976, the Court of Appeals granted a stay of mandate with respect to its fuel cycle decision, using language indicating that the court contemplated the continuation of licensing.
Accordi aly, in the Seabrook and Vermont Yankee proceedings, NRCI-76/ll, 3
supra, at 451, 471, the Commission suspended all of the r
then pending show cause proceedings. except for the Midland proceedings.
All of these suspended proceedings were based i
solely on fuel cycle grounds.
In its order of November 5 in the Midland proceeding, the Commission also directed the Licensing Board to defer consideration of the fuel cycle issue in that proceeding.
However, the Commission emphas. zed again that the mandate had issued in Arschliman; that that decision was effective i
and binding on the Commission; and that it viewed the issuance of the mandate as an expression of the Court of Appeals ' view that it expected the Commission to proceed 3/
Notice of Proposed Rulemaking, supra, 41 F.
R. 43,849.
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"without 'awu_ ting Supreme Court disposition of whatever petitions for certiorari may be filed."
NRCI-76/ll, supra, 474, 475.
This was the last Commission statement on the subject.
Thereafter, proceedings were in fact instituted with regard to Midland; 21 days of. hearings have been held; a transcript consisting of 4,590 pages has already been created; further hearing sessions are scheduled to begin March 9.
No decision has yet been reached on either the issue of continuation, modification or suspension or the substance of the remanded issues; however, on the basis of the record which has been accumulated to date, it seems wholly appropriate to make the judgment that the Licensing Board, the Appeal Board and the Commission itself will be involved in the remanded proceedings for many months in the future.
Whatever the merits of the original action in directing the institution of remand proceedings at the time the Commission issued its orders on August 16 and September 14, 1976, developments since the later date make it clear that-(
the continuation of these protracted and onerous proceedings has become anomalous, inequitable and wholly inconsistent with efficient administrative practice.
Indeed, these proceedings are now the only ones still-being conducted as a restit of the Aeschliman and fuel cycle decisions, and
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they are being conducted even though the issues involved relate only to matters which the Co==ission has argued to the Supreme Court were erronecus? y decided by the Court of Appeals; and the Supre=e Court has undertaken to review the allegea errors.
It is clear that the continued conduct of the remanded proceeding is wholly inconsistent with the Co==ission's original view of what was required of it by the fuel cycle and Aeschliman decisions.
As noted above, the fuel cycle consequences of those decisions are not now before the Licensing Board.
All that in being considered are the other issues remanded by Aeschliman.
However, in its General State =ent of policy and its August 16 order, the Co==ission said that ad=inistrative proceedings on those remanded issues would be required only if fu$ther review should be barred, and that such proceedings should not begin "until the Midland (Aeschli=an] decision becomes final."
It is now clear that further review has not been " barred;" rather, further review is assure'd.
Nor, in this context, has the i
I court of Appeals ' decision become final.
No such finality attaches to a lower court decision while Supre=e Court review is pending.
Linkletter v. Walker, 381 U.
S.
- 618, 622' (1965); Lonc v.
Robinson, 316 F.
Supp. 22, 31 (D. C.
Md. 1965).
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'The only reason the remanded issues are now being considered in the Midland proceeding is, as the Commission made clear in its first September 14 order and its November 5 order, because it believed the Cour.t of Appeals " expects the Commission to proceed with all remanded issues promptly...."
NRCI-76/9, supra, at 166.
Such an expectation is wholly inconsistent with the relationship between the Court of Appeals and the Supreme Court; and it can no longer be assumed to exist in the light of the Supreme Court's decision to review the Aeschliman decision.
It should be emphasized that the issuance of the mandate by the Court of Appeals on September 2, and the fact that the mandate is technically not withdrawn by the grant of certiorari, 4/ in no way requires -- nor has ever been interpreted by the Commission as requiring -- the Commission to conduct the remanded proceedings.
Thus, in its Seabrook order of November 5, the Commission emphasized the subordinate importance of the question whether the I
mandate has issued, noting that "[t]he relationship between i
the Commission and the court of appeals is' quite different
' than that between an inferior and superior court."
The Commission cited the statement of the Supreme Court in F. C.
C.
- v. Pottsville Broadcasting Co.,
309 Ul~S. 134, 141 (1940),
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4/
Stern and Gressman, Supreme Court Practice (1969), p.
564.
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12-to the effect that technical rules derived from the relationship of superior and subordinate judicial tribunals should not be mechanically applied to the relationship between administrative agencies and reviewing courts functioning in the context of an administrative system.
i NRCI-76/9, supra, at 166, n.
2.
Indeed, in Seabrook,.the Commission expressly recognized its " broad discretion in implementing judicial mandates..."
Ibid., n. 1.
The appropriateness of deferring the Commission's action which directed the commencement of hearings on the remanded issues is further evidenced by section 10(d) of the Administrative Procedure Act.
(5 U.
S. C.
S 705)
That section expressly provides that "when an agency finds that justice so requires, it may postpone the effective date of action taken by it, 1
pending judicial review."
Accordingly, it is clear that the institution of the remanded proceedings, represent the Commission's view of the action it considered appropriate, but only in the light of f
its relationship to the' Court of Appeals and in the absence of " Supreme Court disposition" of pen < ding or future certiorari requests.
The Supreme Court has now disposed of such a request by granting it, and regard for the re'lationship between th'e agency and the Supreme Court now requires a stay of the remanded proceedings until the Supreme Court has decided the case. This conclusion includes
proceedings to d.; ermine whether to continue, modify or suspend the construction permits pending the resolution of the merits of the remanded issues.
To continue such proceedings at thi's time is clearly pointless.
Should the Supreme Court reverse the Court of Appeals in all respects,-there will be no need to decide the issues remanded by'the Court of Appeals; and any action taken to effectuate the decision of that court by way of suspension or modification will have been wholly inappropriate.
Even if the 4
Supreme Court should affirm the Court of Appeals in all respects or in part, such issues, if any, as are ultimately before the Commission as a result of the Supreme Court's i
decisions will have to be considered at some time in the future, when, no doubt, circumstance will differ-from those existing today.
The question of continuation, modification or I
suspension of the construction permits would have to be viewed l
- in the context of the circumstances then existing.
Consequently i
l continuation of the current proceedings before the Licensing Board, even as they relate to continuation, modification or suspension of the construction permits, serves no purpose.
s The propriety of staying all of the remanded proceedings is further emphasized by the fact that the Supreme Court in no way limited its grant of certiorari. The petition for the issuance l
of a writ of certiorari filed on behalf of Consumers Power i
~
Company assigned as error each of the remanded issues.
Had the Supreme Cou.-t thought it appropriate, it could, of course, have excluded from the grant those issues it deemed unworthy of its consideration.
Alternatively, if it wished only to consider limited issues, e.g., only fuel cycle issues, it need not have granted certiorari in Aeschliman. 5/
Consequently, there is no issue which can be considered by the Commission or it.s Licensing Boards without in: ringing upon an area the Supreme Court has decided to review.
Of particular importance in this context are the views of the Commission as expressed to the Supreme Court in the Brief for the -
Federal Respondents," at pp. 11-13, filed on behalf of the government in response to the petitions for certiorari.
There the Commission's view was expressed that each of the holdings of the Court of Appeals in the Aeschliman decision, i.e.,
those relating i
to energy conseivation and the ACRS, as well as the fuel cycle holding, were erroneous.
Moreover, in the context of the l
" energy conservation" issue, the Commission emphasized'that:
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5/
Four petitions for certiorari were filed with the Supreme Court with respect to the companion cases decided by the Court of Appeals on July 21, 1976.
Of the four only.the petition in Aeschliman raised issues in addition to those relating to the fuel cycle.
Two~ petitions were granted, i
l Number 76-528 filed on behalf of Vermont-Yankee, and Number 76-419,. filed on behalf of Consumers Power Company.
Obviously if the Supreme Court had wished to confine its review to fuel cycle issues it could have refrained from granting the latter petition.
The government did not file a petition.
- However, it did file one brief responding to all of the petitions and stating separately the views of the United States (the Solicitor General), opposing the grant of certiorari in any of the cases, and those of the Nuclear Regulatory Commission, which supported the petitions, including that filed by Consumers Power Company,in Aeschliman which raised issues in addition to fuel cycle issues.
"The court's use of judicial hindsight renders exceedingly difficult the achievement of finality in what is necessarily an extremely drawn-out and complex licensing process. "
(p. 11).
Continuation of the remanded proceedings by the Commission before the Supreme Court can act on the matter is particularly inappropriate in the light of this position.
Such continuation compels the Commission and the parties to go on litigating issues after finality should have been achieved in the view of the Commission as reported to the Supreme Court.
In addition, the mere continuation of the administrative proceedings could, by rendering issues moot, deprive the Supreme Court of an effective opportunity to
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review the important legal matters it has undertaken to decide.
~
This proceeding was initiated on January 13, 1969, by the filing of Consu=ers Power Company's application for the construction permits here involved.
The proceedings which were conducted with respect to that application were complex, prolonged and extensive.
The constructico permits wera not issued until December 15, 1972, anc (in accordance with well established practice, financial necessity and the, obligation of Consumers Power as a public utility, construction was
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The decision of the Court of Appeals was not issued until approximately two and a half years and 350 million dollars later; and in that Court's words:
"These cases have been long delayed."
(Aeschliman, Slip Op.,
- p. 4).
Consumers Power Company need not here elaborate on the point it has made in other pleadings filed with the Commission:
it is inequitable and inappropriate to expose it even to the possibility of either suspension of construction or modification of its construction permits
~
while the-possibility of Supreme Court review and reversal exists.
In the past, the Commission believed that in the light of the refusal of the Court of Appeals to stay the mandate and of the relationship between the courts and~ administrative agencies, it could not give these considerations controlling weight.
Although never expressly articulated, the judgment that it was unlikely that the Supreme Court would grant certiorari -- and that the Court of Appeals' decision
. was for all practical purpcses then " final" -- had to have i
bulked large in the Commission's action.
Now such review 6/
If construction of the Midland units-had been delayed
~
until it was clear that all administrative and judicial review was completed, construction could not have begun until 1977 or 1978 - at the earliest.
Such further delay would obviously make system planning for nuclear generating plants far more difficult, if.,t impossible, and cause substantial cost escalation.
is not a remote-possibility; it is a certainty Even without regard to the inequities and hardships referred to above, the same basic considerations relating to judicial-administrative relationships which, in the past, led the i
Commission to institute remand preceedings must, in the l
present, compel it to stay such proceedings until the l
Supreme Court has completed that review.
The equities re-l l
enforce the need for such a stay.
i Consumers Power Company therefore requests the l
Cc= mission so to stay the remanded proceedings.
Respectfully submitted, a _
h Harold F.
Reis e
Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N. W.
Washingt'on, D. C.
20036 l
Counsel for Consumers Power Company
', 1977 March 4
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UNITED STATES Or AttERICA NUCI.1:AR Rl:Gt LATORY CO:!:ilSSION In the !!atter of
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CONSUYERS PO*iER CO:-!PANY
- )
Docket No.(s) 50-329
)
50-330 (1lidland Plant, Unit Nos. I and 2)
)
)
)
)
CERTITICATE OF SERVICE I have this day served the foregoing document (s)
I hereby certify that compiled by upon ench_ person designated on the official service' list the Of fice of the Secretary of the Co::aission in this proceeding in 2-accordance with the requirements of Section 2.712 of 10 CFR Part Rules of Practice, of the Nucicar Regulatory Com:nission's Rules and Regulations.
Dated at Washington, D C. this NM 197 day of hk Y h
J Officc of tlic Secretary of phe Corr.iscion
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UNITED STATES OF AMERICA NUCLI'AR REGULATORY CO.9 FISSION
)
In the Matter of
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)
CONSUMERS PO'E.R COMPANY
)
Docket No.(s) 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
SERVICE LIST Frederic J. Coufal, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Co=uission Washingts, D.C.
20555 Dr. Emmeth A. Luebke James A. Kendall, Esq.
- Atomic Safety and Licensing Board Currie and Kendall U.S. Nuclear Regulatory Commission 135 North Saginaw Road Washington, D.C.
23555 Midland, Michigan 48640 a
Dr. J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell Consumers Power Company Houston, Texas 77096 212 West Michigan Avenue Jackson, Michigan 49201 Office of the Executive Legal Director Counsel for NRC Staff William J. Ginster, Esq.
U.S. Nuclear Regulatory Commission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602 Myron M. Cherry, Esq.
Milton R. Wessel, Esq.
One IBM Plaza Dow Chemical Chicago, Illinois-60611 4 Little Lane White Plains, New York 10605 Harold F. Reis, Esq.
Lowenstein, New=an, Reis & Axelrad Honorable Curtis G. Beck 1025 Connecticut Avenue, N.W.
Assistant Attorney General Washington, D.C.
20036 State of Michigan Seven Story Office Building Honorable Charles A. Briscoe 525 West ottawa Assistant Attorney General Lansing, Michigan 48913 State of Kansas Topeka, Kansas 66612 Lee Nute, Esq.
Michigan Division Irving Like, Esq.
The Dow Chemical Company Reilly, Like and Schneider 47 Building 200 Weat Main Street Midland, Michigan 48640 Babylon,-New York 11702 7
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50-329, -330
'N paga 2 Anthony Z. Roisman, Esq.
Roisman, Kessler and Cashdan 1025 - 15th Street,'N.W.
Washington, D.C.
20005 David J. Rosso, Esq.
R. Rex Renfrow, III, Esq.
Isham, Lincoln & Beale 1050 - 17th Street, N.W.
Washington, D.C.
20036 Caryl A. Bartelman, Esq.
Isham, Lincoln & Leale One First National Bank Plaza Chicago, Illinois 60603 Ms. Mary Sinclair 5711 Suc=erset Street Midland, Michigan -48640 Mr. Steve Gadler, P.E.
2120 Carter Avenue
- s,
St. Paul, Minnesota 55103 Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 e
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
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CONSUMERS POWER COMPANY
)
Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 & 2)
)
CFRTIFICATE OF SERVICE I certify that copies of the attached " Motion for stay of Orders in the Light of Changed Circumstances," dated March 4, 1977, were served upon the following by deposit in the United States Mail, postage prepaid and properly addressed, on the 4 th day of March, 19 77.
Mr. C.
R.
Stephens Chief, Docketing and Service Section Office of the Secretary of the Commission U.
S. Nuclear Regulatory Commission Washington, D. C.
20555 Richard K. Hoefling, Esquire Counsel for NRC Staff U.
S. Nuclear Regulatory Commission Washington, D. C.
20555
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Myron M. Cherry, Esquire Suite 4501 One IBM Plaza Chicago, Illinois 60611
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L.
F. Nute, Esquire The Dow Chemical Company 20 30 Dow Center Midland, Michigan 48640 l
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<s t Milton R. Wessel, Esquire 4 Little Lane White Plains, New York 10605 Howard J. Vogel, Esquire 2750 Dean Parkway Minneapolis, Minnesota 55416 The Honorable Curt T.
Schneider Attorney General 1st Floor, State Capitol Building Topeka, Kansas 66612 Fred J. Coufal, Esquire, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Emmeth A. Luebke, Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. J. Venn Leeds, Jr., Member 10807 Atwell Houston, Texas 77096
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l Harold F.
Reis l
l Lowenstein, Newman, Reis & Axelrad l
1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 (202) 833-8371 March 4, 1977 Counsel for Consumers Power Company I
_._