ML19331B039
| ML19331B039 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/24/1974 |
| From: | Grant G US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Saginaw Intervenor |
| References | |
| NUDOCS 8007250737 | |
| Download: ML19331B039 (23) | |
Text
_
2
/-M U/- ^/p UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION
~
cp COPEISSIONERS:
/f DocKErra S
Dixy Lee Ray, Chairman CaEC Clarence E. Larson J4N2 fig 74'-%
William 0. Doub eme.,,,,,, g" William A. Anders
^egymo g
)
y In the Matter of
)
)
CONSUMERS POWER C0.
)
Docket Nos. 50-3295
)
50-330 (Midland Plant, Units 1 and 2)
)
)
Mr. Myron M. Cherry, for the Saginaw Intervenors.
Mr. Harold F. Reis, for the applicant.
Messrs. Milton R. Wessel and James N. O'Connor, for the Intervenor Dow Chemical Co.
Messrs. David E. Kartalia and Albert V. Carr, for the AEC Regulatory Staff.
THIS DOCUMENT CONTAINS MEMORANDUM AND ORDER P00R QUAUTY PAGES
Background
The Saginaw Intervenors filed with the Atomic Safety and Licensing Appeal Board a motion to " clarify" the Board's principal decision (RAI-73-5-331) in the subject proceeding in light of our recent Memorandum and Order in Niagara Mohawk Power Corporation (Nine Mile Point, Unit No.
2), Docket No. 50-410, RAI-73-ll-995. The Appeal Board decision, affirming (with a limited exception not relevant here) the initial decision of the Licensing Board, became final some months ago. Petitions to review that
. order are pending before the United States Court of Appeals for the District
""0 72so 7 3 '?
0 1
2 of Columbia Circuit.N In these circumstances, the Board referred the motion to us for such disposition as we might deem appropriate. ALAB-160, RAI-73-11-1002.U Pursuant to our invitation, the applicant Consumers Power Co., the intervenor Dow Chemical Co., and the AEC Regulatory Staff have submitted responses to the Saginaw motion. Saginaw was granted permission to and did file a reply to these responses.
For the reasons set forth below, insofar as the Saginaw motion seeks to reopen these proceedings, it is denied.
The Saginaw Motion The Saginaw motion reads the Appeal Board's decision in this case as holding that the Licensing Board " properly excluded consideration of energy conservation issues raised by the Saginaw Intervenorsf Motion, pp.1-2.
Read in that light, Saginaw contends that the decision conflicts with our recent Niagara ruling, where we said --
It is true that the parameters of our statutory power to compel conservation are not clear. But it does not follow that all i
evidence should therefore be barred at the threshold.
See i
Long Island Lighting Co. (Shoreham), ALAB-156, decided October 25, 1973, pp. 79-80; Consumers Power Co. (Midland), ALAB-123, May 18, 1973, RAI-73-5, p. 352.
U Aeschliman v. AEC, No. 73-1776, and Saginaw Valley Nuclear Study Group
- v. AEC, No. 73-1867.
U Simultaneously with filing of the instant motion, the Saginaw Intervenors moved the Court of Appeals for an extension of time in which to file their brief until after disposition of the instant motion. Viewing the motion as, in substance, a request tha: tne case be held in abey-ance pending agency action (see Anchor Line Ltd. v. FfE, 299 F.2d 124 (C.A.D.C.), cert. denied, 370 U.S. 922 (1962 C The Commission and the United States acquiesced in that procedure. The Court of Appeals directed that we rule on the motion to clarify and, if we find it necessary to reopen these proceedings, to request remand, by January 28, 1974. Order of January 11,1974.
1
3 Saginaw questions the appropriateness of our approving citations in Niagara to the Shoreham and Midland opinions, drawing our attention to 1
allegedly inconsistent portions of those opinions discussing whether the nature of customer uses represented in projected demands for electricity may be placed in issue in licensing proceedings. Motion, pp. 5-6.
Prior to the environmental hearings in the subject proceeding, Saginaw submitted to the Licensing Board a " Statement of Environmental Contentiuns" listing 119 separate issues it sought to raise in the hearing. The instant motion undertakes to paraphrase 17 of these " contentions," which are now characterized as " energy conservation issues." Following discussion of certain Licensing Board rulings and the initial decision, Saginaw alleges that --
"It is clear beyond peradventure that the Saginaw Intervenors raised issues of energy conservation similar to (and in some cases identical to, e.g., rate structure) those raised by the intervenor in the Niagara docket.
It is equally clear that the Licensing Board ruled as beyond the scope of the proceeding all issues of energy conserva-tion except, perhaps, one (promotional advertising)...." Motion, pp. 19-20.
Saginaw goes on to allege, in substance, that the Appeal Board broadly sustained exclusion of energy conservation issues, including the claim that the Appeal Board "made it quite clear that postulated demand may not be inquired into..." Motion, p. 21.
The Saginaw motion requests " clarification" of the Appeal Board's de-cision in accordance with its reading of Niagara and a remand of these pro-ceedings for further hearings on energy conservation issues.
In the alter-native, Saginaw requests a decision making clet r "now [the Appeal Board's
4 decision here] and Niagara are consistent so that an unambiguous record may be had in the prosecution of court appeals." Motion, p. 22.
The responses filed by the applicant and the Regulatory Staff contend, among other things, that Saginaw has misinterpreted our ruling in Niagara, the Appeal Board's rulings in this case and in Shoreham, and the relevant Licensing Board rulings in this case. They note that many of the issues Saginaw now claims were ex:luded were, in fact, allowed.
They point out that some of Saginaw's paraphrases in-the-instant motion of the " energy conservation" issues it sought to raise before che Licensing Board dis-tort the administrative record. They also contend that '.: alleged
" energy conservation" issues which were excluded by
.e Licensing and Appeal Boards were properly excluded from this proceeding.
We agree.
The Niagara Ruling In our recent Niagara ruling, we dealt for the first time with the relevance in licensing proceedings of " energy conservation" issues -- a rather general term we did not there attempt to define.
Saginaw apparenH" reads Niagara to mean that virtually any action or developme which might r
ultimately lead to reduced aggregate demands for electr city, including some having quite remote or speculative effects on demand, may be made an issue in a licensing proceeding. Niagara established no such sweeping proposition.
In Niagara, the intervenors made contentions concerning concrete measures they alleged might eliminate the need for electricity to be l
5 generated by the proposed plant. Those measures included --
(1) Selective loaG-shedding during periods of peak demand; (2) Changes in the rate structure for electricity designed to decrease demand -- such as modification of volume discounts, or raising prices during peak demand periods; (3) Cutting wasteful uses of electricity, such as space heating, and (4) Reducing promotional advertising which fosters demand for electricity.
Thus framed, these contentions, at least on their face, could have a bearing on the applicant's or Regulatory Staff's projections of demand --
the basic issue to which energy conservation contentions are relevant in 4
the licensing context.
It was the Licensing Board's barring "at the threshold" of any consideration of any of these questions which we disapproved.
f A
6 Our citation in Niagara to portions of the Appeal Board's rulings in Shoreham and Midland are fully consistent with what we have said. Thus, we cited with approval pages 79-80 of the Board's slip opinion in Shoreham, where the Board sustained the Licensing Board's finding that the applicant's projections of power needs were reasonable. The Licensing Board had admitted certain evidence offered by an intervenor to the effect that demand might be reduced by "further educating the public in conservation measures." The Licensing Board had found, however, that that evidence --
... contained little practical guidance for action beyond the significant effort already being made, and no estimate of how much demand might be reduced...
The Appeal Board found this to be an " accurate appraisal," and stated that it might dispose of the intervenor's argument " simply on the basis that the evidence does not support it."
The Appeal Board, then, clearly ruled that the " energy conservation" evidence actually offered in Shoreham was properly admitted, and we endorsed that ruling in Niagara.
The Appeal Board's Shoreham opinion goes on to discuss in rather lengthy dicta "the more fundamental issue of whether questions concerning the nature of electrical demand are appropriate for consideratio.1 in a proceeding of this type."
(Emphasis added.)
Id. at 80-85. The S$ginaw motion in-accurately characterizes this portion of Shoreham as a holding. Be that as it may, Niagara neither approves nor disapproves this portion of Shoreham.
i Similarly, our citation in Niagara to pcge 352 of the Midland decision, as reproduced in RAI-73-5, referred to that p~+4~- of the opinion (paragraph
~ _,
7 3b) discussing the Saginaw intervenor's contention that "the demand for electricity was artificially stimulated by the applicant's advertising."U Such a contention raises a legitimate issue, and this was recognized by both the Licensing Board and Appeal Board, although they did not use the label " energy conservation." However, no evidence was offered in support of this contention.
As we said in Niagara, this is a time of " deep national concern over energy sources and supply -- a concern which the Conmission fully shares."
But the phrase " energy conservation" has a deceptively simple ring in this context. Taken literally, the phrase suggests a virtually limitless range of possible actions and developments that might, in one way or another, ultimately reduce projected demands for electricity from a particular proposed plant.
It would be neither possible nor desirable for us to lay down, at least at this juncture, very precise guidelines governing the kinds of energy conservation issues which should be allowed in licensing proceedings.
Widely varying factual circumstances in individual cases, coupled with the inherent generality of the " energy conservation" concept, dictate that such guidelines be developed on a case-by-case basis, or, perhaps, through rulemaking. Never-theless, certain basic considerations can be stated from the present vantage U
Our approving citation to page 352 of the Mjdland decision did not include the carryover paragraph from page 351 (paragraph 3a), which discusses whether inquiries into "the propriety of... customary uses of elec-tricity" should be made.
~ s 8
point. Purported energy conservation issues must meet a threshold test --
they must relate to some action, methods or developments that would, in their aggregata effect, curtail demand for electricity to a level at which the proposed facility would not be needed.
As discussed hereafter, several of Saginaw's alleged " energy conservatior" issues have nothing to do with projected demand. Beyond that, the issue must pertain to an alternative that is " reasonably available."
Natural Resources Defense Coun cil v.
Morton, 458 F.2d 827, 834 (C. A.D.C.1972).
Furthermorg, the impact of proposed energy conservation alternatives on demand must be susceptible to a reasonable degree of proof. Largely speculative and remote possibilities need not be weighed against a convincing projection of demand. Here, as nith many other issues under the National Environmental Policy Act of 1969, a rule of reason applies.
See Natural Resources Defense Council v.
Morton, supra.
The contentions we approved in Niagara meet tr.ese tests. For example, possible restrictions on promotional advertising might well have a direct End appreciable effect on demand. The same may also be true of selective load-shedding during periods of peak demand, modifications of rate structures, cr. cutting wasteful uses of electricity. While the Ccmmission might well lack authority to mandate such actions, that fact alone does not preclude our inquiry into seemingly feasible actions by State or other federal agencies.
Natural Resources Defense Cou rtil v. Morton, sunra.
j4 For example, one of the Saginaw energy conservation contentions herein (contention 33) suggests investigating ways of ::x-ating electricity through means "not now known to man."
Such suggestions need not be entertained.
s 9
The Saginaw " Energy Conservation" Contentions The Saginaw motion alleges that, with the exception of one issue con-cerning promotional advertising, the Licensing Board ruled that issues of energy conservation were "as a matter of law, beyond the scope of the licensing proceeding." Motion, p. 15. As noted above, the Saginaw motion paraphrases 17 of the 119 contentions it submitted to the Board, and charac-terizes them as " energy conservation" issues. Saginaw's current paraphrases of several of the contentions it actually submitted to the Board are inaccurate andmisleading.b We deal, of course, with the contentions actually submitted 4
to the Board.
The Saginaw " Statement of Environmental Contentions" was hardly a model pleadir.g. As the Licensing Board noted, certain contentions of Saginaw's were "long on rhetoric and short on specificity."b Many N
For example, the motion states that contention 31 related to " promotional activities such as advertising or the sale of appliances." That con-tention did not refer to the sale of appliances.
The motion states that contention 32 " raised the question of various methods" of energy conservation. No " methods" were suggested by that contention.
In fact, the contention referred only to "the possibility of changing the present social stimuli to societ.y which could result in decreased demand for electricity." Such a vague generality is in-sufficient to raise a factual issue.
The motion states that contention 33 " raised the conscrvation issue of denying electricity to some customers and in particular Dow Chemical Company." The contention actually deals with the possibility of securing electricity from other sources, and has no bearing on energy conserva-tion in the sense of reducing aggregate demand for electricity.
Similar distortions of the record occur with respect to contentions 49, 88, and 89.
U Order with respect to Environmental Issues, Nrch 27,1972, p. 7 (here-after " Order").
m s
10 contentionswereredundant.U And many sought to raise multiple and moreorlessunrelatedissues.S Although Saginaw now professes to view 17 of its 119 contentions as " energy conservation" contentions, its original submission to the Board did not point up any such common theme.b In response to this diffuse barrage, both the Licensing Board and the Appeal Board dealt with the contentions by groups, except where they considered it necessary to refer to specific contentions. We will deal similarly with the alleged " energy conservation" contentions.
Summarizing the analysis which follows, we find that Saginaw properly raised one related group of legitimate energy conservation issues which the Licensing Board allowed. Saginaw obliquely raised a second energy con-servation issue essentially similar to the rate structure issue we allowed in fliagara, which the Board also allowed. The Board properly excluded several alleged energy conservation contentions concerning certain customer uses of electricity.
Finally, several other contentions of Saginaw's allegedly precluded by the Board were in fact allowed, but they had nothing to do with energy conservation, l.
Contentions Relating to Promotional Activities Contentions 31, 47, 75 and 76 deal redundantly with the claim that the applicant has created artificial demands for electricity through advertising and other (largely unspecified) promotional activities. As we held in U See, e.g., contentions 31, 47, 75 and 76 concerning promotional activities.
O See, e.g., contentions 33 and 34.
S Rather, the alleged " energy conservation" issues were scattered under four separate subject matter headings, only one of which had any direct bearing on energy conservation.
11 fliagara, contentions of tnis nature raise legitimate energy conservation issues. The Licensing Board authorized the introductior, of evidence on suchmatters.b Saginaw never offered any such evidence, and the Licensing Board held that absent some evidence that the applicant was creating abnormal demand, it would not consider the question. The record did contain substantial evidence and the Board found that " postulated demand is made up of normal industrial and residential use." The Appeal Board affirmed these rulings.
2.
Contentions Relating to Rate Structure The Saginaw motion alleges that contention 49 --
called into question the Michigan Public Service Comis-sion's rate structure applicable to applicant's marketing of electricity arguing that the existing rate structure encourages rather than discourages demand.
Evidence pertaining to such a contention is admissible, as we held in fliagara.
But no such contention was made here.
Saginaw's contention 49 actually reads as follows:
Applicant and the Michigan Public Service Commission have illegally created an incentive for continual construction of generating facilities when they are unnecessary. The rate structure imposed upon Applicant by the Michigan Public Service Commission encourages Applicant to create unwarranted costs upon the environment.
Because Applicant's ability to receive a fair return on its invested capital is directly related to outstanding amounts of unamortized construction N
The Board's order stated that "in its affirmative case, S41naw should... specify the portion of the demand attributable to adver-tising by applicant and the basis of that conclusion." Order, p. 9.
A similar promotional advertising contention was raised by the Mapleton Intervenors and allowed by the Board. Order, p. 14.
In addition, the Board ruled generally that "the need for power from the proposed M ant is, of course, an issue in this proceeding."
Order, p.10.
l s
m
12 and other capital costs, Applicant has an incentive to continue to construct power facilities, whether necessary or not, in order to maintain an artificially high rate structure.
Specifically, Intervenors contend that Applicant is failing to use existing generating facilities to the extent of their useful lives and it is taking such facilities out of base load or peaking service after such facilities have been amortized and removed from consideration of Applicant's rate structure. Thus, the proposed Plant represents an attempt to construct a facility in order to maintain an artificially high rate structure and, as such, it represents an unwarranted cost to the environment.
The burden of this contention, of course, is that the State's rate structure encourages construction of unneeded plants.
Whatever the merits of that con-tention may be, it raises an entirely different issue from the issue we approved in Niagara. The Niagara issue, relating to rate structures which may possibly encourage high-volume consumption of electricity, bears on our concept of energy conservation. The Saginaw contention has, at best, a remote relationship to energy conservation.
Saginaw obliquely raised an issue essentially similar to the Niagara rate structure issue in the last sentence of its contention 88. Most of that contention was addressed to the separate issue whether projected growths of certain of the applicant's large industrial users were accurate.
- However, the contention concludes with the statement that --
Concomitantly, applicant has failed to factor into its projection the possibility that rate structures will be revised so as to make large use of electricity on a per unit basis more expensive thereby discouraging the increased use of electricity.
Since the Licensing Board ruled generally with respect to the group of l
contentions in which this contention was inc1"N that "the need for power i
l from the proposed plant is... an issue in this proceeding," its disposition
3 13 Sf this centention is consistent with Niagara. No evidence was offered and the Board did not further consider this contention, consistent with our views (discussed hereafter) on burden of proof in this area. Never-theless, it is appropriate to state our position that we will not apply Niagara retrocatively to cases which had progressed to final order and issuance of construction permits before Niagara was decided.
Administrative agencies have broad discretion to limit or preclude retroactive applica; ion of new rules developed in adjudication. See SEC Chenery Corp., 332 U.S. 194, 203 (1947); Department Store Union v.
e.
..LRB, 466 F.2d 380, 388-390 (C. A.D.C.1972); NLRB v. Majectic Weaving Co.,
L55 F.2d 854, 860-861 (C.A. 2 1966). Among the factors to be weighed are VAether the new rule represents a departure from prior practice, the reliance of the parties on past practice and consequent burdens imposed by retroactive application of the new rule. and the governmental interest in applying it to past cases. Weighing thoce factors in this context, we believe that the balance of relevant considerations dictates prospective application of our decisions in the unfolding area of energy conservation.
14 3.
Contentions Relating to Customer Uses of Electricity Several of Saginaw's " environmental contentions" apparently relate, wholly or in part, to possible customer uses of electricity. Most of these contentions are too vague to raise a factual issue in this context.
Thus, contention 32 speaks of "the possibility of changing the present social stimuli to society which could result in decreased demand for electricity...." Contentions 73 and 74, which we treat below ss relating to demand projections, also appear to question -- by reference to " social Ind scientific stimuli" and "useful social stimuli" -- the " validity" of certain customer uses of electricity. Contention 76, which also discusses promotional activities, questions "whether a demand is created by encourag-ing the public to use unnecessary and nonutilitarian products which use large amounts of electricity in the course of fabrication and production."
The Dow Chemical Company plant in Midland will receive process steam and electricity from the proposed plant. Contention 34 suggests that certain of Dow's products, such as " chlorinated hydrocarbons or 2-4-5-T" may be 1
+
1
15 harmful to the environment. The Licensing Board excluded this contention, rejecting "the argument that this proceeding must consider the social values oftheendusesofthepowertobeproduced."$ The Appeal Board affirmed this ruling, observing that such contentions " seek to expand the NEPA review well beyond the pale of what we view as required by flEPA."E Contentions of this kind do not, in our view, raise legitimate energy conservation issues. For example, the Saginaw contention concerning the alleged environmintally harmful characteristics of some of Dow's products has, at best, a very speculative effect on demand. Dow and similar companies manufacture a wide range of products.
Should one product be discontinued for environmental reasons, it is reasonable to assume that another product would take its place. Thus, Dow's energy requirements and the need for the proposed plant would not be affected.
t',oreove", as the Appeal Board pointed out in Shoreham,13/ prediction of the environmental effects of the uses of electricity is highly speculative and remote from the basic question whether the proposed plant should be authorized.
See First National Bank of Homestead v. Watson, 363 F.Supp.
466, 5ERC1497(0.0.C.1973). The record here, as in Shoreham, reflects that the facility is needed to satisfy normal residential and industrial b Order, p. 8.
b ALAB-123, RAI-73-5-331, 351-352.
Il Long Island Lighting Comoany (Shoreham Nuclear Power Station), RAI-73-10-831, 853 (1973).
16 demand. Giving effect, therefore, to the rule of reason applicable under NEPA, and absent special circumstances, Licensing Boards are not required to entertain contentions concerning alleged environmental effects of customer uses of electricity. E We note, however, that even with respect to these issues the Board did act exclude proferred evidence "at the threshold." Rather, respectir9 Saginaw's repeated concern with "useful social stimuli," the Board stated that Saginaw could " postulate its own view of socila (sic) validity, and argue the proposition at an appropriate time."E Thus, Saginaw was invited c.o recast these contentions in more specific terms, an invitation it did not iccept.
4.
Contentions Relating to Projected Demand Six of Saginaw's " energy conservation" contentions, fairly read, related
..o the validity of electricity demand projections generally and for the pro-posed plant. Thus, contention 73 alleges very generally that demand projections should be analyzed from the perspective of ways to decrease demands for elec-cricity. Contention 74 states that possible availability of electricity from sources other than the proposed plant to meet projected demands must be
$ In addition, inquiries into environmental effects of customer uses could lead to virtually interminable hearings on collateral issues.
The hearing transcript in this protracted proceeding is almost 8,000 pages long, and the entire record exceeds 24,000 pages.
N Order, p. 11.
9 17 analyzed. Contention 81 questions the applicant's projections concerning continued industrial growth in the State of Michigan. Contention 87 ques-tions the applicant's assumptions concerning future uses of roomair condi-tioners. Contention 88 alleges that the applicant had incorrectly analyzed projected growth of its major users of electricity, such as General Motors and Dow Chemical. Contention 89 questions an asserted relationship between gross national product and the automobile industry, as it relates to the applicant's demand projections. flone of these contentions raise valid energy conservation issues -- i.e., they do not indicate ways in which concededly etccurate demand projections might be reduced.
In any event, the Licensing Board ruled that "the need for power from
.ne proposed plant is... an issue in this proceeding," thereby allowing mchofthesecontentions.$ The Saginaw motion makes no reference to this ruling, and Saginaw introduced no evidence concerning these contentions.
The record contains substantial evidence supporting the applicant's demand projections.b 5.
Other Contentions Saginaw argues that four other " energy conservation" contentions were improperly excluded. These remaining contentions have nothing to do with energy conservation, as we define that concept.
Contention 33 is concerned with whether Dow Chemical could purchase power from other of the applicant's generating facilities, whether Dow 16/ Order, P. 10.
17f See Initial Decision, paragraph 47.
r i
m
\\
\\
l 18 might modify its existing fossil fuel facilities, or whether Dow and other customers might procure electricity through " conventional means" or "other means not now known to man." None of these contentions are relevant to the reduction of r ojected demands for electricity. On the contrary, these contentions postulate the validity of projected demands, and argue that they should be met from other sources. The Appeal Board stated in this connec-tion that --
The applicant's ability to obtain electricity from other sources was the subject of extensive testimony, which fully supports th goard'sfindingthat"outsidesources are unavailable."
Contention 72 alleged certain deficiencies in the regulatory staff's c.ssessment of costs of generating electricity through nuclear power. These a.leged deficiencies related entirely to radiological matters. Contention 85 iuestions the applicant's assertion that the proposed plant will " maintain and enhance living standards."
In a similar vein, contention 92 appears to question whether the need for electricity will provide jobs for an increased number of adults. The latter two contentions are too vague to raise an issue in this context and, in any event, seemingly have nothing to do with energy conservation.
Saginaw's Procedural Defaults -- Burden of Proof Contrary to Saginaw's argument, its validly framed energy conservation i
contentions were allowed by the Licensing Board. We also believe, however, E RAI-73-5-331, 351.
l t
19 that serious procedural defaults by Saginaw in the course of these pro-ceedings bear on the appropriate disposition of this motion.
The record in this case does not reflect any out-of-hand rejection of Saginaw's alleged energy conservation issues. The Board was obviously troubled, however, by the vague and rhetorical quality of many of these contentions. As to several contentions, Saginaw was invited to make more specificsubmissions.N Further, the Board acknowledged that " written detailed questions would undoubtedly be useful in further refining the issues to be contested" and invited submission of such questions.E Saginaw did not respond to these invitations.
The Board scheduled a hearing on environmeni.al issues for May 1972.
On the ground that its counsel was engaged in other matters, Saginaw requestad an indefinite postponement of that hearing.
The Board justifiably denied that request, and Saginaw did not appear or participate in the fourteen days of environmental hearings.b Section 2.754 of our rules authorizes licensing boards to require submission of proposed findings of fact and conclusions of law by participating 19/ See note 10, supra, and accompanying text, and page 16.
i
_2_0/ Order, p. 2.
j 0
2_l] We agree with the Appeal Board's observation - "While the Board un-doubtedly should attempt to acconinodate legitimate requests for post-ponement, it is not required to accede to blanket requests for in-definite postponement which are not accompanied by a good-faith attempt to define a mutually convenient schedule.
In any event, counsel who participate in AEC proceedings have an obligation not to over-extend their commitments so as to frustrate the objective of bringing licensing proceedings to a conclusion within a reasonable time frame."
RAI-73-5-331, 352-353.
i
\\
20 parties. All parties, including Saginaw, were directed to file proposed findings and conclusions.--22/
The Saginaw submission stated with respect 60 environmental issues that they had "no conventional finoings of fact to set forth." As the Licensing Board noted in its initial decision, this failure to file proposed findings and conclusions "made it virtually impos-sible in some instances to know whether particular issues of fact are con-23]
tested."
Addressing the same point,the Appeal Board stated that "partici-24/
pation in this manner, in our opinion, subverts the entire adjudicatory process."~'
We agree.
Particularly in these circumstances, Saginaw's complaint that it was not granted a hearing on alleged energy conservation issues comes with ill mace.
Saginaw argues in its reply that its procedural defaults are irrelevant.
It contends that the Licensing Board must consider all environmental issues, sqether contested or not, and that since the record in the case and the Board's decision do not in terms reflect consideration of " energy conserva-tion," a remand for further proceedings is required.--25/
Established rules of burden of proof governing conventional civil litiga-tion are not necessarily completely dispositive in agency licensing proceedings where affirmative public interest findings are requisite.
See, e.a., United Church of Christ v. FCC, 425 F.2d 543, 546-550 (1969).
Particularly is this 22/ Order of June 28, 1972.
23/ Initial Decision, p.10.
24/ ALAB-123; RAI-73-5-331, 332.
'l 25/ We attribute no significance to the absence cf S.e phrase " energy conserva-tion" from the record or the Board's decision.
" Energy conservation" is only now becoming a term of art.
L
- s 21 true under NEPA, which, of course, imposes upon us an affirmative obliga-tion to develop an adequate record upon which to assess the environmental impact of proposed nuclear plants.
Giving appropriate recognition to these general principles, we must nevertheless have workable subsidiary rules for the orderly conduct of these proceedings.
The burden of proof on the ultkate question wnett er a permit or license should be issued is on the applicant. Administrative Procedure Act, Q 7(c)
(5 U.S.C. 556(d)); 10 CFR 2.732. This burden includes preparation of an environmental report describing the impact of the proposed action, including iternatives to the proposed action.
10 CFR Part 50, App. D, F A.l(c). As
'iagara makes clear, such alternatis:es may in particular cases include f
anergy conservation alternatives. Consistent witn NEPA, the Regulatory
'itaff must independently prepare draft and final environmental impact
.tatements, including, in appropriate cases, discussion of energy conserva-tion alternatives. Appendix D, F A.8.
And the licensing boards must, on the record thus developed, " independently consider the final balance among conflicting environmental f actors" (Appendix D, F A.11), including possible energy conservation factors.
But workable rules in this setting must take into account that energy conservation is a novel and evolving concept.E NEPA "does not require a N In its initial effort to deal with energy conservation questions, we note that Federal Power Commission stated that " conservation of energy the is currently an evolving concept... without a uniformly accepted definition...." Measures to Imolement Conservation of Natural Resources, adopted November 13, 1973, 38 Fed. Reg. 31963, 31964.
^%
22
' crystal ball' inquiry." fiatural Resources Defense Council _ v. Morton, supra, at 837. This consideration has led us to hold that we will not apply tiiagara
- at roac" vely. As we gain experience on a case-by-case basis and hopefully, feasible energy conservation techniques emerge, the applicant, staff, and licensing boards will have obligations to develop an adequate record on these issues in appropriate cases, whether or not they are raised by intervenors.
However, at this emergent stage of energy conservation prir.ciples, intervenors also have their responsibilities. They must state clear and reasonably specific energy conservation contentions in a timely fashion.
Beyond that, they have a burden of coming forward with some affirmative showing if they wish to have these novel contentions explored further.b This Comission, applicants, and public interest groups are involved in truly creative proceedings, hopefully striking reasonable balances between complex and frequently competing considerations. Particularly in this setting, there is a need for compliance with procedures designed to develop and refine the issues, and for a spirit of accomodation, if the system is to work. Saginaw fell far short in these respects.
E We do not equate this burden with the civil litigation concept of a prima facie case, an unduly heavy burden in this setting. But the showing should be sufficient to require reasonable minds to inquire further. Compar e United Church of Christ v. FCC, supra.
23 Insofar as the pending motion seeks clarification of our Niagara The motion is, in all other respects, denied.E ruling, it has been granted.
It is so ORDEREO.
By th c-
':- 4nl f
hV bae GOR 00tl M. GRANT "
the C mmission ActinhSecretary Dated at this 24th day of January,1974.
E We have received a letter dated January 21, 1974, from Saginaw making additional allegations in support of its motion, and a These submissions, as telegram from the licensee in response.
framed, do not affect our disposition of the matter.
.