ML19331B050
| ML19331B050 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/29/1977 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| References | |
| ALAB-395, NUDOCS 8007250748 | |
| Download: ML19331B050 (35) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION 7
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ATOMIC SAFETY AND LICENSING APPEAL BOARD sF Michael C.
Farrar, Chairman Dr.., Lawrence R.
Quarles*
Richard S.
Salzman
)
In the Matter of
)
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CONSUMERS POWER COMPANY
)
Docket Nos. 5 6324 3
)
50-330 (Midland Plant, Units 1 & 2)
)
)
Mr. Harold F.
Reis, Washington, D.
C.,
for Consumers Power Company.
Mr. Myron M.
Cherry, Chicago, Illinois, for the intervenors Saginaw Valley Nuclear Study Group et al.
Mr.
L.
W.
Pribila, Midland, Michigan, for the intervenor Dow Chemical Company.
Messrs. Richard K.
Hoefling and James Lieberman for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER April 29, 1977 (ALAB-395)
- Dr. Quarles did not participate fully in this decision for the reasons which appear in his separate statement, infra, pp. 30-32.
HI 800725074f g
. Owing to the absence of a quorum able to act on the merits 1/
in this post-construction permit proceeding-
, the Commission has recently instructed us to handle any matters which would 2/
otherwise come before it.
This delegation of authority, which is to remain in force until the Commission again has 3/
a quorum,--
has the present effect of putting three matters before us for consideration:
(1) the motion of the appli-cant, Consumers Power, to stay the proceeding now pending before the Licensing Board on the ground that the Supreme Court has granted certiorari to review the decision of the Court of Appeals for the District of Columbia Circuit which triggered the proceeding in the first place; (2) the inter-venors' motion to halt construction of the plant pending the outcome of the Licensing Board proceeding; and (3) the 1/ A quorum of the five-member Commission consist of three
~~
members.
Two seats are now vacant, and one of the three incumbents considers himself disqualified in this pro-ceeding.
Out of necessity, however, he participated for the limited purpose of referring all matters to us.
2/ CLI-77-7, 5 NRC (March 18, 1977), and CLI-77-12, 5 NRC (April 5, 1977).
_3,/ CLI 12, supra, 5 NRC at
. intervenors' motion for financial assistance.--4/ For the reasons stated below, we deny all three motions.
I.
The applicant filed its motion to halt the pending Licensing Board proceeding directly with the Commission.
The applicant did so because it was in essence requesting a change in the directives which the Commission itself had issued to the Licensing Board in the wake of Aeschliman v.
NRC; 547 F.2d 622 (D.C. Cir. 1976), which involved review of the Midland construction permits.
See also Natural Resources Defense Council v. NRC, 547 F.2d 633 (D.C. Cir.
1976).
The applicant's motion is grounded upon the Supreme Court's recent grant of certiorari in Aeschliman--5/
and the asserted consequent doubt about the continued validity of the court of appeals' decision.
The applicant
--4 / A number of individuals and organizations, all repre-sented by the same counsel, have intervened here in opposition to the facility.
We will refer to them herein simply as the intervenors.
There is one other intervenor, the Dow Chemical Company, which we will refer to by name.
--5-/ Sub. nom. Consumers Power Co. v. Aescullman, 45 U.S.L.W.
3570 (February 22, 1977).
Certiorari was also granted in the companion case, NRDC v. NRC, supra.
m
. argues that the decision is not " final" and thus that "the continuation of these protracted and onerous pro-ceedings has become anomalous, inequitable and wholly inconsistent with efficient aoministrative practice." To relieve this burden, it seeks a stay pending completion of the Supreme Court's review.
All the other parties --
the NRC staff, Dow Chemical, and the intervenors -- oppose the grant of a stay.
We have already informally denied a related request made by the applicant; i,.e.,
an emergency request for an immediate interim stay pending our deliberations on the motion for a long-lasting halt to the proceeding.
In this opinion, we set forth the reasons which led us to d ny the emergency motion.
We then turn to the merits of the stay request.
On that score, we hold that the applicant is entitled to no relief. To be fully under-stood, our explanation must be preceded by a statement of the procedural posture of this case.
A.
Background
In Aeschliman, supra, the court of appeals was called upon to review the Commission's grant to Consumers Power of permits to construct the two units of the Midland nuclear 6/
facility.
The court held that the agency decisions authorizing the permits were defective on three counts:
(1) energy conservation issues were not considered; (2) the report of the Advisory Committee on Reactor Safeguards failed 7/
to comply with statutory standards; and (3) the NEPA cost-benefit analysis did not take account of the environ-mental effects of the nuclear fuel cycle.
With respect to the third point, the court's ruling was controlled by the decision it had made in a companion case (NRDC v. NRC, supra) that same day.--8/
6 / The permits were issued on December 15, 1972, after the Licensing Board had rendered an initial decision authorizing their issuance.
We affirmed that decision, subject to some modifications.
ALAB-123, 6 AEC 331 (1973).
That decision became the final agency action when the Commission declined to review it.
7 / In this connection, the court decreed that the report be returned to the ACRS for clarification of certain ambiguities.
547 F.2d at 632.
El_/ The NRDC decision involved petitions for review of two different fuel cycle matters.
One concerned the Vermont Yankee license itself; the other the fuel cycle (Footnote continued on next page).
_ By way of relief, the court instructed that the orders granting the Midland construction permits were
" remanded for further proceedings in conformity with" its 9/
opinion; it said nothing about the status of the permits in the interim before those proceedings were completed.
Because consideration of energy conservation and fuel cycle issues would necessitate restriking the NEPA cost-benefit balance, the court did, however, " assume that the Commission will take into account the changed circum-stances regarding Dow's need for process steam
- from the Midland plant.--10/
In mid-August 1976, the Commission issued a General lL/
Statement of Policy designed to implement the court's decisions.
The fuel cycle decision of course had ramifications
--8/ (Footnote continued from previous page).
rule that had been adopted by the Commission after Vermont Yankee had been licensed.
The court's decision consisted of two principal holdings: (1) it was improper for the Commission to decide individual licensing cases prior to the completion of the fuel cycle rulemaking pro-ceeding without taking the effects of the fuel cycle into account in some other manner and (2) the fuel cycle rule was inadequately supported in certain respects.
jL/ 547 F.2d at 632.
10
__/ Ibid.
11/ 41 F. R.
34707 (August 16, 1976).
I 1
' beyond the particular reactors which had been the subject of judicial review, and the policy statement dealt with it in that context.
The Commission there stated its intention to promulgate an interim fuel cycle rule to 1
be used in licensing proceedings pending completion of formal rulemaking.
It also indicated that proceedings could be instituted to' consider whether any outstanding permits or licenses should be modified or suspended until such an interim rule could be made effective.
The Commission itself reconvened the Midland and Vermont Yankee Licensing Boards to consider this question, telling them to call for "brief's from the parties * * *, followed by evidentiary 1W hearings if necessary."--
The issues peculiar to Midland (i.e.,
those other than fuel cycle) were not taken up as rapidly.
In that connection, the Commission instructed the Licensing Board that it would not be appropriate to convene a hearing on "the merits of the other issues assigned for reconsideration" by the court in
~~12/ Consumers Power Co. (Midland Plant, Units 1 and 2),
CLI-76-ll, NRCI-76/8 65 (1976); Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
CLI-76-12,NRCI-76/8 66 (1976).
8-13 /
Aeschliman until the court's decision had "become final."--
Both Consumers Power and the government asked the court of appeals to stay the mandates in Aeschliman and NRDC v. NRC pending the filing of petitions for certiorari.
Although the court eventually did so with respect to the latter case (see p. 9 ini'ra), it expressly refused to do so in the former.
Accordingly, the mandate in Aeschliman 14/
issued on September 3, 19767-The Commission thereupon instructed the Midland Licensing Board to take up, along with the fuel cycle matter, the other issues which had been remanded.--15/
In this regard, the Commission expressly rejected Consumers' argument that consideration of these matters would be inappropriate and should be deferred pending disposition of the certiorari petition which it 16 /
~~
intended to file with the Supreme Court.
Jj/ CLI-76-ll, supra, NRCI-76/8 at 65.
See also 41 F.R.
at 34709, fn. z.
jj/ Consumers Power did not renew its request for a stay before the Supreme Court, although that avenue was open to it.
28 U.S.C.
2101(f) and Supreme Court Rules 27, 50 and 51.
15/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Station) and Consumers Power Co.
(Midland Units 1 and 2), CLI-76-14,
~-
NRCI-76/9 163,166-67 (September 14, 1976); see also the Commission's unpublished order of the same date, entered in this proceeding alone.
16/ Id. at 16 6, fn. 1 and accompanying text.
. As noted above, the court later (on October 8, 1976) did stay its mandate in NRDC v. NRC, the fuel cycle case.
Based on that action, the Commission suspended all the proceedings that had been convened in the wake of the fuel 17 /
cycle decision and the General Statement of Policy.--
It issued a separate ruling to that same effect insofar as 18 /
the fuel cycle matter in Midland was concerned;-- on all other issues, however, the Midland proceeding was to go forward because:--1W The mandate of the court of appeals in the Aeschliman case has issued.
The Aeschliman decision is now fully effective and binding on the Commission, which must proceed to implement it.
In that connection. the Commission again explicitly re-jected Consumers' argument that consideration of these 20 /
matters should await Supreme Court action.--
~~17 See the Supplemencal General Statement of Policy issued November 5, 1976 (41 F.R.
49898, November 11, 1976) and CLI-76-18, NRCI-76/11 470 (November 5, 1976).
See also Public Service Company-of New Hampshire (Seabrook Station, Units 1 and 2), CLI-76-17, NRCI-76/ll 451 (November 5, 1976).
--19 Consumers Power Company (Midland Units 1 and 2),
CLI-76-19, NRCI-76/ll 474, 475 (November 5, 1976).
19 Id. at 475.
29 Id. at 475 fn. 1.
.. In accordance with the Commission's instructions, the Licensing Board went ahead.
Some twenty-one days of hearing were held between the end of November and mid-February.
On February 22, 1977, the Supreme Court granted certiorari in both Aeschliman and NRDC v. NRC.
45 U.S.L.W.
3570.
Based on this change in circumstances, Consumers ten days later put before the Commission an araument that the Midland Licensing Board proceedings should be held in abeyance to abide the result of Supreme Court action.
B.
Consumers' Emergency Motion..
As mentioned at the' outset, the absence of a cuorum caused the Commission to refer Consumers' raotion to us.
It did so on Friday, March 18th; the hearing before the Licensing Board, which had been in recess for a month, was scheduled to resume on the following Monday, March 21st.
The ink was scarcely dry on the Commission's referral order when Consumers telegraphed to us an emergency motion for an interim stay of the. hearings pending our full review of, and decision on, the request for a long-term adjournment.
The Chairman was notified of the arrival of his copy at mid-morning on Saturday, March 19th.
Upon examination of I
n-
_ it, and being unable to reach the other Board members, he denied the motion himself--2 L/
and instructed the NRC operator (1) so to advise applicant's counsel and (2) to direct counsel to bring the ruling to the attention of the other recipients of his telegram.
Later, the other Board members expressed their full concurrence in the action the Chairman had taken.
Because that ruling was necessarily made in informal fashion and with no reasons assigned, it seems appropriate to include in this opinion a statement of why we denied the applicant's request for emergency stay relief.
The standards laid down in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir.
1958),
supplied the framework for that decision.
The four factors set out there ordinarily govern the Com-mission's as well as our own disposition of stay motions.--22/
--21/ The power to act alone in such circumstances is conferred by 10 C.F.R. 52.787 (b) (1).
--22/ See, e.g., Natural Resources Defense Council, CLI-76-2, 3 NRC~77, 78 (1976); Allied-General Nuclear Services (Barnwell Facility), ALAB-296, 2 NRC 671, 677-78 (1975).
I
1 In that connection, one of the four factors turned out to be predominant.
Specifically, neither the telegram itself nor the underlying papers to which it referred, claimed, much less established, that the continuation of the pro-ceedings would cause the applicant irreparable injury.
This is not surprising.
Much higher authority than our-selves has held that "[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury."
Renegotiation Board v. Bannercraft, 415 U.S.
1, 24 (1974).
And we have applied that teaching in circumstances similar to those presented here, when the shoe was on the other foot.
Barnwell (supra, fn.22),
2 NRC at 684 (where it was the intervenors who were seeking a stay of Licensing Board hearings).
Given the absence of irreparable injury, it would have taken an exceptionally strong showing on the other three factors for the applicant to have prevailed.
But those factors also militated against granting the emer-gency stay.
In the first place, our preliminary review suggested that the applicant had little chance of succeeding on the merits of its long-term. stay motion.
Because further study has confirmed that belief, we need not discuss the matter at this juncture.
See pp. 16-22, infra.
w Secondly, all of the other parties were opposed to the long-term stay, and the position of at least one of them -- the private intervenors -- would be jeopardized were the hearings to be postponed.
For, as the Com-23/
mission has just reemphasized,~~
the basic issue which is before tne Licensing Board on the merits -- whether to re-authorize the construction of the Midland facility in the face of claims that the project as presently structured 24 /
cannot survive a proper NEPA cost-benefit analysis--
-- can be prejudiced by a continuing commitment of resources to the project.
The more that is expended, the less likely it is that, on account of environmental considerations, either the cost-benefit balance will be tipped against the plant or potential alternatives will remain feasible.
In essence, the applicant is seeking to defer decision on the wisdom of completing the facility while continuing the construction activity that could tilt the decision-making process in its favor.
There is a saying for this -- having 23/ See Public Service Co. of New Hampshire (Seabrook Units 1 and 2), CLI-77-8, 5 NRC (March 31, 1977).
--24/ For present purposes, we put to one side any safety issues that may be unearthed in connection with the renewed consideration of the ACRS letter.
i I
l
T your cake and eating it too.
Only the most extraordinary-circumstances would justify our requiring a party to stand by while'another is satiated at its expense.
Finally, the public interest would have suffered in at least two respects had we granted the emergency delay sought.
First, there is a public -- as well as a private --
interest in the fairness of the decision-making process.
What we said in the preceding paragraph, then, is doubly important.
Second, the scheduling cf the hearings before the Board below seems at times to have been beset with difficulties.
Were we to have called off last month's session at the last minute, after the parties had re-scheduled other commitments around it, they might not have been able to put to good use the time suddenly made available to them.
Then, had we later determined the hearing should go forward, they would have been faced with adjusting their schedules once again, perhaps at great in-convenience or with substantial hardship.
The difficulties usually attendant upon scheduling these cases -- where there are three-member boards, several parties (some with multiple counsel) and numerous witnesses to be considered --
25 /
bulk large enough without our directing last-minute changes.--
--2V The Board below expressed a similar view in its memorandum of March 16, 1977, which, inter alia, explained why it had earlier declined to call off the hearing session scheduled for March 21st.
.. All the considerations just discussed convinced us that the applicant's telegraphic motion was entirely devoid of merit.
In this connection, it bears mention that requests for emergency relief which require us to act without giving the parties who will be adversely affected a chance to be heard ought to be reserved for palpably meritorious cases and filed for only the most serious of 22/
reasons.
--26/ The hearing went forward on March 21st and continued for several days.
It was then scheduled to reconvene on April 4th but its resumption had to be postponed to May 9th (see Licensing Board order of April 12th).
2]/ We also call to the attention of practitioners who may in the future have occasion to seek emergency re-lief the fate that befell the applicant's telegram in this proceeding.
Although the telegram was initiated mid-afternoon, the copies intended for the Board members were not transmitted to the Commission's message center until close to midnight.
In short, merely transmitting the text of a motion to the telegraph company does not insure that we will become apprised of it that day. If it is imperative that a matter be brought to our atten-tion quickly, those within the metropolitan area would be well-advised to have a messenger deliver to us and to local opposing counsel a copy of the text of the telegram, relying on the telegram itself only as a means of service upon out-of-town counsel.
Even Et that, telephonic notice to all adverse parties might be in order, for only in the most extraordinary cir-cumstances will we grant relief without atfording them at least some opportunity to be heard in opposition.
And even less frequently will emergency relief be granted by a Board Chairman acting alone when his inability to consult with his colleagues is attributable to the movant's own failure to employ the most expeditious manner of bringing the matter before the Board.
.- C.
The Long-term Stay Request We turn now to the merits of the stay motion which the applicant originally filed with the Commission.
As noted previously, that motion seeks to defer all activity before the Licensing Board while we await the outcome of the pending Supreme Court review.
1.
Our analysis begins -- and nearly ends -- with the doctrine that "neither the filing nor the granting of a petition for certiorari operates as a stay, either with respect to the execution of the judgment below or the 28/
issuance of the mandate below to a lower court."
As Judge Wisdom observed in Meredith v.
Fair, 306 F.2d 374, 376-77 (5th Cir. 1962), the " guidelines for granting stays
[pending certiorari) which have withstood the years" were established by the Supreme Court in Magnum Import Co. v. Coty, 262 U.S. 159 (1923).
There Chief Justice Taft, writing for a unanimous court, set forth the following principles:
The petition (for a stay pending certiorari] should, in the first instance, be made to the circuit court of appeals,which with its complete knowledge of the cases,may,with full consideration promptly pass on it.
That court is in a position to judgg first, whether the case is one likely, under our practice, to be taken up by us on certiorari; and second, whether the balance of convenience requires a suspension of its decree and a withholding of its mandata.
It involves no disrespect to this court for the circuit court of appeals to refuse to withhold its mandate or to suspend the 28/ Stern & Gressman, Supreme Court Practice, p. 564 (e i h e d. 1969).
. operation of its judgment or decree pending appli-cation for certiorari to us.
If it thinks a question i
involved should be ruled upon by this court, it may certify it.
If it does not certify, it may still consider that the case is one in which a certiorari may properly issue,and may,in its discretion, facilitate the application by withholding the mandate or suspending its decree.
This is a matter, however, wholly within its discretion.
If it refuses, this court requires an extraordinary showing before it will grant a stay of the decree below pending the application for a certiorari, and even after it has granted a certiorari, it re-quires a clear case and a decided balance of con-venience before it will grant such stay.
49/
262 U.S. at 163-64, emphasis supplied.~~
29/ The procedures outlined are in large measure now embodied in formal rules.
See Supreme Court Rules 27, 50 and 51, and Rule 41(b), Federal' Rules of Appellate Procedure. See also 28 U.S.C. 2101(f).
That the grant of certiorari does not operate as a stay is confirmed by the Court's practice:
- see, e.g.,
St. Regis Paper Company v. United
- States, 365 U.S.
857 (1961),where the Court upon granting certiorari also issued a separate stay order; McLeod v. General Electric Co. 17 L. Ed. 2d 45, 47 (1966),where Justice Harlan, acting as Circuit Justice, ordered a stay Landing the Court's 6
disposition of a certiorari petition but indicated that if the petition were granted, he would submit the matter to the entire court "so that it may determine whether a further stay should be granted"; and English v. Cunningham, 4 L.
Ed. 2d 42, 44 (1959),where Justice Frankfurter, acting as Circuit Justice, declined to issue a stay pending disposition of a certiorari petition but noted that if the petition were granted the Court could then act on "the ancillary question of a stay."
One court of appeals has said that "the actual granting of a writ of certiorari does operate as a stay".
Glick v. Ballentine Produce,-397 F.2d 590, 594 (8th Cir. 1968); see al'so United States v. Eisner, :_3 F.2d 38, 42 (6th Cir. 1963).
The statement was, however, dicta.
Moreover, Glick cited only Eisner as authority; it in turn had only referred to, without approving, two lower court decisions which predated the Supreme Court's decision in Magnum Import, supra (i.e., Waskey v. Hammer, 179 F.
273 (9th Cir. 1910), and OrtE v. Steger, 258 F.
625 (S.D.N.Y. 1919)).
4
_.-_,.,_.,.m
_ Here, the court of appeals flatly denied Consumers' request for a stay of the Aeschliman mandate pending the filing of a petition for certiorari (while granting such relief in a companion case).
In the period since certiorari was granted, Cons'umers has not asked the court of appeals to recall its mandate or asked the Supreme Court to stay the effect of that mandate.
And the Supreme Court has taken no such action of its own accord in connection with the grant of certiorari.
Thus, the mandate in Aeschliman, not 30/
having been stayed, remains in full effect.
3p/ At one point, the Commission said that the non-fuel-cycle issues in Midland would not be heard until the Aeschliman decision became " final". See pp.
7-8, supra.
Consumers' attempt to rely on two criminal cases to establish that Aeschliman is not now final is unavailing.
Motion, p.
9, citing Linkletter v. Walker, 381 U.S.
618, 622 (1965); and Long v. Robinson, 316 F.
Supp. 22, 31 (D. Md. 1965).
Although the decision may not be final for certain purposes (the cases cited in-volved the question of finality for purposes of applying on appeal a change in the law), it is presently fully effective and binding on us, and it was in that sense that the Commission meant that it had to be final.
% 2.
In an attempt to avoid the force of these straight-forward propositions, Consumers argues that the mandate "in no way requires * *
- the Commission to conduct the remanded 31/-
proceedings".--
It first supports this assertion by re-ferring us to earlier statements of the Commission, which downplayed the importance of the question whether the mandate had issued while noting both that "the relationship between the Commission and the Court of Appeals is quite different than that between an inferior and superior court",
and that " technical rules derived from the relationship of superior and subordinate judicial tribunals should not be mechanically applied to the relationship between administra-31 /
tive agencies and reviewing courts * * *".
What Consumers overlooks is that those commission statements were made in a quite different context and in-volved a response to an entirely different question than that presented here.
There, the issue was whether the Commission could and should proceed to implement a judi-cial decision before the court's mandate had issued.
In the circumstances then present, the commission believed it had a responsibility to act notwithstanding that the formal mandate had not yet come down.
31/ Motion, p. 10.
32/ Motion, pp. 10-11, quoting from and paraphrasing Vermont Yankee / Midland, CLI-76-14, supra, NRCI-76/9 at 166.
. It was in that context that the Commission regarded the question of the issuance of the mandate as of subordinate importance.
That its relationship with the courts permits an agency to proceed in advance of the issuance of a mandate does not establish the contrary, viz. that it may refuse to proceed after the mandate has issued.
Consequently, Consumers can draw no support from the Commission statements upon which it relies.
Its reliance upon Section 10 (d) of the Administrative Procedure Act (5 U.S.C.
705) is similarly misplaced.
As is obvious from its terms, that Section pertains to an agency's right to stay action "taken by it" pending judicial re. view of that action.
In other words, when the impetus for the action in question comes from the agency, it may decide to wait pending judicial review of its decision.
- Here, however, the impetus came from elsewhere; i.e.,
from a court directive.
The APA confers no freedom on the agency to postpone taking action in that circumstance.
In a related vein, Consumers claims that the Commission has broad discretion in implementing judicial mandates, that this discretion.gives it the authority to stay the romanded proceedings pending Supreme Court review, and that the Commission should do so for reasons of administrative
1 efficiency and fairness.
In this regard, Consumers con-tends that the Commission has already recognized that it,
has authority to postpone the hearings notwithstanding the court's mandate.
As Consumers sees it, the Commission merely declined to do so in the belief that the court of appeals, by issuing its mandate, expected it "to proceed 33/
with all remanded iss'ues promptly."--
According to Consumers, such an expectation "can no longer be assumed to exist in the light of the Supreme Court's decision 34/
to' review the Aeschliman decision."--
We are unpersuaded by Consumers' reasoning.
To be sure, the Commission does have, as Consumer contends,
" broad discretion in implementing judicial mandates."--35/
But this discretion is not unbridled; the Commission has recognized a concomitant " responsibility to act promptly and constructively in effectuating the decisions of the 33/ Motion, p. 10, 34/ Ibid.
35/ CLI-76-14, supra, NRCI-76/9 at 166 n. 1.
- courts" e'ven before a mandate issues.--36/
And it has said it "cannot disregard the court's issuance of its mandate 37/
Here, Consumers is not asking the Commission simply to select among several permissible methods for carrying out the court's decision in Aeschliman.
It (or we) certainly would have the authority to do that much. But it is an entirely different matter to refrain from taking any steps whatsoever towards implementing a judicial man-date which is in full force and effect.
Consumers has not directed us to anything which could serve as the source of such remarkable power.
To the contrary, as the Com-mission has stated in no uncertain terms, upon issuance of the mandate the court's " decision (becomes] fully effective and binding on the Commission, and it must 38/
proceed to implement it." ~
36/ Id. at 166.
37/ Id. at 166, fn. 1.
38/ CLI-76-14, supra, NRCI-76/9 at 166; see also Midland, CLI-76-19 (supra, fn.
), NRCI-76/ll at 475.
. We need add only that, contrary to what Consumers asserts, it is by no means " pointless" to allow this proceeding to continue pending completion of Supreme Court review.
A grant of certiorari is not the equivalent of a reversal.
Consequently, as Dow Chemical cogently argues (March 15th Statement, p. 2): "By allowing the present hearings to continue without interruption, un-necessary delay may be avoided since, should the Supreme Court affirm the Court of Appeals' decision pursuant to which the hearings are being conducted, the ASLB will already have reached a decision.
If the hearings are suspended, additional time may be lost following the.
Supreme Court's decision pending the completion of the hearings."
In any event, the decision whether or not to continue the administrative proceeding rests, in our judgment, with the court of appeals or the Supreme Court, forums which are open to Consumers Power Company.
Unless the former recalls its mandate or the latter stays its effect, wa deem it improper for us to call a halt to the pending proceedings.
i is t
5 e
e t
A
- e
II.
Two matters raised by the intervenors are before us.
In neither instance may we grant relief.
A.
We must reject the intervenors' request that con-struction be halted pending the outcome of further pro-ceedings before the Licensing Board.
Their motion contains virtually no elucidation of the facts and legal principles which might support it.
An'd, even were its premises more carefully articulated, it would have to be considered in I
the first instance by the Licensing Board rather than by us or the Commission.
The court of appeals remanded the Midland matter to the Commission for further consideration of environmental issues and the resulti'ng cost-benefit analysis without en-joining construction of the nuclear facility in the interim.
The court's restraint in this regard mirrors the rule that a stay of the underlying activity does not follow automati-cally where review discloses inadequacies in an agency 39/
environmental impact statement prepared in good faith.---
39/
City of New York v. United States, 337 F.
Supp.
150, 163-64 (E.D.N.Y. 1972) (three-judge court)
(per Friendlye Ch. Cir. J.); Greene County Planning Board v. FPC, 455 F.2d 412, 424-25 (2nd Cir. ),
certiorari denied, 409 U.S.
849 (1972); Environmental Defense Fund v. Froehlke, 477 F.2d 1033 (8th Cir. 1973).
~
- As the Commission recently observed in analogous circum-stances, whether the project need be stayed essentially must "be decided on the basis of (1) traditional balancing of equities and (2) consideration of e.ny likely prejudice to further decisions that might be called for by the remand."40 /
The instant motion,to stay further construction of the Midland plant pending completion of the remanded pro-ceedings before the Licensing Board,iradequately addresses those factors.
Its.three pages amount to no more than a general broadside based on the " record thus far developed" at the hearings.
We are left on our own to discover in that record (now more than five thousand -- 5,000 -- tran-script pages long) any evidence which bears on the movants' right to the relief sought.
Such arguments are patently inadequate.
At the least, one seeking a stay bears the burden of marshalling the evidence and making the arguments which demonstrate his entitlement to it.
It is hardly (q/
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC (March 31, 1977)
(slip opinion p. 29).
The Commission further noted that "[tlhis test is to be distinguished from the more stringent test of Virginia Petroleum Jobbers' Associ-ation v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958),
which has been used in ruling on stays pending [appel-late] review."
Ibid.
The Virginia Petroleum Jobbers test, of course, presumes the validity of the under-lying administrative action, a prop no longer in place where the impact statement has been found below stan-dard by the reviewing tribunal.
259 F.2d at 925.
. novel proposition that, like general principles, unsup-a ported ansertions do not decide concrete cases.- /
41 For this reason alone we would be compelled to deny relief.
Second, a motion for a stay perforce turns in no small measure on the underlying facts.
The Board hearing the case is manifestly closer to those facts than we are.
Consequently, it is in a better posture to evaluate initially whether the record warrants interim relief.
For this reason, while not mandatory under the Commission's rules, we have stressed before that the appropriate practice is to seek a stay in the first instance from the trial board before turning to us for assistance.
Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 n.d 3), ALAB-364, 5 NRC 35 (1977).
Cf., Rules 8 and 18, Federal Rules of l
Appellate Procedure.
We have been offered no explanation why that salutary practice could not have been followed here.42 /
This is another reason for our disinclination to grant a stay.
Accordingly, if the movants elect to renew their appli-cation for relief pendente lite, they should present their 41/
Cf., Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473, 475 (1975); United States
- v. White, 454 F.2d 435, 439 (7th Cir. 1971), certiorari denied, 406 U.S. 962 (1972).
32/
Cf., Public Service Co. of New Hampshire (Seabrook Units 1 and 2), ALAB-338, NRCI-76/7 10, 12-13 (1976),
where sufficient justification was shown for presenting a stay motion directly to us.
,. motion to the Board below rather than to ourselves.-3/
4 At the minimum, those papers should address the factors mentioned in the Commission's Seabrook opinion, supra.
We are confident that the Licensing Board appreciates as fully as we do that a serious request for a stay requires prompt determination.44/
We therefore harbor no doubt that (after allowing suitable time for responses) that Board will rule on any such motion with all reasonable dispatch.
B.
In sending the financial assistance question to us, the Commission noted that, insofar as the intervenors' motion might be deemed an appeal from, or request for review of, our ruling denying financial assistance (ALAB-3 8 2, 5 NRC__,
March 18, 1977), it was impermissible to file it with the Commission. 45/
This.in itself might be grounds for denying
~~43/ The applicant had to present its stay motion directly to the Commission because it was at express Commission direction that the proceeding below was moving ahead.
In contrast, the Commission's orders to the Licensing Board leave it ample room to consider requests for stays of construction; indeed, it has been told expli-citly to consider whether suspension of construction is required.
44/
The Board below has been enmeshed for some time in lengthy hearings on whether suspension of construction is required in the interim before it can decide the merits of the issues remanded by the court of appeals.
The Commission's refusal to act summarily itself in that regard, and its instructions to the Board concerning the need for " formal proceedings," did not leave the Board powerless to take action on an abbreviated record to prevent the possibility that otherwise reasonable alternatives will be foreclosed.
4J/
See 10 C.F.R.
- 22. 78 6 (b).
.. the motion.
We are conscious, however, of the intervenors' claim that they are caught in a " procedural conundrum".
We, then, will follow the Commission's alternative suggestion and treat the motion as a petition for reconsideration of our recent ruling.
In that connection, we will also exercise the special authority conferred on us by the Commission to act for it in this proceeding.
The Commission has told us that that authority must be exercised " subject to otherwise applicable rules and estab-lished Commission policies"46/ e do not read that limitation
-W as precluding us from acting on such matters (normally reserved to the Commission) as (1) requests for " exemptions" from regulatory requirements as are authorized by law and 47 are in the public interest;- /
and (2) attempts to invoke "special circumstances" to avoid application of a rule on the ground that to do otherwise "would not serve the purposes for which [it] was adopted".
It is not difficult to envision circumstances in which we could do so without run-ning counter to " established Commission policies".
AS/ CLI-77-12, supra, 5 NRC at __.
12/
10 C.F.R. 5550.12 and 51.4.
48/
i
, The request for financial assistance does not, however, fit into such a mold.
In issuing its general ruling on the matter of financial assistance (CLI-76-23, NRCI-76/ll 494, November 12, 1976), the Commission in effect made it clear that there were to be no exemptions, waivers or special circumstances that would justify a depdrture from its terms.
It did so by expressly rejecting the notion that, at least for now, financial assistance decisions are to be made --
even by the Commission -- on a case-by-case basis.
NRCI-76/ll at 498, fn.
4.
This leaves us no room, even acting in our
- pecial capacity for the Commission, to grant the request made in this case.
III For the foregoing reasons, the three requests for relief referred to us by the Commission are denied
/
49 is so ORDERED..,
It POR THE ATOMIC SAFETY AND LICEMFING APPEAL BOARD
/ /,,,
a._; f f /I?.'u b,
rAfrgaret E.
Du'Flo Secretary to the Appeal Board gg/
It remains for us to consider, under the Commission's recent fuel-cycle ruling (CLI-77-10, 5 NRC
, April 1, 1977), what action to take in that recard Eere.
We left that matter open in our own order dealing with all the other fuel cycle cases (ALAB-392, 5 NRC fn.
6, April 21, 1977).
We expect to issue an order on that subject shortly.
l e
1
- Separate statement of Dr. Quarles:
I participated in the discussions among the members of this Board several weeks ago which culminated in unani=ous agreement respecting not only the result which is today announced but as well the underlying reasoning assigned in the Boards opinion.
Thereafter, my attention was brought to a letter dated April 5, 1977 which was sent to the Licensing Board in this proceeding by counsel for certain intervenor organizations and individuals.
That letter was in response to a motion filed by the NRC staff on March 25, 1977 which sought the censure of counsel for conduct alleged not to conform to the standards of conduct required in the courts of the United States.
See 10 CFR 2.713(b).
In the course of F..e letter, counsel referred, inter alia, to the Emergency Core Cooling System rule-making proceeding which was conducted several years ago by the then Atomic Energy Commission (Docket RM 50-1).
After leveling the accusation that perjury was committed by staff witnesses testifying at the adjudicatory-type hearings which were held es part of the ECCS proceeding, counsel made the following representation (letter, p.
3):
Indeed, now that we are " searching for the truth" let it be k'nown now that during those ECCS hearings, I was summoned to a private meeting by Hearing Board members asking me to halt my intervention and opposition because I had "done enough" to demonstrate improprieties and if I went any further I would only begin to destroy the fabric of the AEC.
j t
c
- ?
I was one of the members of the ECCS Hearing Board.
Its other two members join me in stating unequivocally that there never was any discussion, suggestion or request --
private or public -- addressed to the possible withdrawal of the intervention of counsel's then clients from the rule-
. making proceeding.
Nor did the Board or any members thereof entertain at any. time during the course of that proceeding the views now attributed to them by counsel's recent letter.
In short, counsel's assertion is wholly false.
It might be noted in this regard that, despite the fact that the ECCS hearings were concluded in 1973, insofar as I am aware this is the first time that counsel has advanced this claim.
The Code of Professional Responsibility expressly t
provides that "[a] 13wyer shall not knowingly make false l
accusaticns against a judge or other adjudicatory officer".
Disciplinary Rule 8-102 (B).
I must leave it to others to enforce that proscription in this instance.
My present concern is a different one -- viz. whether, in the circum-stances, I should now refrain from further participation as a
member of the Midland Appeal Board.
I conclude that, to i
avoid the slightest possibility of even the appearance of partiality in the determination of the matters which very well may come before this Board in the future (including the censure motion still pending below), that is the a,propriate course.
. I reach this conclusion with some reluctance.
It seems to me unthinkable that a lawyer should be able to dictate the removal of an adjudicatory officer assigned to his cause by the simple expedient of directing a both false and irresponsible charge of serious misconduct i
against that officer.
Thus, were it not for the broader consideration that the objectivity of our decisional process must never be allowed to be brought into legitimate doubt, l
1 I would not be at all inclined to lend myself to the l
accomplishment of such a result.
For the above reasons, I am recusing myself from further service on the Midland Appeal Board.
The Chairman of the Appeal Panel has been requested to assign another member of the Panel to the Board in my stead.
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY CODIISSION In the Matter of
)
)
CONSUMERS POWER COMPAln
)
Docke; No.(s) 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
}
)
)
CERTIFICATE Or SERVICE I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled by the Office of the Secretary of the Com:aission in this proceeding in 2-accordance with the requirements of Section 2.712 of 10 CFR Part Rules of Practice, of the Nuclear Regulatory Com:aission's Rules and Regulations.
Dated at yashington, D.C.
this cx 4(b day of Old/./
197 7.
/
!b W ! ;Q
~
~ ~.
i Office of,the Secretary of ty6 Comenission O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
CONSUMERS POWF.R COMPANY
)
Docket No.(s) 50-329
)
50-330 (Mid7and Plant, Units 1 and 2)
)
)
SERVICE LIST Frederic J. Coufal, Esq., Chairman l
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, 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.
20555 Midland, Michigan 48640 Dr.,J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell Consuners 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. Nucicar Regulatory Comrission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602 Myron M. Cherry, Esq.
One IBM Plaza Chicago, Illinois 60611 Harold F. Reis, Esq.
Lowenstein, Newman, Reis & Axc1 rad 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
...~
4 50-3R9, -330 P2g2 2 Anthony Z. Roisman, Esc.
Natural.Resou'rces Defense Council 917 - 15th Street, N.W.
Washington, D.C.
20005 Joseph Gallo, Esq.
Isham, Lincoln & Beale 1050 - 17th Street, N.W.
Washington, D.C.
20036 David J. Rosso, Esq.
R. Rex Renfrow, III, Esq.
Isham, Lincoln & Beale One First National Bank Plaza Chicago, Illinois 60603 Ms. Mary Sinclair 5711 Summerset Street Midland, Michigan 48640 Mr. S teve Gadler, P.E.
2120 Carter Avenue St. Paul, Minnesota 55108 i
Grace Dow Memorial Library 4
1710 West St. Andrew Road 1
Midland ^ Michigan 48640 4
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