ML19338C098
| ML19338C098 | |
| Person / Time | |
|---|---|
| Site: | Shoreham, Midland File:Long Island Lighting Company icon.png |
| Issue date: | 11/17/1971 |
| From: | Engelhardt T US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19338C099 | List: |
| References | |
| NUDOCS 8007310677 | |
| Download: ML19338C098 (5) | |
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L.ET NUfABER -
P300. & URL. EAC.60-329,'630 UNITED: STATES OF-AMERICA ATOMIC ENERGY-COMMISSION'
- BEFORE THE ATOMIC SAFETY AND LICENSING BOARD P'
In the Matter ofL
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CONSUMERS POWER COMPAf.Y Docket Nos.;50-329J J
50;330 i
_(Midland Plarit, Units 1. and 2)
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ANSWER OF AEC-REGULATORY STAFF TO APPLICANT'S MOTION T0-REFER QUESTIONS TO THE COMMISSION J
By motion filed November 5,1971,* the applicant in this proceeding,
. Consumers Power. Company (applicant), requested that the presiding -
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Atomic Safety and Licensing Board (Board) certify directly to the
' Commission 1 for detennination certain enumerated questions. The questions relate to what the scope of inquiry should be in the pending proceeding regarding matters arising under the National Environmental S
Policy Act of_1969_ (NEPA), and are based upon filings by certain inter-E
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venors herein.
The questions which the applicant proposes for certification to the Conunission are captioned by the applicant as follows:
"1.
Is' the wisdom of Dow Chemical _ Company's decision to p? t in maintain!f ts manufacturing operations in Midland, as
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_ opposed to moving them elsewhere or-discontinuing
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_'them altogether, a proper issue in-this proceeding?"
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- Supplemented on November 9,1971.
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Is itL a prope:- iss'ue in this proceeding to look into the f5 relative economic, conservation and environmental merits of.using coal. oil or-atomii power for producing electricity?"' (footnote omitted)
"3.
Is the question.of whether the demand for electricity should be met a-p per issue in this proceeding?"~
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"4.
'Is it-proper to conduct 'a NEPA review of'all aspects b
of the uranium fuel cycle in this proceeding?"
s l'5..Are the Applicant's past expenditures to promote the I
use of-electricity, if any, relevant to this proceeding?"
"6.
.Is the environmental and operational feasibility of the i--. _
fast breeder reactor program relevant to this proceeding?"
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"7.
Are. questions-of land use and zoning relevant to this I
. proceeding?"
.The' applicant proposes that'some of these topics should be briefed and e
N considered beforel the Commission on a consolidated basis, i.e., with ti..
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' ; participation by parties.to this.and other proceedings, since some of the topics have also been asserted as-proper for consideration in other pending licensing proceedings, i.e., Vermont Yankee, Docket No. 50-271 1
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and Boston Edison, Docket No. 50-293.
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F:. -t At the outset it:is the position' of.the, AEC regulatory staff (staff)
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- that.'if the Board should;detennine any question proper for certification, t ;c 17..
then that certification.should be to the Appeal Board. The Coninission's
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rules'do not. provide for certification'by a licensing board directly to 5
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- A the Comission.O As -' discussed below; it is the staff's position that-g,....
question 4 posed by.the-applicant should.b,e certified to the Appeal Board, but that the:others should not.
Further, it is our. view that
.the Appeal Board,< in turn, should exerc,ise its discretion to certify o:.
this question to the Commissian 'as a' novel question of law and policy pursuant to 10 CFR 52.785(d). The Comission's rules do not contemplate that a licensing board would take action to foreclose the Appeal Board's opportunity to make' that judgment.
..e.s Questions 1 through 3 and 5 through 7, inclusive, should not, in our l
view', be certified for two_ reasons.
First, the applicant has not made j.
- a sufficient showing that certification of each of these cuestions would meet the guidance of 10 CFR 2, Appendix A, III(g)(2), which provides, 3
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in pertinent part:
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'l "A quastion may be. certified to the Commission for its deter-R
--mination when the question is beyond the board's authority, or when a.majorLor novel question of policy, law or procedure
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. and when the. prompt and final decision of the question is -
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important for the protection of the public interest or to
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avoid undue. delay or~ serious prejudice to the interests of i,
'a party..."
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-E 10 CFR 2,'10'CFR 2.785(b) and 10 CFR 2, ' Appendix A, VII, refer fi[.3
'specifically to 10 CFR 2.7_18(i) and 10 CFR 2, Appendix A, III
-(g)(2), respectively, both of which pertain to certification,
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-in describing the Commission functions.to be performed by the
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Appeal. Board.'
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1 Second,'some of the questions, as -stated,~ ant sufficiently diffuse.
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that it appe'ars. likely that they would encompass matters ordinarily proper _ for consideration as well as matters ordinarily not proper for consideration, and should be resolved in the context of a record.
'.*~ g For example, under question 2, it may be obvious that a single agency i.
such as' the AEC~ cannot and should not establish a national policy for all means of electric power generation, but the ' agency's consideration of alternatives might well-include some assessment of the respective
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' environmental impacts.of-~such alternatives.
.It appears at this time that the matters posed in such questions should
'be dealt with by the Board, which is-the body in the best position to-4 develop a record in the context of the particular situation.
- 7 eh-l The' staff. agrees that question 4, on-the other. hand, should be certified.
The question, in 'effect, poses intervenors challenge to a position *
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L conmunicated to affected licensees and applicants as well as other
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interested persons _ under cover of a letter dated September 3,1971, l
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from the then Director of' Regulation. 'The letter and pertinent b
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enclosure are attached.
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'With respect-to applicant's proposal for consolidated consideration,
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,the staff would have no objection to such consideration of question 4,
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..if deemed appropriate.
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For: the reasons' stated herein, questions 1 through 3 and 5 through 7, p
inclusive, should not be certified, an[i question 4 should be certified by the. Board to the' Appeal Board, pursuant to -10 CFR 2.718(i) and 2.785(b),
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- and, in turn, by the Appeal Board to the Commission, pursuant to 10 CFR v,,
2.785(d).-
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' Respectfully ~ submitted,
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A13-Thomas F. Engelhardt
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-Trial Counsel Dated.at Bethesda, Maryland, O
this 17th day of November,1971.
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