ML19338C163
| ML19338C163 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/27/1971 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ORDER-710427, NUDOCS 8008050614 | |
| Download: ML19338C163 (8) | |
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UNITED STATES OF AMERICA q
ATOMIC ENERGY COMMISSION D0CEEiED p
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'BEFORE THE ATOMIC SAFETY AND LICENSING BOARD APR 2 91971 >
L' omce et ne seeman rec Encuna In the' Matter of
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CONSUMERS POWER COMPANY
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. Docket Nos. 50-3,4 (MidlandPlant, Units 1and2)))
50-330 ORDER 4
i Intervenors' motion challenges the validity of Appendix 4
D of 10 CFR Part 50 governing the treatment of environmental issues in AEC licensing proceedings -- at least those provisions 1
of Appendix D which purport to govern proceedings such as this, which vere begun prior to March 4, 1971. The basis cf-their challenge is the National Environmental Policy Act (P.L. 91-90, 83 stat. 852, 42 U.S.C. 564321, e_t seq.) (NEPA)'which, it is
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claimed, comands that the impact on the environment of the pro-t posed plant be " fully explored" in this proceeding.
t But before that question is reached, there is the threshold question whether the Board has. authority to pass on validity of AEC regulations.
1 Whether, the Board may pass on the validity of AEC regula-tions would seem, as intervenors point out, to depend on the
- meaning of the Commission's decision in Matter of Baltimore Gas and Electric Company (Calvert Cliffs Nuclear Power Plant).
.In that proceeding the Safety and Licensing Board in its initial decision. granting the construction permit made.the
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1 following statement:-
"The Part 20 limits, of course, play.a central role in.the question of what Econstitutes ' undue' risk. How-ever, it seems'to the Board that there may be cases in which the evidence introduced is:such as to draw into question the validity of these regulations themselves'.
In such a case, the Boexd ri ht not be able to rely upon 3
i Part 20 as establishing the outer limits of acceptable s
risk."
The Commission specifically responded to the suggestion.that' the Board might have authority to pass on the validity of AEC regu-
- lation in the following words:
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"It bee.rs -statement at the outset, and the Board itself recognized, that.the Commission's licensing regulations estchlish'the standards for reactor construc-1
-tion permit determinations;'and that the findings in j
- proceedings such as the instent one must.be made in ac-
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l Further, it should cordance withlthose regulatirans.
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~ be clear.that our licensing regulations -- which are i
general in-their e.pplication and which are considered i
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- and adopted in public rule making proceedings wherein-
- the Connission can draw on the views of all interested-persons -- are not subject to amendment by boards in
. individual ~ adjudicatory proceedings."
Had the Comission's memorandum stopped there, the position of lthe intervenors that the Board has power to pass on the validity of 1
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- AEC regulations would be untenable. However, the Comission went on-to say:
"The. foregoing doe not, h m ver, foreclosa a licensing Proceeding challenge to the validity of a Commission regulation, on limited grounds, if the contested regulation relates to an issue in the-pro-ceeding. By limited grounds we mean, whether the regulation was within the Commission's authority; whether it vas promulgated in accordance with ap-plicable procedural requirements; and, as respects the Comission's radiological safety standards, whether the standards established are a reasonable exercise of the broad discretion given to the Commission by -
the Atomic Energy Act for implementation of the statute's radiological safety objectin s."
At least four interpretations of that language are suggested by the parties to this proceeding:
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-that the question of validity is not open to the Board; 2.
that -it is open and should-be-decided by the Board; i
- 3. 'that the Board should certify the question to.the Atomic Safety and Licensing Appeals Board;.
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that the Board should " determine whether there is a sub-stantial question presented on the record as the validity.
'l of the' challenged regulation" and if.so, should certify that question o the Appeals Board.
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- Although.the language of the Commission is not easy to interpret, the Board feels that if it is read in the context of the specific question to which it is addressed, its meaning becomes clear.
. It'is true that, literally read, the opinion would support the Power of the Board to consider the validity of the regulation, but s'
I so read-it does not, yin our view, make sense as applied to this
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proceeding. The. argument that the regulation are invalid is es-sentially a legal argument, involving the interpretation of NEPA.
Althou6h there is some talk in their reply memorandum about the factual basis of the Commission's conclusions, intervenors make no factual presentation which might appropriately be screened by the
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Board. The regulations have only recently been adopted by the Com-3 mission after a. considerable period of evaluation, and it seems
-most unlikely that the Commission has not considered precisely the
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~ arguments made here. Indeed, at least one of the intervenors seems to have commented on the proposed regulations and made substantially
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the same arguments to the Commission in the rule making proceeding.
l And the AEC is presently engaged in defending the. validity of these regulations 'in the~ Court of Appeals for the District of Columbia against precisely the same arguments made by some of the same persons.
~- In the circumstances it does not seem that this is the kind of question which it would be useful' for the Board to consider indepen-4
' dently, tor to certify to the Appeals-Board. Whatever the effect of the Calvert Cliffs decision may be..on other questions, e,.g.,
a chal-lengelto the validity of Part 20, it would notiseem to require the.
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5 Boardtogothroughtheidleprocesspressed.obitbyinterrenors.
In.any event the Board does.not find the intervenors' argu-
- nents persuasive. The ordinary rule for testing the validity of
' an agency regulation,is whether it has a rational basis.
Of course, j
if there is a mandate-from the legislature to act in a particular
-ws,y, the agency must obey.
Intervenors claim to find such a man.
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- date in NEPA, but with all respect, the Board does not so read
' the statute. NEPA is, appropriately to this highly complex field, i
a statement of general principles and goals, some of them almost constitutional in their generality.
It exhorts the administrative 1
agencies to so comport themselves as to achieve these goals, but l
its only command establirnes a procedure for the preparation and reporting of "Environmestal Statements." Nowhere in the statute is there. support for che proposition that in its adjudicatory hear-ings an agency must make substantive judgments.about the myriad.
environmentar effects of a large scale project. Nor is there any l
I support in the' legislative history for finding such a command.
It is, therefore, in our view doubtful that NEPA. requires the AEC to make these. judgments in any proceeding. The Commission 4
. has' ruled,'however, that as'to hearings which are noticed after- - - -
March 1+,L 1971, substantive judgments will be made on issues raised by intervenors.- The suggestion that this gradual approach is without rational basis seems to us untenable. From the point' of view of.those who.will be called on to make these judgments in.
' future proceedings, there is a despemte need for guidance. Standards' must be established by rule-making, and not on.a case-by-case basis, -
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to guide the Boards to decisions. Surely, it cannot be un-reasoriable for the AEC to exempt pending hearings from the need a
to wait the' develcyment of such 'standa-ds.
It is perhaps worth noting that neither the Council on Environmental quality, nor the Environmental Protection Agency I
has challenged the AEC action. That they have not done so seems t
consistent with the recognition of the need to afford time to the
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affected agencies to work out the best approach to environmental 4
questions.- Intervenors are understandably impatient to have en-i vironmental questions given adequate recognition, but their im--
patience does not establish that the AEC regulations have no rational basis. - Accordingly,~ the motion by intervenors Environ-mental Defense Fund, Inc., and Saginaw Valley Nuclear Study Group i
el d. "for determination of environmental issues" is hereby denied.
For the Safety and Licensing Board 9'Me,_, [
c Arthur W. Murphy, Chairman # [
April 27, 1971 1
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UNITED STATES OF AMERICA-
- ATOMIC ENERGY COLE!ISSION In the. Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-329, 330 (Midland Plant, Units 1 and.2)
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//4 7 Al CElfunCATE OF SERVICE I hereby certify that copies of the ORD issued by the I:oard dated April'27, 1971 in the captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 29th day of April 1971:
Arthur U. Murphy, Esq., Chairman Richard G. Smith, Esq.
Atomic Safety and Licensing Board Smith & Brooker, P.C.
Columbia University School of Law 703 Washington Avenue.
Box-38 Eay City, Michigan 48706 435 West 116th Street New York, Ucv York 10027 Harold P. Mraves, Esq.
Vice President and General-Dr. Clark Goodman Counsel Professor of Physics John K. Restrick, Esq.
University of Houston Consumers Power Company 3801 Cullen Boulevard 212 West Michigan Avenue Houston, Texas 77004 Jackson, Michigan 49201 Dr. David B. Hall Mr. R. C. Youngdal.1
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Los Alamos Scientific Imboratory Senior-Vice President P. O. Box 166 _
Consumers Power Company-3 Los Alamos,-New Mexico 87544 212 West Michigan Avenue Jackson, Michigon 49201 Dr. Stuart G. Forbes 100 Tennessee Avenue, Apt. 37.
Honorable Frank Olds, Chairman Redlands, California 92373 Midland County Board of Supervisors Thomas F. Engelhardt, E q,
623 St. Charles Street David E. Kartalia, Esq.
Midland, Michigan h86h0 Regulatory Staff Counsel
' U. S. Atomic Energy Comission Honorable Jerome Maslovski Washington, D. C. 20545 Assistant Attorney General, State n
of Michigan:
Robert:Lowenstein, Esq.
630 Seven Story Office Building Jerome E. Shartman, Esq.
525. West Ottava Lowenstein and Newman 1100 Connecticut Avenue Lansing, Michigan 48913
- Washington, D. C. 20036, N.W.
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50-329,- 330 page 2 Honorable Curtis B. Beck Dr. Vayne E. North, Chairman l
Assistant Attorney General Midland Nuclear Power Committee State of Michigan P. O. Box 335
- 630 Seven Story Office Building Midland, Michigan 48640
. 525 West Ottava
' Lansing, Michigan 48913 -
Milton R. Wessel, Esq.
Allen De sbom, Esq.
l Honorable Patrick E. Kovaleski Kaye, Scholer, Fierman, Hays Assistant Attorney General, State and Handler of Michigan.
425 Park' Avenue 630 Seven Story Office Building New York, New York '10022 525 West Otteva l
Lan' sing, Michigan 48913 Winiam A. Groening, Jr., Esq.
James N. O'Connor, Esq.
Myron M. Cherry, Esq.
The Dow Chemical Company
. McDermott, Will & Emery 2030 Dov Center 111 West Monroe Street Midland, Michigan 48640 Chicago, Illinois 60603 Gladys Kessler, Esq.
' Anthony Z Roisman,~Esq.
Berlin,~Roisman & Kessler Berlin, Roisman & Kessler' 1910 N Street, N. W.
1910 N Street', N. W.
Washington, D. C. 20036
.-Washington, D.-C. 20036 Edward !!erlin, Esq.
. James A. Kendall, Esq.
Eerlin, Roisman & Kessler Currie and Kendall 1910 N Street, N. W.
- 135 North Saginav Road Washington, D. C. 20036
~ Midland,-Michigan 48640
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William J. Ginster, Esq.
Mr. Wendel1 H. Marshall Suite 4, Merrill Building RFD No.-10, Mapleton Saginav, Michigan 48602 l
Midland, Michigan 48640-l l
YLl-Cup /h n s]
Office of the Secretary of the.C scion
.i cc: Mr. Murphy.
Mr. Engelhardt-Mr. Yore N. Brown' H. Smith 1
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