ML19344D795
| ML19344D795 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/03/1976 |
| From: | Skrutski R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| ALAB-344, NUDOCS 8007070427 | |
| Download: ML19344D795 (14) | |
Text
__ _ _ _ _ _ _ _ _ _ _ _ _ _.
n j
J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O
g 6
ATOMIC SAFETY AND LICENSING APPEAL BOARD El b 1976 7 I' Michael C. Farrar, Chairman SEP
-9 Dr. Lawrence R. Quarles p*..e g %
Richard S. Salzman 1
c*"Lw g
y
_ru
)
In the Matter of
)
}
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329j
)
50-330 (Midland Plant, Units 1 & 2)
)
)
Mr. Martin G. Malsch for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER THIS DOCUMENT CONTAINS September 3, 1976.
P00R QUAL.lTY PAGES (ALAB-344)
The staff has requested us to tell the Licensing Board that it cannot now call for briefs on the cuestion whether the Midland construction permits should be suspended.
We have been furnished no good reason why we should' review i
the Board's interlocutory procedural order refusing to defer the briefing schedule, and we decline to do so. 1!
1/ The staff's petition was received by us on Thursday, September 2, 1976.
Because the time was at hand for filing briefs in response to the challenged order, that same morning we consid.ered a'nd decided the matter and informed the parties of the outcome, advising them that a written order reciting out reasons for the action taken would follow shortly.
8007070
s p;
q
/
1.
In the wake of its General Statement of Policy (41 F.R. 34707, August 16, 1976) dealing with the recent Court of Appeals decision on the waste management aspects of the uranium fuel cycle,-2/ the Commission directed the Licensing Board to call for briefs from the parties on whether the Midland construction permits "should be con-tinued, modified or suspended until an interim fuel cycle rule has been made effective."
See August 16 Memorandum and Order; see also 41 F.R.
at 34709.
The Commission issued a similar directive with respect to the Vermont Yankee operating license.
It also indicated that similar suspension questions might arise in other cases.-3/
(A suspension request was shortly thereafter filed with the Appeal Board which is considering appeals from the deci-sion authorizing construction permits for the Seabrook facility).
The Commission indicated that in all cases the suspension question would +. urn on well-established equitable factors, a number of which it set vat in its policy state-ment.
2/ Natural Resources Defense Council v. NRC, F.2d (D.C. Cir., Nos. 74-1385 and 74-1586, July 21, 1976),
followed in Aeschliman v. NRC, F.2d (D.C. Cir.
Nos. 73-1776 and 73-1867, July 21, 1976).
_3,/ 41 F.R. at 34709; see fn. 7, infra.
s Both the Midland and the Vermont Yankee Licensing Boards called for the filing of briefs on the suspension question by September 7, 1976.
The Seabrook Appeal Board called for the filing of responses-to the suspension motion
~
- by September 2, 1976, and set the case down for oral argu-ment on September 8, 1976.
The matter now before us originated when the staff asked the Midland Licensing Board to extend the briefing time for all parties to September 17, 1976.
In support of that request, the staff drew the Board's attention to the scheduled Seabrook oral argument and asserted that a decision in that case "may offer extremely useful guidance" here and in Vermont Yankee.
Apparently, the September 17 date was selected for two reasons: (1) the Vermont Yankee intervenor had asked for an extension of briefing time to that date (owing to counsel's vacation plans) ; and (2) at the time it filed its motion, the staff expected a decision in Seabrook before then. 4/
The staff represented that the applicant supported its request and that the intervenors j
vigorously opposed it.
I The Licensing Board denied the motion, thus adhering to the September 7 briefing date.
It set forth its view
_ / See p. 2 of the order entered by the.Seabrook Appeal 4
Board on August 24, 1976.
s s
that Appeal Board resolution of the pending question in Seabrook would not be controlling on what it thought was the substantially different question involved in Midland.
The staff thereupon petitioned for direpted certifica-tion.
It argues that the Licensing Board is clearly wrong in its belief that the questions in Seabrook and Midland are different.
In a similar vein, it suggests that the Seabrook decision may be controlling in Midland and that, at least, Seabrook may " offer guidance regarding the legal framework" for deciding Midland.
It attempts to justify the invocation of the extraordinary certification remedy on the ground that "the development of a consistent legal framework for resolution of the su'spension question is clearly required in the public interest." 5!
2.
As the foregoing. statement makes clear, the Board below has not decided the suspension question; it has not even indicated when it expects to decide that question.
It has done nothing more than call for the filing of briefs.
--5/ Perhaps because it now appears that the Seabrook deci-sion will not be issued by September 17 (see the August 24 Seabrook order, p.
- 2), the staff petition now before us is vague as to the precise relief requested.
We assume it wishes us to order deferral of the Midland briefs until after Seabrook is decided, rather than just to September 17.
In either case, we would reach the same result.
e I
+ -
Absent any due process considerations, it would be a wholly unwarranted interference with the legitimate prerogatives of the Licensing Board for us to preclude it from finding out at its own pace what the parties' positions are on the matters before it.
Moreover, here the Commission -- in direct implementation of a court of appeals decision --
expressly told the Board to call for briefs.
In that cir-cumstance, we would have even less justification for tell-ing the Board that it may not begin its inquiry.
Our natural -- and deep seated -- reluctance to inter-fere with a Licensing Board's decision to set a briefing schedule is not overcome by the staff's claim that the "public interest" would be served by granting the requested extension.
We perceive no public interest considerations.
For, in substantial measure, the'" legal framework for resolu-tion of the suspension question" -- which the staff would like to see before it files its Midland brief -- was estab-lished by the Commission when it set forth in its policy statement a number of the factors to be nsidered in each case.- Each board which is presented with a suspension question must apply those factors to the situation before it.
The staff suggests, however, that our Seabrook opinion may furnish additional useful guidance.
To be sure,
~
~
N analysis of some of the relevant factors may turn out to be substantially the same for all facilities, and in that respect Seabrook may prove helpful in subsequent caues.
But just as' plainly, analysis of other factors will depend on circumstances peculiar to the particular nuclear project under attack.
Thus, regardless of what we may say in Seabrook, other boards will still have to grapple with the particular facts presented to them.
Learning at an early date of the parties' views as to the significance of the factors in this case and on whether there are any factual disputes that need resolution should assist the Board in determining what subsequent steps to take.
We do not say, of course, that the Board was compelled to act precisely as it did, but only that it had the freedom to do so.
That much is made abundantly clear by the fact that the Commission specifically avoided deciding the sus-pension question on a generic basis.- Instead, it left the matter for case-by-case resolution.
The staff would have it, however, that, contrary to the Commission's apparent expectation,our decision in Seabrook will necessarily have such generic significance that all other cases should be stopped in their tracks until we decide Seabrook. 5!
This d
6/ As indicated earlier (see fn. 5, suora), it is now unlikely that an opinion in seabrook'will be issued by the date of the requested extension here (i.e., by September 17).
A two-week delay beyond that point is likely.
O
. cannot be.
The Commission's policy statement contemplates i
that any number of suspension proceedings might have to be heard at the same time, before both licensing boards and appeal boards. 3 In light of this, we cannot say that the Board was required to grant the requested extension and to let one case go forward before another.
And whether it should have altered its schedule was a matter for it, not us, to decide.
There is no warrant for us to step in.
In sum, the Board's call-for prompt briefing was per-missible.
The staff's real complaint is not with the Board's order, but with the case-by-case procedure estab-lished by the Commission's policy statement.
We have no right to impose a procedure different from that which the Commission has selected.
7
_ / Specifically, the policy statement indicates that there are three categories of proceedings which the suspension question could come up: (1) licenses already on direct appeal within the Commission (e.g.,
Seabrook), where "the issue of suspending activity under the license in question may be resolved" at this time (by the appeal board or Commission); (2) the licenses which were the subject of the court test (i.e., Vermont Yankee and Midland), where "the initial question on remand" to the licensing boards will concern suspension; and (3) "any
.other nuclear power plant license," where the suspension question can be raised by a request for a show cause 4
order.
Policy Statement, pp'.
B-9; 41 F.R. at 34709.
s 4
8-Petition denied.
It-is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.
1 nn,.im h?. An,64)z Romayne M.
Skrutski
/
Secretary to the
+
Appeal Board
[The dissenting opinion of Mr. Sals: man follows.]
l
'k 4
I
,nv
+--,
-e c
,,,,w,-
,w
,c-
s 7
9-t Mr. Salzman, dissenting.
The. court decision invalidating the Commission's fuel cycle rules has cast a shadow of potential invalidity on every construction permit and operating license issued in reliance on those rules.
Proper implementation of that decision raises difficult questions and will require the making of hard choices.
Notwithstanding the need to move l
cautiously in uncharted-areas, the Board below refused to accede to a staff request to defer its briefing schedule by ten days to allow all parties to take account of impend-ing appeal board action in the Seabrook case.
That matter also involves a request to suspend a construction permit and (although the Licensing Board did not think so) presents the identical question: how to implement the court's. decision in light of the subsequent Commission Policy Statement.
I differ from my colleagues because, in my judgment, the Seabrook decision will surely be guiding (if not con-trolling) precedent for this case.
The Commission guidance in its Policy Statement is given in broad terms that make intersticial interpretation a virtual necessity.
The staff's motion therefore made eminent sense and the Board's failure
. to grant it was ill-considered.
At best, that refusal means unnecessary extra work for all parties because, sooner or later, Seabrook will havu to be factored into their positions.
More seriously, the Board below may be led into deciding important issues before Seabrook is rendered.
To be sure, that Board can then take Scabrook into account -- in theory.
But as we have had previous occasion to acknowledge, "there is a natural reluctance upon the part of decision makers to depart from even tentative prior conclusions unless compelled to do so."
Potomac Electric Power Co. (Douglas Point, Units 1 and 2), ALAB-277, 1 NRC 539, 552, 555 (1975).
With all deference to my colleagues, too much is at stake in this case for us to stand by while the Board below marches to some distant drummer and disregards imminent appeal board decisions manifestly relevant to the matter before it.--1/
I would grant the relief req'uested because it is part of our obligation to insure at the outset that a proceeding of this importance at least is initially launched on the proper course.
1 / The Commission's August 16th order reconvening the Midland Licensing Board did not fix a day certain for filing
~~
briefs.
The Midland construction permit was issued in 1972, the cause having thereafter reposed in the judicial bosom until but a short time ago.
In the interim, any environmental damage from constructing the plant has been done; millions cocmitted to its building have been spent.
In these circumstances it cannot seriously be argued that a brief respite before relaunching the Midland administra-tive proceedings might in any way " tilt" the ultimate decision.
s
, Energy Research and Development Administration (Clinch River 3reeder Reactor Plant), CLI-76-13, NRCI-76/8 (slip opinion i
pp. 12-13) (decided August 27, 1976).
For the reasons stated I respectfully ndte my dissent.
4
+
Y y
-v,,
4 s
,~
UNITED STATES OF AMERICA
~
NUCLEAR REGULATORY CO:::!ISSIO.i In the Matter of
)
)
a
~
CONStBERS POP lER CCITANY
)
Docket No.(s) 50-329
)
50-330
, (Midland Plant, Units 1 and 2)
)
)
)
i
)
s
)
i I.
CERTIFICATE OF SERVICE I
I hereby certify that I have this day served the f' regoing docu= ant (s) o upon each person designated on the official service list co= piled by the Office of the Secretary of the Cec =ission in this proceeding in accordance with the require =ents of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the :ucicar. Regulatory Co= mission's Rules and
[
[-
Regulations.
t f
~
t 6
f Dated at Washington, D.C. this i
",@ ~
day of Sub[
197[$.
~
~
i t
s y
. Anhu i1 AZO 4Rb1 Offied of the Secretary of the Co=-4ssion i:
i r
l i
~
I s
0 t
t r
I i
m.
7, _
g
, - ~
-r
.a
as w-,d.iee.
.-ui-w.
x UNITED STATES OF AMERICA NUCLEAR REGULNIORY COMISSION In the Matter of
)
CONSGiERS P0hT.R CG!PANY Docket No. (s) 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
)
)
)
SERVICE LIST Daniel M. Head, Esq., Chaiman Mcward J.'Vogel, Esq.
Atomic Safety and Licensing Board Knittle 4 Vogel Panel 814 Flour Exchange Building U.S. Nuclear Regulatory Cc=tission Minneapolis, Minnesota 55415 Washington, D.C.
20555 James A. Kendall, Esq.
Dr. Emeth A. Luebke, Esq.
Currie and Kendall Atomic Safety and Licensing Board 135 North Saginaw Road Panel Midland, Michigan 48640 U.S. Nuclear Regulatory Commission Washingten, D.C.
20555 Judd L. Bacon, Esq.
Consumers Power Ccmpany Dr. J. Venn Leeds, Jr., Esq.
212 West Michigan Avenue 10807 Atwell Jackson, Michigan 49201 Houston, Texas 77096 William J. Ginster, Esq.
James Tourte11otte, Esq.
Merrill Building, Suite 4 Saginaw, Michigan 48602 Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Milton R. Wessel, Esq.
J. Richard Sinclair, Esq.
Myron M. Cherry, Esq.
Kaye, Scholer, Fierman, Hays 4 Handler 1 IBM Plaza 425 Park Avenue Chicago, Illinois 60611 New York, New York 10022 Harold F. Reis, Esq.
Honorable Curtis G. Beck Lowenstein, Newman,-Reis 6 Axelrad Assistant Attorney General 1025 Connecticut Avenue Seven Story Office Building
. Washington, D.C.
20036 525 West Ottawa Iansing, Michigan 48913 Honorable William H. Ward Lee Nute, Esq.
Assistant Attorney General Michigan Division State-of Kansas The Dow Chemical Company Topeka, Kansas 66612 47 Building Midland, Michigan 48640 Irving Like, Esq.
Reilly, Like and Schneider Anthony Z. Roisman, Esq..
200 West Main Street Roisman, Kessler and Cashdan Babylon, New York 11702 1712 N Street, N.W.
Washington, D.C.
20036
' l' r-pags 2
_.3 50-329/330 board and parties cont'd:
Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 9
L 1
I 1
q e
u 0
9 4
4 i
e 4
0 "r.~..
v-7 y
-.p,
.,w y..mm.,,--
_-,w-
-.r.-
-,c
=,4 y
_