ML19347A564
| ML19347A564 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee, Midland File:NorthStar Vermont Yankee icon.png |
| Issue date: | 09/14/1976 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), MAPLETON INTERVENORS, Saginaw Intervenor |
| References | |
| NUDOCS 8007290970 | |
| Download: ML19347A564 (8) | |
Text
-
w.4ITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION' COMMISSIONERS:
sk
,m,,,
essee Marcus A.
Rowdert, Chairman 9
SEP 141976 > 1 Edward A. Mason y.,
Richard T. Kennedy 4
m.ani.s g,a==
y o
/
A k
)
W In the Matter'of
)
)
VERMONT YANKEE NUCLEAR POWER CORPORATION
)
Docket No. 50-271
)
(Vermont Yankee Nuclear Power Station)
)
)
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket Nos.I.50-329
)
50-3'O (Midland Plant, Units 1 & 2)
)
L
)
MEMORANDUM AND ORDER On August 23, 1976, Vermont Yankee Nuclear Power Corpora-tion (" Vermont Yankee") moved this Commission to recall and reconsider its order of August 16, 1976, directing the reconvening of an Atomic Safety and Licensing Board ("ASLB")
for the limited purpose of considering whether the operating license for its facility should be continued, modified, or
(
suspended until an interim fuel cycle rule has been made effective.
On August 26, 1976, Consumers Power Company filed a similar motion in connection with the Commission's August 16
.. order reconvening that proceeding.
On September 3,
- 1976, the Saginaw and Mapleton intervenors in the Consumers Power 8007290 f p p Q
i
~
. -w n,
2 4
- proceeding-moved this Commission ta halt: construction of the-
' Midlhnd plants,;or.. alternatively;to clarify theEcommission's-
~
August 16 orderJas:Lto the matters' tof be considered by the
-ASLB.
The' Vermont' Yankee.and Consumers Power' motions are herebycdenied for the. reasons discussed below.
The intervenors' motion is* denied in part'and granted in part as discussed below.
-Vermont Yankee-holds a full-term operating. license for its nuclear power. plant near Vernon, Vermont.
. Consumers Power holds t.
-cons.truction permits:for the construction of two power plants i
at! Midland,LMichigan.. These licenses were among the subjects 0
' considered in :two opinions.' handed down by the United States t
--Court of Appeals for the District of Columbia Circuit on July 21, 1976.
Natural ~ Resources Defense Council, et al.
v..U.S.
~
- Nuclear Regulatory Commission, Nos. 74-1385;.74-1586 ("NRDC case"); and Nelson ~Aeschliman, et al...v.
U.S.
Nuclear Regulatory
- Commission, Nos. 73-1776; 73-1867 ("Aeschliman. case").-
In those
+:
- ca s es :. the.. court of' appeals remanded Consumers Power's permits
- and: Vermont Yankee's license-to-this Commission for further pro-ceedings.: LCommon,to both cases.was a ruling by the Court that the issuesfoflnuclearzwaste disposal'and fyel reprocessing had f
not been suhficiently - c'onsidered 'by the - AEC either in the
~
(-
individualelicensing.proceedingsfinvolving the Vermont Yankee.
'and: Consumers ~ Power-plants', or in a Commission rulemaking pro-ceeding which examined-the7 environmental effects of the uranium fuel-. cycle -.andi. set them ~ forth in' Table S-S, 10 ' CFR 51.20 (e) of e
i s
tF-g "
.L
+,
_. ~..._,,..,,,.. - - -...
,.m.
-.~.....
m
~
n
- 3 the Commission's rules.
In the Aeschliman case, the Court also held that remand was Lnecessary for further consideration of the issue.of energy. conservation as a partial or complete substitute
~
foriconstruction,;and.also for clarification of a report Dy the
. Advisory Committee on Reactor Safeguards ("ACRS").
After' receipt'of.the court of appeals'~ decisions, this Commission on-August 13, 1976, released a. General Ste.tement of Policy -("GSP"),. the ' purpose of which was to indicate how the Commission intended 1to conduct its licensing activities pending-resolution of -the legal isrues raised by those decisions.
~
41 Fed. Reg. 34707 (August 16, 1976).
The GSP announced-the Commission's conclusion that no new full-power operating license, construction permit or limited work authorization should be issued pending an acceptable substitute-for those portions of Table S-3 which the court of appeals set aside, called for a staff review of the reprocessing and waste manage-ment literature, and directed the-reopening of the rulemaking on the.ovarall effects on the uranium fuel cycle.
With regard to.the Vermont ' Yankee and Consumers Power licenses, the Commis-sion decided to. reconstitute ASLBs to coqsider the initial question. CME whether the Vermont Yankee and Consumers Power licenses should be continued, modified or suspended until an interim' rule becomes' effective.
41-Fed. Reg. 34709'.
The reconvening _ of the ~ ASLBs was directed by the Commission in the LAugustil6,-~1976 orders which'are challenged here.
.=
~
..x 4.
Vermont Yankee's; challenge is~ based'on the grounds that no mandate has yet issued from the court of -appeals, and it
- argues-that the Commision acted improperly:in issuing the GSP and in' reopening the Vermont Yankee proceeding without first
- asking"for; comments from~the parties.
Ce 'umers Power takes objection to>the~ reopening of its proceening on similar grounds, emphasizing.that the possibility of Supreme Court review of the court of appeals' decision still. exists.
Consumers Power also argues that the GSP was a rule or regulation which, under the
-Administrative Procedure Act and the Commission's regulations,
- 10. CFR; Subpart H, should not have been issued without prior notice and opportunif/ for' comment.
The,intervenors argue that " fairness and logic demand" that constructionfat Midland be halted pending~ completion of the'ASLB hearing and, in the alternative, ask that the August 16 order to the AS3B-in the Midland proceeding be clarified to indicate that the ASLB is to consider the issues of energy con-servation and-the ACRS report, as well as the waste.and reproces-sing issues.
The GSP indicated (41 Fed. Reg. 34709 n.2) that the hearing'on those issues would not be' commenced until the
- Mic' land decision became final.-
~
t Whatever. merit'there might have been to arguments
~
based on the non-issuance _of the mandate, those arguments have
-been mooted;in the Aeschliman casc by the court's issuance of-the-mandate;on~ September 3.
The15eschliman decision is now e
k n
1
m s
t
~
'51 fullyfeffectiveVandibinding on^tne_ Commission, and it must-
?-
proceeds to.. implement it. ' _The fact that: the court denied the l
? motions /for. a' stay?of' mandate pending ? certiorari also indi-catestthaththe court ' expects the Commission to pr Sceed with all remanded issues promptly and without' awaiting Supreme Court disposition of whatever petitions for certiorari may'be filed. -1/o I
The: court.of appeals has not yet issued ~its mandate in the NRDC case and has not yet ruled on several motions.before it, including one filed by this Commission, requesting a stay of that mandate.-
However,-whether a mandate has or.has not issued should notlovershadow.the real question of how this
~
Commission should act in these cases.
-It is this Commission's i
5 1/
Consumers Power Company, argues in response to the Inter-
.venors': motion 1that: issuance of the mandate by-the Court
.of Appeals-leav'es in'the: Commission's sound discretion
-'thecquestions when to resume' hearings onsthe' issues other
~
Ethanithe7 fuel' cycle _ issue ~, and~whether suspension 1ofLthe t;
- existing 1 construction permit.on'these grounds must now be-
'consi~dered. : While the Commission?d6en possess broad dis-cretion'in implementing' judicial' mandates, and the nan,
'dato.jin.this? case recognizes _that discretion-by leaving
^
Etnefquestion:of suspension"to decision':/ the Commission, we cannotidisregard,the1 court'sfissuance of'its' mandate
~
.-:despite, Consumers. Power's arguments'to'it along. lines' similar?to.those offered here.. ' Hearings on the. issue'of
~
-suspension ~are::immediately? ripe ~and should-be addressed by1thel hearing board.
The' question of scheduling hearings D
on:the merits of the: remanded questions ~isileft to-the discretionLofLthe hearing board'on a consideration of all relcvant; factors.,
r m
f e
sJ e-w" g
y4 ve P
e rm4----
y 5m e
d + - -w-
-g ave
.<w,-
e ew 9-T-e5
b
..g 6
4 responsibilitylto act promptly-_and constructively in effectuat-
--ing7the decisions of-the courts. -2/ 'The GSP and'the' orders of. August 1161carri~cd out this responsibility and we adhere to-them today.
We decline to terminate the re-opened Vermont 1
Yankee and Consumers. Power.. proceedings.
In setting the Vermont Yankee license for hearing on
.the waste issue, the. Commission is treating Vermont Yankee
-in:the same manner which it said in.the GSP it would treat all isrued licenses which had not yet become' final in the Commission; In the GSP the Commission made it clear that the issue-of suspension of those licenses-might arise and if
.it arose, it would have'to be resolved in the interim before promulgation.of'the new rule.
Such proceedings, in fact, have already begun in-other cases.
Since Vermont Yankee was one of the cases that led to issuance of the GSP and since counsel-for intervenors prior to issuance.
ofc.the GSP requeste'd by letter:immediate termination of Vermont Yankee's license, the issue of interim suspension had clearly arisen in-the Vermont Yankee proceeding.
-It would be rast
~ unusual-if_the Commission'did not have'the discretion to treat-t Vermont Yankee in'the same manner.it'is. treating all others similarly situated.
~ 2/
L 1The-relationship between the Commission and the court of appeal. is quite different than that between an infellor'aud:u--superior court.
As'the Supreme Court said in a~somewhat similar_ context:
technical
. rules derived from the interrelationship ot judicial tribunals
. Lare Ltaken out of E tt eir environment' when mechanicallycappliedf[to1 administrative' agencies]"
F.C.'C.
- v. Pottsville Broadc'asting Co.,
309 U.S.
- 134, 141.(1940).
l 1
v.,
-,t r
+ " - - '
& ~
i 0-'
s
~.
t-i
~
-Vermont Yankee filed on August 201a motion with the
' Court of Appeals asking for a stay of~its mandate and describ-ing the. action ofL the. Commission'in reconvening the ASLB.
u Should the Court grant the motion' filed by Vermont Yankee, it' would~of course be at liberty to renew its motion ~ herein.
As to intervenors' motion,'in the GSP the Commission announced (41 Fed. Reg. -34709) ~ that te question of. modification or suspension of the Consumers-Power and Vermont Yankee licenses is not-appropriate for summary disposition and should be
- decided "in formal proceedings in light of the facts and the applicable law."
Intervenors offer no reasons for altering the policy announced.in~the GSP, and their motion to halt construc-tion of the Midland facility is therefore denied in that regard.
With regard-to the alternative relief requested by. inter-venors', (.owever, the, court of appeals' action of September 3, in issuing its mandate,. alters the situation from what it had~been when.the GSP was issued.. Now the decision in Aeschliman-is finalland1 consideration of all' issues remanded to the Com-(
' miss on by the court of appeals is appropriate.
Intervenors' motion in that regard is hereby' granted and a new order to the ASLB in-the Midland proceeding will be issued today
~
~
- directing-it to consider those-issues as well as the waste issue.
j
~
~
e
.e-
[-
fr.
8
.3/
c.
.The only. remaining question is that raised by Vermont Yankee
~
and Consumers Power as to.whether notice and comment were required
- before issuance of:the GSP.
Since that document ~was a policy c
. statement ther than a rule, itis exempt from notice and r
comment procedure.
See 5 U.S.C.
5 553(b) (A) and Noel v.
9.
Chapman, 508 F.2d 1023 (2nd Cir.); cert. denied, U.S.
46 L.Ed.2d 40 (1975).
In its motion, Consumers Power requested oral argument before the Commission.
Oral argument on motions is granted only at the discretion of the Commission.
50 CFR 5 2.730 (d).
In view of the disporition of Consumers Power's motion herein, no purpose would be served by such argument and the request is therefore denied.
Accordingly, the motions made by Vermont Yankee and Con-sumers Power are denied.
The motion by intervenors is granted d
in part and denied in part.
By le Commi si
' (
Dated this 14th day of. September, F. N 1976 at Washington, D. C.
AiMUEL J. CHIL Secretary of time Commission 3/
Vermont-Yankee also calls our attention to the GSP's reference to "the views expressed by the Commission's staff."-(41 Fed. Reg. 34709) and argues that its views should have been solicited as well.
The GSP reference is simply'to'an August'3 letter from Mr. Rusche to Mr.
Roisman which rejected a request to immediately. terminate Vermont Yankee's operating license.
As.such it does not constitute a solicitation of views by the Commission from the parties.. And in any' event Vermont Yankee' received a
. copy of Mr. Rusche's letter.before the GSP was issued.
l.
Y
~=
~-
J.. v' UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION In-the Matter of
)
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329 (Midland Plant, Units 1 & 2) 1 50-330
)
MEMORANDUM AND ORDER In_accordance with its Memorandum and Order, issued today, on the motions before it in this proceeding, the Commission directs that the reconvened Atomic Safety and Licensing Board'should con ~ sider all issues which have been remanded to the Commission by the court of appeals.
The Board is directed to call for briefs from the partie, to define all required steps, and to undertake any necessary pro-ceedings.
By the Commission.
/
h Q
JAMUELJ. CHI LK N Secretary of hhe Commission Dated this 14th - day of ' September, 1976 at' Washington, D. C.
3 4
Tf0?
g SEP141976 >
- $?
I f oo 9 1 W-q(f ea to i-
u
~..
~...l,.
UNITED STATES OF A!! ERICA.
NUCLEAR REGULATORY C01:'!ISS10N Inithe Hatter of
.).
)
G).'SlDERS P01',11R CCE'P.%j
')
Docket No.(s) 50-329 '
\\
)
50-330
. (Midl.and Plant, < Units 1 and 2)
)'
).
i
)
.] :
- )
.)
g.
I.
CERTIFICATE OF SERVICE l1
.I hereby. certify that I have this day served the f'oregoing doce=ent(s)
.upon each_ person designated on the official.scrvi.e list co= piled by
~
the Office of-'the Sc-retary of the Co.:=ission in this proceeding in accordance.uithf the require =ents o'f Section 2.71! of 10 CFR Part 2-
]
Rules.of Practice, of the Nucicar. Regulatory Co=aission's Rules and Regulations.
J' 1
1 t
-.l.
(
Dated at., Washington, D.C. this g/geli day of~ N )H L b f
~~
~4 '
197 n.
t fl.
.s mf j
r
/
i.
i [* -
,/
/
>n
. m..
[.
1.jjg..
- 4...
.,.,,n
- 7... q.,, y,u _ _
A.c s
s
. Office of the Secreta.ry of the Commission l
t-1 y
I 2
.I -
(
's s-
.g.
g f
c l-V.
t r
i, I.
..m
=
.. g,.,. y
[_
+,i"'*.
s
' ' * ~
'A-
- m
~._-sg
..;y m-
. g......,,,
6-
,p 5
UNITED STATES OF AMERICA NtT2 LEAR PEGUIATORY COMISSION
'In the Matter of
)
CONSLNERS POWER CGIPANY.
Docket No. (s) 50-329 3
50-330
~
(Midland Plant,; Units 1 and 2).
)
-)
)
)
)
~ SERVICE LIST
'i
Daniel M. Head, Esq., Chaiman Howard J. Vogel, Esq.
. Atomic Safety and Licensing Board Knittle Q Vogel Panel
.814 Flour Exchange Building U.S. Nuclear Regulatory Commission Minneapolis, Minnesota 55415 Washington, D.C.
20555 James A. Kendall, Esq.
Dr. Emmeth A. Luebke, Esq.
Currie and Kendall Atomic Safety and Licensing Board
'135 North Saginaw Road Panel Midland, Midhigan 48640
~
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Judd L. Bacon, E',q.
Consumers Pcwer Ccmpany Dr. J. Venn Leeds, Jr., Esq.
212 West Michigan Avenue 10807 Atwell
' Jackson, Michigan 49201 Houston, Texas 77096 William J. Ginster, Es.q.
Merrill Building, Suite 4 Counsel-for NRC Staff Saginaw, Michigan 48602 L
U.S. Nuclear Regulatory Comission l
Washington, D.C.
20555 Milton R. Wessel, Esq.
i J. Richard ~Sinclair, Esq.
I Myron M. Cherry, Esq.
Kaye, Scholer, Pierman, Hays G Handler 1 IBM Plaza 425 Park Avenue Chicago, Illinois 4611 NewYorp,NewYork 10022 Harold F. Reis,.Esq.
Honorable Curtis G. Beck Lowenstein, Newnan, Reis 5 Axelrad Assistant Attorney General 1025 Connecticut Avenue Seven Story Office Building l
Washington,.D.C.
20036 525 West Ottawa i:
Lansing, Michigan 48913
'Honcrable William H. Ward Lee Nute, Esq.
Assistant Attorney General Michigan Division L
State of Kansas.
The Dow Chemical Company L
Topeka,-Kansas 66612 47-Building Midland, Michigan 48640 Irving Like, Esq.
l Reilly, Like and Schneider Anthony Z. Roisman, Esq.
~
Roisman, Kessler and Cashdan
-200 West Main Street-V
- Babylon, New York :11'/02 1712 N Street: N.W.
R
. Washington,'D.C. -20036
e..
~ % :--
pagi 2 L p g
- e %,.rd and parti?.s % t'd:1 329/330
. c,~
s,.
v 7
.u.
GhcrDow Memorial Library -
~
^ '
~
':1710: West.:Sc. Andrew Road,
3 Midland; RichiganD 48640 o
- q 3-
+
4 F
+
a
^k 4m-*
G s
I J
h.
e-s
-..(-,
r m
R' W
47**
.,l'-
4 I
4 L y s[, kl
-