ML20008G116
| ML20008G116 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/04/1981 |
| From: | Gallo J, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OLA, NUDOCS 8107020286 | |
| Download: ML20008G116 (11) | |
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MAY b \\93 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION A Cff:e of ee !ecretyy Q Oxhe::. g 1 :e:ra U"
BEFORE THE COMMISSION W
y In the Matter of
)
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Docket No. 50-155-OLA CONSUMERS POWER COMPANY
)
(Spent Fuel Fool
)
Expansion)
(Big Rock Point Nuclear Power Plant))
CONSUMER POWER COMPANY'S MOTION TO STRIKE AND RESPONSE TO PETITIONS FOR REVIEW consumers Power Company
(" Licensee") hereby requests that the Commission strike, as unauthorized pleadings, the
" Petition for Review of Decision of the Atomic Safety and Licensing Appeal Board That a(n) Environmental Impact Statement Is Not Required as a Matter of Law" of Intervenors Christa-Maria, Mills and Bier, dated April 17, 1981, the " Motion for Full Commission Review" of Intervenor O'Neill, dated April 19, 1981, as well as the "MotiGn For Review of Decision" of Mr.
John Leithauser, dated April 23, 1981.1/
Moreover, Licensee submits that this casa does not warrant that the Commission review the Appeal Board's decision on its own motion.
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Although Mr. Leithauser is not an Intervenor in this l
proceeding, the Appeal Board granted him leave to brief s
the issues.
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. A.
INTERVENORS' PLEADINGS ARE UNAUTHORIZED The petition of Intervenors Christa-Maria, et al.,
and the motion of Mr. Leithauser are brought under section 2.786 of the Commission's Rules of Practice, 10 C.F.R. S 2.786.
The motion of Intervenor O'Neill, although not specifically referencing section 2.786, is presumably brought under the same section because no other rules of practice are applicable.
Under section 2.786(b)(1), a party may file with the Commission a petition for review of a decision or action by an Atomic Safety and Licensing Appeal Board "other than a decision or action on a referral or certification under.
[S] 2.730(f)."
The decision by the Appeal Board of which Intervenors seck review here is a decision on a certification under section 2.730(f), as the petition of Christa-Maria itself states on page 2.
On September 12, 1980, the Atomic Safety and Licensing Board issued an order in this proceeding and referred its ruling to the Appeal Board under section 2.730(f); the Appeal Board accepted the referral In an unpublished order issued the same day, and on March 31, 1981 issued thereon the decision of which review is sought here.
Furthermore, under section 2.786(b)(9),
[e]xcept as provided in this section and 5 2.788, no petition or other request for Ccmcission review of a decision or action of an
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. Atomic Safety and Licensing Appeal Board will be entertained."2/
Because the Appeal Board rendered its decision on certifica-tion, under section 2.786(b)(9), Intervenors ' pleadings are ones that will not be entertained, and Licensee requests that the Commission strike them as unauthorized.
B.
COMMISSION REVIEW OF THE APPE AL BOARD 'S DECISION WOULD NOT BE APPI'OPRIATE Section 2.786(a) of the Commission's rules provides that the Commission may review a decision of the Appeal Board on its own motion "in cases of exceptional legal or policy importance."
Under section 2.786(b)(4)(i), similar criteria apply to the Commission's grant of a properly brought petition for review:
A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case in-volves an important matter that could significantly affect the environment, the public health and safety, or the common defense and security, consti-tutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions of public policy.
The issue raised on this appeal and in Intervenors' petitions for review is a matter of law.
Not only was the Appeal Bocrd's
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Section 2. 78 8 provides for applications for a stay of a decision pending filing of a petition for review.
In:crvenors do not attempt to invoke its provisions and could not, inasmucn as they are not entitled to petition for review of the Appeal Board's decision.
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decision correct, but this issue is not one of major legal importance warranting exercise of the Commission's discre-tionary power of review.
1.
'The Apceal Board's Decision Was Correct The Appeal Board's carefully reasoned decision correctly resolved the issue before the Beard, and Inter-venors ' imputations of legal error are unj ustified.
The Appeal Board held that in determining whether an amendment to a nuclear plant's cperating license to permit the expan-sion of the spent fuel pool constitutes a " major federal action" for NEPA purposes, the Staff need consider only the pool expansion itself and not the continued period of plant operation that the expansion may make possible.
The Board noted that continued plant operation was a " secondary" or
" indirect" effect of pool expansion, but reasoned that "the i
i whole purpose in considering primary or secondary impacts of an action" under NEPA "is to determine if they have a cause-and-effect relationship with any environmental chances. "
Appeal Board Deicison at 26.
Because in this case continued plant operation merely represents a maintenance of the environmental status quo, there are no environmental changes to evaluate, apart from any changes produced by the increased number of spent fuel assemblies that the expanded pool will
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acccmmodate.
1
. In Committee for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C.
Cir. 1979), the court held that there was no major federal action requiring preparation of an EIS under NEPA when the proposed federal action would not change the environmental status quo.
In Westside Property owners v.
Schlesinger, 597 F.2d 1214 (9th Cir. 1979), the court
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held that where a federal action had been approved before NEPA, a later action relating to it but which did not increase its environmental impacts was not a major federal action.
Intervenor Christa-Maria argues that these precedents supporting the Appeal Board's analysis are inapplicable because they dealt with federal actions having less environ-mental impact than the operation of a nuclear pcwer plant.
This argument is irrelevant because the question before the Board was not how large the present impacts of plant cperaticn are, but whether the.antinuation of these same impacts over the remainder of the license term must be considered when an amendment is sought without which the plant may have to shut dcwn.
The cases support the Board's conclusion that a proposed federal action that will not change the environ-mental status quo is not a ma'or federal action having a significant effect on the environment.
The main point of Intervenors Christa-Maria, et al., in their petition for review is that because the Big Rock plant received its operating license long before the y
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. effective date of NEPA, no EIS was prepared on it; there-fore, they argue, since an EIS covering continued plant operation would -not be duplicative, it is required for any f ederal action that may permit such operation.
As the Appeal Board correctly reasoned, however, it is illogical to conclude "that an action that otherwise may not have a significant effect on the environment is transformed into one that does have such an effect simply by the absence of an environmental review of a different, prior action."
Decision at 36, n.
36.
The only real significance of the fact that Big Rock was licensed before NEPA is, as Licensee argued before the Appeal acard, that any environmental review of plant operation during the term of the operating license at this
-ime would constitute an impermissible retroactive applica-tion of NEPA.
The Appeal Board did not decide the issue of retroactivity.
The Board did, however, correctly distinguish
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f Minnesota PIRG v. Butz, 498 F.2d 1314, (8th Cir. 1974), the l
decision chiefly relied on by Christa-Maria for the conten-tion that there would be no retroactive application of NEPA l
l in the present case.
The Board noted the factual dissimilarity l
of Butz, a case involving "[rlenewal of old contracts and negotiation of new ones for activities on federally-administered i
land."
Decision at 21.
In this case, the amendment sought l
l by Licensee would not extend the ' arm of Big Rock's operating license.
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. i 2.
This Case Does Not Present A Significant Legal Issue for Review Furthermore, aside from the correctness of the Appeal Board's decision, this case is not one that warrants Commission review as presenting a significant issue of law or policy that could affect the environment or the other interests listed in section 2.786.
As the Appeal Board recognized, "[t]he situation presented by this case is unusual, if not unique. "
Decision at 18.
Licensee knews of no other case to which this decision would be applicable.1/
The decision is, therefore, without precedential value and thus does not warrant Commission review as presenting a significant legal question.
Intervenor Christa-Maria admits this, but argues that the Commission should review the decision at this stage because it will eventually have to decide this issue when it reviews the Licensing Board's grant or denial of the license l
3/
In Dairyland Power Coocerative (La Crosse Boiling Water i
l Reactor 1, ALAS 617, 12 NRC 430 (1980), the Appeal Board l
withheld action, pending its decision in this case, on l
a question certified to it by a Licensing Board.
T"e decisien ultimately rendered in this case by the Appeal Board on March 31, 1981, however, will not have pre-cedential effect en the La Crosse case.
The issue cer-tified in La Crosse was whether the Licensing Board, in the context of a spent fuel expansion proceeding, had j urisdiction to inquire into the need for the power to be generated by the facility.
Although the need-for-pcwer issue was briefed by the parties in this case, l
the Appeal Board did not decide it, and the Board's decision here should thus not influence the outcome in La Crosse, j
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8-amendment.
This is not a proper consideration, however, under section 2.786.
Moreover, Christa-Maria's assumption that the Licensing Board's final decision will inevitably be reviewed by the Commission is incorrect; such review would be discretionary and would also be governed by section 2.786, with the same considerations applicable.
- Indeed, Christa-Maria's incorrect assumption illustrates why the Commission's rules do not grant parties a right to seek review of an Appeal Board decision made on a certification under section 2.730(f): such decisions are interlocutory in character.
The Appeal Board's decision does not significantly affect the environment or any other interest enumerated in section 2.786(b)(4) because it does not determine the outcome of the proceeding before the Licensing Board.
This is why such interlocutory appeals are appropriate for Commission review only "in cases of exceptional legal or policy importance, "
when the Commission undertakes such review of its cwn motion.
Because of the unique situation of the Big Rock plant, this case clearly d:es not possess such importance.
For all the reasons given above, Licensee requests that the Commission strike as unauthorized pleadings the petition of Ms. Christa-Maria and the motions of Messrs. O'Neill and Leithauser.
Furthermore, Licensee submits that the Appeal Board's decision is inappropriate for Commission review because 1
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g-the question that it presents does not possess legal or policy significance; Licensee therefore requests that the 1'
Commission not undertake auch review on its own motion.
i Respectfully submitted, Swn psepb/Gallo, Esquire T
94 Peter Thornton, Esgdi're Two of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.
Suite 325 Washington, D.C.
20036 202/833-9730 Dated:
May 4, 1981
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
Docket No. 50-155-OLA CONSUMERS POWER COMPANY
)
(Spent Fuel Pool
)
Expansion)
(Big Rock Point Nuclear Power Plant))
CERTIFICATE OF SERVICE I hereby certify that copies cf CONSUMERS POWER COMPANY'S MOTION TO STRIKE AND RESPONSE TO PETITIONS FOR REVIEW in the above-captioned proceeding were served on the following by deposit in the United States mail, first-class postage prepaid, this 4th day of May, 1981.
Chairman Joseph M. Hendrie Thomas S. Moore, Esquire U.S. Nuclear Regulatory Atomic Safety and Licensing Commis sion Appeal Board Panel Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Commissioner John F. Ahearne Washington, D.
C.
20555 U.S.
Nuclear Regulatory Commission Dr. John H. Buck Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Panel j
_ Commissioner Victor Gilinsky U.S.
Nuclear Regulatory
'U.S.
Nuclear Regulatory Commission Commission Washington, D. C.
20555 Washington, D.C.
20555 Christine N.
Kohl, Esquire Commissioner Peter A.
Bradford Atomic Safety and Licensing U.S.
Nuclear Regulatory Appeal Board Panel Commission U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
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. Herbert Grossman, Esquire Christa-Maria Atomic Safety and Licensing Route 2, Box 108C Board Panel Charlevoix, Michigan 49720 U.S. Nuclerr Regulatory Commission Herbert Semmell, Esquire Washington, D.C.
20555 Antioch School of Law 1624 Crescent Place, N.W.
Dr. Oscar H.
Paris Washington, D.C.
20009 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S.
NLclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Mr. Frederick J. Shon Atomic Safety and Licensing Docketing and Service Section Board Panel Office of the Secretary U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Mr. John A.
Leithauser Appeal Board Panel Energy Resources Group U.S. Nuclear Regulatory General Delivery Commission Levering, Michigan 49755 Washington, D.C.
20555 Ms. JoAnne Bier Janice E.
Moore, Esquire 204 Clinton Counsel for NRC Staff Charlevoix, Michigan 49720 U.S.
Nuclear Regulatory Commission Mr. James Mills Washington, D.C.
20555 Route 2, Box 108 Charlevoix, Michigan 4 9720 Gail Osheranko, Esquire Council on Environmental Judd Bacon, Esquire Quality Consumers Power Company 722 Jackson Place, N.W.
212 West Michigan Avenue Washington, D.C.
20006 Jackson, Michigan 49201 John O 'Neill, Il Route 2, Box 44 Maple City, Michigan 49664 i
~ seph Gallo
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