ML20084F440
"Draft Meeting" is not in the list (Request, Draft Request, Supplement, Acceptance Review, Meeting, Withholding Request, Withholding Request Acceptance, RAI, Draft RAI, Draft Response to RAI, ...) of allowed values for the "Project stage" property.
| ML20084F440 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/03/1984 |
| From: | Bauser M NEW ENGLAND COALITION ON NUCLEAR POLLUTION, NEWMAN & HOLTZINGER |
| To: | Gilinsky V, Palladino N, Roberts T NRC COMMISSION (OCM) |
| References | |
| OL, NUDOCS 8405040143 | |
| Download: ML20084F440 (4) | |
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Chairman Nunzio J. Palladino Commissioner James K. Asselstine U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Victor Gilinsky Commissioner Frederick M. Bernthal U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Chairman and Commissioners:
On April 26, 1984, the Commission met at an open meeting to consider appropriate action in light of the recent issuance of the court's mandate in New England Coalicion on Nuclear Pollution v.
NRC, No. 82-1581, Slip op.
(D.C. Cir. Feb.
7, 1984) [ hereinafter referred to as NECNP v. NRC].
In particular, the Commission considered the adoption of a draft policy statement which would apparently allow, among other things, the litigation of utility financial qualification issues in ongoing reactor operating license proceedings.
Such a policy is being considered notwith-standing the fact that the Commission is already proceeding with a financial qualification rulemaking, proposing a rule which would reaffirm the elimination of financial qualification review and findings for electriE utilities applying for operating licenses.
(4 9 Fed. -Reg. 13,044 (April 2, 1984)).
As discussed below, the draft policy under consideration by the Commission is not required by the court's action, would be extremely disruptive of ongoing licensing proceedings without any compensating benefits and is inconsistent with long-estab-lished Commission policy as developed in NRC caselaw and approved!
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Y NEWMAN & IlOI.TZINOEH, P. C.
Chairman Nunzio J. Palladino Commissioner Victor Gilinsky Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal May 3, 1984 Page Two 4
by the courts.
Accordingly, we urge that the Commission not modify its March 5, 1984 statement of policy ( 4 9. Fed. Reeg. 7981) by adopting the draf t policy now under consideration.
First, adoption of the draft policy is not necessary/.
The Court of Appeals' mandate, remanding the financial qualiffications rule "for further proceedings consistent with this opinican" (NECNP
- v. NRC, Slip op. p. 9) does not require that the Commissii.on, in effect, abrogate the challenged regulation and reinstitutte the prior financial qualifications rule pending completion off the ongoing rulemaking proceeding referenced above.
Failure: to set forth an adequate factual basis for agency action does ncot necessarily require that such action be abrogated or he163 ineffec-tive pending a prompt agency response directed at curing; identified defects.
Williams v. Washington Metropolitan Area Transiit Commis-sion, 415 F.2d 922, 937-39 (D.C. Cir. 1968).
As the Comminission, itself, has recognized, it possesses " broad discretion irn imple-menting judicial mandates Vermont Yankee Nucleazr Power Corp. (Vermont Yankee Nuclear Power Station), CLI-76-14, 4 NRC 166 n.1 (1976).
i In NECNP v. NRC the court simply concluded that the Commis-I sion's statement of~ basis and purpose did not adequately support the financial qualification rule as promulgated.
Slip op., p. 9.
Its remand for further proceedings -- consistent with itss opinion -- lef t the Commission free to choose the most appropriate method of implementing the mandate, consistent with a bassic obliga-tion to act "promptly and constructively."
Vermont Yankene Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-7 6-14,
4 NRC 163, 166 (1976).
The Commission has responded appiropriately by promptly proceeding with a rulemaking to cure the defencts' identified by the court.
Nothing in the court's mandate or other-wise requires immediate Commission action to require fu13. financial qualifications review and findings.
Second, there i_s good reason, as a matter of policy,, not to permit the introductiion and. litigation of financial qualdi.fications contentions in ongoing operating license proceedings.
Sii.nce the issuance of the court's decision the Commission has' revieswed the subject further and again reached the conclusion, now opean for w--
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NEWM AN & HOKlTZINOER, P. C.
Chairman Nunzio J. Pal]adino Commissioner Victor Gilinsky Commissioner Thomas M.
Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal May 3, 1984 Page Three i
public comment, that -- based on thd ratemaking mechanisms in effect -- formal review of the financial qualifications of electric utilities applying for operating licenses is not in the public interest.
(49 Fed. Reg. 13,045.)
There is, thus, absolutely no reason based on public policy to now subject ongoing licensing i
proceedings to the unnecessary confusion, complication and delay that would result from the insertion, on apparently an interim basis, of such issues.
Moreover, such insertion would cause a wasteful expenditure of resources of both applicants and the NRC l
Staff, which could be more gainfully employed on amatters that potentially affect the public health and safety.
(See id. at 13,046.)
Finally, adoption of the draf t policy, to the extent it would permit the introduction of financial qualification contentions into ongoing operating license proceedings, would be inconsistent with long-established Commission policy.
As previously noted, the rule propcsed last month by the Commission would reaffirm the elimination of financial qualification review and findings for electric utilities applying for operating licenses.
Commission policy under what is often referred to as the Vermont Yankee line of cases, and which has been approved in court, clearly provides that Licensing Boards should not accept in individual license proceedings contentions which are the subject of a general rule--
making by the Commission.
- See, e.g., Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 85 (1974); Vermont Yankee Nuclear Power Corp.
(Vermdnt Yankee Nuclear Power Station), ALAB-56, 4 AEC 930 (1972)~;
Ecology Action v. AEC, 492 F.2d 998, 999, 1001-02 (2d Cir. 1974).
See also Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) ALAB-655, 14 NRC 799, 816-17 (1981).
Application of the Vermont Yankee doctrine is especially appro-priate under the existing circumstances where the Commission has proposed a rule, which, if adopted, would be directly contrary tas the introduction of financial qualification contentions into curre.nt operating li. cense proceedings.
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NEWMAN & HO!,TZINOEH, P. C.
Chairman Nunzio J. Palladino Commissioner Victor Gilinsky Commissioner Thomas M.
Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal May 3, 1984 Page Four For the foregoing reasons, the Commission should not modify the policy established in its March 5, 1984 statement by adopting the draf t policy discussed at last week's Commission meeting and currently under consideration.
Respectfully submitted, N
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