ML20092K779

Brief Opposing Commission 840612 Financial Qualifications Policy Statement.Statement Must Be Rendered Null & Void as Statement Is Product of Illegal & Improper Ex Parte Communication.Certificate of Svc Encl

ML20092K779
Person / Time
Site:	Perry
Issue date:	06/25/1984
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:
References
NUDOCS 8406290098
Download: ML20092K779 (3)

Text

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June 25', 1984 l

l UNITED STATES OF AMERICA i

NUCLEAR REGULATORY COMMISSION n,,.-

- - -: 2.: -

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Before the Atomic Safe 1!v and Lic_ensing Board In the Matter of

)

'84 J"' 27 -T0 :25

)

L CLEVELAND ELECTRIC ILLUMINATING

)

Docket Nos. 50-440-

. COMPANY, Et A1.

)

50-441

)

(Operating License)

(Perry Nuclear Power Plant,

)

Units 1 and 2)

)

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i OCRE BRIEF ON FRANCIAL QUALIFICATIONS -POIiTCY S'IRTDENT 1

On June 12, 1984 the Ccanission published in the Federal Regi' ster f

(49 FR 24111) a policy statenent explaining the Comnission's view l

that the Court in New England Coalition on Nuclear Pollution v. NRC 727 F.2d 1127 (D.C.- Cir.1984) did not actually vacate the March 31, 1982 rule eliminating financial qualifications review for electric f

utilities. Applicants and Staff have both urged the I;icensing Board I

to deny the notion of Sunflower Alliance seeking resubmission of the

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financial qualifications issue on the basis of this policy statement.

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l Intervenor Ohio Citizens for Responsible Energy ("OCRE") agrees t

t with Camissioner Asselstine that the policy statement is illegal.

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OCRE further believes that the policy statenent dust'be rendered null I

l and void because it is a product of illegal and improper ex parte l

ccxmunication. OCRE has found in. the Iocal Public Docunent Pocm a conmunication from Gerald Charnoff, of Shaw, Pittman, Potts, &

l Trowbridge, the law firm representing Applicants, to Mr. Bill Reamer and others on or advising the Cm mission. See Attachment 1.

'Ihis connunication has obviously influenced the Camission's policy statement.

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10 CFR 2.780 prohibits ex carte ccnnunications between i

"NRC officials and enployees who advise the Ccmnissiorm in the exercise of their quasi-judicial functions" and "any party to a l

pWing... or any officer, enployee, representative, or any other person directly or indirectly acting in-behalf thereof".

Sucit ocmiunications are defined as "any evidence, explanation, f

analysis, or advice, whether written or oral, regarding any sub-stantive matter at issue.in a proceeding'.'.. 10 CFR 2.780(a).

Subpart (b)' requires copies of such written comnunications to be i

r.

placed in the Public Doctxuent Rocm and. served on the parties to l

i the proceeding involved.

Mr. Chamoff's cxxmunication clearly fits the bill. Although l

Mr. Charnoff does not directly represent Applicants in this case, i

he was obviously acting in their behalf. Se ecxmunication was i

sent to Mr. Bill.bamer, legal assistant to Chairman Palladino, i

James Cutchin, legal assistant to Ccmnissioner Roberts, Steven Schinki, legal assistant to Ccmnissioner Bernthal, and to Ccmnissioner Asselstine. Bus the corruunication served to advise the Catmissioners,

in the exercise of their quasi-judicial functions. Se ccxmunication l

is also an analysis regarung a substantive issue.in this proceeding.

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Bat it had stbstantive effect is obvious. % e policy statement i

l clearly follows the reasoning. set forth in the ccmnunication. Indeed,

-it apparently caused three of the Ccmnissioners.to discard the advice j

l to the contrary from the Executive Iagal Director, General Counsel, and the Department of Justice; see Ccxtmissioner Asselstine's views, t

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_3_

49 FR 24112.

[The Policy Statenent is Attachnent 2 to this brief.]

Finally, the cmmunication, although placed in the PDR, was not served on the parties to the proceeding, contrary to 10 CFR 2.780(b).

This failure to abide by its own regulations must therefore cause the Cmrtission's policy statement to be set aside as illegal.

OCRE is aware that Licensing Boards are to follow the directives of their superior tribunals. However, there must be limits to blind obedience. OCRE is sure that this Board would not want to echo the Cmmission's error by following a blatantly illegal policy statement.

Allegiance to the Court's mandate (and to the-Constitutional principles of justice and due process) should take preceden over obedience to a camission tliat "will go to any lengths to deny members of the public a fair opportunity to raise issues in our licensing proceedings and to have those issues fully and fairly litigated" (49 FR 24113).

OCRE therefore urges the Board to obey the. Court of Appeals and to readmi.t the financial qualifications issue.

Respectfully submitted, 0

Susan L. Hiatt OCRE Representative 8275 Munson Rd.

Mentor, OH 44060 (216) 255-3158 k

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SHAw, PiTTMAN, PoTTs & TROWBRIDGE 4

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May 2, 1984 DC0;G nemech

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A~Y O L.

Mr. Bill. Reamer D " A<

nN5ER U.S. Nuclear Regulatory Commission ND.fa UTIL FAC.h.

b Washington, DC 20555-

Dear Bill:

Attached is the memorandum I discussed with you a little while ago which ye are submitting in* connection with the.

Co= mission's disposition of"the financial qualification rule matter as it would relate to currently pending operating, license applications.

I believe that the attached memorandum demonstrates that the Commission need not treat the failure of the court to stay the mandate as a direction to vacate the financial qualifications rule under review by the court, S* cerely, A.,

ra d Charn ff i

. Attachment Similar letters sent to:

J Cmr. Asselstine James Cutchin Steven Schinki 040148 840502 DR ADOCK 05000400 PDR 233 03

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May 2, 1954 MEMORANDUM IMPACT OF MANDATE IN NECNP V. NRC i

on A'pril 16, 1984, the U.S.. Court of Appeals for the Dis-f trict of Columbia Circuit issued its mandate in New England I

Coalition on Nuclear Pollution v..NRC, 727 F.2d 1127 (D.C.Cir.

1984). 'In lieu of formal mandate, the Court transmitted copies of the opinion and the Judgment.

Based upon this action, it f

has been suggested that the-Court has vacated the March 1982 f

i financial ch.ta'lifica.ti-on rul.e. -and.reimstated the regulations on i

financial qualifications as they existed before March 1982.

t Although not without some ambiguity, the better reading of the

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Court's decision is that the March 1982 rule 'has' not been va-i cated.

It is well' establish'ed Ehat" a court's opinion may be con-t

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sul.ted to ascertain the. intent of the mansiate. issued pursuant i

to it.

In re Sanf'ord' Fork & Tool Co.,

,1.60,U.. S... 2 47, 25 6 (1985); see City of Cleveland, Ohio v..TPC, 561 F.2d 344, 347

-. n. 25 and' cases cited therein.

The language of the NECNP opin-ion and of the judgment both point,against_.the; rule being va-g cated.

Nowhere does the Court state that the March 1982 rule il

'I is vacated or that the prior rule is reinstated.

Instead, the Court stated that the rule is.not, supported by its accom-3 panying. statement of b' asis and purpose, as required by 5 U.S.C.

S 553(c)(1982).

We agree with the last and accordingly a

remand the rule to the agency.

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.727.F.2d at 1128.

'At the. end of its_ decision, the Ccurt con-

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cludes, Accordingly we remand the rule to.the Commission for further proceedings con-sistent with this opinion.

727 F.2d 'at 1131.

Similarly, the Court's judgment states:

ORDERED and ADJUDGED', by this Cour.t._.

that the petition is granted and the i

case is remanded to the Commission.f'or further proceedings consistent with the

.. opinion filed herein. thi's: date;r u.

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While the Court's opinion includes ' language on rules being

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" set aside" an'd " vitiated", that language does not appear to h

call.for the return to the pre-March 1982 rules.

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... : :.. :. ~......

Since the other challenges raised by pe-y

.titioner' da not, even if. valid. preclude all action that the Commission may take in connection.wi.th;this rulemaking, we' -

b.

need not consider them here.

"(W)here i!!

. agency action must'be' s'et aside as lj invalid, but the agency is still legally free to pursue a valid course of action,

't a reviewing court will ordinarily remand

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. to enable. the agen' y.to' enter' a' new -

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order after remedying the defects that

. vitiated the originali a'etion..". W111'iams:

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v. Washington Metrocolitan Area Transit t

'_,_Commissiony,415;E.2d_922.,.939-40

(

(D.C.Cir.1968)(en banc)(footnote omit-l

_.ted),_ cert. deni'ed,3 93. U S',

17081,.~ 89'-

f S.Ct. 860 21 L.Ed.2d 773 (1969); City of Cleveland v FPC, 525 ' F. 2d' 845, 15 6.n. 69.'.

(D.C.Cir. 1976).

727 F.2d at 1131.

j Consideration of the Williams case suggests that that 1

,,cou,rt did not intend to vacate the 1982 rule.

(The City of i

Cleveland case merely quoted th'e language from Williams without further clarification or explanation).

The Williams. case

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involved die review of a series of o_rders setting transit fares.

In an earlier case, the Court had reviewed a fare order I

f and remanded it to the Transit Commission, without. vacating it, because the Commission had failed to adequately set forth its findings'

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[N)otwithstanding"our uncertainty ~as to whether the Commission had actually made the inquiries and the concomitant.deci-sions we held to be required by the sta-

- tute, we were unwilling to. conclude, merely from the absence; of findingsrin.. :.

its order, that the Commission had not performed it_s duties.

Thus,'we did not.

O disturb the effectiveness of the fare 1

increase ~ granted by' Order.No.-245, nor did we make provisions for restitution by Transit of increased fares collected-pursuant to that order.

Instead, we.

remanded to the Commission to enable. it Q

to clarify the grounds for its action-p

.i or,'if necessary; to formulate a new order.

p 415 F.2d at 938 (emphasis added).

After remand to the agency, the Court was then asked again to examine the fare order.

.. On._the s.econd review,. the_ Court affirmatively found' ~th'5tt "at no time in this proceeding has the Commission made the investigations.an'd the resolutionslessen-tial to a legitimate exercise"of its authority to prescribe just and reasonable fares."

415 F.2d at 938-39.

In such cir-

. eumstances, having already remanded the case once for action

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consistent with the Court's decision, the Court felt obligated to set aside the orders.

ThisJoutcome was particularly appro-priate. in' view of the fact that anotber remand would be futile, since the orders in question had already been superceded by

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later fare orders.

Id. at 940-41. _The Court therefore ordered

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. restitution as the applicable and equitable remedy.

Id. at 942.

The situation in NECN? is much more akin to the Williams' court's first review of the orders than of the second.

On i !

first review, the Court relied on the absence of adequate find-l ings and remended the orders to the Commission for further pro-i i

ceedings without vacating those orders.

("Thus we did not dis-l turb the effectiveness of the fare increase.

nor did we make provisions for restitution."

415 F.2d at 938).

In NECN?,

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the ' Court remanded for further proceedings to give the Commis-sion the opportunity to meet the requirement for an adequate if statement of basis and purpose.-

On the second review 'n i

i Williams, the. Court found affirmatively that the Commission's j

action "was based upon a mistaken view of its responsibilities l

in setting rates.

415'F.2d at 939.

No such finding I

has been made as to the financial qualification rules.

Indeed, the Court found that.NRC could issue a valid rule to gener-

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i ally abolish 'some types of financial qualifications reviews.,

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727 F.2d'at 1129.

Thus, the NECN? f cts applied to the Williams decision clearly' imply that the pre-March 1982 rule

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as not to be reinstated.

In the languege of Williams, the NRC w

does not need to "make provisions for restitution."

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Other factors point to an interpretation that the Court i

did not intend to vacate the March 1982 rule.

When the Court I

has intended to vacate NRC action, it has clearly said so.

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j See, e.g. Union of Concerned Scientists v.

NRC, 711 F.2d 370

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(D.C.Cir. 1983) (equipment qualification rule vacated.and re-manded); Natural Resources Defense Council v. NRC, 685 F.2d 459, 494 (D.C.Cir.1982)(Table S-3 partially vacated), rev'd l

sub. nom.

Baltimore Gas & Electric Co. v. Natural Resources

,,_ Defense Council, lO3 S.Ct.-2246 (1983).

Natural Resources

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Defense Council v. NRC, 547 F.2d 633 (D.C.Cir. 1976)(2able S-3 partiallv vacated), rev'd sub. nom.'- Virmont Yankee Nuclear j-Power Corp. v.., Natural Resources Defense Council, 435 U. S. 519 (1978).

On the other. hand,-when the -Court does not wtnt to va-i cate 'am NRC order; it knows how to -do thit as well.

See, e.g.,

Aeschliman v. NRC, 547 ' F.2d 622 (D.C.Cir. -1976) (Midland con-struction permits / remanded for further' proceedings--but not va-f t

cated), rev'd sub nomi-Virmont' Yankee; s6 era' It is therefore i

very doubtful that the Court simply-forget-to vacate the 1982

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I;i rule.'

There is very little law discussing-she,use 'of a remand l

without an.secompanying affirmancef reversal 6r vacating of the i

agency (or lower ' courts) actied! ' In -NRDC-v.'-NRC, 547 F.2d 633 i.

(D.C. Cir. 1976)'; the Court rejected thd option of renanding ll the rule rather than' vacating it.

This 'was' because, in the Court's view, the agency's record was not sustainable on the t

a@ninistrative reecord made.

547 F.2d at 655 n.64, citing FPC

v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326 (1976)(per curiam); cf. Camp. v. Pitts, 411 U.S. 138, 143 t

)

(1973).

In deciding to invalidate the Table S-3 rule, the

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l Court distinguished a 1974 law revie.w. article, written by Judge Leventhal, which recommended that appellate courts utilize a i

remand when there is a lack of adequate findings, and avoid I

t declaring the regulation invalid except in "the most_ flagrant

, cases "

See Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. P. L. R. 509, 539 (1974).

l In a different context, a district court : stated:

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It In cases where agency act-ion is defec-

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tive for proc'edu~raf reisons, th=e apiiro;- ~

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priate remedy is to remand for further action iIith proper proce'dures so'that f

, the defect.can be cur.ed without automat-ically affecting the carits.

4 4

Lane v. Hills, 72 F.R.D. 15'8,.161 (D.N.J. 1976), a'ff'd,'556 1

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6 F.2d 567 (3d Cir. 1977).

However, the procedural infirmity in question in Lane was a defective complaint, not a defective rulemaking.

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j Although the courts do not usually discuss the distinction j

t they make between remanding and vacating a rule, there appears i

to be a discernible line of demarcation between these two out-l comes.

Generally, if a court determines that a rule lacks an

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t adequate, statement of basis, it remands"iiEe rule ~'to the agency

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so :that the procedural infirmity in' the rule can be remedied.

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See, e.g.,

Williams, suora; AMOCO Production Co. v. NLRB, 613 F.2d 107,112 (5th Cir.1980)(remanded case to Board for factu-l al determination without vacating order).

In these case's, a i

remand is necessary because, even if there is record support l

for the agency's action, the Court cah only " affirm (the agen-

[

l cy's] action on the basis of the reasons. assigned or'not at y--a y

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NELNP, 727 F.2d at 1131, citing SEC v. Chenery Coro.,

f 318 U.S. 80, 87-88 (1943).

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In contrast, if the Court makes. tie further substantive finding that the rule cannot be supported by the record un-derlying'it, the Court not only must remand the rule,.b.ut it must vacate'it,as well.

"If the'[ agency's] finding is not sus-tainable on the administrative. record.made,..then the [ agency's) i decision must be vacated and the matter. remanded 'to'-[it) for i

further consideration."

Vermont Yankee Nuclear Power Core. v.

i Natural Resources Defense Council, 435 U.S. 519,. 549 (-1978),

citing Camh v. Pitts, 411 U.S.

138, 143 (1973); see also SEC v.

at 94-95.

t Chenery Core., suora,,

As in the initial Williams re-I mand, the NECNP Court remanded the case in order for he Cem-

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mission "to"cla'rify the grounds for its actions or, if neces-sary, to formulate a new" rule, without disturbing the i

effectiveness of the 1982 rule.

Williams, sucra, 415 F.2d at 938.

The Court of Appeals' statement about " remedying the de-

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i facts that vitiated the original rule," taken from the Williams r

l l

case, is very similar to the Court's previous statement in describing how it treated the initial Williams remand.

i Furthermore, in the present, case, the Court only reached f

t

, the question of whether a rational basis was provided by the NRC.for its 1982 financial qualifications rule.

727 F.2d at i

1131. ' Since it answered this question in the negative, it did i

not resolve whether the underlying rgeord supported the as-i serted basis.

(It did state that the agency could pursue the '

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course of, action taken in the 1982 rule, '[i]f sustained by the j

facts."

Id. at 1129.)

As in the Williams case,.the Court did l

not have to' vacate the agency's action ~, which would be' subject c

to its review again, after the agency responded to the remand.

In sum, there is every reason to believe that the Court of Appeals in NECNP v. NRC has deliberately remanded the case'to-' '~

I the NRC for further proceedings without vacating or oth'erwise h

i i

affecting the 1982 financial: qualifications' hile.-

On its face, the Court's decision does this...Moreover,..the cases.on which the Court relies,.in remanding,the case, support this interpre-tation of the mandate.

.Ei.nally, there is am;$le precedent for the course of action taken 'by the Court in this case.

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/ W AcAwa M L F;d:r:1 R:gtst;r / Vol. 49. Nr.114 / Tinsday. June 12, 1984 / Ruhs and Rigulatirns 24111 particular proceeding shall be qualified England Coalition on Nuclect Po#ution utilities will be able to cover the costs of '

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in the conduct of admijilstrative v.NRC 727 F.2d 1127 (D.C. Cir.1984).

' operation through the ratemahng proceedings. An alternate may be -

the Nuclear Regulatory Commission process; aasigned to serve as a member of an issues a statement of policy clarifying its

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73 the interid the' Court's candate Atomic Safety and 1.1[ensing Appeal response to the Court's remand.

fas issued.ne mandate containedno '

Board for a particula proceedingJn the. FoR FURTNER INFORMATION CONTACE.

guidance other than that furn.ded in 'the event that a member signed to such Carole F. Kagan. Office of the General Court's optrion. na Codsi. Mas proceeding becomes available.

Counsel U.S. Nuclear Regulatory concluded that the issuance of the 3 (b)In the absence f a quorum, the Commis sion. Wa shington. D.C. ac55,5i.-mandate does not have the ef!ect of following individual are authorized to phone (202) 634-1493..

set for an Appea) ard on procedural SUPP1.EMENTARY INFORMATioeti On

" * " ' " " " ** U " " * * * * '

matters. including r quests for stays of February 7.1984, the U.S. Court of.

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M as a punqMe fu a nacte orders by presiding flicers:

Appeals for the District of Columbia -

e natrueden pumit or opund:g Ucense, (1)The Chairma of the AppealBoard Circuit granted a petition for review by In remanding the rule to the Ccmmission assigned for a parti ular proceedm the New England Coalition on Nuclear (2)The permine t Chairman of a Atomic Safety and T ! censing Appeal Pollution (NECNP) which challenged the without explicitly vacating the rule, the.

CMh*s March 31.1982 tule Court cited Williams v. Washivton Panel. in the eve' t that the Chairman for eliminating case.by. case financial biet:opoliton Area Trcnsit Commission, n

a particular proce ding is not avauable qualification review requirements for 415 F.2d 922 (D.C. Cir.1968) (en beno),

to aet upon the m tter in question. or electric utilitie s. New England Coalition cerf. denied 393 U.S.1081 (1955).

on NuclearPollution v.NRC. 727 F.2d Williams doe: not require that the (3

t s oior available full. time member of the Appeal panel,in the 1127 (D.C. Cir.1984).De Court found agency action be vacsted on remand. In t

that the rule was not adequately another situation where the D.C. Circuit event that (i) the hairman for a articular proce ingis unavailable or supported by its, accompanying remanded a set of rules to an agency for ins not been assed. and (ii) the statement of basis and purpose and an adequate statement of basis and permanent Chal an of the Appeal remanded to the agency, but did not purpose the Court allowed the old rules,

Panelis unavailble or the position is expHeidy vacate the rule.

comply with the Court's mandate.

to stand pendmg agency action to In response to ths decision, the vacant.

Commission initiated a new financial Rodway v. United States Depc-: ment of (c)(1) Except with respect to requests for stays of ord$s of presiding officers, qualification rulemaking to clarify its Agriculture. 514 F.2d 809 (D.C. Cir.1975).

action by a designated individual under Position on financial qualification ne Commission is complying with the reviews for electric utilities. 49 FR 13044 Court's mandate by reprom'ulgating its the autherity of aragraph (b) of this secuan shallb reviewable by the (1984). One of the points focused upon in financial qualifications rule in a manner Appeal Board i r the particular the Court s d,ecision was the responsive to the Court's conce n.De Commissim s observade in the Commission anticipatesthat the new proceeding.up n its own motion or Statement of Considerations for the rule eliminating financial review at the upon a motion iled within three (3) days 1

th perating license atage only wi'.! sooii'be of the date of, e particular action in d

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2) cuen u der e uthorityof

' {s' n fr po' tp pe pro eedi n

in p s.

an p

cts ra paragraph (b) af this section with there are several ongoing operating respect to regtests for stays of orders of 6an cut comus or safety.ne Cod license proceedings to which the new *

'ved t t such actio by some presiding officers shall be reviewable by Oes d rule will apply. It would not appear upo a m le in thre 3 days financially trou ed utilities would nasonable to construe the Co=t's of the date of le articulara tionin follow the same coune.De revised Opinion as requiring that the accordance with 2.730*

proposed rule would eliminate financial Commission instruct its adjudicatory review only at the operatinglicense panels in these proceedings to begin the Dated at Weihington, D.C., this eth day of stage.De question of reasonable process of accepting and litigating June 1964.

assurance of adequate construction financial qualifications contentions. a For the Nucle it Regu! story Commission.

funding can be an issue only at the..

process which would drley the licansing Samuel J.Ch!!k.

construction permit etage.nua the of severalplants which are at er near Secntorycfthe

'as/on.

Commission's current rulemaking is completion, only to be required to responsive to the Court's. concern by dismiss the contentions when the new I"""'***

""'*****"I.

maintaining the financial qualifications - rule takes effect in the neat futre.

review for construction pumit Accordingly, the March 31.122 rule applicants.

will continue in effect until finalization he Court was Also troubled by what of the Commission's response to the 10 CFR Parts 2 and 50 it perceived to be an inconsistency Court's nmand.ne Commisi.on di.ects betwun ehminadon of de n*w n!y Finanela! Quattficationa Statement of its Atomic Safety and I.Jcensing Board

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' Co s fon o servati n that'flisan'elal O PP**I P'"'I

• P'*d * ** 'di"8 Y' '

I Aotacy:U.S. Nuclear Regulatory qualifications reviews are unnecessary Acnoic Policy' statement.

.. because it finds no link between..

.Commissfoner Gilinsky did r.ot.

Commission.

finandal qualifications and safety.%Is Participate in this decision. *

• cbservation is not relied on in the new Commissioner Asselstine's dissent from svwwan:In response to the issuance of proposed rule.Instead, the rule is this decision and the. separate views cf pnmised on'the assumption that, at the Chairman Palladino and Co==2ssioners the mandate of the U.S. Court of -

t Roberts and Bernthal follow. -

Appeals for the D.C. Circuit in New operating Ilcense level, regulated

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FedIral Rrgister / Vol. 49. No.114 / Tuesday. June'12.1984 / Rules End Regulatiins N222 Commission's 1932 financial ' '

Separate Statement of Chairman Separate Views of Commissioner qualifications rule.They told us that this Bernthal; means that the old rule governs untillhe Palladino J believe that th'e Commission's action Commission can su'bstitute a validnew The Court of Appeals remanded the in instituting the recent rulemakmg rule removing the issue from r

financial qualifications rule to the Commission. The Commission promptly proceeding is fullyresponsive to the proceedings. The best that our legal,.,.

7 Courrs mandate. As the Co==ission's advisors could say about the course.

Initiated rulemaking to address the policy statement indicates, the Court's being pursued by the Commission is ths,t deficiencies identified by the Court. lt criticism of the Commission's rationale the Commission's position is 7.olorable

• hen faced the question of what to do for the March 1982 rule related solely to ginn the, absence of explicitlar.guage in t

about financial qualifications in pending issues which, even under the pre.1982,

the Court decision vacating the rule.,

operating license cases.The Court's rule,would be litigable only at the They indicated.however, that they that the rule was cpinion did not say/ Commission was construction permit stage of review.

would not advise taking this course, k "va cated." Thus, th Therefore, even if one assumes for the because of the signt!Icantlitigation na I

presented with a ~ question of sake of argument that the Court taca'ed involved.My reading of the case law t

i interpretation of the Court's op!nlon.

the rule insofar as11found the leads me to agree with their conclusion.

The Commission adopted the view that Conunission's rationale inadequate, the To deal with th,is situation, the the Court's opinion could rea sonably be Commission took prompt action in Ceneral Counsel proposed an interim Interpreted as not vacating the rule for modifying the 1982 regulatienby policy statement which would have operating license reviews.

proposing a rule which woud reinstate enabled the boards and parties to The Commission has not sought t financial qualifications reviews for an resolve the financial qualifications lasue-t flout the Court or escape its mandate.

construction permit applicanta.

in individual cases in autxpeditious

{

he Commission has attempted to be lhave based my decision on a plain-manner.There would have been some responsive to the Court a epinion and, at reading of the opinion of the Court.

unavoidable. short ter= delay sod socte the same time.has sought to avoid

. wherein the Courtlisted the five inconvenience in a few ccses.However, unnecessary disruption ofits licensing contentions raised by the appellants, had the Commission acted in a timely cnd regulatory program. It interpreted and noted We agree with the last [of manner to adopt that policy statement the Court s opinion with full recognition the five contentions]."That 13. the Court wh'enit was proposed a month ago.

that the Court would correct its held that "the rule is not supported by much of that inconvenience and delay mtoretationif the Court hadintended its accom.*panying statement of basis and would be over by now.

to vacate the rule.

,,, * " and etcordingly Instead, the Commission has chosen j

remanded the rule to the agency. Given to ignore the advice of all ofits legal l

Sepsrate Statement of Commiseloner that holding.1 believe the Commission's advisors and to act as if the 19c rule Roberts actionis directly and precisely were still valid. By pursuing this couree, i

f I join in the separate statement of responsive to the decision of the Court.-

the Commission risks reaction by the Chairman Palladino. in addition. ! would It is unfortunate that the Commission D.C. Ctreult which w ould not only teject point out that, of the five contentions was required to consider claborate the Commission's erroneous perceived by the Court to have been arguments and interpretations based on interpretation of the Court's previouA raised by the petitioners challenge.the - legal precedent to resolve what should '

decision but which would a!ro setect' have been a straightforward matter.

precisely what the Commission must do Court agreed only with the last-that the rule is not supported by its Iconcurin the views of the Chairman In the case of those proceedings dedded accompanying statement of basis and and Commissioner Roberts.

. t.

under the invalid rule. Any flexibility in purpose. In discussing the grounds for S*ParateViews of Comm!'ssionne

• dealing with these proceedings could its remand, the Court addressed only its well be lost to the Commission. and Asselstine

' serious delays and disruption could

. basis for dieagreement with that portion -

The Commidion's policy statementis result if the Court decides several of the rule that would eliminate a both shortsighted and most likely IDegal. months from now that all of these-financial qualifications reviewin The Commission is in effect betting that Proceedings must be reopened. ~

connectionwith consideration of the D.C. Circuit will not now a ct to make Moreover.it is not clear that there applications for construction permits.

The Court concluded that.in refusing to it very clear that the Commission's exists an adequate factual ba:Is to new-financial qualifications rule has ability of utilities to finance the indeed been vacated. and that the support a new rule eliminating financial consider,in a yacuum, the general a

construction of new generation Commission must re-oped all those qualification issues from ali nuclear iscilities. the Commission had '

proceedings in which the rule was 2 sed powerplant operating licenae proce edings. For example.even if it is -

abandoned what seemed to the Court -

to exclude financialqualification "the only rational basis enunciated for contentions. ! choose not to join the '

possible to demonstrate that electric utilities receive routine approval of majority in this course because I believe funding requests to coverthe oost of generally treating public utilities that the Court's previous decision operating a nuclear powerplant-an differently for the purpose at hand."

.effectivelyvacates the Commission's

. The Court apparently did not focus on e ssential element in the fastificationbr the rationality of the Commission's besls 1982 financial qualifications rule. the Commission's new proposed for treating public' utilities differently for. Moreover. I believe that the financial qualification rule. this does not Commission's approach riska in th t ng necessarily assure that these funds wi!!

o thepurpose of considering applications run serious disruptions and delays tu be used by the utility for meeti::g

~ -

. for operatinglicenses.hus,it appears

~

pendingcases.

operating plant safety needa.%e -

unlikely that the Court 1ntended, or had Our Executive legalDirectoe 'tmr -

, financial difficulties facing several, any reason, to vacate thatportion of the ' General Counsel and now the electric utilitiesinmeeticguse cost if '

rule eliminating a financial Department of Justice have all advised ongoing construction programs and in' goalif: cations review in connection with the Commission that the decision of the, roviding an adequate rate of return en consideration of applications for D.C. Circuit did indeed vacate the p

, operating licenses.

i

\\

g

1. :.

Faderal Regist:r / Vol. 49, No.114 / Tuisday, June 12, 1984 / Rules and Regulitirns -

24113 investment are widely publicized. It is

4. On the same page, first column,line entry reading "I per yesir per..

likely that in such cases these factors seventeen. " Commission" should read inspection"; and entries three and four from the bottom should appear as one.

can create pressures on the utuity to

" Communication",,

reallocate operating funds to other

5. On page 21295, first column, entry reading "1 per 2 years per.

Ehmination of CeUings, paragraph three, inspection".

F competing functions.In such circumstances, ratemaking decisio,ns first line, "not" should read "no".

2.2. On page 21308, first column in the sufficient to cover operat!ng expenses

6. On page 21296, first column, second table. entry K, sec$nd line," times"..

alone would not necessarily provide an

. complete paragraph,line eighteen, should read "itemn"; and in entry P, first,

adequate justiGeation for excluding "four" should read "for".

line,"materaial" hould read " material".

financial qualibcation issues from 7 On the same page, third colu.mn,

23. On the sam page, column fourin operating license proceedings, first completg paragraph,line three, the table, lines th;ee and four should "efective" shpuld read " effective",

appear as one enp reading "I per year Perhaps most disturbing of allis the

s. On pagej21297, first column, first per inspection"; unes seven and eight Commissicn's willthgness in this case, complete paragraph,line thirteen,"335" should appea.r as[one entry reading,"1 as weU as in some other recent decisions, to take what are at best should read j'355".

per 3 years per itspection"; lines nine

9. On page 21299, third column, first -

and ten should a ; pear as one entry questionab!e legal positions for the sake complete paragraph. insert the sentence reading. "1 per 3 years per inspection";

of gaining a perceived short. term "An individual operator cannot be lines eleven and twelve, should appear benefit.This approach does everyone licensed apart from a facility." between as one entry realing. "1 per 3 years per involved in our licensing proceedings a disservice end has several unfortunate lines fourtegn and fifteen.

Inspection"; lings thirteen and fourteen

10. On page 21300, third column, should appear as one entry reading,"I consequences.Such procedural eleventh line from the bottom,"that" per 3 years per pspection"; and lines shortcuts can ultimately be very should read "than". '

fifteen and sixtqen should appear as one disruptive to many ongoing !! censing 11, On page 21301, first column, entry reading,"j per 3 years per proceedings if a court tejects the Regulatory; Flexibility Certification,line inspection".

Commission's approach months or years fourteen "ponsuer" should read later,when the number of affected 1 170.51 [Co g1

" considered".

proceedings has grown substantiaUy.

gf75 '}$[six, b 5.31' she'uld Furthermore, continually taking ~

5 170.21 [ orrected)

13. On pf ge 21304, fjst,, column, read "10 CFR 1531",

fead to uch m re s

.hing and h

PP'

' " " * ' ' ' ' ' *d' -

'~

,e D; ank 6li ei critical attitude on the part of revieviing o$teong e

courts, and to adverse decisions that dshouldpeaPor".

I can seriously restrict agency flexibility

14. On th same page, firs't column, DEPARTMENT OF HEAL.TH AND in dealing with future cases. Finally, the footnote tw,line twenty,"ahs" should HUMAN SERV 1 ES Commission's approach simply read"has,

reinforces the belief of many that this Social Secu Administration agency will go to any lengths to deny l 170.31 (C edl I

members of the public a fair opportunity

15. On pag 21305, colunin one.

20 CFR Part 4C4

,.e -

to raise issues in our licensing ~

l 170.31, en 3.B line seven, proceedings and to have those issues

" licensees" : ould read " license"; entry 8

i I

fully and fairly litigated.

3.E line one 'uses" should read "use";

Signed in Washington. D.C., this 7th day of and in entry 3 G.,line one "uses" should Federal Old-Age,Sirrvfvors,hnd Jurie 198L read "use".

Disablitty insurance; Gender For the Nuclest Regulatory Commission.

16. On the : e page, column two, Discriminatio6; Foreign WorkTest; entry 3.K.,lineielght,"licensess" should Spectal Age-7j2 Benefits;Beneftt Sarnuel J.Ch!!k, read " licenses",

Reduction for' Widows and Widowers; Secrescry of the Commleston, 17.On the same pago column thret and Acknowledgement of Natura! -

inow.u-murus. nae,us I entry 5.B. line Eve,"Licenes" should Ch!!d

,,, eco,,,,,

read " License"l

~

AGENCY: Social Security Administration,

18. On page 21306, column three, footnote 1(d),line sixteen "In" should HHS.

appear between "10F," and "which".

AcnoM: Final rule.

10 CFR Part 170

19. On the sa'me pagt column three,.

suuuARY:Tb;e Social Security Revision of Ucense Fee Schedule footnote 2, first'line,"or" should read Administrati9nis amendingit -

Correction "for"*

regulations tg implement certain'Iltle III l

provisions of; Pub. L 96-21 *The Social In FR Doc.

13517 beginn!ng on page i170.32 (Ch.

I 21293 in the iss e of Monday, May 21,

20. On'pe'ge 2 307, i 170.32, column Security Amqndments of1983"--that 1984, make the ollewing corrections:

one of the table entry 2.A.,line four, eliminate ger} der based distinctions in

1. On page 21 3, second column, the

" ion-exchangin should read "lon.

the Social Security Act. We are also EmetwE oATt ow reading " June 18, exchange"; alsoin entry 2.B.,line one, making ch es to reDect two other Pub.

19S4" should test " june 23,1984".

"poss ession" shquid re ad " processing".

L 9&-21 pro sions. One amendment i

2. On the esmelpage, third column, 21.On the samp page column four of changes the. ork test for the second complete aragraph.line four, the table, the eleventh and twelfth beneSciary doing non-covered work.

out:Ide the nited States from 7 days in l

" developed" sho d read " developing".

entries from the b'ottom, should appear

~ a month to ore than 45 hours5.208333e-4 days <br />0.0125 hours <br />7.440476e-5 weeks <br />1.71225e-5 months <br /> in a

3. On page 21 first column,line as one entry read "1 per 7 year per eleven.* Broadcast r" should read inspection"; entries seven and eight month befo losing benefits for that s

" Broadcasters".

from the bottom should appear as one month.The o'ther amendment eliminates

).

s

i i

{

l ll CERTIFICATE OF SERVICE l *84 JUS 27 NO:26 This is to certi'fy that copies of the foregoing wer.e served by d ve, first class, postage prep" aid,s.this :

Mail deposit in the U.S.

a J2 5*

day of

, 1984 to those 6n' hdC5' service list below U i,

i...;

.o Susan L.

Hiatt SERVICE. LIST Peter B..Bloch, Chairman Terry Lodge, Esq.

Atomic. Safety & Licensing Board 618 N. Michigan St.

U.'S, Nuclear Regulatory Comm.

Suite 105 i

Washington,'D.C.

20555 Toledo, OH 43624

.i Dr. Jerry'R..Kline

' Atomic Safety.&.Licen. sing Board.

U.S,._ Nuclear. Regulatory Commission i

Washington, D..C.

20555 Mr..Glenn O. Bright Atomic Safety &. Licensing Board n

U.S. Nuclear Regul'atory Commission

. Washington, D.C.

20555

- Colleen P. Woodhead, Esq.

Office'of the~ Executive Legal Director U.S. Nuclear Regulatory Commission Washington,.D.C.

20555 Jay.Silberg., Esq.

. Shaw, Pittman, Potts, & Trowbridge

?

1800 M Street, NW

. Washington, D.C.

20036

(

Docketing #& Service Branch

.Offi'ce of'the Secretary U.S.. Nuclear Regulatory. Commission Washington, D.C.

20555

. Atomic, Safety.&, Licensing Appeal. Board Panel U.S. Nuclear. Regulatory Commission

~

Washington, D.C.

20555