ML20245A581
| ML20245A581 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/15/1989 |
| From: | Dunlop G PENNSYLVANIA, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#289-8774 OL-2, NUDOCS 8906220073 | |
| Download: ML20245A581 (24) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION GU" Octn:
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In the Matter of I
Philadelphia Electric Company Docket No. 50-353
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(Limerick Generating Station, Unit 2) j Q
OPPOSITION OF COMMONWEALTH OF PENNSYLVANIA TO MOTION OF PHILADELPHIA ELECTRIC COMPANY l
FOR CLARIFICATION OF COMMISSION'S DELEGATION J
OF AUTHORITY AND FOR ISSUANCE OF OPERATING LICENSE AND OPPOSITION TO MOTION FOR EXEMPTION j
l I.
Introduction On February 28, 1989, the United States Court of Appeals for j
l the Third Circuit ordered the Nuclear Regulatory Commission (NRC) i to consider in its licensing proceedings involving Limerick Generating Stations, Units 1 and 2, the issue of severe accident mitigation design alternatives (SAMDA's).
Limerick Ecolony j
k Action Inc. v. United States Nuclear Regulatory Commission, 869
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2 F.2d 719 (3rd Cir. 1989).
According to the Court, the considera-I tion of SAMDA's by the NRC in making its licensing decisions is i
required by the National Environmental Policy Act (NEPA), as i
amended, 42 U.S.C.
SS4321-4347.
Thus, the Third Circuit granted a petition for review filed by Intervenor Limerick Ecology Action, Inc. (LEA) challenging the NRC's decision to grant operating licenses to Applicant Philadelphia Electric Company l
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(PECo) because.the. licenses had been authorized without-j compliance with NEPA, and because " failure to consider SAMDA's I
could. affect the final decision."
Limerick Ecology Action, 869-F.2d at 738.
The Court remanded the matter to the NRC for consideration of SAMDA?s in accordance with'the. procedures-mandated by NEPA. 'The Court's opinion made clear that the NRC must, "to the fullest extent possible," follow the directives of NEPA in its decision-making on remand.
Nothing in the Atomic-Energy Act (AEA), as amended, 42 U.S.C. SS2d11 et' seq., said the Court, limits or encumbers the NRC's full compliance with NEPA in;
-the licensing process for Limerick.
Id., at 730.
The NRC said the Court, "ha[d] not succeeded, or attempted to succeed,.in.
convincing the Court that the procedural requirements of'NEPA ha[d] been met."
Id., at 731.
By Order dated May 5, 1989, the NRC directed the Chairman of the Atomic Safety and Licensing Board Panel ("the Panel") "to' convene a licensing Board to conduct such additional proceedings relating to [the SAMDA contention of LEA] as are necessary to comply with the [ Court's] decision [of February 28, 1989]."1 Thus, the NRC has, through its delegation order, charged the IPhiladelphia Electric Co. (Limerick Generating Stations, Units 1 and 2), Commission Order at 1-2 (May 5, 1989).
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Panel with the responsibility to carry out the duties and i
obligations imposed upon the NRC by the Third Circuit's Order.
The NRC's Order effected a complete delegation to the Panel to I
I conduct all proceedings necessary to comply with the Court's l
order.
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Since the NRC is required by the Court's decision and-NEPA
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to consider SAMDA's before making any decisions which might l
significantly affect the environment, including the issuance of an operating license for a nuclear reactor, it follows that the NRC cannot issue an operating license to PECo for Unit 2 until procedural requirements mandated by NEPA have been completed.
1 Those procedural requirements have not been met.
Id., at 731.
I In its motion to this Commission, PECo contends (1) that the l
Third Circuit has effectively directed that an operating license j
issue for Unit 2, (2) that the consideration of SAMDA's under i
NEPA is a separate matter from the issuance of a license under AEA and the Commission's regulations and, therefore, the license can issue immediately, and (3) that PECo should in any event be exempted from the regulatory procedures implementing NEPA.
PECo's motion evinces a gross misreading of the Court's opinion.
Moreover, PECo would have this Commission effectively flaunt the Third Circuit's opinion, destroy the integrity of the Commission's regulations and utterly ignore the clear intent of l
l Congress that NEPA procedures be applied "to the fullest extent 3
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i possible."
.An exemption ~from the procedural requirements of Parts 50 and 51 of the NRC's regulations would accomplish the l
same result.
II. Discussion A.
The Third Circuit Decision Does Not Permit Issuance of the License Before the Third Circuit for review in Limerick EcoloRY-Action v.
NRC was n' final decision by-the NRC to issue. operating
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licenses to PECo for Units l'and 2 at Limerick. -The Court held' that the decision to issue the licenses could not be sustained because the NRC had not fulfilled the procedural requirements of NEPA before it'made those decisions.-
Thus, the Court invalidated.
the authority granted by the'NRC to issue licenses for Units 1 l
and 2 and remanded the licensing proceedings to'the NRC in order I
that it might properly make its licensing decisions after l
considering SAMDA's in accordance with NEPA and to rectify its previous error by reviewing its previous actions after considering SAMDA's.
3 Because a license for Unit 1 had already been issued at the i
time of the Court's ruling, the authority which had been granted by the NRC to issue the license had already been exercised.
'And since LEA did not seek to have the Court suspend or invalidate
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the license for Unit 1, the Court did not set aside, suspend or invalidate the license.
But the authority to issue a license for Unit 2, which authority had not yet beea acted upon by the issuance of a license by the Director of Nuclear Reactor Regulation, was clearly annulled by.the Court's decision.
The NRC must comply with NEPA.before any new decision to authorize'a license can be made or action taken to issue the license under 10 C.F.R. 650.57.
As the Court noted, the " aims" of NEPA are, first, to obligate a federal agency "to consider every significant aspect of the environmental impact of a proposed. action."
Limerick Ecology Action, 869 F.2d at 725 (emphasis added) (quoting Baltimore Gas & Electric Co. v. Natural Rescurces Defense Council. Inc., 462 U.S. 87, 97 (1983)).
"Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process."
Id. (emphasis added).
NEPA does not permit action or decision-making by a federal agency which might significantly affect the quality of the environment before the agency has completed the "hard look" required and before it has informed the public of its consideration of environmental concerns.
NEPA, by its terms, requires a "hard look" and notification to the public before decision-making or action.
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PECo would have the NRC ignore the obvious' import of the 1
Third' Circuit decision in its remand of the licensing proceeding.
and would.have the NRC again violate NEPA after'it;has-onlyjust begun to rectify its previous error..Indeed, issuance-of the i
license at this time would violate the very regulations!which.the Court noted " require the Commission to consider 'the alternatives available_for reducing or avoiding. adverse environmental and j
other effects'" before making its decisions or'taking action under the AEA.'
See Limerick EcoloRy Action, 869.F.2d at 725.
In again authorizing the issuance of:an operating license for Unit-2,2 less than four months efter the Court's rebuke, when no remand hearing has even been commenced to fulfill.NEPA's requirements, would mock the mandate of NEPA that environmental consideration be considered "to the fullest extent possible," and
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would surely constitute an abuse of discretion.
See id., at 738.
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Myopically focusing upon footnote 27 of the Court's opinion, j
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PECo concludes that despite pages of analysis of and comment upon
..j the important and vital policies established by Congress in i
2The operating license for Unit I has already been issued and, therefore, the NRC " action" and decision-making on licensing of Unit'I has d
already been completed.
The Court did not suspend or invalidate the license itself, only the decision to issue the license.
Of. course, any new actions or decision-making involving Unit I requires compliance with NEPA;
- and the consideration of SAMDA's on remand may require the NRC to amend-the license for Unit 1 or other action fulfilling the NEPA mandate.
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1 enacting NEPA, the procedural requirements imposed upon federal' j
agencies by.NEPA in its actions and decision-making,'and the i
applicability of such policies and procedures to SAMDA's in the 1
i licensing of nuclear reactors at Limerick, the Court nevertheless-
"did not take any action to limit the licensing of Limerick."
j Applicant's Motion, at 2.
Indeed, PECo asserts that the " Third
.$ l Circuit' explained that its decision should not impede the licensing of. Limerick," id. (emphasis added), and that the Court
" explicitly stated that no impediment to [ Unit 2 license]
issuance exists."
Id., at 6.
The " explanation" and " explicit statement" described by PECo is a comment in footnote 27 that the Court has " exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part),
j or to determine the validity of... all final orders of the [NRC]
made reviewable by section 2239 of the Title 42."
Limerick i
Ecology Action, 869 F.2d at 741n.27 (quoting 42 U.S.C.
S2342(4)).
Because LEA had not requested relief available under sections 2342(4) of Title 42, the Court noted, it could not enjoin, set aside, suspend or determine the validity of the grant of an operating license to Limerick Units 1 and 2.
Therefore, PECo contends, the license for Unit 2 can now issue without compliance with NEPA because the Court endorsed the NRC's decision to authorize a license for Unit 2.
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By PECo's measure, the Third Circuit's opinion was apparently an academic exercise having no effectcupen the NRC's.
activities.
The' Third Circuit would surely disagree,-as we.do.
The Court obviously views NEPA 'and the-consideration of SAMDA's much more seriously than PEco apparently does.- After twenty-printed pages of analysis.of NEPA and its. requirements to consider SAMDA's in the licensing process, the Court surely did' did not intend to' authorize the NRC.to take future action.in issuing a license in further violation of NEPA and in contra-vention of the directives made by the Court.
Footnote 27 was intended by the Court only to note that it had not been asked, and therefore did not act, to require the NRC to do any more-than comply with NEPA by properly considering SAMDA's in its decision-making process and actions involving Limerick Units'1
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and 2 and to correct its errors by reviewing past actions and taking remedial steps.
The Court did not sanction' future.
i violations of NEPA.
The status of the licensing process at the 4.me of the Court's decision was, of course, unknown to the Court when it rendered its decision in February.
As the Court noted in its opinion, the record as certified to the Court reflected that Unit I was " licensed and running," having been issued an operating j
license on June 19, 1987.
Id., at 278 & n.6.
By contrast, the record reflected that " Limerick Unit 2 is still under I
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construction."
Id. at 728.
The appeals before the Court, the latest of which had been taken in 1987,_were argued in February 3
l 1988 and decided by the Court more than one year later.
The
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record certified to the Court had, therefore, necessarily been closed for much longer than one year before the Court's
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decision.3 Thus, when it noted in footnote 27 that it had not l
been requested and therefore did not act to enjoin, set aside, i
suspend or determine the validity of licenses granted for Units 1
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and 2, the Court intended only to note that its decision (1) did not act to enjoin, set aside, suspend or determine the validity of the license which had been issued for Unit 1 in 1987 and (2) did not enjoin, set aside, suspend or determine the validity of any license which might have been issued for Unit 2 prior to the Court's decision on February 28, 1989.
The Court did not believe or assume that an operating license had been issued for Unit 2, as it clearly had for Unit 1; it recognized only that a license might have been issued between the time when the NRC's record was filed with the Court and the date of its decision more than one year later.
3Fed.R.A.P. 17(a) requires that a federal agency file the record with the clerk of the court of appeals within 40 days after service upon it of the petition for review unless a different time is provided by the statute authorizing review.
There is no alternative timetable prescribed under 42 U.S.C.
S2239(b).
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The result of the Court's decision,' including footno,tel27,
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j is.to maintain the status quo of'theilicensing of'Unitsf1 and 2' pending-the. conclusion'of the1 proceedings mandated upon remand.
Despite the NRC's violation of NEPA in authorizing and issuing an operating liennse to Unit 1.without consideringSAMDA's,'the license itself is not disturbed lar the Court's decision unless, of course, the remedial NEPA considerations made upon' remand
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should result in a determination that one or more SAMDA's should
'be implemented. -In that case, the NRC would likely.be required to amend or modify the license for Unit'1.
However, as to Unit 2, for which no operating license had been issued at the time of the Court's decision on February 28, no operating license can now issue consistent with the. Court's directives and NEPA until after I
consideration of the SAMDA's suggested by the contention'of LEA.-
In effect, the Court's decision invalidated the final order of' the NRC which had authorized ~the issuance of a license.for Unit 2 since the decision had been made without procedures mandated.by p
NEPA.
The NRC must now comply with~NEPA and the Court's opinion j
before taking further action in licensing Unit 2.
Because the NRC has now delegated to the Panel the l
responsibility to do all that is necessary to comply with the j
Third Circuit's decision, and because no license can issue until l
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completion of the remand proceedings in compliance with NEPA, it is the exclusive province of the Panel to address the SAMDA issue 10 F..*
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and to make an initial decision respecting the propriety.of the
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issuance of an operating license for. Unit 2-in light of such
. considerations.
This is the mandate issued by_the Court and, therefore, the mandate of the Panel under this Commission's Order of May 5, 1989.
B.
NEPA and Part 51 of the NRC Regulations Are Integral' Parts of the Licensing Process and Procedures Under the AEA and the NRC Regulations PECo contends that an operating license can issue despite-non-compliance with NEPA.
Thus, PECo apparently contends, NEPA and the regulations promulgated by the NRC in Part 51 to implement NEPA are severable from and collateral to the AEA and other regulations governing NRC licensing procedures.
The NRC l
regulations themselves belie PECo's contention, and NEPA makes clear that Part 51 cannot lawfully be severed by the NRC from the decision-making process under the AEA and NRC regulations.
Recognizing the mandate of NEPA, the NRC promulgated and established Part 51 of its regulations to integrate NEPA l
requirements into its licensing process.
NEPA requires no less.
1 The NRC stated:
"[T]he regulations in Subpart A of [Part 51]
implement section 102(2) of [NEPA],"4
. hich requires that all w
4 10 C.F.R. 551.2 11
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e agencies, "to the fullest extent possible," inter alia, " identify and develop methods and procedures... which will insure that-presently unquantified environmental amenities and' values may be given appropriate consideration in decision-making along with economic and technical considerations," 42 U.S.C. S4332(2)(B)
(emphasis added), and " include in every... major Federal action [] significantly affecting the quality of the human environment, a detailed statement by the responsible official on
[] (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided..., (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."
42 U.S.C. S4032(2)(c).
The NRC has declared its intent that the regulations contained in Subpart A of Part_51 shall " implement section 102(2) of NEPA in a manner consistent with the NRC's domestic licensing and related regulatory j
authority under the [AEA]...," 10 C.F.R.
S51.10(a), and has recognized "a continuing obligation to conduct its domestic licensing and related regulatory functions in a manner which is both receptive to environmental concerns and consistent with the Commission's responsibility as an independent regulatory agency 12
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10 C.F.R. S51.10(b).
The regulations of Part 51 are to apply "to J
i the fullest extent practicable to NRC's. ongoing environmental l
work."
Thus, the regulations must be j
followed to the. fullest. extent practicable in all proceedings of the NRC, includinR proceedings conducted upon remand of a federal court.5 The Third Circuit has determined that the NRC did not follow the proper procedures in deciding to authorize the issuance of an operating license to Limerick to operate nuclear reactors.
The effect of the Court's decision was to invalidate the authoriza-tion and to remand for proceedings consistent with NEPA and the Court's opinion to consider SAMDA's in the licensing process.
Thus, with respect to Unit 2,6 for which no operating license has been issued and for which no properly considered authority now i
5Although there is no express mention in the regulations of proceedings by the NRC upon remand, there is also no exception made.
The regulations are therefore applicable by their terms.
Since NEPA does not make exception for actions or decision-making made upon remand, the regulations of the NRC cannot be read to contain an implicit exception.
6As described earlier, the consideration of SAMDA's does not immediately affect the operating license for Unit 1 since that license was issued before the Court's decision.
The license for Unit 1 can, of course, be amended or modified upon consideration of the SAMDA's issue if the NRC should decided that SAMDA's should be implemented to protect the environment.
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- exists for its issuance, no' license can issue.until the N.RC has cured its procedural error in-refusing;to; consider SAMDA's in.its-
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decision-making' process.
j Under the NRC regulations,Lan' environmental impact. statement must be issued'since the. proposed action is' a: major federal ~
action significant1yaffecting.the quality;of the human environ-ment.
Irr order to comply with Part s
51, as required, fit will be necessary for the NRC staff to
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prepare a supplement to its final environmental impactLstatement (FEIS) since the Third Circuit's decision on the SAMDA-contention and disapproval of the-NRC policy excluding consideration of 1
SAMDA's represents a "significant new ' circumstance...' bearing on 7
the proposed action...."
10 C.F.R.
S51.92(a)(2)l This 1
supplement should include a request for_ comments on the proposed action (i.e., issuance of an operating license'for Unit 2) and on the supplemental FEIS.
To comply with Part 51, the FEIS (as-supplemented) must.
" accompany the application..., and be; considered in the-Commission's decision-making process."
10 C.F.R.
S51.94.
"[N]o.
decision on a proposed action, including the issuance of n i
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In addition, it seems clear that supplementation would further the l
purposes of NEPA in light of the Court's opinion and should, therefore, be
- i prepared in any event.
See 10 C.F.R.. 651.92(b).
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permit, license, or other form of permission..., for which an.
I environmental impact statement is required, [can] be made and no i
record of decision [can]:be issued until" thirty days after j
i publication by EPA of a notice stating that the FGIS has been filed with EPA.
10 C.F.R. S.51.100(a)(1)(ii).
A public record of decision must accompany any decision by the Commission on the I
SAMDA contention, see 10 C.F.R. 651.102(a), and must be in the 1
i form prescribed by 10 C.F.R.
S51.103.
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All,of these procedures, prescribed by the NRC itself, are necessary before the decision to issue a Unit 2 operating license can be made.
Indeed, Part 50 of the NRC regulations, which centrally govern the issuance of domestic licenses for nuclear reactors, requires compliance with Part 51 before an operating license can issue.
First, the regulations of Part 50 provide that an operating license for a nuclear power reactor "shall be I
accompanied by any Environmental Report required pursuant to Subpart A of Part 51...."
10 C.F.R. S50.30(f).
In addition, in setting standards for the issuance of licenses, the NRC has declared that in its determination on licensing, it will be guided by consideration of whether, inter alia, "[a]ny applicable requirements of Subpart A of Part 51 have been satisfied."
10 C.F.R. S50.40(d).
Then, only upon determination by the NRC that an application for a license in fact meets the standards and j
requirements of the AEA and the NRC regulations, including 15 4
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compliance with the requirements of Subpart A'of Part 51, can the NRC issue an operating license.
See 10 C.F.R. 950.50.
Thus,Iit is clear that no license can issue for Unit 2 until the NRC has fully complied with NEPA and its own regulations in accordance with the directives of the Third Circuit.
Therefore, before it can determine whether to authorize the issuance of an operating
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license for Unit 2, it must consider SAMDA's in accordance with the.its own procedures.
PECo contends that NEPA does not prescribe minimum substantive standards for licensing and, therefore, the NRC-can issue the license, i.e.,
can take federal action and make a decision substantially affecting the quality of the environment, before complying with the NEPA procedural requirements established for such licensing.
PECo's argument ignores the Third Circuit's decision and the Commission's own regulations.
The NEPA procedural requirements established under Part 51 of the NRC regulations and NEPA itself are an integral and necessary component of the NRC's licensing procedures and authority to issue licenses under the AEA.
Therefore, those procedures cannot be severed from the decision to issue or the actual issuance of a license for the operation of a nuclear reactor.
Moreover, PECo's argument denigrates the central thrust of the Third Circuit's directive that the NEPA procedures be followed to include consideration of SAMDA's in the licensing process.
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a Thus, no license can issue'for Unit 2 until the NRC1has considered SAMDA's'in a'ccordance with NEPA', as~ prescribed by-the Third Circuit.1 C.
No Uholesale Exemption Can BeiMade to the NRC
' Regulations As=anEalternative to'its: contention that the NRC.can' ignore-the Third Circuit'sEdirectives and its own regulations.in granting a license,.PECo requests the Commission to grant a complete exemption to Part 51 of the:NRC regulations:and an exemption to Part 50 to the extent thattit might require compliance with NEPA before issuing'a license for Unit 2.
The Commission must decline this invitation since the exemption is not " authorized by law."
An exemption can be made by the NRC from the requirements of
'l the Part 51 regulations only if such exemptions are " authorized by law and are otherwise in the public interest."
10 C.F.R'.
S51.6.
Although-the NRC might be authorized by law to grant-a certain limited exemptions to Part 51 requirements as'the public interest might require, the NRC is not authorized under NEPA to i
issue a license without applying those procedures-which will-
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insure that environmental amenities and values are given appropriate consid,eration along with economic and technical considerations _in the decision to authorize issuance of a license 17
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for Unit 2.
See 42 U.S.C. 64332(2)(B).
Nor can the Part 51 l
regulations be exempted to permit governmental action by the NRC l
significantly affecting the quality of the human environment l
without the preparation of a detailed statement on environmental l
impact, alternatives to the proposed action and other factors set l
l forth in section 102(2)(C) of NEPA.
See 42 U.S.C. S4332(2)(c).
PECo does not request a streamlining of the Part 51 procedural requirements.
PECo ceeks a total elimination of the need to comply with any provision of Part 51.
In effect, PECo wishes this commission to do through exemption of its regulations that which it is precluded from doing under NEPA.
The Commission clearly cannot grant the sweeping, wholesale exemption of Part 51 without violating NEPA and flaunting the Third Circuit opinion.
There are no alternative procedures established by the NRC to comply with NEPA.
Part 51 is, therefore, essential to the NRC's comp'liance with NEPA.
The requested exemption simply is not
" authorized by law" and, therefore, cannot be granted.
NEPA requires the NRC to fulfill the " twin aims" of NEPA "to-the fullest extent possible."
"[E]ach agency of the Federal Government [must] comply with the directives [of section 102]
unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible."
Limerick Ecology Action, 869 F.2d at 729 (quoting Conf. Rep. No. 765, 91st Cong., 1st Sess. 9-10, 18 o.
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reprinted in 1969 U.S. Code Cong. & Admin. News 2751, 276.7, 2770).
"[I]t is the intent... that.the provision 'to the fullest extent possible' shall not be used by an Federal. agency as a means of avoiding compliance with the directives set out in section 102."
Id.
Since the AEA cannot preclude application of NEPA.to the NRC's actions and decision-making,8 surely.the NRC itself is not authorized to avoid application of NEPA through the simple act of eviscerating the only regulations established by l
the NRC to implement NEPA.
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Part 51 was promulgated by the NRC for the express purpose of implementing section 102(2) of NEPA, 10 C.F.R. 651.2(a).
Part 51 is the sole mechanism by which the NRC can conduct its licensing function in a manner which complies with NEPA.
The exemption of all requirements of Part 51 would, therefore, effectively be an exemption of NEFA.
The NRC cannot lawfully avoid NEPA through exemption of its regulations any more than it could avoid the condemned practice of considering SAMDA's through a blanket, generic policy statement.
The Third Circuit order that SAMDA's be considered by the NRC in its decision-making l
process involving Limerick simply cannot be avoided.
Thus, the requested exemption is not authorized.
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For similar reasons, the NRC cannot grant wholesale.
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exemptions to Part 50 to avoid compliance with NEPA.
Of course I
the Commission is empowered to modify or exempt its own l
l regulations where circumstances require or justify it under the~
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standards set forth in 10 C.F.R. 950.12(a).
There certainly may j
l be some provisions under Part 50 which conid-qualify for j
exemption here in order to avoid unnecessary duplication or to streamline the procedures if the exemptions do "not present an undue risk to the public health and safety."
But clearly the NRC is not authorized under NEPA, and therefore not permitted under 10 C.F.R. S$50.12(a), to exempt any provision of Part 50 which would enable the Commission to l
issue an operating license to PECo for Unit 2 without complying, f
to the fullest extent possible, with section 102(2) of NEPA.
The NRC has no discretion to avoid consideration of SAMDA's, as mandated by the Third Circuit, in its licensing of Unit 2.
NEPA l
does not permit a federal agency to exempt itself from'the statute; only Congress can lawfully grant exceptions to NEPA.
The Third Circuit has held, of course, that Congress has allowed the NRC no such exemption.
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'IV.
. Conclusion TheLThird Circuit has: unequivocally declared that'SAMDA's, must be. considered by;the NRC in itsilicense< decision-making involving Limerick in order:toLcomply with1NEPA.
NEPA requireslaf "hard look" and notification of the'public beforel federal' action-or decision-making.
Although thelstatute' sets _only. procedural 1
requirements, those procedures must-be followed to. validate j
. federal actions or decisions.
Becausetthe'NRC failed to comply' with NEPA, the improperly granted authority to issuc an operating-
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license for Unit 2 cannot'be carried out by theLDirector of, Nuclear Reactor Regulat' ion through issuance of-the license.
Since no license had issued upon the now invalidated decision'to i
authorize its issuance, it cannot properly issue now until the NEPA parocedures have been fulfilled..Upon remand, therefore, the NRC must again determine whether and-under-what. conditions to-issue an operating license for Unit 2. But this time, it'must do so utilizing a procedure authorized by NEPA -- it must consider SAMDA's.
There may be certain procedures established by the NRC in 1
Part 51 which, for the public interest, could be exempted to l
streamline decision-making consistent with NEPA and NRC l
decision-making.
However, the NRC1cannot, consistent with NEPA, 21 4
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1 either issue a license before satisfying the requirements of section 102(2) of NEPA or grant wholesale exemptions to its own il procedures, as requested by PECo, which would emasculate NEPA and deprive the NRC from the ability to consider SAMDA's before i
issuing a license.
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For the foregoing reasons, PECo's motion should be denied.
Respectfully submitted, i
MOREY M. MYERS
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GENERAL COUNSEL i
Richard D. Spiegelman
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Chief Deputy General Counsel By:
l Grego6f D'.
Dunlap V
Deputy General Counsel Office of General Counsel i
333 Market Street, 17th Floor
)
Harrisburg, PA 17120 1
(717) 783-6563 i
John R. McKinstry Assistant Counsel Department of Environmental Resources Attorneys for the Commonwealth of Pennsylvania
' //I!8 f DATE:
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Kenneth C. Rogers Commissioner Morton B. Margulies, Esquire U.S. Nuclear Regulatory Chairman, Atomic Safety Commission and Licensing Board Panel U.S. Nuclear Regulatory l
Washington, DC 20555 Commission l
Washington, DC 20555 I
Frederick J. Shon Atomic Safety and Licensing Mr.' Ralph Hippert Board Panel U.S. Nuclear Regulatory Pennsylvania Emergency Commission Management Agency B-151 - Transportation &
Washington, DC 20555 Safety Building Harrisburg, PA 17120 Dr. Jerry Harbour Michael B. Hirsch, Esquire Atomic Safety and Federal Emergency Licensing Board Panel Management Agency U.S. Nuclear Regulatory 500 C Street, S.W.
Commission Room 840 Washington, DC 20555 Washington, DC 20470 Atomic Safety and Licensing Theodore G. Otto, Esquire Appeal Panel Department of Corrections U.S. Nuclear Regulatory Office of Chief Counsel Commission P.O. Box 598 Washingtois, DC 20555 Camp Hill, PA 17011 Atomic Safety and Licensing Joseph Rutberg, Esquire Board Panel Ann Hodgdon, Esquire U.S. Nuclear Regulatory Commission Counsel for NRC Staff U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Angus Love, Esquire Troy B. Conner, Jr.
107 East Main Street CONNER & WETTERBAHN, P.C.
Norristown, PA 19401 1747 Pennsylvania Avenue, N.W.
Charles W. Elliott, Esquire POSWISTILO, ELLIOTT & ELLIOTT 1101 Northampton Street Suite 201 Easton, PA 18042
- / m l' Grchdry'E. Dunlap Deputy General Counsel Office of General Counsel 333 Market Street, 17th F1.
Harrisburg, PA 17120 (717) 787-9338 2
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'89 JJJ 16 R2:07 UNITED STATES OF AMERICA en e NUCLEAR REGULATORY COMMISSION 00Cri.i % A,wc;;
In the Matter of Philadelphia Electric Company Docket No. 50-353 (Limerick Generating Station, Unit 2).
CERTIFICATE OF SERVICE I hereby certify that copies of the Opposition of Commonwealth of Pennsylvania to Motion of Philadelphia Electric
' ll Company for Clarification of Commission's Delegation of Authority and for Issuance of Operating License and Opposition to Motion for Exemption filed on June 16, 1989 have been served upon the following by deposit in the United States mail this /QIZ7D day of June, 1989.
Lando W. Zech, Jr.
Kenneth M.
Carr Chairman, U.S. Nuclear Regulatory Commission Commissioner, U.S. Nucletr Washington, DC 20555 Regulatory Commission Washington, DC 20555 Thomas M. Roberts Commissioner Samuel J.
Chilk U.S. Nuclear Secretary m
Regulatory Commission Office of the Secretary U.
S.
Washington, DC 20555 Nuclear Regulatory Commission
)
James R. Curtiss Washington, DC 20555 l
Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555
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