ML19326A690

Supplemental Memorandum Re Applicability of Grandfathering. Certificate of Svc Encl

ML19326A690
Person / Time
Site:	Davis Besse
Issue date:	03/24/1976
From:	Bell R, Charno S JUSTICE, DEPT. OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8002260908
Download: ML19326A690 (10)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of .

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THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING ) NRC Docket No. 50-346A -

COMPANY )

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(Davis-Besse Nuclear Power Station, )

Unit 1)

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SUPPLEMENTAL MEMORANDUM OF

, THE DEPARTMENT OF JUSTICE

, Steven M. Charno Ruth Greenspan Bell Attorneys Antitrust Divisiori Department of Justice March 24, 1976 8002260708 m

I INTRODUCTION .,

In the course of oral argument on March 11, 1976 on the l applicability of "grandfathering" to the above*-captioned p.ro-

.- ~ceeding, the Board asked the Department to square the general

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. scheme of prelicensing antitrust review with section 105c(6)

of the Atomic Energy Act which, in the words of Member Salzman,'

.__..,says that "even if adverse antitrust consequences will result, the. commission has the authority to allow the plant to operate an'yway." (Tr. at 56)

The Department was asked if its reading of tho Atomic -

, Ene pya Act does not lead to an " absurd result" (Tr. at 60). On

- I the one hand, it was noted an unconditioned license might issue after extended antitrust proceedings (during which a plant". mig'ht' sit " idle," Tr. at 58), despite a finding of adverse antitrust -

consequences. On the other hand, with the exception of two

. clear instances set.forth by Congress, even if all other phases a .

of. the licensing process were completed, a license could not issue in advance of the antitrust finding being made.

The - Board

. further asked whether such an " absurd result," does not suggest that Congress did not really intend for antitrust review to pre-date the issuance of construction and operating licenses,

, de' spite. the otherwise clear requirements of the statute. The Board asked, 'in the words of- Member Farrar, "We have flexibility

. at 'the end of a hearing. Why do we not have flexibility earlier

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1 in the hearing before the Applicant has been found guilty." (Tr. -

at 60)- The Board suggested that it might have the obligation ,

to make " harmonious" those. "two results."

(Tr. at 60)

These specific questions were not among those which the \ {'\

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Board in its Order of January 8,1976, asked the parties to ,

1 address. Regretably, therefore",' we did not at the argument cite precedents which we think are dispositive of the questions.

In this memorandum, we show that a requirement of prelicensing antitrust review, even when the Commission has final discretion (as one of a number of possible remedial options) to grant an unconditioned construction or operating license af ter~ findings of adverse antitrust consequences, is not absurd; indeed, such a result is totally consistent with analogous statutory requirements that Government agencies consider fully, in advance of final action, the impact' of the propos'ed action on certain fundamental, national values. -

Section 105(c)(6) of the. Atomic Energy Act is Consistent With Other Federal Legislation in Which dangress Has .

Required That Federal Agencies Consider, Before Acting the Consequences of Their Prepared Action.

The requirement that antitrust revie" take place before issuance of operating and construction permits represents a legislation which similarly requires that federal agencies con-sider certain specified factors before taking final action.

The Courts have refused to allow agencies to dispense with the procedural reg'uirements of such legislation despite attemp .s to create excep'diops to those requirements.

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The most important example of such legislation is the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A.

S 4321, et seq. N' EPA established a national policy requiring federal agencies to give full consideration to environmental effpcts in planning their programs. NEPA, as this Commission well knows, is a procedural requirement. At the end of its -

analysis, an agency may determine that the environmental costs of the contemplated action are outweighed by other benefits, and

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may proceed accordingly. Nevertheless, the agency is required to make this analysis in advance of action. Calvert Cliffs' Coord. Com. v. United States Atomic Energy Commission, 449 F.2d

. 1109 (D.C. Cir."1971). See also, Scientists' Inst. for Pub.

Info. v. Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir.

1973), United States v. SCRAP, 412 U.S. 669, 693, 695 (1972),

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289 (1974).

In the Calvert Cliffs case, procedural prelicensing environmental review was tested against the same arguments which were raised'by this Board during the oral argument on March 11, 1976. The .

Atomic Energy Commission argued that Congress could not have intended that procedural requirements should interfere with or, create unreasonable delays in the construction and operation of [ urgently -needed] nuclear power plants . . . .

449 F.2d at I 1119. The Court of , Appeals for the District of Columbia emphati ally dismissed this argument'.' Making clear that the 4 3 a

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requirements of NEPA are procedural, the Court nevertheless stated that the Act mandates strict compliance; " considerations '

of administrative difficulty, , delay or economic cost'will not ,

suffice . . . " to allow an agency to forego this review. 449 F.2d at 1115.

NEPA's procedural requirements are prerequisites and can-not be disregarded, even when weighed against other cerious substantive concerns of the agency. In Calvert Cliffs, the Commission further argued that the procedural requirements of NEPA were vague and lef t room for discretion and should be disregarded when compared to the Commission's perceived mandate to provide solutions to the " pressing national power crisis."

The Court of Appeals recognized that consideration of environ-mental issues may in some cases delay the licensing of some power plants; nevertheless,-it pointed out: ,

. Whether or not the spectre of a national power .

crisis is as real as the Commission apparently '

. believes, it must not be used to create a  ;

blackout of environmental consideration in the  :

agency review process. 449 F.2d at 1122. j In sum, numerous Courts have found that a procedural re-  !

quirement.that agencies consider the environmental consequences s.

l, of their activities is not rendered a nullity or an absurdity {

by the decision of Congress to require an agency to review in 4

. I advance all factors, and thereaf ter to authorize the agency to O

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allow values other than environmental impact to predominate. */ ,

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Courts have refused to carve into the Act exceptions which might \

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important, national policies.

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The procedural requirements discussed above are fully con--

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, istent s with other legislative requirements that agency decision

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making must observb statutory procedures and take into account those factors which Congress has said must be considered, even though having done so, the agency may decide to take final action which advances only one of a number of considered factors. See, e.g., Moss v. C.A.B., 430 F.2d 891 (D.C. Cir. 1970), McLean Trucking Co. v. United States, 321 U.S. 67 (1942), Schaffer Transp. Co. v. 0,11ted States, 355 U.S. 83 (1957).

Similarly, in the Atomic Energy Act, Congrsss has required that this Commission consider in its decision making the impact of plant licensing on the fundamental values embodied in the antitrust laws. That the Commission is left some room ulti-mately to determine that, in some cases, other values should be

• / In Calvert Cliffs, there is an even more striking parallel to the arguments made before this Board. The Commission there argued that even if pre-action environmental review was held to be a general obligation of the agency, special exceptions should be recognized for a class of nuclear facilities in which " full NEPA consideration of alternatives and independent action would cause too much delay at the pre-operating license stage." 449 F.2d at 1127. This class was . defined as "those for which con-l struction permits were granted without consideration of environ-mental issues, but for which operating licenses have yet to be issued." 449 F.2d at 1127. This exception, too, was rejected.

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given precedence, cannot be employed to undermine the basic requirements of the statute. Indeed, in the case of antitrust review, th(reuuirements ~t'QF of 10Sc go beyond the procedural The Com.nission must not only weigh the competitive effects, but must also make findings. And, it is only in the most

" extraordinary" of circumstances that it may accept consequences inconsistent with the antitrust laws in order to promote some other count'ervalling value. H. Rept. No. 81-1470 by the Joint Committee,on Atomic Energy at 31 (September 24,.1970).

Respectfully submitted, Steven M. Charno 6 .

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Ruth Greenspan Bell

,; Attorney

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUNDIA CIRCUIT In the Matter of )

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THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING ) NDC Dockct No. 50-346A COMPANY ) .

)

(Davis-Besse. Nuclear' Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE -

I hereby certify that copies of MOTION FOR PERMISSION TO FILE

, AN OTHERWISE UNAUTHORIZED PLEADING and SUPPLEMENTAL MEMORANDUM OF THE DEPARTMENT OF JUSTICE have been served upon the following parties by either hand delivery or deposit in the United States mail, first class, as below indicated, this 24th day of March, 1976:

Hand Delivered Gerald Charnoff, Esq. Alan S. Rosenthal, Esq.

Wm. Bradford Reynolds, Esq. Chairman Robert E. Zahler, Esq. Atomic Safety and Licensing Jay H. Bernstein, Esq. Appeal Board Shaw, Pittman, Potts & U.S. Nuclear Regulatory Commission Trowbridge Washington, D. C. 20555 1800 M Street, N.W.

Washington, D. C. 20006 Richard S. Salzman, Esq'.

. Atomic Safety and Licensing Michael C. Farrar, Esq. Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatcry Commission Appeal Board Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 2055'5 -

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Deposited in Mail I

Douglas V. Rigler, Esq. Wallace E Brand, Esq.

Chairman i Pearce & Bland Atomic Safety and Licensing Suite 1200 Board ,

. 1000 Connecticut Avenue, N.W.

Foley, Lardner, Hollabaugh Washington, D. C. 20036 and Jacobs Chanin Building - Suite 206 Frank R. Clokey, Esq.

815 Connecticut Avenue, N.W. Special Assistant Washington, D. C .- 20006 Attorney General

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Room 219 Ivan W. Smith, Esquire Towne House Apartments Atomic Safety and Licensing Harrisburg, PA 17105 Board Panel ,

U.S. Nuclear Regulatory Commission Mr. Raymond Rudukis Washington, D. C. 20555 Director of Public Utilities .

City of Cleveland .

John M. Frysiak, Esq. 1201 Lakeside Avenue Atomic Safety and Licensing Board Cleveland, Ohio 44114 Panel U.S. Nuclear Regulatory Commission James B. Davis, Director Washington, D. C. 20555 Robert D. Hart, Esq.

Departmernt of Law Atomic Safety and Licensing 1201 Lakeside Avenue Board Panel Cleveland, Ohio 44114 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Donald H. Hauser, Esq.

Victor A. Greenslade, Jr., Esq.

Mr. Chase R. Stephens The Cleveland Electric Docketing and Service Section Illuminating Company U.S. Nuclear Regulatory Commission 55 Public Square 1717 H Street, N.W. Cleveland, Ohio 44101 Washington, D. C. 20006 John Lansdale, Esq.

Benjamin H. Vogler, Esq. Cox, Langford and Brown Roy P. Lessy,'Jr., Esq. 21 Dupont Circle , N.W. ,

Jack R. Goldberg, Esq. Washington, D. C. 20036 Office of the Executive Legal Director Leslie Henry, Esq.

U.S. Nuclear Regulatory Commission Michael M. Briley, Esq.

Washington, D. C. 20555 Roger P. Klee, Esquire Fuller, Henry, Hodge & Snyder Reuben Goldberg, Esq. P. O. Box 2088 David C. Hjelmfelt, Esq. Toledo, Ohio 43603 Michael D. Oldak, Esq.

Goldberg, Fieldman & Hjelmfelt ,

1700 Pennsylvania Ave., N.W.

Washington, D. C. 20006 2

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J Russell J. Spetrino, Esq. Lee A. Rau, Esquire s Thomas A. Kayuha, Esq. Joceph A. Rieser, Jr., Esq. '

Ohio Edison Company Reed Smith Shaw & McClay '

47 North Main Street Madison Building - Room 404 '

Akron, Ohio 44308 1155 - 15th Street, N.W.

Washington, D. C. 20005 \

Terence H. Benbow, Esq. _' '

A. Edward Grashof, Esq. Edw'ard A. Matto, Esquire Steven A. Berger, Esq. Richard M. Firestone, Esq.

Winthrop,' Stimson, Putnam Karen H. Adkins, Esq.

& Roberts Antitrust Section 40 Wall Street 30 E. Broad Street, 15th Floor v New York, New York 10005 Colnmbus, Ohio 43215 Thomas J. Munsch, Esq. Christopher R. Schraff, Esq.

General Attorney Assistant Attorney General Duquesne Light Company Environmental Law Section -

435 Sixth Avenue 361 E. Broad Street, 8th Floor Pittsburgh, PA 15219 Columbus, Ohio 43215 David Olds, Esq. James R. Edgerly, Esq.

William S. Lerach, Esq. Secretary and General Counsel Reed Smith Shaw & McClay Pennsylvania Power Company Union Trust Building One East Washington Street Box 2009 New Castle, PA 16103 Pittsburgh, PA 15230 Ruth Greenspan Bell Attorney Department of Justice March 24, 1976 x* *

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