ML19289C479
| ML19289C479 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 12/22/1978 |
| From: | Ancarrow M, Larson L LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | |
| References | |
| NUDOCS 7901120247 | |
| Download: ML19289C479 (16) | |
Text
-
.
"
.- . - -
Q cv
- s
.
ll *uT*'
NRC PUnr,1c noWMENT noon i 3
% Ogc2297# r o'f$.$ ,w,
-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION b M
BEFORE THE COMMISSION In the Matter of )
)
ROCHESTER GAS AND ELECTRIC )
CORPORATION, et al. ) Docket No. STN 50-485 (Sterling Power Pr6ect )
Nuclear Unit No. 1) )
LICENSEES' ANSWER TO ECOLOGY ACTION'S PETITION FOR REVIEW LEX K. LARSON M. REAMY ANCARROW LeBOEUF, LAMB, LEIBY & MacRAE 1757 N Street, N.W.
Washington, D.C. 20036 (202) 457-7500 Attorneys for Licensees December 22, 1978 7901120497 h
-
.
.'
'
- TABLE OF CONTENTS Page TABLE OF AUTHORITIES........................... ii INTRODUCTION................................... 1 ARGUMENT....................................... 2 I. To the extent that the petition.for review attempts to rely on factual matters, the Appeal Board has not resolved such matters in a clearly erroneous manner.......................... 2 II. Ecology Action's objection to the Appeal Board's ruling that it lacked authority to grant the requested relief does not raise an important question of law or policy of the sort that would satisfy 10 C.F.R.
S 2.786(b)(4)............................
4 III. The Appeal Board's application of an " injunction" analysis, as opposed to a " stay" analysis, is neither erroneous nor subject to any true controversy............................. 8 CONCLUSION..................................... 10
.
-
.
.
-iii-Page
.
10 C.F.R. S 2.788(b)(4) (1978)................. 4 10 C.F.R. S 2.788(e) (1978).................... 2, 6 10 C.F.R. S 2.802 (1978)....................... 7 10 C.F.R. S 2.803 (1978)....................... 7 10 C.F.R. S 40.21 (1978)....................... 5,6,7 10 C.F.R. S 70.20 (1978)....................... 5,6,7 MISCELLANEOUS:
26 Fed. Reg. 284 (1961)........................ 7 33 Fed. Reg. 9809 (1968)....................... 7
-
.
.
-ii-
, TABLE OF AUTHORITIES Page CASES:
Citizens Organized to Defend the Environment
Nuclear Regulatory Commission and United States of America, No. 78-1855 (D.C. Cir., filed Aug. 25, 1978)............. 2 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-505 (November 2, 1978)........................... 2 Rochester Gas and Electric Corporation, et al. (Sterling Power Project Nuclear
-
Unit No. 1), ALAB-507 (November 17, 1978).... passim Virginia Petroleum Jobbers Association v.
FPC, 259 F.2d 921 (D.C. Cir. 1958)........... 2 STATUTES:
Atomic Energy Act of 1954, as amended, 42 U.S.C. S 2011-2282 (1970 & Supp.
V 1975):
42 U.S.C. S 2073 (1970)...................... 8 42 U.S.C. 5 2092 (1970)...................... 8 42 U.S.C. S 2239 (1970)...................... 7 REGULATIONS:
10 C.F.R. S 2.201 (1978)....................... 7 10 C.F.R. S 2.202 (1978)....................... 7 10 C.F.R. S 2.758 (1978)....................... 7 10 C.F.R. S 2.786 (1978)....................... 5 10 C.F.R. S 2.786(b)(4) (1978)................. 2, 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ROCHESTER GAS AND ELECTRIC )
CORPORATION, et al . ) Docket No. STN 50-485 (Sterling Power Project )
Nuclear Unit No. 1) )
LICENSEES' ANSWER TO ECOLOGY ACTION'S PETITION FOR REVIEW Introduction In a document dated December 7, 1978, Ecology Action of Oswego, New York (" Ecology Action") has petitioned the NRC for review of an order of the Atomic Safety and Licensing Appeal Board in this proceeding dated November 17, 1978 (ALAB-507). That petition (" Petition for Review")
is the latest step on the convoluted path followed by Ecology Action in its efforts to enjoin contracting by Rochester Gas and Electric Corporation ("RG&E") for its proposed Sterling nuclear power plant.
The posture of this case is well summarized in the first three pages of ALAB-507 and need not be reiterated here. Briefly, Ecology Action is seeking Commission review of the Appeal Board's November 17 refusal to issue a stay (pending court review discussed below) of its May 5 Order which denied Ecology Action's request for a " stay" of uranium contracting by RG&E pending resolution of the
radon-222 issue by the Commission. The validity of the May 5 Order is currently under judicial review on a petition by Ecology Action to the U.S. Court of Appeals of the District of Columbia Circuit.1/
The Petition for Review of ALAB-507 fails to raise an important matter of law or policy that could significantly affect the environment or public health and safety, and otherwise fails to meet the requirements of 10 C.F.R. S 2.786(b)(4) (1978), for the reasons given below.
Argument I.
TO THE EXTENT THAT THE PETITION FOR REVIEW ATTEMPTS TO RELY ON FACTUAL MATTERS , THE APPEAL BOARD HAS NOT RESOLVED SUCH MATTERS IN A CLEARLY ERRONEOUS MANNER To be ertitled to the equitable relief which it sought, it was crucial for Ecology Action to have established, on a factual basis, that irreparable harm would occur to Ecology Action if the requested relief were not granted. Ecology Action was also required to address the other factors set forth in S 2.788(e), including a likelihood of prevailing on the merits of its appeal.2/
1/ Ecology Action of Oswego, New York v. Nuclear Regulatory Commission and United States of America, No. 78-1855 (D.C.
Cir., filed Aug. 25, 1978).
2/ 10 C.F.R. S 2.788(e) (1978); see also Vircinia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958);
Puolic Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-505 (November 2, 1978), slip op. at 4 and cases cited therein.
Ecology Action has claimed a threat of imminent harm if contracting goes forward in two ways: irreparable harm from radon-222 emissions, and irreparable harm from permit-ting such emissions to occur before their impact is analyzed.3/
Ecology Action declines to educate the Commission on '.he nature and extent of the harms it alleges from radon emissions. As the Appeal Board pointed out, Ecology Action has failed to point to any " concrete injury" to itself or to its members that might ensue from the contracting in question.4/ Despite many opportunities, Ecology Action has failed to provide the Commission with any facts whatso-ever, much less facts that would show irreparable harm.
For this reason, under the clear legal guidelines estab-lished for this inquiry,5/ the Appeal Board's determina-tion that Ecology Action had not presented facts sufficient to justify a stay was clearly correct.
Ecology Action asserts that it has not been afforded an opportunity to offer evidence on the radon-222 issue to establish such harm.6/ That assertion is absurd. The regulation that sets forth the requirements for a stay request not only permits affidavits to accompany 3/ Petition for Review at 5.
4/ ALAB-507, slip op. at 10-11.
5/ See note 2, supra.
6/ Petition for Review at 4.
.
the requests, but requires them wherc ehe petitioner relies on factual matters and where citations to the record are not available.7/ Ecology Action failed to avail itself of the opportunity, and indeed failed to meet its obliga-tion, to file affidavits both when it filed its original motion on April 28, 1978, and when it filed its more recent October 18 request to the Appeal Board for a stay.
With regard to Ecology Action's second allegation that a stay must be granted in order to preserve its opportunity further to litigate its case in court, the Appeal Board correctly observed that this argument is " bootstrap-ping".8/ The second stay request must have some nexus to a showing that the first stay request was viable, i.e.,
Ecology Action must make some showing that it is likely to prevail on the merits of its appeal of the first denial.
Since Ecology Action has shown no concrete injury from radon in either its first or second request, there is no indication whatsoever that its claim on appeal is well founded.
II.
ECOLOGY ACTION'S OBJECTION TO THE APPEAL BOARD'S RULING THAT IT LACKED AUTHORITY TO GRANT THE REQUESTED RELIEF DOES NOT RAISE AN IMPORTANT QUESTION OF LAW OR POLICY OF THE SORT THAT WOULD SATISFY 10 C.F.R. S 2.786(b)(4)
As an alternate ground for denying the relief 7/ 10 C.F.R. 5 2.788(b)(4) (1978).
8/ ALAB-507, slip op. at 11.
requested by Ecology Action, the Appeal Board ruled that it has no authority to issue a stay of uranium contracting activities because a general license for ownership of special nuclear material had been granted by Commission rule.9/ Ecology Action challenges the Appeal Board's conclusion, stating that the Commission has the authority to revoke the general license or deny it in this case.10/
Licensees' position that the Commission has no jurisdiction to interfere with RG&E's uranium procurement activities was rejected by the Appeal Eoard.11/
It is true that questions of the jurisdiction and authority of the Appeal Board to enjoin uranium con-tracting have not been addressed by the Commission before.
Neverthelecs, these issues do not constitute important questions of law or policy within the meaning of 10 C.F.R.
S 2.786, for several reasons.
First, the Appeal Board's holding did not hinge on its pronouncements on jurisdiction and authority.
Rather, its decision rested on the independent ground that 9/ ALAB-507, slip op. at 9. Although the Appeal Board cited to the general license covering special nuclear material, 10 C.F.R. S 70.20 (1978) (Id. at 6), we note that the general license for source material in 10 C.F.R.
S 40.21 (1978) would be more likely to come into play in the early stages of the uranium fuel cycle. The Staff appears to agree that source material is what is involved in the contracting issue at this stage. NRC Staff Response, Nov. 3, 1978, at 2.
10/ Petition for Review at 3-4.
11/ ALAB-507, slip op. at 3-5.
injunctive relief was not warranted because Ecology Action had failed to make a showing under S 2.788(e) of any
" concrete injury" that might arise from contracting.12/
The Appeal Board ruled that the stay was not warranted
"[e]ven were we to assume for argument's sake that we could
' stay' the applicants from contracting. . . . "13/
.
Second, Ecology Action has failed to make a showing of any significant environmental impacts flowing from the particular contracting in question. In light of Ecology Action's failure to make a showing of environmental significance sufficient to justify prohibiting contracting, the questions of jurisdiction and Appeal Board authority related to that prohibition are of little practical signifi-cance.14/
Third, the Appeal Board's rationale for denial of injunctive relief is correct, as far as it goes. A stay of contracting for activities within the purview of the general license provisions in 10 C.F.R. SS 40.21 and 70.20, is clearly precluded.15/ Moreover, Ecology Action's 12/ ALAB-507, slip. op. at 11.
13/ Id. at 9.
14/ This position is buttressed by RG&E's explanation that Hue to the fungibility of uranium, the contracting would not result in any incremental increases in mining and milling or accompanying radon releases. See Licensees' Response, Oct. 26, 1978, at 6-7, and Attacned Fuierer Affidavit at 51 1-6.
15/ ALAB-507, slip op. at 9.
1
suggestion that the Commission has the power to modify a regulation or a general license does not amount to a request ~that the Commission do so. As the Appeal Board pointed out,16/ Ecology Action has not pursued the avenues by which regulations may be challenged.JZ/
In this connection, the Appeal Board appears to have misunderstood Licensees' jurisdictional argument, perhaps because it was stated below in terms of " procure-ment", a term which could be read to be broader than
" contracting". Contracting per se, however, does not ordinarily effect a passage of title, delivery, receipt, possession, or any other activity contained in SS 53 or 62 16/ ALAB-507, slip op. at 9.
17/ RG&E notes that the " regulations" in question in this case, 10 C.F.R. SS 40.21 and 70.20, are not just ordinary regulations but represent licenses in addition. Thus, even if the Commission considered it possible to circumvent the procedural routes providcd in 10 C.F.R. SS 2.802, 2.803 or 2.758 (1978), the injunction would still be barred unless additional procedural requirements for the suspension, revocation, or amendment of a license were observed.
See Atomic Energy Act, S 189(a), 42 U.S.C. S 2239 (1970) and 10 C.F.R. SS 2.201 and 2.202 (1978).
To the extent that Ecology Action relies on the National Environmental Policy Act for its claim that contracting should not go forward until an adequate Environ-mental Impact Statement has been completed, it is a non-issue.
If the contracting is considered to fall under the general license provisions in either SS 40.21 or 70.20, those licenses were issued before NEPA was ever effective (26 Fed. Reg. 284 (1961) and 33 Fed. Reg. 9809 (1968)).
Since no further federal action is needed to execute those license provisions, NEPA should not now be utilized to suspend or bar actions under the licenses. See Citizens Oroanized to Defend the Environment v. Volpe7 753 F. Supp.
520, 541 (S.D. Ohio 1972). To the extent the contracting is deemed to fall beyond Commission regulatory jurisdiction, it is not a major federal action that may be barred by NEPA. See Licensees' Response at 2-4.
.
.
of the Atomic Energy Act.18/ Moreover, in many instances the uranium that is concerned in a purchase contract is not yet removed froa. the ground, and hence would not be subject to S 62 jurisdiction in any event.19/ These points illustrate the remoteness of contracting oer se from Commission licensed activities. Contracting is a separate legal act, independent of licensed activities.20/
We do not believe that the Commission should entertain either the general license question or jurisdic-tion question at this time. Nevertheless, if the Commis-sion decides to accept review, we are prepared to brief our position on jurisdiction more fully.
III.
THE APPEAL BOARD'S APPLICATION OF AN " INJUNCTION" ANALYSIS, AS OPPOSED TO A " STAY" ANALYSIS, IS NEITHER ERRONEOUS NOR SUBJECT TO ANY TRUE CONTROVERSY Ecology Action questions the Appeal Board's conclusion that what was sought was an injunction, rather than a stay,2J/ and contends that the granting of a stay 18/ 42 U.S.C. SS 2073 and 2092 (1970).
19/ Under S 62 only material removed "from its place of deposit in nature" is subject to Commission jurisdiction.
20/ For example, utilities routinely contract for construc-tion and even operation of nuclear facilities well in advance of receiving Commission authorization to construct.
Thus, while contracting may have some relationship to future licensed events, contracting itself is a private, commercial activity beyond the reach of Commission jurisdiction.
21/ Petition for Review at 2-3.
to preserve.the status quo is what is being requested. In support of its point, Ecology Action argues that the May 5 Appeal Board Order, in declining to grant a stay, in effect affirmatively granted permission to contract. The Appeal Board correctly rejected this contention.22/ Insofar as the Appeal Board ruled, correctly, that it possesses no author-
'ity to prohibit the contracting activities, its refusal to do so could in no way be deemed " permission" to contract.
In this circumstance, it would be the granting, not the denial, of the injunction (or " stay") that would disrupt the status quo.
In any event, whether one views the Appeal Board's ruling as disposing of a " stay" request or an
" injunction" request, the decision merely involved a routine application of existing law and policy to unextra-ordinary facts in an area in which the Appeal Board was adequately supplied with legal guidelince and precedent.
22/ ALAB-507, slip op. at 8-9.
Conclusion
.
For the foregoing reasons, the Commission should decline to review ALAB-507.
Respectfully submitted,
- -
~
LEX K. LARSON LeBOEUF, LAMB, LEIBY & MacRAE 1757 N Street, N.W.
Washington, D.C. 20036 (202) 457-7500 Attorneys for Licensees Of Counsel:
M. REAMY ANCARROW Dated: December 22, 1978
Y 41
%
"
(f.
-
- hN UNITED STATES OF AMERICA O ').h737 4 -
. NUCLEAR REGULATORY COMMISSION
'
Q g-cfdk BEFORE THE COMMISSION co -a In the Matter of )
)
ROCHEST"R GAS AND ELECTRIC )
CORPORATION , et al~. ) Docket No. STN 50-485
-(Sterling Power Project )
Nuclear Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that I have served the document entitled " Licensees' Answer to Ecology Action's Petition for -
Review" dated December 22, 1978, by mailin- first-class and postage prepaid copies thereof to each of the following persons this twentj-second day of December, 1978.
Hon. Joseph M. Hendrie Hon. John F. Ahearne Chairman U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Alan S. Rosenthal, Esq.
Hon. Richard T. Kennedy Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Hon. Victor Gilinsky Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dr. John H. Buck Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Hon. Peter A. Bradford U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
.
-
,- Stephen 't. Schinki, Esq. Ms. Sharon Morey Office of the Executive Ecology Action Legal Direct 6r P.O. Box 94 U.S. Nuclear Regulatory Oswego, New York 13126 Commission Washington, D.C. 20555 Jeffrey L. Cohen, Esq.
New York State Energy Office Richard S. Salzman, Esq. Swan Street Building Atomic Safety and Licensing Core 1, Second Floor Appeal Board Empire State Plaza U.S. Nuclear Regulatory Albany, New York 12223 Commission Washington, D.C. 20555 Mr. Lester Kornblith, Jr.
Atomic Safety and Licensing Edward Luton, Esq. Board Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dirk S. Adams Washington, D.C. 20555 Attorney at Law 1600 First Federal Plaza Dr. George C. Anderson Rochester, New York 14614 Oceanography Department WB-10 University of Washington Seattle, Washington 98195
-
,
' '/. .
/
M. Reamy Ancarrow-LeBoeuf, Lamb, Leiby & MacRae Attorney for Licensees
.