ML20064C568
| ML20064C568 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/29/1982 |
| From: | Wilt D SUNFLOWER ALLIANCE, WILT, D.D. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20064C527 | List: |
| References | |
| 82-3563, NUDOCS 8301040429 | |
| Download: ML20064C568 (20) | |
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//E7&Ser, BRIEF J' Ny PART ONE
- 1. On November 17, 1981, a case known as People Against Nuclear Energy vs. N.R.C., 678 F2d 222(U.S.Ct. App. D.C.,1982) was argued before the United States Court of Appeals, District of Columbia Circuit. On January 7, 1982, the Court issued an interim judgment. An amended judgment was then filed on April 2, 1982. Finally, the Court's opinions and second amended judgment were filed on May 14, 1982.
- 2. On May 5,1982 Sunflower filed-a Motion to admit as a contention the issue of psychological stress. On July 12, 1982, this Board admitted as Issue 10 a contention dealing with psychological stress. (LBP-82-53). On July 16, 1982, the Commission issued a statement of policy, " Considerations o f Psychological Stre ss Issues", 7590-01 (mimeo). On July 20, 1982, this Board dismissed Issue 10 on the basis of the Statement of Policy cited above.
On August 4, 1982, Sunflower filed a Motion for Reconsideration or in the Alternative a Motion for Certification. That Motion was denied by this Board on August 31, 1982. .
- 3. On September 13, 1982, Sunflower filed a Petition for Review with the United States Court of Appeals, Sixth Judicial Circuit, Case No.' 82-3563.
See attached Exhibit "A". The prupose of the Petition for Review is to review the legality of the Commission's July 16, 1982, Statement of Policy. Should t his Statenent of Policy be declared illegal, then, Sunflower intends to reapply to tnis Board to readmit Issue 10 in this proceeding.
2.
- 4. On or about October 19, 1981, the NRC filed wi th the Court of Appeals a Motion for Leave to Hold Case in Abeyance. See attached Exhibit "B". The purpose of this Motion was to stay the case pending the outcome of a Petition for Certiorari that was filed with the United States Supreme Court in
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O connection with the PA E, Ibid., decision. The Petition for Certiorari was granted by the United States Supreme Court. liowever, on December 8, 1982, the Court of Appeals denied the NRC's Motion for Leave to Hold Case in Abeyance. See attached Exhibit "C". Thus, the review of the Statement of Policy, cited above, will proceed in the ordinary course of the business of the Court of Appeals.
PART TWO
- 5. The PANE decision is essentially a case of statutory construction. The
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Court was construing the National Environ $ ental Policy Act (hereinafter referred to as NEPA), 42 U.S.C. 4321, et seq. and the effect of this statute on the activities of the NRC. Section 42 USC 4321 provides:
The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote eff. orts which will pre-vent or climinate damage to the environment and biosphere and stimulate the health and wel-f are of man; to enrich the understanding of the ecological systems and natural resources
- important to the Nation...
Pursuant to this Act, Executive Order No. 11514, 325-70, 35 F.R. 4247 was issued. It says in part:
. . . Consonant with Title I of th.e NEPA.. .the heads of federal agencies shall (a) Monit.or, evaluate, and control on a continuing basis their agencies' activities so as to protect and enhance the quality
( of the environment. Agencies shall develop programs and measures to protect and enhance environment quality and shall assess progress in meeting the specific objectives of such activities...
Thus, the Commission is under orders from both Congress and 't'he P' resident to protect and enhance the quality of the environment.
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- o. The question now becomes what is meant by " protecting and enhancing
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the quality of the environment"? The Court in PANE felt that at.a minimun
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. ..NEPA was de sihned to 'piromo'te 't.'f forts which will prevent or. eliminate sd. image to the (
environment ano; biosphere and stimulate the. N '
health and welfare of man'. PANE vs NRC, . a 678 F 2d 222,227 (U.S.Ct. App.D.C.,1982) $
Based on this analysis the Court codcluded:
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We conclude thee;~1'n the conte'xt of NEPA, hUsith encompasses psychological health.' To implement a national policy ba'ed s on 'the criticcl importance of restoriryg and maintain!ng environmental quality to the overall'wstfare and development of nar,,' 42 U.S.C. 4331(a)(197d),
Congress requirid each federal agency to '
- utilize a ' systematic, interdisciplinary '
s approach which will insure the integrated use of the natural and social sciences,and the environmental design arts'... PANE w . NRC, -
678 F 2d 222,228 (U.S,Ct. App.D.C., L982) .
t The Court further writes: -
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. . .NEPA, moreover, does not authorize feder$1 agencies to deal with intangible factera,bv ignoring htem. It expresdy instructs all 4 federal agencies to identify'ar,a develop methods and proceddree 'which will' insure that presently 'anque,ntitied environment.al amenities and val.ucs hay be given appropriate -
consideration in decision making along with 2 i
economic and technical considerations. -
42 U.S.C. 4332(2)(E) . . . PANE vs. URC, 678 F 2d ,
222,219 (U.S.Ct.A;?p.D.C., 1982)..
Finally, the Court writes:
Thekeytoourdacisionisthepdtential '
effect on health. Not all physical effects ,
have an impact on physical health; similarly, not all psychological effect level of psychological healtlf rise to the 1 effects. In our view, Congress intended th :.nclude psych-ological health within'th) u anyng of ' health' for purposes of NEPA.. . PANE ys._ NRO~, 678 F 2d 222, ?29-30 (U.S.Ct. App,0.c,, 1982) ,
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Thus, in conclusion, the NRC is under orders from Congress, the President and now the Courts to plug the psychological impact on people of its
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acpions in its decision making process.
, .s PART THREE
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], 7. Rather than bei,ng challenged by the importance of serving the s s
' psychological needs of the American people, the Commission creates a Statement of Policy which clearly negates the impact of the PANE decision, s, What, then, is the status of " statements of policy *or " interpretative y rules"? It is well settled that " statements of policy" or " interpretative rules", while should be considered, are not binding. Long ago, Mr. Justice
', Jackson wrote on behalf of the Supreme Court the proper role of these 4 - s? interpretative guidelines:
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- There.fs no statutory provision as to what, if
, any, deference courts should pay to the i i y Administrator'3 conclusions. And, while we have 5 given them notice, we have had no occasion to try to prescribe their influence. The rulings of
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this Administrator are not reached as a result 3
of hearing adversary proceedings in which he finds facts from evidence and. reaches conclusions cf law from findings of fact. They are not, of
-* , -) course, conclusive, even in the cases with which s, they directly deal, much less in those to which I'
they apply only by analogy. They do not constitute an interpretation of the Act or a standard for
judging factual situations which binds a district court's processes, as an authoritative pronouncement N of a higher court might do. But the Administrator's policies are made in pursuance of official duty, t
based upon more specialized experience and broader investigations and information than is likely to i
l come to a judge in a particular case. They do l
determine the policy which will guide applic,ations
! for enforcement by injunction on behalf of the 3 Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons...
Skidmore vs. Swift & Co., 323 U.S. 134, 139-40 (1944).
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This policy is still followed. In Citizens to Save Spencer County vs.
E.P.A., 600 F 2d 844 (U.S.Ct. App.D.C.,1974) the Court of Appeals wrote:
This Court has noted even more re'cently that an interpretive rule is an administrative construction of a statutory provision on a question of law reviewable in the courts; and that ' interpretative rules, unlike the quasi-legislative rules which are subject to the prescription of 553 (of the APA), are merely an agency's interpretation of a statute it is charged with implementing and create no law and have no effect beyond that of the statute'. IBID, pg.876.
Mr. Chief Justice Vinson wrote the following:
...Here...the question presented 'is one of specific application of a broad statutory term in a pro-ceeding in which the agency administering the statute must determine it initially. To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' The ' reviewing court's function is limited.' All that is needed to support the Commission's interpretation is that it has ' warrant in the record' and a ' reasonable basis in law'... Unemployment Compensation Commission of Alaska vs. Aragon, 329 U.S. 143, 153-4 (1946).
This, then, brings us to the question of whether or not the Statement of Polciy, cited above, has a reasonable basis in law.
- 8. It is well settled law that an administrative body is limited by statutes and has no power beyond that granted by the statutes. Federal Trade Commi ssion vs. Sinclair Refining Co., 261 U.S. 463.475 (1923);
Pearce Hospital Fcundation vs. Illinois Tublic Aid Commission, 15 Ill 2d 301.307 (1958); Stark vs. Wickard, 321 U.S. 288, 309-10 (1944). n administrative body has no common law powers. Horwell School Board District
No.9 vs. Hubbartt, 246 Iowa 1205,1273 (1955) . Thus, the NRC must and is required by law to obey the law. The NRC cannot evade the law, as it has attempted to do here, by the expediency of a " Statement of Policy". See Chamber of Commerce of thi United States vs. OSHA, 636 F 2d 464,468-9 (U.S.Ct. App.D.C., 1980). T,he Statement of Policy does not seek to enhance and protect the health of humankind. It is a clear anc explicit abdication of NRC responsibility to the American people. The fact that considering psychological effects in its decision making process may prove to be difficult does not relieve the NRC of it statutory responsibility:
It is true that the Commission held that its non-action was caused by the fact that the command of the statute involved a consideration by it of matters 'beyond the possibility of, rational determination' and called for 'in-admissible assumptions' and the indulging in impossible hypothesis' as to subjects 'in-capable of rational ascertainment' and that such conclusions were the necessary consequences of the Minnesota Rate Cases, 230 U.S. 352.
We are of opinion, however, that considering the face of the statute and the reasoning of the
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Commission was erroneous, an error which was exclusively caused by a mistaken conception by the Commission of its relation to the subject resulting in an unconscious disregard on its part of the power of Congress and an unwitting assumption by the Commission of authority whith it did not possess. And the significance which the Commission attributed to the ruling in the Minnesota Rate Cases even upon the assumption that its view of the ruling in those cases was not a mistaken one, but illustrates in a different form the disregard of the power of Congress which we have just pointed out, since, as Congress indisputably had the authority to impose upon the Commission the duty in question, it is impossible to conceive how the Minnesota Rate Cases could furnish ground for refusing to carry out the commands of Congress... United States ex rel Kansas City Sointhern Railway Co. vs. I.C.C.,
252 U.S. 178, 187-8 (1920).
e The conclusion is loud and clear. The Statement of Policy adopted by the NRC is:
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... a poor player That struts and frets his hour upon the stage And t. hen is heard no more. It is a tale Told by an idiot, full of sound and fury, Signifying nothing. W. Shakespeare, Macbeth.
Act V, Scene v, lines 24-28.
PART FOUR
- 9. The legal considerations to be reviewed in determining whether to grant this motion are: _,
(1) a strong showing that he is likely to succeed on the merits of the appeal; (2) a showing that, unless a stay is granted, he will suffer irreparable injury; (3) a showing that no substantial harm will come to other interested parties; and (4) a showing that a stay will do no harm to the public interest.
Reserve Mining Co. vs. United States, 498 F 2d 1073, 1076-7 (,8th Cir., 1974).
Let us review each of these considerations.
- 10. Sunflower believes that it has demonstrated that it will succeed
- on the merits on the Petition for Review. The Statement of Policy has no effect, because it has no reasonable basis in law. The command of Congress is clear. the NRC SHALL give psychological health consideration in any proceeding that will affect the human environment. The NRC is a creature of Congress and i s required by law to obey the commands of Congress. Congress has spoken through NEPA. The NRC can not evade its responsibility under law. The Statement of Policy is nothing more than an attempt by the NRC to evade its statutory duties. The Statement of Policy will be declared invalid.
- 11. Sunflower will suffer irreparable harm if the proceedings are not
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stayed. Sunflower has no forum, except before this Board, to litigage psychological health considerations. To appeal this case after a license is granted, is no answer for then it will be too late. Sunflower is litigating the Statement of Policy,-"as suggested by this Board, in the only forum available.
When the Statement of Policy is invalidated, Sunflower intends to reintroduce the contention. But, if by then, the license is granted and the plant is operating, it will be too late to address Sunflower's concerns. Sunflower's right in this case is to have the provisions of NEPA, as they relate to human health, enforced. This right can not be denied since it was granted to the American people by Congress. Since this Board is the forum created by Congress to seek protection of that right, this Board must protect that right.
Since this Board has been ordered by its superior not to protect that right, Sunflower is required to go to Court to seek the Court's protection. In the interim, this Board is required by NEPA and by good conscience to stay proceedings until the Court processing of Sunflower's claims can be concluded.
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Any other action by this Board, will result in irreparable damage to Sunflower.
hignts lost can never be regainedt
- 12. What real harm will fall to Applicant? Applicant is also interested in considerations of human health. Applicant extensively advertises its deep commitment to human welfare and states that it tak'es all necessary actions to protect and preserve human health. Surely, Applicant does not truly seek to deny Sunflower its right to preserve and protect human health. Such a decision on the part of Applicant would be cc2nter productive.-Tf Applicant's consumers can not enjoy the power Applicant seeks to produce, the consumer will not buy that power. If consumers do not buy that power, Applicant will be required to seek the protection of the federal bankruptcy laws..Thus, it is
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in the Applicant's real interest, as well as Sunflower's, to insure that this Board considers the psychological impact of the licensure of Perry.
- 13. Finally, what is the rush to judgment? U' nit One will not be operational, if at all, for another 13 months. See Exhibit B, page 3. The NRC's counsel represented to the Court of Appeals that a stay of the action in the Court of Appeals would not injure anyone. If that is the case, a stay by this Board will not injure anyone.
- 14. What will best serve the public interest? This Board does not need to be reminded that the NRC is not held high in the public esteem. Here is the perfect opportunity to put public interest ahead of alleged private interest. This Board merely stays the licensing process until the Sixth Circuit rules. It is expected that the Sixth Circuit will proce'ss this case 1
promptly. In the interim, op one is harmed. If Mr. Macy and Mr. Gimbel can agree to put the public interest ahead of the private interest, so can the NRC. To do so, would create an improved public perception of the NRC and will truly improve the administrative process.
Kl!EREFORE, Sunflower pray: that this Motion bc grantcd.
Respectfully submitted,
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, >l Au W Daniel D. Wilt, Esq.
Attorney for Sunflower Alliance Inc.
P.O. Box 08159 Cleveland, Ohio 44108
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(216) 249-8777 See Miracle on 34th Street.
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FILED REC E V E 3 sEP131982-SEP 131982 .
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JOHN P. HEHMAN, Cleri UNITED STATES COURT OF APPEALS JOHN P. HEHMAN, Clerk Sixra C1RCu1T .
SUNF14WER ALLIANCE _-INC. )
CASE NO.82-356 P.O. BOX 91 )
JEFFERSON, OHIO 44047 )
, p Petitioner vs.
NUCLEAR REGUIATORY COMMISSION WASHINGTON, D.C. 20555 Respondent )
Sunflower Alliance Inc. hereby petitions the Court for review of the S t a t eme.nt of Policy of the Nuclear Regulatory Commission prohibiting Atomic Safety and Licensing Boards f rom. hearing questiens on psychological stress entered on July 16, 1982. The statement of policy is attached as Exhibit A and is made a part hereof.
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l Daniel D. Wilt, Esq.
l Attorney for Sunflower Alliance Ince i
P.O. Box 08159 Cleveland, Ohio 44108 (216) 249-8777 E) b, telT
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.[7590-01)
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NUCLEAR REGULATORY COMMISSION' CONSIDERATION.'OF PSYCHOLOGICAL: STRESS. ISSUES .
AGENCY: U.S. Nuclear Regulatory C$mmission - -
ACTION: Statement of. Policy '
SUMS.AR':
Y On May 4, 1982, .the United States Court of Appeals for the District of Columbia Circuit issued i its . opinion in Pecole Acainst Nuclear Energy (PANE) v ., N R C ,. N o ..- 81-1131.. .By a divided
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vote, the court . ruled that the ' National. I.nvironmental Policiy Act recuires the Commission to -evaluate the effects on psychological health of operating- the Three. Mile Island Unit 1 facility.- Tne Cc: mission is directed to determine whether "significant new circumstances or information have arise~n with respect to -the t
- potential psychological health ef fects of . operating the TMI-l l
facility," and if it answers that question affirmatively, to t
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prepare a " supplemental environmental. impact . statement which ecasiders not only ef fects on psychological health but also 1
ef fects on the well-being of the communities surrou2iding Three 1
1 Mile Island."
- The time within which..th'e Commission may s~ eek further review of the court's decision by .a petition to the. Supreme Court for a-
' writ of certiorari has not yet expirecl.. Irrespective of its -
plans with respect to' furtlier judicial review of the decision , ^
however, it is necessar'r for the Cc= mission tarprovide guidance m ms o A
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h on the applicability .of the decision to NEPA issues . raised :in .
proceedings.other than thet Three: Mile' Island Unit-1 restart .-
proceeding, since the : court did "not provide : explicit. instructions .
to the Commission en that . issue. (Indeed,.the court sbated expressly that it saw no.need to attempt in..its. decision to " draw -
a bright line" between cognizable and non--cognizable psychological stress.. effects. under NEPA. ) .The. purpose of this Policy .Statementmis to furnishi that guidance for .NRC.. staff's own NEPA analyses , f or . proceedings i= which. NEPA.. psychological stress contentions have been or may be. raised. and.-for any petitions which may be submitted under 10..CER- 2'. 20 6 . recuesting relief on the basis of NEPA psychologica.1 stress. issues.. -
The court's opinion states that the " issue of first impression" which: it addresses _ is "..the . cognizability .of pos~t- .
t aumatic psychological ' health ' effects under .NEPA." Slip'op.
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- p. 13. Elsewhere,.the. court states. its holding that wh'ile.) EPA..
"does not encomcass_ mere dissatisfactions arising from social opinions, economic. concerns , or; political disagreemenf s with agency policies," the statute "dces apply to post-traumatic anxieties, accompanied by physical. ef fects and caused by -fears of recur:ing catastrophe." Slip op_ pp. 16- 17.- The' court - -
underlines this poin t. with a_ reference tojthe "unicue and e.
traumatic nuclear accident" whic~n gave: rise to the fears aLleced l by PANE. Slip.op. p. 16. The. ccort also stated:
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We ,need r.ot attempt to draw a bright line in this - -
case. Three Mile Island is, a't least; so far, the 1 only event of its k.uid in ..the . America.n experience.
We : cannot believe that the psychological aftermath of.the March 197.9 accident falls outside the broad
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I scope of the National Environmental Policy Act. j Slip op., p. 17. .
The majority opinion'thus stands for the proposition that an evaluation of environmental .impac.t.s -under NEPA includes evaluation of " post-traumatic. anxieties > accompanied by physical effects and caused. by fe.ars of recurring 2tastrophe. " - As the Cor=tission reads. the. opinion ,; .the: c'ognizability of psychological stress impacts: under NEPA) thus hinges.:en three elements... First, the impacts must consist. of t" post-traumatic anxieties" , as -
distinguished from. mere distratisf action, with . agency proposals or N
policies. Second,u the impacts must: be accompanied,by. physical _.
effectsi. Third, the " post-tratimatic ~ anxieties" must have been
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caused by "fea s of recurring .catas.tro@e" .. This. third-element
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means that some kind of nuclear accident must a-1 ready have occurred.at the site in cuestion, since the. majority's holding was directed to " post-traumatic." anxieties and by fears of a
. " recurring" carastrophe .
. Moreover,- the majorit y :. clearly .had only -
serious accidents in mind,; because of-the. use of the word.
" catastrophe" and its references to;the " unique" Three Mile Is land Unit' 2 accident- in..the opinion :. 'In.the: Commission's! vies, the only nuclear plant accident that- has occurred to date that is sufficiently s:rious to . trigger. cons'ideration of . psycholcgical
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stress under NEPA. is the Three Mile Island Enit 2 accident.
Accordingly, only this ' accident can.. currently serve as a basis for raising NEPA psychological stress issues.
.It is therefore the Commissicn's policy.that adjudicatory boards, in ruling on NEPA; contentions alleging psychological stress resulting from Commission-licensed activities, should assure that all of the elements described above are present.
Psychological stress contentions which do not satisfy these criteria 'should be held -inadmissible... For contentions which allege the. elements described above,Tusual standards will apply
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f or weighing the sufficiency of .the ' initial filing. The WRC staf f should apply the. same. tests in conducting its own- NEPA -
analyses and in weighing requests for< relief,. filed under 10 CFR 2.206, which allege psychological harm resulting from ongoing Conmission-licensed activi. ties.. The Commission believes that by.
adopting this approach, it can fully comply withathe court's
~ specific holding tha e the " psychological afterriath" of " unique
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and traumatic nuclear accidents" be cognizable-in NRC proceedings, without at thes scrac time so brcadening the court's holding as to make the litigation of psychcilogical stress -
contentions available virtually on demand. in any licensing proceeding. -
By adopting a. literallreading of the court's. decision, as .
l f a r as other. proceedings are -concerned, the Commission believes -_ . _ _ .
it is serving the public interest. In the conduct of licensing reviews and proceedings ~ involving numerous ccmplex technical 1
issues, the Commission 's resou.rce:r should be devoted primarily to h bIBfT h l
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addressing the safety issues which are or might be the causes of psychological stress on the part; of .some merbers .of the public,-
rather than to : addressing. tihe nature ,.and. extent of- the stress
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Dated at Washington, C.. this
,. day of July,. 1982 For the Commission SAMUEL J. CHILX Secretary of the. Commission
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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
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SUNFLOWER ALLIANCE, INC., . ) .
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Petitioner, ) -
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- v. ) No. 82-3563
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UNITED STATES NUCLEAR REGULATORY )
COMMISSION, )
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Respondent. )
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MOTION FOR LEAVE TO HOLD CASE IN ABEYANCE ,,
The United States Nuclear Regulatory Commission, respondent, respectfhily requests that this Court hold this case in abeyance pending Supreme Court disposition of a case with a direct and immediate bearing on the merits of this appeal. ,
This appeal challenges a policy statement issued by the Nuclear Regulatory Commission on July 16, 1982, in response to the decision of the United States Court of Appeals for the District of Columbia Circuit in People Against Nuclear Energy (PANE) v. U.S. Nuclear Regulatory Commission. 678 F.2d 222 (opinions issued May 14, 1982).
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The PANE case held that the National Environmenha1 Policy --
Act, 42 U.S.C. S4321 et seq., requires the Commission to evaluate psychological stress which may be associated with l i ifli l .
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- operation of the Three Mile Island Unit 1 nuclear reactor -
before allowing that reactor, which has been shut down since the accident at the adjoining'Three Mile-Island Unit 2, to resume operation. The Commission's July 16 policy statement, a copy of which was attached to. petitioner Sunflower Alliance's petition, observed that although the time for filing a petition for certiorari had not yet.
-- expired, the Commission believed it "necessary ... to -
provide guidance on the applicability of the decision to NEPA issues raised in proceedings other than the Three Mile Island Unit 1 restart proceeding,since the court did not provide explicit instructions to the Commission on that issue." The policy statement interpreted the PANE decision as not requiring evaluation of psychological stress impacts
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in proceedings other than that involving Three Mile Island Unit 1.
Petitions for certiorari were filed by the Metropolitan Edison Company, et al., on August 1, 1982, and by the United States and the ' Nuclear Regu'latory- Commission on August 30, 1982. We assume that petitioner Sunflower Alliance was unaware of this fact when it indicated in its pre-argument statement that there was, to its knowledge, no pending case which " arises from substantially the same case or controversy as this action" or which " involves an issue that is substantially the same, similar, or relat.ed,to an issue in this action." In fact, the PANE case meets both those tests. Petitioner Sunflower Alliance effectively c-' n ibhlI
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acknowledged this when it stated, in an August 4, 1982 motion to the Commission's Atomic Safety and Licensing Board in the Perry operat'ing license proceeding, 1/ "The basis for Sunflower's original Motion [ requesting consideration of
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psychological stress in the Perry proceeding) was the case known as P.A.N.E. v. FRC, 81-1131 (19 8 2) . "
Since the brunt of petitioner's complaint, as
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outlined in its August 4 motion, is that the Commission improperly limited the reach of the PANE decision, it would be appropriate for this Court to defer acting on this case until the Supreme Court has had an' opportunity to rule on the petitions for certioraqi in PANE, and, in the event that it grants certiorari, on the merits of the case'. A Supreme Court decision on the me.rits, whether favorable or unfavorable to the Commission's position in PANE, might well make it unnecessary for this Court to' decide the instant case. Since current projections are that the Perry Unit 1 plant will not be completed and ready for operation for thirteen months at the earliest, and Supreme Court action on PANE v. NRC is likely to be completed long before that time, a grant of this motion by this Court should not prejudice petitioner's efforts to obtain a hearing on psychological stress issues prior to the actual operation of the Perry facility.
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In the Matter of Cleveland Electric Illuminating Company, Docket Nos. 50-440-OL, 50-441-OL.
C c'/bl/VT J(%
. .4 In requesting that the Court hold this case in .
abeyance, the Commission intends no waiver of any objections it may validly rai'se to the c'onsideration of this petition at this time.
Respectfully submitted,
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PETER G. KE -
Acting'Amistant General Counsel O
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NO. 82-3563 . FILED .
UNITED STATES COURT OF APPEALS DEC 8 N02 FOR THE SIXTH CIRCUIT
, _ J'OHN P_. HEHMAN, Clerli SUNFLOWER ALLIANCE INC., I
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Petitioner, I ORDER vs.
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NUCLEARREGULATORYCbMMISSION, I
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Respondent.
Upon consideration of respondent, United States Nuclear Regulatory Commission's motion to hold this case in abeyance pending disposition by the Supreme Court of Pane vs. U.S. Nuclear Regulatory Commission.,
678 F. 2d 222 (1982), the responses thereto and the supporting memoranda, It is ORDERED that the motion be and it hereby
_ is denied.
! ENTERED PURSUANT TO RULE 4 (f)
SIXTH CIRCUIT RULES .
.s YW John)P. Hehman, Clerk l
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