ML20214T994
| ML20214T994 | |
| Person / Time | |
|---|---|
| Issue date: | 08/20/1984 |
| From: | Briggs W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Asselstine, Palladino, Roberts NRC COMMISSION (OCM) |
| Shared Package | |
| ML20213E738 | List:
|
| References | |
| FOIA-86-197 NUDOCS 8706100514 | |
| Download: ML20214T994 (7) | |
Text
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- f. . , UNITED STATES ,
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is MEMORANDUM FOR: Chairman Palladino '
Commissioner Roberts / , # "h
, i Comissioner Asselstin l Comissicher Berntha' - * )
Comissioner Z i FROM: William . g . , So 7 tor , \
SUBJECT:
U.5,4 ear Regulatory Comission and United States of/Andfrica, Aoplicants v. San Luis Obispo Mothers l s#br Peace, et al ., Supreme Court No. A-109 Today the Solicitor General filed on the Comission's behalf an application to Chief Justice Burger to vacate the stay of the Diablo Canyon operating license entered by the D.C. Circuit on Friday, August 17, 1984 See attached copy of the application. (In footnote 2 the date Commissioner Zech joined the Comission is incorrectly given,as July 1,1984 instead of July 5,1984.
i The Solicitor General has been advised of this error.)
Pacific Gas and Electric Company filed an application to vacate the stay on Saturday. San Luis Obispo Mothers for Peace has filed an op C We ex ect hief Justice to act rom t1 on the a li k Attachnint:
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!r ~/.I 5" PRIMI COURT OT T.i: UN;!E:: S~ATIS I
OCTOBER IRP., 1984 No. A-109 2
U. S. NUCLEAR REGULATORY COMMISSION AND
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- UNITED STATES OF AMIRICA, APPLICANTS V.
, SAN LUIS OBISPO MOTHERS FOR PEACE, ET AL.
APPLICATION TO VACATE STAY ENTERED BY THE COURT OF APPEALS FOR THE -
DISTRICT OF COLUMBIA CIRCUIT The Solicitor General, on behalf of the U. S. Nuclear Regulatory Commission and the United States of America, requests the Court to vacate the stay entered in 'this case on August 17, 1984 A like application having already been submitted by intervenor, Pacific Cas and Electric Company (PG and E), we do not here detail the extensive factual background and procedural history of this matter. Suffice it to say that on August 10, 1984, the Nuclear Regulatory Commission (NR'C or Comnission) issusd an order author-izing the licensee PC and E, to begin power ascension and to operate at full power the Diablo Canyon Nuclear Power Plant, Unit 1, located on the coast of Central California, about ten miles south of San Luis Obispo. The order was to become effective at 5:00 P.M. EDT, on August 17, 1984 On that* day, however, the United States Court of Appeals f'or the District of Columbia Circuit stayed the Commission's order pending the court's review and established a
. briefing schedule whereby the case will be argued during the court's
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November - December 1984 sitting period.- If the court's order
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-1/ The court's order appears as Tab A to PC and E's Emergency 3 Motion. Senior Circuit Judge Robb joined Judges Wright and F ; Ginsburg in ordering the briefing' schedule but would not have
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. granted the stay. The Commission s order appears as Tab B to PG and E's application.
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is ac: vacatec, the commleted Liabic Canyon plant will stand idle l
f er a cini=u: cf severa*. =en-hs, even enough the Co==tasion has decernined, af ter an unusually long and comprehensive licensing proceed ng, -nat the p* ant is in compliance with NRC regulations and can be operated without undue risk to public health and safety.
',1. "In granting the petitioners' motion for a stay,
, the panel took note of the problems and controversy that have accompanied the Diablo Canyon proceeding and stressed Commissioner Asselstine's dissent from the August 10, 1984, order, but made no finding that any of the Commission's safety determinations were
- likely to be overturned on full review of the merits. Neither did the court explicitly address any of the other criteria which are normally required to support a stay. See Virginia Petroleum Jobbers Ass'n v. FPC, 295 F.2d 921, 925 (D. C. Cir.1958) . In particular, the court did not find that the petitioners would be irreparably injured by operation of Diablo Canyon pending review, nor did the court even mention the suostantial bnpact which a stay f
! would have on other parties and on the public interest. Significantly, i che court recited and did not dispute the Comnission's finding "that the probability is very low that any accident with significant off-site consequences could occur while the petition for review of the Commission's licensing decision is pending." PC and E tiotion, Tab A, p. 2. The court simply stated that "if a close call is involved," there should be "an extra measure of caution" and found that "the magnitude of the harm that could result should that probability eventuate warrants grant of a stay." Ibid.
The fundamental flaw of this approach is that it would l justify a stay of every centroversial operating license, at least ,
1 wh'en a Commissioner dissents from the order authorizing the license.
The court gives no other ground for its implicit conclusion that l "a close call" is in f act involved at Diablo Canyon apart from 2
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rect ing Co::issioner Asse'.stine's cissenting views. Thus, the l
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ccurt appears to ecuate "close calls" simply with the presence of j significant controversy, and, on that basis alone, declines to l f i afford the deference due to the Comcission's considered decision in '
f avor of] plan't operation. The court then relies on the harm which
- could result from a major accident, without any regard for its probability, to complace its justification for a stay pending i
' review. Since the're is nothirg about Diablo Canyon that would 3
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make the effects of an accident unusually severe, this amounts,te a general formula for suspending the effectiveness of any challenged nuclear plant licensing action pending completion of judicial review, notwithstanding the Commission's judgment that all statutory criteria have been met and that the probability of such an accident is remote.
As this case illustrates, the delay in plant operation associated with review, even when " expedited," runs into several' months. By adding this " extra measure of caution" to the hearing process,the court of appeals has imposed on the nuclear power program a new burden not provided in the Atomic Energy Act or otherwise intended by Congress, in disregard of this Court's
-2/ The court appears to regard Commissioner Zech's non-participation in the licensing decision as evidence of further division among the Commissioners and uncertainty about the safety of the plant. It is obvious from the explanatory statement of Commissioner Zech, who became a Commissioner on July 1,1984, that he excused himself from the decision solely due to lack of f amiliarity with the extensive record and not because of any judg=ent about the merits of the license.
-3/ The unusually low population density around the site indicates that a radiological release, if one did occur, might well cause less harm than a similar* release at other plants. Nevertheless, the NRC, exercising conservative caution, did not rely on this apparently favorable circumstance in licensing Diablo Canyon. The Commission stated in its brief to the D. C. Circuit opposing the stay
. The Commission recognizes that the consequences of a severe accident could be catastrophic.
Therefore, pursuant to the Atomic Energy Act, the NRC must be convinced before licensing that the plant is built with such extensive safety protection that the probability of such an accident is remote. Br. at 47.
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l a=3ent-ign in V ermen: Yankee Nuclear Fewer Cort, r. NRDO, 425
' 1 t.i. 518, SSE (1976).
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.In effect, what the D. C. Circuit appears to have done here is te relax the requirements for a stay beyond all recognitic:
simply because the case involves nuclear power. This Court should noc acquiesce in the de facto creation of a nuclear power exception to the strict standards that make stays " extraordinary" relief, in considering the showing needed to stay a power reactor operating license, it should be recognized that in every seriously concesced case persons objecting to the license will challenge the Commission's findings and will offer to a reviewing court elaborate arguments and data to support their claims, "even though the Commission has already taken this material into account in reaching its decision. Indeed, the scientific controversy may be virtually impossible for the court to evaluate at all, let alone in the shott period available on a petition for emergency re, lief.
I If Verment Yankee is to be followed, a reviewing court cannot simply temporarily refuse to follow the Commission's expert judgment that plant safety is adequately assured merely because the court itself may be unsure.
This is not to say that a stay pending review may never issue. The possibility of a stay remains open as a safeguard against arbitrary action by the Commission. But in a case like Diablo Canyon, where the Commission has looked hard and extensively at all the complicated issues of science and regulatory policy, the burden on those who seek a stay must te unusually high. That burden was not remotely satisfied here' and , accordingly, the court of appeals was wholly without justification in entering its order.
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- 2. "The power of a Circuit Justice to dissolve a stay -
ls well settled." New York v. Kleppe, 429 U.S.1307,1310 (1976)
(Marshall, J., in chambers): Named and Unamed Children v. Texas, 448 U.S.1327,1330 (1980) (Powell, J., in chambers). See also e
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, :'_ces- c. PA CC.G '- c. , 42 4 .i. *30*. 1300 *304 (1976; lRehnoutst,
.. in enambers). Nevertneless, we recognize that the power must l l
be exercised with restraint and reserved for exceptional occasions. ,
For the reasons just stated, we submit this is such a case.
Disregarding the usual standards, the court below issued the order l
wholly wi'thout justification and the balance of haru decidedly i favors permitting the Commission's order to go into effect pending judicial review. What is more, in the present context we deem it most likely that the full Court would intervene, if necessary, to set aside any decision by the court of appeals enjoining the Commission's I order. In these circumstances, the Circuit Justice, acting to j vindicate the Court's ultimate jurisdiction, appropriately may dissolve the stay improvidently entered below. l We do not say that the Court as a whole probably will
, I have occasion to intervene. On the contrary, we hope the Circuit Justice himself will vacate the outstanding stay and we presume i
! the court of appeals ultimately will approve the Commission's order, in which event we.cannot suppose this Court will think it necessary to review the case. But, notwithstanting the intimation of some opinions in Chambers (eg. , Named and Unamed Children v. ,
Texas , supra, 448 U.S. at 1331), we submit that is no obstacle to j
granting the present application. It is quite enough that a J
majority of the Court likely would join in vacating the present stay if the question were submitted to the full Court, and that i 1
the Court likely would set aside an injunction entered by the court of appeals on plenary review of the Comrnission's decision. ,
Wen those conditions are satisfied, vacation of the stay serves l 1
' . the legitimate end of vindicating the Court's jurisdiction even if '
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its exercise probably will be avoided.~ .
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-4/ It is axiomatic that a Circuit Justice granting a stay or vacating a stay entered by a lower court is acting for this Court and can take no action the Court itself could not take.
(Tootnote continued on next page.)
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i COM-*.UE I O!:
For these reasons, the oroer of the court of sopeals staying the Co==ission's order should be vacated.
Respectfully submitted.
t .
REX E. LEE Solicitor General AUGUST 1984
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(Footnote continued from previous page.)
Nor should he grant an application a majority of the Court likely
. would deny as a matter of discretion. Thus, the Circuit Justice cust be satisfied that his action is not inconsistent with the Court's probable views, and, of course, the case must be one that the Court has jurisdiction to review. See generally, Coleman v.
PACCAR Inc. , supra, 424 U.S. at 1302-1304. But we do not appreciate
, why it should matter that the Court is unlikely to intervene when i that is due, first, to the Circuit Justice's order removing the
. immediate occasion for the Court's action, and, second, to the prospect that the court of appeals, despite entry of a stay, will ultimately reach the correct result on the merits. Indeed, in the Chambers Opinion in !!eredith v. Fair, 83 S.Ct. 10, 9 L. Ed. 2d
. - 43 (1962) -- recognized as the Landmark ruling on the power of a single Justice to vacate a stay entered below -- Justice Black i stressed the unitkelihood that this Court would review the correct decision of the court of appeals as a justification for vacating I a stay that suspended the ef fectiveness of the judgment. l 1
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