Nor have plaintiffs sought judicial review under section 189 b. of the Atomic Energy Act (42 U.S.C. 2239 b.) and the Administrative Orders Review Act (28 U.S.C. 2341, et seq.) of the Commission's rule making action of September 9, 1971-an action which they could have initiated within sixty days of the rule's adoption. (Compare, Siegel v. Atomic Energy Commission, supra; and Calvert Cliffs' Coordinating Committee, et al. v. Atomic Energy Commission, et al., supra.) In regard to interim licensing for the Quad Cities units, the only communication the AEC has received from an Illinois Agency on that matter has been from the Illinois Commerce Commission, and that agency, it might be noted, strongly urged issuance of an interim license authorization so as to enable supply of pressing power needs. As to the professed concern which seemingly is at the heart of plaintiffs' assertions the conjectured future violation of Illinois water quality standards-the short answer is that any Commission licensing action will, conformably with the requirements of Appendix D, to be conditioned to require licensee compliance with applicable Federal and State environmental standards. In these circumstances, we submit, there is no warrant for the extraordinary equitable relief which plaintiffs now seek from this Court. IV Exclusive Jurisdiction in Court of Appeals. The plaintiffs seek to enjoin the issuance of an interim limited operating license by the AEC and to enjoin inferentially the application of regulations recently issued by the AEC concerning permit compliance with NEPA. It is our contention that this relief can be granted, if at all, only in an action before a court of appeals pursuant to 28 U.S.C. 2342. Congress has expressly limited the jurisdiction of district courts by providing this exclusive remedy in the court of appeals. In Section 2342 Congress directed as follows: "The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— "(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42." (Emphasis added.) There can be no dispute that the issuance of regulations or operating licenses are actions reviewable under 42 U.S.C. 2239. The preemptive effect of the statute does not depend upon the proceeding before the AEC having come to a close. District courts are excluded from the judicial review process of the AEC actions within the scope of the statute. In Lloyd Harbor Study Group, Inc. v. Seaborg (E.D. N.Y. 70 Civ. 1252, decided April 2, 1971) not yet reported, an environmental group sought to enjoin a hearing on an application for a permit to construct a nuclear power plant in Shoreham, Long Island. It was alleged that the hearing board improperly excluded evidence of the effect of cooling * Letter of October 26, 1971, from the Chairman of the Illinois Commerce Commission to the Chairman, AEC. A copy of this letter, which is in the AEC Public Document Room, is appended to this Memorandum, infra. water discharge. No permit of any kind had been issued. In dismissing the complaint the Court stated, "the Courts of Appeals and not the District Courts are designated by Congress as the appropriate judicial body for review. 28 U.S.C. §§ 2341, 2342, 2344. The District Court has no place in the supervision of this phase of work of the A.E.C." A copy of the opinion in Lloyd Harbor is attached for the Court's convenience. The plaintiffs have made no showing that the remedy in the court of appeals is in any sense inadequate. That remedy, in terms of plaintiffs' present contentions, has two aspects: Plaintiffs, as earlier indicated, could have sought court of appeals review of the AEC regulations of September 9, 1971, within the 60-day review period specified in 28 U.S.Č. 2344. Further, plaintiffs could seek to contest the application of the regulations in the instant (interim authorization) proceeding pending before the AEC by petitioning the agency for leave to become a party. In the latter event, plaintiffs could seek judicial review of any licensing authorization which the AEC might thereafter grant following a hearing which the agency might direct; or, if party status were denied, review of the denial would be appropriate in a court of appeals under 28 U.S.C. 2342. We contend that if the plaintiffs are entitled to any relief, which we dispute as discussed above, the only court which can provide it is a court of appeals. CONCLUSION For the reasons stated above the defendants request that the motions for preliminary injunction be denied. Respectfully submitted. IRWIN L. SCHROEDER, I hereby certify that on November 16, 1971, a true copy of the foregoing Memorandum in Opposition to Motions for Preliminary Injunction was served by mail upon counsel for Plaintiffs at the following addresses: William J. Scott, Esquire, Attorney General of the State of Illinois, 160 North La Salle Street, Chicago, Illinois 60601. Attention: David C. Landgraf, Esquire; Joseph V. Karaganis, Esquire, 189 W. Madison, Chicago, Illinois 60602; Harold A. Katz, Esquire, Irving M. Friedman, Esquire, Katz & Friedman, 7 S. Dearborn Street, Chicago, Illinois 60603. IRWIN L. SCHROEDER. ILLINOIS COMMERCE COMMISSION, Hon. JAMES R. SCHLESINGER, DEAR CHAIRMAN SCHLESINGER: The current projections for summer 1972, electrical loads and capacities in Illinois are extremely disturbing. We have projected the summer situation by dividing the state into two general areas; the northern third, served by Commonwealth Edison, and the remainder, served primarily by Illinois Power, Central Illinois Light and Central Illinois Public Service. As the tables below show, each area is seriously short of capacity. Commonwealth Edison: Mw Projected Peak Load, 1972. June, 1972. Present total capacity Projected Reserve_-_ Capacity under construction scheduled for service by Illinois Power, CIPS and CILCO: Projected Peak Load, 1972. Present total capacity Projected Reserve June, 1972__ Capacity under construction scheduled for service by Adding these, the total Illinois situation is: Projected Peak Load, 1972. Present total capacity. 12,520 12, 340 (180) 3,100 4,440 4,385 (55) 950 16,960 16,725 (235) Projected Reserve. Capacity under construction scheduled for service 4,050 In is apparent that Illinois must put into operation some of the capacity now under construction before next summer or face the certainty of power outages. The units most able to contribute to the required capacity are Edison's Quad Cities 1 and 2, because they are ready for testing and operation. These gross capacity and load figures only outline the problem; the actual situation will be substantially worse, because of the nature of the load and capacity figures. Load may well be higher, because of the peak load is based on an average summer and is highly heat sensitive. With a few consecutive days of hotter than average weather and increased use of air conditioning, the load could be 10% higher. Capacity actually available on any given day will necessarily be less than the gross figures indicate. One of the reasons the companies try to maintain a minimum reserve of about 14% (or 2400 mw for the state) is that some equipment is always unavailable because it is in need of repairs. Commonwealth Edison's summer 1971 experience illustrates the point. More than 3,000 mw (or 25% of its total capacity) was unavailable on more than half the days during July and August. Some 2,200 mw were unavailable on its peak day. The high ratio of equipment outages to total capacity is a result of the companies having deferred maintenance on many older units during the past three years because no reserve capacity was available to allow the units to be closed down for maintenance. This situation will continue until the companies have enough new capacity on line to allow for maintenance of older units. It will be improved prior to the summer of 1972 only if substantial nuclear capacity is available for service this winter. Short term capacity shortages have in past years been made up by the purchase of firm or emergency power from neighboring companies. Firm purchases for use during the summer peak have become increasingly unavailable, as delays affect companies in neighboring states. Emergency interchange of power still takes place, but cannot be counted on to remedy the large capacity shortages which are likely to occur day after day next summer, absent the hoped for capacity additions. As a result, present projections, unless some or all of the pending nuclear plants are in operation, are that a portion of the Illinois load will be involuntarily interrupted on peak days during the summer of 1972. In addition to the probability of service interruptions on a scale never before experienced in Illinois, the current delays are having an effect on the financial posture of the companies and will ultimately affect the price paid by consumers. The companies estimate cost of alternative fuel to replace idle nuclear capacity as $800,000 per week per 1,000 mw. A six month delay in 1,500 mw thus imposes a $31,000 burden on our citizens. We are concerned with the logjam which has developed in licensing plants which are vitally needed before next summer. That problem can be solved only if reviews are made rapidly and interim operation is allowed pending that review. Respectfully submitted. DAVID H. ARMSTRONG, Chairman, Illinois Commerce Commission. ESTIMATED EFFECT ON 1972 EARNINGS OF NUCLEAR UNITS GENERATING 50 PERCENT OF ESTIMATE B. INDIAN POINT 2 AEC ISSUES LICENSE FOR FUEL LOADING OF INDIAN POINT NUCLEAR POWER PLANT IN NEW YORK OCTOBER 20, 1971 A license for fuel loading and subcritical testing of Unit 2 of the Indian Point Nuclear Power Station at Buchanan, New York, has been issued to the Consolidated Edison Company of New York by the Atomic Energy Commission's Division of Reactor Licensing. Under the license the reactor will not be made critical (sustain a chain reaction) following the fuel loading. Issuance of the license results from July 20, 1971 and October 15, 1971, orders of the Atomic Safety and Licensing Board which is conducting a public hearing on the company's application for a license to operate Unit 2 of the Indian Point Station. On July 20, the board had authorized the Director of Regulation to issue the fuel loading license. However, issuance was delayed pending presentation of evidence that this activity would result in no significant adverse effect on the environment. On October 15, the licensing board issued an order stating that upon consideration of the evidence that no radioactivity will be released in the course of this activity, that the chemical discharges will not be harmful and that the thermal releases are of low level and result from pump operations, there was no reason to change or modify the authority granted on July 20 for environmental reasons. Before the license was issued, the AEC found that the facility meets the safety requirements for fuel loading and subcritical testing and the facility was inspected to assure that construction was satisfactorily completed for this type of activity. The public hearing on the application for an operating license is scheduled to resume on November 1 at the Springvale Inn, 500 Albany Post Road, Croton-on-Hudson, New York. C. PALISADES United States of America-Atomic Energy Commission IN THE MATTER OF CONSUMERS POWER COMPANY (PALISADES PLANT) (Docket No. 50-255) Order Authorizing Director of Regulation to Amend License to Permit Further Operations Short of Full Power Operations to Extent of 20 Percent of Rated Power or at 440 MWt. With Thermal Release Not to Exceed 3° F. Above Existing Natural Temperature at Edge of Mixing Zone On September 27, 1971, Consumers Power Company (Applicant) filed a motion requesting the Atomic Safety and Licensing Board to issue an Order, pursuant to Sections 50.57 (a) and 50.57 (c) of the Commission's Regulations, authorizing the Director of Regulation |