ML19289C206

Answer of CPC to Motion by M Cherry,Representing All Intervenors Other than Dow Chem Co,For Joint Consideration of Oper & Constr Matters.Cpc Asserts That Consolidation Is Neither Req Nor Justified.Cert of Svc Encl

ML19289C206
Person / Time
Site:	Midland
Issue date:	11/28/1978
From:	Gibbs M, Mark Miller ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7812140362
Download: ML19289C206 (12)

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<[V NUCLEAR REGULATORY CCMMISSION .

Before the Atomic Safety and Licensina Board In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 (Midland Plant, Units )

1 and 2) )

ANSWER OF CONSUMERS POWER COMPANY TO MOTION FOR JOINT CONSIDERATION OF OPERATING AND CONSTRUCTION MATTERS On November 13, 1978, Mr. Myron M. Cherry, who represents All Intervenors Other Than The Dow Chemical Company ("Intervenors") in the reopened construction permit proceedings, sent a letter to the Chairman of this Atomic Safety and Licensing Board (" Licensing Board") which purported to ask for advice concerning the Memorandum and order of the Nuclear Regulatory Commission (the "NRC" or the " Commission")

dated November 6, 1978, which relates to the Midland Plant.

For the reasons explained below, Consumers Power Company

(" Consumers Power" or Licensee" ) is treating Mr. Cherry's letter as a motion for consolidation of the operating license and construction permit proceedings in this docket, and therefore files this answer in opposition to Intervenors' -

motion.

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I. MR. CHERRY'S LETTER MUST BE VIEWED AS A MOTION ,

Consumers Power objects strongly to the tactic $

employed by Intervenors in writing a letter to the Chairman of the Licensing Board rather than filing a motion pursuant to 10 C.:. $ 2.73C. Certainly, there are instances in -

which a party may, and sometimes must, write to the Licens-ing Board concerning a pending matter. Letters informing the Licensing Board of new developments or changed circum-stances regarding a case, or dealing with minor administra-tive matters, are two examples of letters which would be appropriate. When what a party actually seeks to accomplish, however, is to suggest that the Licensing Board take a certain course of action and, concomitantly, to persuade the Licensing Board to do so, a letter to the Chairman is a most improper means to that end.

The letter from Mr. Cherry to the Chairman of this Licensing Board must be viewed as an attempt to persuade the Licensing Board to order consolidation of matters in the operating license and construction permit proceedings.

Consumers Power opposes this course of action, and therefore submits an answer to Intervenors' de facto motion, as provided by 10 C.F.R. S 2.730(c).

To prevent a repetition of this problem, all parties to this proceeding should be instructed that the -

correct vehicle for communicating with the Liv-.1 sing Board in matters of this nature is a motion filed according to the Commission's Rules of Practice. .

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II. JOINT CCNSIDERATION OF MATTERS IN THE OPERATING LICENSE AND CCNSTRUCTICN PERMIT '

PROCEEDINGS IS UNWARRANTED AND SHOULD BE DENIED Contrary to the implications of Mr. Cherry's letter, there is no justification for any type of " joint consideration" being given to the construction permit and operating license proceedings for the Midland Plant. That action is neither mandated by the Commission's November 6, 1978 Memorandum and Order nor warranted under the standards governing consolidation of Nhc proceedings, 10 C.F.R. $ 2.716.

A. The Commission's November 6, 1978 Order Because this Licensing Board is farailiar with the complex procedural history of the Midland Plant, only the salient features will be repeated here. The orders authorizing construction permits for the Midland Plant were remanded to tha Commission by the Court of Appeals in Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976). After evidentiary hearings, the Licensing Board decided not to suspend or modify the construction permits pending the outcome of the hearings on the remanded issues; that decision was affirmed by the Atomic Safety and Licensing Appeal Board (" Appeal Board"). ,

Consumers Power Company (Midland Plant, Units 1 and 2),

LBP-77-57, 6 NRC 482 (1977), affirmed, ALAB-458, 7 NRC 155 (1978). Before the remand hearings were to begin, however, the United States Supreme Court reversed Aeschliman in Vermont Yankee Nuclear Power Corp. v. NRCC, 98 S.Ct. 1197 er e ><m

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(1978). After requesting and receiving the views of the

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parties, the Commission ruled which issues remained for NRC consideration in view of /ermont Yankee in a Memorandum and .

Order dated November 6, 1978.

It is from that Order that Intervenors draw the conclusion that there should be joint consideration of the operating license and construction permit proceedings. As Mr. Cherry stated in his November 13, 1978 letter:

The Memorandum and Order of the Ccmmission dated November 6, 1978, suggests that some joint consideration may be had on both the operation and construction matters.

This characterization of the Commission's November 6 Order is simply erroneous. The Commission's latest pronouncement in the Midland Plant case does set forth two issues to be considered by this Licensing Board; it does not indicate in any way that the consideration of those issues should be combined with proceedings related to the application for operating licenses for the Midland Plant.

In its Order, the Commission determined that, although none of the issues raised by Aeschliman remained to be considered, two other issues warranted resolution by the Licensing Board. The first concerned the envircnmental effects of radon, which became litigable in individual proceedings when the NRC removed the values for radon from Table S-3, 43 Fed. Reg. 15613 (1978). The second ssue concerned an attorney conduct question which arose during -

the Midland Plant suspension hearings.

Nothing in the text of the Commission's Order indicates, even obliquely, that the consideration of those two issues by the construction permit Licensing Board should .

be somehow combined with the conduct of the Midland Plant operating license proceedings. In fact, a reading of the November 6 Order demonstrates convincingly that the Ccmmis-sioners expected and intended that the two proceedings would run concurrently. The only matter discussed in the Order which entails reference to the operating license proceedings is the question of the ACRS letters and reports regarding the Midland Plant. The Commission stated that no issue remained in that area, and then went on to consider the general question of unresolved safety issues, stating:

The absence in the staff report [ Supplement No. 2 to the Safety Evaluation Report] of some indication of a problem which will create serious safety concerns, and the fact that the construction and operating license proceedings will overlao, lead us to believe that in this instance the remaining unresolved safety issues can be more profitably considered under the standards appropriate to an operating license proceeding. Order at 6 ( footnote omitted) (emphasis supplied).

This quotation shows that the Commissioners were fully aware of the fact that the reopened construction permit hearings and the operating license hearings would occupy the same time frame. There is no hint in that quota-tion, or in the Order as a whole, that the two proceedings should somehow be combined or that one hearing should await .

the completion of the other. Indeed, the Commission's justification for removing the issues of unresolved safety

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r concerns from the jurisdiction of the construction permit

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Licensing Board was that the matter could better be consi-dered at the operating license hearings. _

B. Consolidation of Proceedings Under C.F.R. 5 2.716 Because the Commission's Order of November 6 does not require, or even suggest, that there be joint considera-tion of the Midland Plant operating license and construction permit proceedings, the only other justification for doing so would be 10 C.F.R. 5 2.716. That regulation provides that:

On motion and for good cause shown or on its own initiative, the Commission or the presiding officers of each affected proceeding may consolidate for hearinga or for other purposes two or more pro-ceedings, or may hold joint hearings with interested States and/or other federal agencies on matters of concurrent juris-diction, if it is found that such action will be conducive to the proper dispatch of its business and to the ends of jus-tice and will be conducted in accordance with the other provisions of this subpart.

A. ' hough that section was recently amended the standards governing consolidation were not changed, so that NRC opinions decided under the previous version of 5 2.716 are applicable here. Several of these will be reviewed so as to gain an .

understanding of the circumstances under which consolidation is appropriate.

The Commission had occasion to analyze 5 2.716 in Edlow International Comoany (Agent for the Government of India on Application to Export Special Nuclear Materials),

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CLI-77-16, 5 NRC 1327, 1328-29 (1977), in which that section

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was analogized to Rule 42(a) of the Federal Rules of Civil Procedure. That rule provides that, if actions involve .

common questions of law or fact, they may be consolidated if consolidation would " avoid unnecessary costs or delay." The Commission ordered consolidation in Edlow, emphasinng that the issues in the two proceedings to be consolidated appeared to be identical.

Consolidation was ordered by a Licensing Doard in Allied General Nuclear Services (Barnwell Nuclear Fuel Plant), LBP-74-50, 8 AEC 101, 102 (1974). In reaching that decision, the following facts were relied upon: The conten-tions to be litigated in the two proceedings were identical, the same Licensing Board was assigned to both proceedings, and it was determined that no prejudice to any party would result from consolidation.

Another Licensing Board ordered consolidation in The Toledo Edison Comnanv, et al. (David-Bessee Nuclear Power Station), LBP-74-13, 7 AEC 282, 286 (1974). In that opinion the Licensing Board considered the facts that the parties supported consolidation and that that procedure would eliminate waste of time and would reduce cost and .

duplication of effort in reaching the conclusion that consolidation under 9 2.716 was warranted.

a Consolidation was not ordered under 9 2.716, since that applies only to adjudicatory hearings . However, the Commission looked to S 2.716 for guidance in deciding whether or not to consolidate.

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Another factor to be weighed in the consolidation decision is whether consolidation would cause unreasonable delay. Alabama Power Company (Alan R. Barton Nuclear Plant, .

Units 1, 2, 3 and 4), CLI-75-12, 2 NRC 373, 374 (1975).

Finally, the comments which accompanied the amend-ments to S 2.716 stated that:

These changes allowing Atomic Safety and Licensing Boards to consolidate hearings or to hold joint hearings with other agencies are expected to be used to avoid costly and time-consuming duolication of effort. Consolidation is separately approved by each of the affected Licensing Boards. 43 Fed. Reg. 17798, 17800 (1978) (emphasis supplied.)

A comparison of the relevant factors listed above to the facts of the Midland Plant case demonstrates convinc-ingly that there is no basis for ordering a consolidation of the operating license and construction permit proceedings.

It is apparent that the crux of the consolidation decision is whether the issues to be determined in the two proceedings are identical. If they are, it naturally follows that consolidation would save time and reduce cost and duplication of effort. This is the element which is lacking in the instant situation, however, for there is no identity of issues between the operating license and construction permit .

proceedings. The Commission has assigned this Licensing Board two narrow issues to resolve, the environmental effects of radon and the attorney conduct question. These matters are not identical, or even related, to the issues which will be considered by the Licensing Board assigned to the operating license proceedings.

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An intervenor in the operating license proceed-

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ings, who is represented by Mr. Cherry, has filed extensive contentions which she seeks to litigate before the Licensing .

Board conducting the operating license hearings. None of the contentions raises any issue regarding radon. While some seek to raise the question of the conduct of Consumers Power's counsel in the construction permit suspension pro-ceedings, those contentions are manifestly inappropriate for consideration in the operating license hearings and are unlikely to be admitted as a matter in controversy in that proceeding. Indeed, the Commission has clearly indicated that it is this Licensing Board alone which has jurisdiction to consider the attorney conduct issue.

Because the issues in the two proceedings are not the same, consolidation would not result in savings of time, cost or effort. On the contrary, consolidation of the Midland Plant proceedings would result in delay, for the schedule for the operating license proceedings would be set back if the radon and attorney conduct questions had to be heard in addition to the operating license issues. Thus, Consumers Power would be prejudiced by an order directing consolidation of the two proceedings.

For the reasons set forth above, consolidation under 9 2.716 would be unwarranted in the Midland Plant situation.

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CONCLUSION As Consumers Power has demonstrated that consoli- .

dation of the operating license and construction permit proceedings is neither required by the Commission's November 6, 1978 Memorandum and Order, nor justified under 10 C.F.R. 5 2.716, Intervenors' motion for consolidation must be denied.

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Michael I. Miller

., _. i I .? ' r. "s 1. ~ . M' Martha E. Gibbs Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 786-7500 November 28, 1978 6

t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket Nos. 50-329 -

) 50-330 (Midland Plant, Units 1 and 2) )

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the attached

" ANSWER OF CONSUMERS POWER COMPANY TO MOTION FOR JOINT CONSIDERATION OF OPERATING AND CONSTRUCTION MATTERS" in the above-captioned proceeding, have been served on the following parties by United States Mail, first-class postage prepaid, this 28th day of November, 1978:

Marshal E. Miller, Esq. Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.

Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Mr. C.R. Stephens Chief, Docketing & Service Atomic Safety and Licensing Section Appeal Board Office of Secretary of the U.S. Nuclear Regulatory Comm. Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Comm. -

Washington, D.C. 20555 Richard Hoefling, Esq.

Counsel for NRC Staff Dr. J. Venn Leeds, Jr.

U.S. Nuclear Regulatory Comm. 10807 Atwell Washington, D.C. 20555 Houston, Texas 77096 .

6 m -

7 Dr. Emmeth A. Luebke L. W. Pribila, Esq. -

Atomic Safety and Licensing Legal Department Board Panel Dow Chemical U.S.A.

U.S. Nuclear Regulatory Comm. Michigan Division, Bldg. # 47 ,

Washington, D.C. 20555 Midland, Michigan 48640 Myron M. Cherry, Esq.

Suite 4501, One IBM Plaza Chicago, Illinois 60611

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) & 3ll 30a\.,\ . .m Martha E. Gibbs Attorney for Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 786-7500 November 28, 1978 e

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