ML19326D425
| ML19326D425 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/03/1978 |
| From: | Ross W CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8006110443 | |
| Download: ML19326D425 (6) | |
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UNITED STATES OF AMERICA csj**.
NUCLEAR REGULATORY COMMISSION 6
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Docket Nos 50-329A)
CONSUMERS POWER COMPANY
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-t30T Midland Plant, Units 1 and 2
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To the Nuclear Regulatory Commission:
REPLY OF CONSUMERS POWER COMPANY TO RESPONSES OF OTHER PARTIES On January 27,,1977, the Department of Justice
(" Department"), the NRC Staff
(" Staff") and the intervening Michigan Municipals and Cooperatives ("Muni-Coops") filed responses to the Commission's order of January 13, 1977.
In their responses, the Department and the Staff urge deferral of Commission review of ALAB-452 until after the remanded license condition-remedy phase of the proceeding is complete.
The response of the Muni-Coops expressed "no objection to immediate review of ALAB-452," although it suggested that the Commission might wish to defer.
Consumers Power Company (" Consumers Power") hereby l
replies to these pleadings and, for the reasons described below, submits that they offer no reasonable basis for Commis-sion deferral of reviewing ALAB-452.
1.
In its January 27 filing, Consumers Power pointed out that immediate review of ALAB-452 will help alleviate present uncertainty about the Commission's antitrust responsibilitie,s 8006110 $D
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and thus provide much needed guidance to the remand proceeding in this case, to other on-going antitrust proceedings before the Appeal Board and Licensing Boards, and to the industry generally.
only the Staff addresses this point and it concedes that the Appeal Board and Licensing Boards "would be benefitted by such guidance."
(p. 3)
Nevertheless, the Staff supports deferral of Commission review of ALAB-452 because deferral "would not prevent those Boards from deciding matters before them based on existing precedent."
What the Staff ignores is that there is no Com-I mission precedent en the issues raised by ALAB-452 since Midland is the first fully-litigated antitrust proceeding under Section 105c to come before the Commission.
Thus, in the absence of 4
immediate review, antitrust decisions by the boards continue without commission guidance, and may be erroneous and require further time-consuming litigation.
2.
Likewise, immediate review of ALAB-452 could well conserve resources in the remanded license condition-remedy phase of this proceeding.
A reversal of ALAB-452 wruld obviate the need for any remand proceeding.
In addition, contrary to the suggestion of the Muni-Coops (p. 2), the mandate of the remand' tribunal would be significantly affected even if the Commission modifies only some of the Appeal Board's findings in ALAB-452.
That is, even assuming' arguendo that some relief is l
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l deemed appropriate, the nature of.that relief will vary with the extent to which the Appeal Board's findings are affirmed.
- Thus, deferral of review could require yet another round of remand 4
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. proceedings if the Commission modifies ALAB-452 in any sub-stantial respect.
Given the complexity of the case and what we deem to be the many errors of ALAB-452, the prospect for at least some such modification is readily apparent.-1/
Deferral of Commission review of ALAB-452 is, accordingly, a prescrip-
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tion for waste and delay.- The Staff concedes as much, recog-
. nizing that a remand proceeding without benefit of Commission review "might make the efforts expended in the remand hearing either unnecessary, duplicative or misdirected" (p. 4).
Although the Staff's reference was only to the infirmity of concurrent Commission review and remand proceedings, its con-clusion is equally applicable to remand proceedings which precede Commission review of ALAB-452.
3.
Each. of the other parties herein urge that ALAB-452 is somehow not final, and that the record is somehow
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not complete or ripe for review, becuase of the pendency of i
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Muni-Coops urge that affirmance of ALAB-452 is likely because this case is " indistinguishable" from Otter Tail Power Co. v. United States and more recent cases nolding that electric utilities are not " immune from the full impact of.the' federal antitrust laws."
This assertion conveniently ignores the fact t' hat at no time in the proceeding has Consumers Power claimed immunity from the antitrust laws.
Moreover, if this case is " indistinguishable" from any Supreme Court precedent, it would hardly have required a 432-page decision to se establish.
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the remedy-license condition phase of the case.
In support of this argument, the parties note only that consideration of appropriate license conditions requires review of the entire record.
This argument completely misses the point.
The remedial phase of the proceeding will produce no evidence or findings relevant to ALA3-452's conclusions that Consumers Power violated the antitrust laws prior to the cle'se of the record in 1974.
The decision is final and the record is com-plete with respect,to those conclusions.
Thus, the remand proceedings will add nothing -- except delay -- to the Com-mission's ability to review ALAB-452.
4.
Although, as noted above, Commission deferral of review could render the remand proceedings moot or unneces-sary, the converse is not true.
That is, the remand proceedings will not eliminate the need for Commission review of ALA3-452.
We ackncwledge that remand proceedings could well produce license conditions to which' the Company does not object; they could even produce the conclusion that no license conditions are appropriate because of "public interest" considerations.
See Section 105 (c) (6).
2/
The Muni-Coops cite (p. 2) 1947 and 1934 cases for the proposition that ALAD-452 is not a final order.
Those cases involved pre-aearing interlocutory issues about jurisdiction, unlike the instant proceeding in which Consumers Power has bc2n found in violation of the anti-trust laws and only the nature of the remedy remains at issue.
Brcwn Shoe, Inc. v. United States, 370 U.S. 294 (1962) is thus controlling here.
See our January 27 response, p. 5.
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5-But that result would still require-Consumers Power to seek review of ALAB-452 because, as noted in our January 27 response (p. 5),
that decision's conclusions concerning antitrust violations could have serious impacts far beyond,the four corners of this proceed-ing.
The suggestion of the Muni-Coops (p. 2) that the parties may be able to reach a settlement or agreement as to license conditions is therefore irrelevant since such a settlement will
, not eliminate the Company's need to seek review of ALAB-452.
In short, the results of the remand proceedings will neither assist the Commission's review of ALAB-452 nor render moot the need for such review.
It is therefore clear that Commission review will not delay completion of this proceeding since that review must be uddertaken at some point.
We understand the desire of the other parties to delay the day when ALAB-452 is subjected to review and possible reversal.since that decision reflects the views and philosophies which they have long espoused.
But these parochial concerns do not invalidate the clear public interest considerations favoring review now.
Respectfully submitted, Wm. Warfield Ross Keith S. Watson WALD, IIARKRADER & ROSS 1320 Nineteenth Street, N.W.
Washington, D.C.
20036
'202) 296-2121 Counsel for Consumers Pcwer Ccmpany.
February 3, 1978
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CERTIFICATE OF SERVICE I hereby certify that I have this 3rd day of February, 1978, served a copy of the foregoing REPLY OF CONSUMEnS POWER COMPANY TO RESPONSES OF OTHER PARTIES by mail, postage prepaid, upon the following persons:
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Hugh K. Clark, Esquire Mark Levin, Esquire Chairman, Atomic Safety Forrest Bannon, Esquire and Licensing Board Antitrust Division Nuclear Regulatory Commission Department of Justice
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Washington, D.C.
20555 P. O. Box 7513 Washington, D.C.
20044 Joseph Rutherg, Esquire Antitrust Counsel for Nuclear The Honorable Frank Kelly Regulatory Commission Staff Attorney General a
Nuclear Regulatory Commission State of Michigan Washington, D.C.
20545 Lansing, Michigan 48913 Chase R. Stephens, Chief.
Dr. J. V. Leeds, Jr.
Docketing & Service Branch P. O. Bcx 941 Office of the Secretary Houston, Texas 77001 Nuclear Regulatory Commission Washington, D.C.
20555 Robert A. Jablon, Esquire Spiegel & McDiarmid Seth R. Burwell, Esquire 2600 Virginia Avenue, N.W.
Burwell & Shrank Washington, D.C.
20037 1020 Washington Square Building Lansing, Michigan 48933 KEITH S. WATSON O
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