ML19331A475
| ML19331A475 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/18/1977 |
| From: | Bartleman C CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8007170727 | |
| Download: ML19331A475 (9) | |
Text
_ __
+
e f
q{hb T $
l
@(b4 [6 7
EFORE T!!E ATOMIC SAFETY AND LICENSING APPEAL BOARD OR IN T!!E ALTERNATIVE BEFORE TIIE NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket Nosc-50=329.
)
D30' (Midland Plant, Uni,ts 1 and 2)
)
RESPONSE TO INTERVENORS' (EXCEPT TIIE DOW CHEMICAL COMPANY)
EMERGENCY MOTION FOR DIRECTED CERTIFICATION ef-/f~7 7 Consumers Power Company (Licensee) hereby opposes the March 13, 1977 Motion of all Intervenors except The Dow Chemical Company (Intervenors) for directed certification of the Licensing Board Order of February 25, 1977 denying any financial assistance to the Intervenors.*
The Motion arises l
l from the Licensing Board's denial of a motion to certify the issue on March 11, 1977.
Licensee strongly opposes this Motion on both procedural and substantive grounds.
s' Because the Licensing Board has already ruled on the issue of financial assistance, Licensee believes that it would be more accurate to designate the procedure involved here as a " referral."
Certification involves the submission of a legal issue to a higher tribunal for its consideration without a ruling having been made on that issue by the certifying body.
Consumers Pcwer Company (Midland Plant, Units 1 and 2), ALAD-152, RAI-73-10, at 818 n.
6 (October 5, 1973).
However, the dis-tinctions between certification and referral have apparently become blurred.
Public Service Company of New Ilampshire (Seabrook Station, Units 1 and 2), ALAB-271, NRCI-75-5 at
//y 482 g (
21, 1975).
17.o y gy 0
PROCEDURAL STANDARDS It is clear that Intervenors' motion is devoid of any grounds which meet the strict standards of referral or certifi-cation.
The interlocutory appeal procedure is intended to be an exceptional one.
T.he rules state that certification is only appropriate "when a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission or the Appeal Board and when the prompt and i
final decision is important for the protection of the public interest or to avoid undue delay or serious prejudice to the' interest of a party."
Appendix A to 10 C.F.R. Part 2, at V. (f) (4).
The standard for referral is equally strict:
No interlocutory appeal may be taken to l
the Commission from a ruling of the presiding officer.
When in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer may refer the ruling promptly to the Commission and notify the parties either by announcement on the record or by written notice if the hearing is not in ses-sion.
(emphasis added) 10 C.F.R. 52.730 (f).
Appeal Boards have interpreted this standard as requiring a showing that there must be a " potential of truly exceptional delay or expense" if the issue is not referred.
Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-ll6, RAI-73-4, p. 259.
(April 17,1973).
e-c
+
- - - -,,,. - - - +,, -
Accord, Public Service Company of New Itampnhire (Seabrook Station, Units 1 and 2) ALAD-271, NRCI-75-5, pp. 478-86 (May 21,1975) ; Vermont Yankee Nuclear Power Corporation (Vermont Yankee Power Station), ALAB-217, RAI-74-7, pp. 61-78 (July 11, 1974).
No unusual delay or added expense will occur in the present case if the question of financial assistance awaits the normal review process.
l SUBSTANTIVE DISCUSSION l
The Nuclear Regulatory Commission (Commission) has already made a clear determination that financial assistance should not be awarded to Intervenors in agency proceedings:
...the Commission has determined not to initiate a program to provide funding for participants in its licensina, enforcement j
and antitrust proceedings, and, as a general proposition, in its rulemaking proceedings.
l These determinations rest upon both policy I
considerations and the limited extent of the Commission's present authority to extend financial assistance under the Comptroller l
General's ruling.
41 F.R.
50829*
The Comptroller General's decision cited (and discussed at length) by the Commission (41 F.R. 50829-50830) ruled that the question of whether to provide financial aid is basically one of "whether it is necessary to pay the expenses of indigent inter-venors in order to carry out NRC's statutory functions in making l
l licensing determinations" and that only the Commission itself could make a determination on that question.
41 F.R.
50830.
The Commission exempted only the CFF?tO proceeding "because of the extraordinary importance and far-reaching ramifications of that particular proceeding."
41 F.R. at 50829.
l
~
The Commission then considered whether it could make affirmative findings on the standards which the Comptroller General's ruling found would have to be met before financial assistance-could.be granted.
These standards were presented in the two questions of (1) whether it could find that it "'cannot make' necessary licensing or rulemaking determinations - such as that a proposed facility can be constructed and operated without undu'e risk to the health and safety of the public (10 C.F.R. 50.35)
- unless financial assistance is extended to participants who require it"; and (2) whether funded participation is " essential" l
to its disposition of such issues.
Id.
The Commission found that it could not make an affirmative finding on either of those i
questions and'made the ultimate determination that financial I
assistance would not be gr' anted.
Consequently, Intervenors' citation to Greene County Planning Board v. FPC, F.2d
, 45 L.W. 2319-20 (2nd Cir.
1976)- is inapposite.
In Greene County, the court was merely advising the FPC that it had the authority to award fees, based on the Comptroller General's decision relating to the NRC, and remanded to the FPC for reconsideration is light of that decision..
In contrast, in the circumstances of the present case, the NRC has already acknowledged that it has such authority, and has passed on the matter with express reference to the Comptroller General's decision.
File No. B-92288, at 41 F.R. 50830.
- Moreover, Greene County is distinguishable because it involved a case of already successful Intervenors who may have played an " essential role" in proceedings.
45 LW at 2320.
Furthermore, the commission decision does not allow for exceptions in individual cases.
In disagreeing with a dis-senting Commissioner, the commission stated that "we cannot agree with Commissioner Gilinsky's suggestion that the Comptro11~er General's standards provide the basis for submissions by parties i
on a case-by-case basis."
41 F.R. at 50830.
Intervenors assertion
~
i that "this case is different" (at p. 2) is, therefore, irrelevant.
The breadth of the Commission's decision is further shown in its discussion of whether the issue of financial assistance is an appropriate one for ultimate resolution by Congress, where it made the following statement:
"we do not recommend that Congress provide funding for ordinary licensing or rulemaking proceedings."
41 F. R. at 50831.
Consequently, the Commission has already expressly ruled on this matter and the Appeal Board is-bound by that decision.
It is also important to review the history of these particular Intervenors with regard to this issue; they have never proved indigence.
The Commission's,.recent decision noted this fact:
In the summer of 1974, acknowle'dging that the law in this area was not clear, the Atomic Energy Commission denied a request for financial assistance from intervenors in the Midland show cause proceeding for lack of an adequate showing of need, without reaching the statutory authority question.
In that proceeding, one of the groups assoc-lated with the funding request was the United Auto Workers of America, an organization then having a net worth in excess of $100 million.
41 F.R. at 50829
M The United Auto dorkers are still listed as one of the Intervenors in this proceeding, as is the Sierra Club.
These are hardly in-digent institutions.
(If, in fact, these institutions no longer support the position of Intervenors, it is incumbent on Intervenors' counsel to ackno-ledge-this termination of support on the record and to withdraw them as Intervenors.)
Intervenors' counsel's
" threats" to withdraw from the proceedings because of lack of funds (which have taken up innumerable transcript pages, eg,,,
Tr. 3500-16, and have absorbed several hours of hearing time on various days, time which would better have been spent on the
~
i substantive issues) must'be viewed in the light of claims of indigence which go back several years, but which to date have not forestalled Intervenors' participation.
For the rest, the self-serving declarations in Inter-venors' motion deserve no. response.
They are gross mischaracter-ization of the record, a tactic which has characterized their participation in these proceedings.
They have delayed the For example, Intervenors have claimed on numerous occasions
- that they hava." ferreted out" esuential information not presented by the other parties.
In particular, these claims have been made It should be noted with resperc to the Dow-Consumers relationship.
in this regard that Mr. Temple testified for Dow,~at the beginning of theFe proceedings, that Dow had undergone a review of the econo-mics of the Midland Plant and the result of that review was that i
i l
"at the present time, circumstances have not changed sufficiently to call for a modification of Dow's commitment to nuclear produced i
steam to be supplied by Consumers Power in March of 1982," that "under the present circumstances as known to Dow, the nuclear alter-native remains the most attractive one economically," but that there Tr. 220 at pp.
2, 3.
wculd be " continuous review" of the matter.
After 21 days of hearing, many of which concerned the Dow-consumers relationship, Dow reiterated its position in its Further Answers to
!,taff Interrogatories (February 28, 1977): "In September, 1976, Dow concluded, as part of the corporate review of the Midland Nuclear that, based upon the information then provided, the Midland l'roject, Euclear Plant retained an economic advantage over the alternatives Dow's official position as a company remains unchanged.
considered.
No person in Dow's employ has any authority or power to change this To date, Dow has not been advised of changes which it position.
considers sufficient to require that it undertake a new analysis."
(Answer No. 14) 6 -
. -- ~ _ _ _ _ _. _,_
s proceedings, accused each of thn other parties of misconduct innumerable times, announced more than once that they were about to make startling disclosures of " hot" items (which, of course, never materialized) (Tr. 3768), and made threats of withdrawal and lawyers' speeches ad nauseum.
In conclusion, it is important to note the policy considerations involved in the Commission's decision not to finance participation in agency proceedings.
Principally, funding of Intervenors involves support of "a viewpoint which is not subject to control or oversight by the public's elected represen-tatives and which may or may not reflect the views of many members of the public."
41 F.R.
at 50831.
Public funding in this case is particularly inappropriate for precisely that reason.
Intervenors are accountable to no one and to date they have acted accordingly.
Licensee believes that the awarding of funds would only promote their irresponsible conduct.
i Respectfully submitted, I
Caryl/A. Bartleman One of the Attorneys for Consumers Power Company March 18, 1977 t
O
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 " Response l
to Intervenors' (Except The Dow Chemical Company) Emergency Motion For Directed Certification", dated March 18, 1977, have been served upon the following by hand delivery in Washington, D.C.
l this 18th day of March, 1977:
Charles Bechhoefer, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555
(
The following parties have been served by deposit in the U.S._ mail, first class, postage prepaid, this 18th day of Mqrch, 1977:
Frederic J. Coufal, Esquire Atomic Safety and Licensing Chairman Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.
Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 w
w r
m w
--r-
Pcga 2 Dr. Emmeth A. Luebke, Esq.
Mr. C.
R.
Stcphens Atomic Safety and Licensing Chief, Docket:ing and Service Sectiod Board Panel Office of the Secretary U.S. Nuclear Regulatory Comm.
of the Commission Washington, D.C.
20555 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Dr. J. Venn Leeds, Jr., Esq.
10807 Atwell Lawrence Brenner, Esquire IIouston, Texas 77096 Counsel for MRC Staff U.S. Nuclear Regulatory Comm.
Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U.S. Nuclear Regulatory Comm.
L. F. Nute, Esquire Washington, D.C.
20555 Legal Department Dow Chemical U.S.A.
Myron M.
Cherry, Esquire Michigan Division One IBM Plaza Midland, Michigan 48640 Suite 4501 Chicago, Illinois 60611 Caryl f. Bartelman One of the Attorneys for Consumers Power Company Isham, Lincoln & Beale One First National Plaza l
Chicago, Illinois 60603 March 18, 1977 f
l l
e
.-,--,e
-