ML19331A804
| ML19331A804 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/08/1976 |
| From: | Lowenstein R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| Shared Package | |
| ML19331A803 | List: |
| References | |
| NUDOCS 8007230835 | |
| Download: ML19331A804 (5) | |
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.s UNITIJD STATES OF AMERICA befo're the NUCLEAR REGULATORY COM"ISSION
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In,the Matter of
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CONSUMERS PONER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 & 2)
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REPLY TO STAFF ANSWER The answer of the NRC Staff,b! filed yesterday, almost wholly fails to address the issues raised in the
" Motion of Consumers Power Company to Recall Show Cause Proceedings."
About one-third (pp.
3-6, 8-9) of the approximately nine-page answer argues that the Commis-sion had the discretion to take the action criticized in the motion, clearly implying that the Commission also had the discretion not to ti.ke that action.
The remainder of the answer simply does not discuss why the Commission's discretion should have been exercised the way it was.
Con-sequently, if nothing else, the answer underscores the need for oral argument.
1/
" Answer of NRC Staff to Motions of Vermont Yankee Nuclear Power Corporation and Consumers Power Company for Recall
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and Reconsideration of Commission Order' Directing Re-convening of ASLB to Consider Certain Matters," dated j
September 7, 1976.
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The motion pointed out that the Licensees and intervening utilities who are parties to Natural Resources Defense Council v. NRC and Aeschliman v. NRC ("the fuel cycle decisions") had determined to seek Supreme Court review of thoce decisions and that the Government was con-sidering seeking such review.2/
The motion emphasized the heavy investment which Consumers Power company had made in complying with the terms of the construction permits, the potentially great social and financial costs involved in suspension, and the equitable considerations which weigh against the institution of suspension proceedings at this time.
The motion took the position that, even if suspension should become necessary at some time in the future, it should not be imposed hastily or prematurely.
The gist of the position suggested by the motion was set forth in paragraph numbered 2, as follows:
2.
The technicalities of whether a mandate has or has not issued aside, it makes no sense to put already issued con-struction permits and operating licenses in jeopardy at this time.
If the Supreme Court determines to review the cases, 2/
Since then Chairman Rowden stated that:
"We are actively pursuing the question of appeal with the Department of Justice."
Stenographic Transcript of Hearings Before the Joint Committee on Atomic Energy, August 27, 1976,
- p. 29.
In addition, we have been informed that the NRC has in fact recommended to the Department of Justice that the United States file a petition for a writ o.f certiorari.
"*% full implementation of the Court of Appeals decijions would be inappropriate while the cases are pending before the Supreme Court.
On the other hand, if the Supreme Court declines to review the cases, any delay in implementing the principles they adopt against any Commission licensee or permitee will have only been for the com-paratively brief period of time it will take the Supreme Court to decline to issue the writ.
The answer of the NRC Staff takes the position that the handling of high-level radioactive wastes is a matter of very great importance and that the fuel cycle decisions have extremely significant public policy impli-the answer clearly indicates that the cations.
- However, Commission has the authority to defer suspension pro-ceedings until Supreme Court review has been either com-pleted or foreclosed, yet it says not a single word about why either the fuel cycle decisions or public policy require that the construction permits be put in peril before that time.
Certainly, if the Commission Staff does not even address the question, reconsideration and I
oral argument are appropriate.
In our view, the Staff's answer without explanation misinterprets the Commission's General Statement of Policy with respect to the "other issues" (i.e., energy conservation and the ACRS Report) involved in this proceeding.
Foot-note 5 of the answer reads as follows:
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.~ We understand that the mandate in Aeschliman is about to issue.
As we read the Commis-sion's General Statement of Policy, once the mandate issues the Midland Licensing Board will be empowered to hear and decide the other issues remanded in Midland, and as an incident to that power, to enter-tain any requests for a stay or suspension of the Midland construction permits pending completion of the remand proceedings on the other issues.
The only language in the General Statement of Policy which bears on this matter is contained in Footnote 2, which reads as follows:
An evidentiary hearin'g on'other issues will be required in Midland, barring further review.
That hearing, however, should not be commenced until the Midland decision has become final.
(Emphasis supplied) 41 F.
R.
34,707, 34,709.
The unmistakable thrust of that language is that issues in addition to the fuel cycle issue will be considered in connection with the hearing called for by the General Statement of Policy (which it-self is confined to fuel cycle issues) only after ".the Midland decision has become final" and "barring further review."
In legal parlance that is exactly what the word
" final" means:
1.e.,
"the availability of appeal [was]
exhausted, and the time for petition for certiorari had elapsed.
Linkletter v. Walker, 381 U.S.
- 618, 622, n.5, 85 S. Ct. 1731, 1734 (1965).
A case is finally decided on "the date on which certiorari was denied or
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,e in which the time to apply for certiorari expired without such an application having been made."
Long v. Robinson, 316 F. Supp., 22, 31, n.8 (D. Md. 1970)
The legal authority is well established, and the meaning of the language of the General Statement of Policy is clear.
Consequently, the statement by the Staff that~"we read" that Statement, with no explanation for the reading, as empowering the Licensing Board to expand the issues is wholly unjustified.
Unless the Commission is' prepared to repudiate what the Sta'# has said and clarify the General Statement of Policy without further ado, that part of the Staff's answer alone justifies oral argument.
Respectfully submitted, i
Robert Lowenstein LOWENSTEIN, NEWMAN, REIS & AXELRAD 1025 Connecticut Avenue, N. W.
Washington, D.
C.
20036 (202) 833-8371 Dated:
September 8, 1976 l
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