ML19331B054
| ML19331B054 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/04/1974 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8007250752 | |
| Download: ML19331B054 (6) | |
Text
p 2/4/,74 hGM UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE COMMISSION In the Matter of
)
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 anc 2)
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ANSWER OF AEC REGULATORY STAFF TO SAGINAW INTERVENORS' PETITION TO THE COMMISSION Pursuant to the Secretary's telegram of January 29, 1974 to counsel in this proceeding, the AEC Regulatory Staff files this answer in opposition to Saginaw Intervenors' January 23,1973 " Petition to the Atomic Energy Commission".
Saginaw Intervenors allege in their Petition that the costs of the Midland plant "have now almost doubled"; that because of this fact Dow Chemical Company may withdraw its support for the plant; and that, consequently, the cost-benefit analysis made in connection with the issuance of the construction permits for the Midland facility requires reexamination. On this basis the Saginaw Intervenors ask the Commission to order a reassess--
ment of the cost-benefit analysis either in an independent hearing, in O
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connection with the pe r. ding show cause proceeding,1/ or in connection with what they perceive as the Commission's " continuing obligation to monitor [the Midland proceeding] in order to enforce obligations under the Atomic Energy Act and the National Environmental Protection [ sic]
Act. " (Petition, p.2) The purpose of this reassessment, according to the Saginaw Intervenors, would be to " determine whether the construction permits ought to be modified or revoked because of a radical change in underlying economic facts which so upset the previous cost-benefit analysis-as to render it meaningless for purposes of enforcement of NEPA obligations. " Qd.) In short, this is a petition for a reopening of the Midland proceeding and reconsideration of the Commission's now final action therein.
The courts have recognized that there is a point in any administrative pro-ceeding at which the record must be closed and a decision made.2/
-- This is 1/
On December 3,1973, the Director of Regulation issued an order directing Consumers Power Company to show cause why activities under its construction permits for the Midland Plant, Units 1 and 2, should not be suspended pending a demonstration by it of compliance with the Commission's quality assurance regulations.
By memorandum and order dated January 21, 1974, the Commission, inter alia, denied Consumers Power's motion to dismiss the order to show cause and granted the request of the Sierra Club for a hearing in the show-cause proceeding. An Atomic Safety and Licensing Board was designated to conduct the hearing at a time and place to be specified by that Board.
United States v. ICC, 396 U.S. 491, 521~ 24 L.Ed. 2d. 700, 722 (1970).
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so because:1!
If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the admini.
strative process could ever be consummated.
Consequently, then, rehearings are not matters of right in thes.e circum-stances. A petition for such a rehearing is a matter committed to agency discretion 4/ and mere allegations of changed circumstances which in effect assert that the record is " stale" do not, without more, require reconsideration as a matter of law.5/
In any case, the cost of the proposed nuclear facilities is but one factor in the overall cost-benefit analysis. Other factors include, notably, the availability and cost of alternative plant concepts and alternative fuels.
Thus, by singling out only one factor (i.e., the plant cost), the Saginaw Intervenors have failed to carry even the minimal burden of demonstrating a reasoned basis for concluding that the result reflected in the prior
. decision -- in this case a particular cost-benefit determination -- might change if the proceeding were reopened.
3/
Id.
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_Id. at 723.
E Id.: See also, Southern Louisiana Area Rate Cases v. FPC, 428 F2d. 407, 433 (1970), cert. denied sub nom. Municipal Distributor Group v. FPC, 400 U.S. 950 (1970).
We note, Snally, that the Saginaw Intervenors' prediction as to what would inevitably occur because of the alleged increase in cost has been proven false.. The Saginaw Intervenors assert in the instant petition that the alleged increase in cost of the plant will increase the cost of process steam to Dow, and that, because of this, Dow might decide not to purchase the steam, with the ultimate result that Censumers Power' would not be able to t
justify building the proposed plant. (Petition, pp.4-5) We are informed by applicant's counsel, however, that on February 1,1974, Consumers Power and Dow entered into a new twenty year contract for Consumers to supply and Dow to purchase process steam from the Midland Plant.
Conclusion For the foregoing reasons, Saginaw's Petition should be denied.
Respectfully submitted, V
Y David E. Kartalis Counsel for AEC Regul tory Staff Y 0.
J Albert V. Carr, Jr.
Counsel for AEC Regula Staff Dated at Bethesda, Maryland this 4th day of February,1974 N
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE COMMISSION In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Answer of AEC Regulatory Staff to Saginaw Intervenors' Petition to the Commission", dated February 4.1974 in the captioned matter, have been served on the following by deposit in the United States mail, first class or air mail, this 4th day of February,1974:
Alan S. Rosenthal. Chairman Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board Columbia University School of Law U. S. Atomic Energy Commission Box 38
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Washington, D. C. 20545 435 West 116th Street New York, New York 10027 Dr. John H. Buck Atomic Safety and Licensing Appeal Dr. David B. Hall Board Los Alamos Scientific Laboratory U. S. Atomic Energy Commission P. O. Box 1663 Washington, D. C. 20545 Los Alamos, New Mexico 87544 William C. Parler, Esq.
Dr. Clark Goodman Atomic Safety and Licensing Appeal Professor of Physics Soard University of Houston U. S. Atomic Energy Commission 3801 Cullen Boulevard Washing.
.,p.C.
20545 Houston, Texas 77004 Howard J. Vogel, Esq.
Harold Reis, Esq.
Knittle and Vogel Newman, Reis and Axelrad 814 Flour Exchange Building 1025 Connecticut Avenue, N. W.
310 Fourth Avenue South Suite 1214
. Minneapolis, Minnesota 55415 Washington, D. C. 20036 I
i
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Irving Like, Esq.
James A. Kendall, Esq.
Reilly, Like and Schneider 135 N. Saginaw Road 200 West Main Street Midland, Michigan 48640 Babylon, New York 11702 David Comey, Esq.
Harold P. Graves, Esq.
109 North Dearborn Street Vice President and General Counsel Suite 1001 Consumers Power Company Chicago, Illinois 60602 212 West Michigan Avenue Jackson, Michigan 49201 Honorable Vern Miller Attorney General Milton R. Wessel, Esq.
Topeka, Kansas 66601 Kay, Scholer, Fierman, Hays and i
Handler Richard G. Smith, Esq.
425 Park Avenue Smith and Brooker, P.C.
New York, New York 10022 703 Washington Avenue Bay City, Michigan 47806 James N. O' Conner The Dow Chemical Company Atomic Safety and Licensing Board 2030 Dow Center Panel Midland, Michigan 48640 U. S. Atomic Energy C'ommission Washington, D. C.
20545 Ms. Mary Sinclair
' 711 Summerset Street Atomic Safety and Licensing Appeal Midland, Michigan 48640 Board U. S. Atomic Energy Commission Myron M. Cherry, Esq.
Washington, D. C.
20545 Jenner and Block One IBM Plaza Mr. Frank W. Karas Chicago, Illinois 60603 Chief, Public Proceedings Staff Office of the Secretary of the
' William J. Ginster, Esq.
Commission Suite 4 U. S. Atomic Energy Commission Merril Building Washington, D. C.
20545 Saginaw, Michigan 48602 c P[
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David E. Kartalia Counsel for AEC Regulatory Staff s
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