ML19331B111
| ML19331B111 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/13/1976 |
| From: | Axelrad J, Malsch NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19331B112 | List: |
| References | |
| NUDOCS 8007250803 | |
| Download: ML19331B111 (3) | |
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THIS DOCUMENT CONTAINS UNITED STATES OF AMERICA POOR QUAL.ITY PAGES NUCLEAR REGULATORY COVfIISSION g/m/w In the Matter of
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CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330 (Midland Plant, Units 1 and 2)
RESPONSE 0F NRC STAFF TO INTERVENORS' !'.0 TION TO HALT CONSTRUCTION OF THE MIOLAND FACILITY, OR IN THE ALTERNATIVE TO CLARIFY fiRC Or(DER OF AUGUST, 1976 ESTABLISHING AN ATOMIC SAFETY AND LICENSING BOARD The Nuclear Regulatory Commission Staff (hereinafter "the Staff") hereby answers and opposes the Intervenor's " Motion to Halt Construction of the Midland Facility or In The Alternative To Clarify the NRC Order of Augus t, 1976."
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Intevenor argues that the Court of Appeals decision in AeschlimanE requires immediate suspension of the Midland construction permits pending completion of the remand proceedings required by the decision. The Court of Appeals had before it the question of whether or not to suspend t
the license yet it did not state that the license should be suspended.
Rather, it only ordered that the issues be remanded for further proceed-ings. Absent a specific order to suspend the license, the proper inter-pretation of the decision is that the matter of suspension is left to the discretion of the Commission.
y Nos. 73-1776 and 73-1867 (D.C. Cir., July 21,1976).
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. Such an interpretation of the' Aeschliman decision is cen istent with the Comission's own interpretation of that decision.
In its General Policy Statement _/ the Ccmmission made it clear that it did not view suspension 2
to be required by the Court of Appeals decision.
Rather, it stated that " questions of modification or suspension should be resolved in formal proceedings in light of the facts and applicable law."3.f s the Comission A
noted in its General Statement of Policy, the resolution.,of the question of whether or not to suspend the licenses " turns on equitable factors well established in prior practice and case law."O The Staff would have no objection to a specific direction by the Comission to the Licensing Board to consider the question of whether the construction permits for the Midland facility should be suspended pending comple-i tion of all remand proceedings. However, the Staff feels that clarifi-n cation of the original order is unnecessa'ry and that the Licensing l
Board's authority to consider the issues of energy conservation and clarification of the ACRS report clearly follows from the Commission's General Statement of Policy.
A As the Staff argued in the brief which was filed with the Licensing Board 1
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on September 7 on the question of suspension pending promulgation of an l
l 2] 41 Feo'. Reg. 34707 (1976).
I 3/ Id. at 34709 LI Ld.-
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interim rule, the General Statenant of Policy states that once the decision in Aeschliman has become final the Licensing Board will have the power to hear and decide the other-issues besides the issues of the impacts of waste management and reprocessing. The mandate in Aeschliman issued on September 3, 1976. Therefore, the Board now has the authority to hear and decide all of the issues assigned for reconsideration in Aeschliman and may consider whether the Midland construction permits should be suspended pending comple-tion of remand proceedings on all of the issues.
In response to Mr. Robert Lowenstein's letter to the Commission requesting consolidation of the instant matter and Applicant's Motion to Recall Show Cause Proceedings, the Staff wishes to state that it has no objection to consolidation of the two matters.
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Respectfully submitted, ll
$(/hdi Martin G. Malsch h
Deputy Chief, Regulations Counsel
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(JaneA.Axelrad
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Counsel for NRC Staff Dated at Bethesda, Maryland, this 13th day of September 1976.
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