ML19331B130
| ML19331B130 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/24/1978 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8007250821 | |
| Download: ML19331B130 (12) | |
Text
-
e THIS DOCUMENT CONTAINS-
~s g
POOR QUAUTY PAGES UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION e
BEFORE THE COMMISSION a.-
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329
)-
. '50-33n-(Midland Plant, Units 1 and 2)
)
NRC STAFF REPLY TO COMMISSION'S APRIL 10, 1978 ORDER 1.
Introduction The Commission issued an Order on April 10, 1978 requesting the parties to state their views as to what issues, if any, remain for further Commission consideration in light of the Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council and Consumers Power Co. v. Aeschliman, Nos.76-419 and 76-528, U.S.
a
, 46 L.W. 4301 (1978). Specifiully noted in the Order were the
' five matters identified by the Appeal Board 1/ as subjects for consideration in the reopened Midland proceeding. Those matters are:
1/ n the Matter of Consumers Power Company (Midland Units 1 & 2),
I ALAB-458, NRC (1978) 8007250f2/
h
, 3 "l.
Appraisal of the environmental impact of the nuclear fuel cycle.
2.
Consideration of the possible effects of energy conservation in reducing or eliminating the need for a plant of this size.
3.
Considera. ion of whether changed circumstances have affected the Dow Chemical C.)mpany's need for process steam which it is to receive from one of the units under an existing contract.
4.
Consideration of ' unresolved safety issues,' ' design problems,' 'other problems' and their ' resolution',
' additional matters of concern to the conrnittee', and
' clarification of the ambiguities' involved in the ACRS letters'and reports, as discussed in the Aeschliman opinion and referred to by the Appeal Board.
S.
A full airing and resolution of charges ' relating to an alleged, albeit unsuccessful, attempt by the applicant to prevent full disclosure of the facts relating to Dow's intentions with regard to its contract.' Both this matter and the merits of the ACRS's unresolved safety issues are to be explored further by the Licensing Board, whether or not the parties are themselves otherwise interested in pur-suing these matters.
[ Citations omitted.]"
The five matters identified for consideration involve three distinct issues.
First, the appraisal of the environmental impact of the nuclear fuel cycle was to have been undertaken as a result of the Court of Appeals decision in NRDC v. NRC.2I The Supreme Court remanded this issue to the Court of Appeals for further proceedings. Second, on the issues of energy conservation, need for process steam and th'e need for 2_/ 547 F.2d 633 (D.C. Cir. 1976), rev'd and remanded sub nom. Vermont
~
Yankee Nuclear Power Corp. v. NRDC, U.S.
(1978).
5 m
9 clarification of the ACRS letters issued in Midland, the Supreme Court reversed the Court of Appeals without reman'd for further proceedings.
Third, the question of an alleged unsucessful attempt by the applicant
') prevent full disclosure of facts relating to Dow"s intentions with regard to the steam contract was not an issue before the Supreme Court and'is not affected by the Court's decision.3_/
ACRS AND NEED FOR POWER ISSUES Fhther Comission consideration of the ACRS issue, energy conservation, and Dow's need for process steam -is not required. The Supreme Court
-reversed the Court of Appeals' decision on these issues 5I and they are finally-settled and can not be reexamined in the Court of Appeals on remand.5_/ Although no further litigation in the federal courts can be had on these matters, the Comission would have independent authority to pursue these issues since the relationship between the Comission and the federal courts is different from that between an inferior and a superior court.5I U Although the Supreme Court's mandate has not yet issued, the Comission has previously noted its d... responsibility to act:promptly and con-structively in effectuating the decisions of the courts." Vermont Yankee Nuclear Power Corp. t nd Consumers Power Company (Midland Units 1 & 2), CLI-76-4, 4 NRC 163, 166 (1976).
4l Slip 0, p.~33 2
5/ e Potts, 166 U.S. 263 (1896); Re Sanford Fork & Tool Co., 160 U.S.
R 247,255(1895).
~
5/ CLI-76-14, p. 166, n. 2.
_..,m 5
. c c
No reasonable basis exists, however, for reconsideration of the conservation and steam issues. During the proceedings held following remand the Licensing Board and Appeal Board both found that the record clearly demonstrated that conservation was not a substitute for the facility and that Dow Chemi, cal needed and intended to take steam under a valid contract with Consumers.2!
The ACRC letter presents a question involving slightly different considerations.
While the Supreme Court determined that the original ACRS letter was adequate, the clarification of that original ACRS letter following the remand resulted in the identification of eleven generic items which the ACRS believed could be resolved by the time the operating license was due to beissued.S/
The Staff has examined each of the eleven items identified by the ACRS and documented its review in a second supplement to the SER (July 1977). As that review demonstrates, each item has either been resolved to the satisfaction of
~
the Staff and the ACRS or is capable of resolution prior to the issuance 2/ ALAB-458, supra.
S/ Shortly after the eleven Midland ACRS items were clarified, the Appeal Board issued a decision in Gulf States Utilities Comoany (River Bend Units 1 and 2), ALAB-444, 6 NRC 760 (1977).
The Appeal Board, discussing the respective duties of Licensing Boards and the Staff, set forth criteria governing the examination and resolution of generic safety issues in individual licensing proceedings. As the decision makes clear, the criteria apply prospectively. They will be implemented by the Staff during the operating license review. While the Appeal Board directed the Licensing Board in ALAB-4E8. to pursue this matter whether anyone else was interested or not, that direction was pursuant to the Court of Appeals remand prior to the Supreme Court's reversal.
~
m ;
of an operating license for Midland. -During the operating license review these matters, of course, wil1 be examined by the Staff and if necessary by the Licensing Board.
Consequently, no further action by the Commission on this matter is presently warranted.
THE FUEL CYCLE ISSUE While the Court of Appea.ls decision on the adequacy of the Commission's fuel cycle rule was reversed, the matter was remanded for further pr]ceedings.
The Court of Appeals was told to review the record, applying the correct substantive standard of review.9/ Thus the presumption of administrative regularityreattachesEl to the original rule and Consumers' construction permit is in full force and effect. The Supreme Court, however, noted the e
Commission's intention to revise the rule regardless of the outcome of thecase.A/ In fact, the Commission's interim ruleEl has been retroactively applied to all outstanding construction permits.
In ALAB-458 the Appeal Board app;ied the interim rule to Midland and found the effects insubstantial stating, "Thus, while this issue was potentially.of crucial importance it is no longer a significant factor in this proceeding."El Whether or not the Court of Appeals determines the original rule to have been substantially supported by the record, it is apparent that the fuel cycle issue no longer remains for consideration.
9/ Slip Op. p. 13.
E/ossv. Stewart,227U.S.530(1913). See also K. Davis,2 Administrative R
Law Treatise 611.06(1958).
b Slip Op., p. 13, n. 14.
E 42 F.R. 13803 (March 14, 1977).
El ALAB-458, Slip Op., p. 15.
m m c C
PREPARATION OF TESTIMONY The Appeal Board directed the Licensing Board to conduct a full airing and resolution of charges " relating to an alleged, albeit unsuccessful, attempt by the Applicant to prevent full disclosure of the facts relating to Dows' intentions with regard to its contract...whether or not the parties are themselves otherwise interested in pursuing these matters."
This issue was not involved in the recent Supreme Court decision.
Before discussing the legal and policy issues involved it is necessary to set forth the factual record on the matter. The Licensing Board in its September 23, 1977 Order states:
There is evidence in this record that Licensee has considered conducting its share of this proceeding in such a way as to not disclose important facts to the Board. Notes taken by a Dow Attorney of meetings with Consumers' attorneys indicate the desire of the latter to " finesse" the dispute with Dow if no
~
Intervenors appeared (Intervenors Ex. 25, page 2, paragraphB).
The same notes reflect the exploration by a Consumers' attorney of the possibility of using Dow witnesses unfamiliar with the facts relating to the Dow-Consumers dispute to testify at the hearing; they further disclose a proposed strategy by Consumers to
" drag feet" in the hearing process because as long as construction continues, Consumers "has a lever" (page 3, paragraph 4).
[None of these proposed stratagems were successful.] Aggressive Intervenors did appear and the Dow-Consumers matter was aired; the Dow witnesses furnished were highly knowledgeable men (Mr. Temple headed the Michigan Division of Dow);
and Licensee has not slowed the suspension hearing.
Of course there remains the suspicion, raised by the disclosure of these instances, that there may have been similar ploys which were successful.W b
The bracketed language was changed on reconsideration by the Board to read " Assuming that the proposals set out here were made and acted upon, none were successful." November 4, 1977 Order.
m--._.._._._m._.,
~
The Board's finding presented a question as to whether there had been an attempted abuse of the Commission's process. Although the. Board affirmatively found that truthful evidence was adduced on the Dow-Consumers disagreement, the Board was concerned about Consumers
" consideration" of a strategy which would " finesse" the disagreement.
In addition there have been serious allegations made about Consumers a
role in preparing the Temple testimony but there has not yet been the chance to cross-examine witnesses or othenvise develop a full and complete record concerning the matter. While there is not a legal requirement to pursue this matter further, we believe that it would be in the public interest for the Commission to fully dissipate the cloud hanging over the integrity of its proceeding. The Commission has an inherent power to investigate questions concerning whether its procedural processes have been used to prevent full disclosure of relevant information.El El 42 U.S.C. 52201(c).
3 !
In resolving this matter the Commission has two options available:
(1)TheCommissionmaydirecttheOfficeofInsnectorandAuditor(01A) to conduct a complete investigation of the matter and issue a report of the results of its investigation,E or (2) the Commission may authorize the Licensing Board to investigate the matter during an on-the-record hearing.E The advisability of directing OIA to conduct a thorough and completed investigation derives from the specific delegation of authority from the Commission as codified in 10 C.F.R. 51.30. That provision charges 0IA with the responsibility for investigations necessary to ascertain and verify facts with regard to the integrity of all NRC operations.
In addition, 0IA has the responsibility for maintaining liaison with the Department of Justice on matters which may involve violations of other federal statutes. OIA is limited, however, in this case since it is not fully familiar with the extensive record developed in this E 10 C.F.R'. 91.30. Earlier in this proceeding, the Executive Legal Director requested an investigation of this matter by OIA. OIA completed a preliminary consideration of the issue concluding that there was insufficient evidence of criminal or other misconduct to warrant further 0IA action.
(Memorandum dated 9/27/77 from McTiernan to Shapar servei on the parties 2/14/78.)
In response to criticism of the report the Office of General Counsel indicated that it would await outcome of pending remand proceedings before determining whether further action was warranted.
(Letter front J. Kelly to A. Roisman dated 3/22/76).
E 42 U.S.C. 92241; 10 C.F.R.12.721(a). A Licensing Board may be authorized to exercise such regulatory functions with respect to provisions of law or regulations as the Commission may deem appropriate.
~
w
.g_
proceeding and the significance of the individual issues which have been litigated.
A hearing by the Licensing Board could perhaps be regarded as anomalous since its substantive business is now concluded. However, a hearing conducted by the Licensing Board has the advantage of providing a full range of discovery tools, procedural safeguards, and a written public record of the proceedings.
Further, the Licensing Board has been privy to the development of this issue from the beginning of the suspension hearings and is familiar with the existing record which has been developed. The Appeal Board's action in ALAB-458 calling for a full airing and resolution of charges carries with it the implicit-assumption that there is a factual controversy to be heard.
In such s
circumstances, the Commission's adjudicatory boards are well equipped to resolve such disputed factual issues.
9 O
s, 1 CONCLUSION None of issues remanded by the Court of Appeals in the Aeschliman decision remain for further Commission consideration at this time. The Commissions interim fuel cycle rule has been applied to Midland and no further action is required. We recommend that the Licensing Board be directed to conduct such further proceedings as are necessary to resolve the allegations made concerning abuse of process in the preparation of the Temple testimony.
Respectfully submitted, W
William J.
imstead Counsel for NRC Staff Dated at Bethesda, Maryland this 24th day of April, 1978 i
~
s UNITED STATES OF AMERICA NUCLEAR REGULATCRY CCM4ISSION e
EEFORE THE CCT41SSION 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 ccpfes of "NRC STAFF REPLY TO C0K4ISSION'S APRIL 10, 1978 ORDER", dated April 24, 1978 in the above-captioned proceeding, have been served on the following, by deposit in the United States rail, this 24th day of April,1978:
Hichael C. Farrar, Chairman Dr. Ecceth A. Luebke Atomic Safety and Licensing Atomic Safety and Licer. sing Board Appeal Board U. S. Nuclear Regulatory Com:issicn-U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Myron M. Cherry,' Esq.
Dr. W. Reed Johnson 1 IBM Plaza Atomic Safety and Licensing Chicago, Illinois 50511 Appeal Board U. S. Nuclear Regulatory Commission Judd L. Bacon, Esq.
Washingten, D. C.
20555 Censuzers Pewer Company 212 West Michigan Avenue-Richard S. Salzman, Esq.
Jackson, Michigan. 49201 '
Atomic Safety and Licensing Appeal Board Ms. Mary Sinclair U. S. Nuclear Regulatory Commission 5711 Summerset Street Washington, D.-C.
20555 Midland, Michigan 48640 Marshall E. Miller, Esq.
Harold F. Reid, Esq.
Atomic Safety.and Licensing Board Robert Lowenstein, Esq.
U. S. Nuclear Regulatory Commission Lowenstein, ?;ew=an, Reis &
Washington, D. C.
20555 Axelrad 1025 Ccnnecticut Avenue Dr. J. Venn Leeds J.
Washingten, D. C.
20035 Atomic Safety and Licensing Board i
10507 Atwell L. F. Nute Houston, Texas 77095 The Ocw Chemical Cocpany P. O. Ecx 271 Midland, ?tichigan 4ES!9
,m y
' 1 Mr. Steve Gadler Atomic Safety and Licensing 2120 Carter Avenue Appeal Panel St. Pual, Minnesota 55108 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Michael I. Miller, Esq.
Caryl A. Bartelman, Esq.
Docketing and Service Section Isham, Lincoln & Beale Office of the Secretary.
One First National Plaza U. S. Nuclear Regulatory Commission Suite 4200 Washington, D. C.
20555 Chicago, Illinois 60603 Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 Norton Hatlie, Eso,.
Attorney-at-Law P. O. Box 103 Navarre, Minnesota Atomic Safety and Licensing Board h.4ffy..~_
!,.bDI-Panel William J. 01pstead U. S. Nuclear Regulatory Commission Counsel for NRC Staff Washington, D. C.
20555 Samuel Chilk
~'
Office of the Secretary U. S. Nuclear Regulatory Connission Washington, D. C.
20555 f
.