ML19331B275
| ML19331B275 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/30/1977 |
| From: | Hoefling R, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007280875 | |
| Download: ML19331B275 (6) | |
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9/30/77
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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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NRC STAFF'S RESPONSE TO SEPTEMBER 9, 1977 ORDER REQUESTING VIEWS ON SCHEDULING Introduction On September 9,1977, the Atomic Safety and Licensing Bcard (Board) issued an Order directing the parties to advise the Board prior to September 30, 1977 concerning scheduling of further proceedings on the issues remanded by the Court of Appeals in Aeschliman v. NRC.E In addition, the Board directed the parties to identify any outstanding discovery requests upon which a ruling is pending.
The remand proceedings will address four issues:
- 1) Energy conservation as a partial or complete alternative to construction of the Midland facility; 2) Clarification of the original ACRS etter; 3) Changed circum-stances with regard to Dow Chemical Company's need for process steam; and
- 4) The environmental effects and costs associated with waste disposal and reprocessing in the fuel cycle. Extensive discovery, testimony and cross E 547 F.2d 622 (D.C. Cir. 1976), cert. granted sub nom. Consumers Power Company v. Aeschliman, U.S.
, U.S.L.W. 3570 (February 22,1977).
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- examination was conducted during the proceedings held following remand to determine whether or not existing construction pennits for Units 1 and 2 of the Consumers Power Company Midland Plant should be continued, modified, or suspended until action could be taken on the remanded issues.
On Septeltber 23, 1977, the Board issued an Order declining to suspend or
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alter the permits in the interim.
Discovery The Staff has no outstanding discovery requests. However, the parties have a continuing obligation to update infonnation supplied through th2 discovery pr,ocess and to keep the Board and the parties informed of changes which would affect the Board's decision on the remand issues.
Since the evidence relevant to the suspension question is also relevant to the remand issues themselves, it is not necessary to embark on a new round of discovery prior to initiation of the remand proceedings.
Most of the testimony and evidence placed on the record during the suspension hearings is relevant and material to the remand issues.
It is unnecessary to recall witnesses merely to' adduce the same in-fonnation which already has been elicited by the same parties at the suspension proceeding. Consequently, scheduling decisions are necessarily dependent upon the extent to which additional evidence and -
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testimony may be required.
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. Need for Additional Evidence on the Issues The Staff plans to introduce the Final Supplement to the Final Environmental Statement (NUREG-0275) and Supplement No. 2 to the Safety Evaluation of the Midland Plant Units l' and 2 either by affidavit or.as evidence at the remand proceeding.
Those documents,.however, do not substantively differ from the Staff testimony submitted at the suspension proceeding.
Furthermore, Staff witnesses sponsoring these documents will be the same as those who testified previously. To the extent that the witnesses, the testimony and the evidence is the same, further formal proceedings would not appear necessary. Absent a strong showing of new information or changed circum-stances by a party seeking to further litigate an issue, the Board should preclude further repetitive and cumulative evidence on these issues at the remanded proceedings pursuant to its authority under 10 C.F.R. 52.757.
The energy conservation issue was the subject of extensive testimony at the suspension hearings from Messrs. Heins, Bickel, Feld, and Timm.
There was extensive cross-examination of these witnesses concerning the effect which energy conservation wculd have on the need for the Midland Plant. The suspension record therefore serves as an adequate basis for the development of findings of fact and conclusions of law concerning this remanded issue.
On November 18, 1976, the ACRS issued a clarified letter identifying eleven items. Whether or not the clarified letter mee'ts tim requirements
-s s of the Aeschliman decision is a legal question to be briefed by the parties.
The question of whether or not the eleven items identified by the ACRS meet the requirements of 10 C.F.R. 550.35 was litigated at the suspension proceedings. Messrs. Crocker and Keeley testified and were cross-examined extensively by opposing counsel. The record thus developed serves as an adequate basis'for the development of findings of fact and conclusions of law concerning this remanded issue.
The environmental effects and. costs associated with waste disposal-and reprocessing in the fuel cycle and the recalculation of the cost-benefit analysis are further treated by the Staff in Section 3.1.1, Uranium Fuel Cycle of the FES supplement. Since this informa-tion is based on the values set forth in the Commission's interim rule (42 Fed. Reg.13803), the Staff does not expect that substantial t
further discovery or evidentiary hearings will be required on this issue.
The Board's September 23, 1977 Order found that pow needed process steam.
The Board, however, stated that whether Dow will ever buy steam from the Midland Plant is, on the record, speculative. The Board's clear implica-tion was that. circumstances with regard to Dow's intent to purchase steam from Consumers might change' and should be reexamined at the remand pro-ceeding. On July 29, 1977 and again on September 15, 1977, Dow supplemented its responses to Interrogatories regarding the steam issue. While it is
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apparent from the supplemented interrogatory responses that circumstances are changing, it does not necessarily follow that additional on-the-record evidentiary proceedings are required in order to assess the impact of such changes on the remanded issues. The Board should direct Dow to state the current Dow position through a knowledgeable witness by affidavit.
The ^ affidavit should state Dow's current intentions concerning use of Midland. facility steam and the detailed basis for such intentions. The parties and the Board would then be in a position to determine whether circumstances had changed significantly and if so, whether. additional evidentiary proceedings on the issue were necessary.
Conclusion In summary, it is evident that the present record is adequate for findings of fact and conclusions of law with respect to some of the remanded issues. With respect to any changed -ir.umstances on the steam issue requiring further record development, the Board should require that Dow submit an affidavit stating its current position. The_ parties would then be in a position at the prehearing conference to argue whether strong changed circumstances exist requiring further evidentiary treatment.
Schedule In view of the foregoing discussion, the Staff proposes the following schedule:
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, October 7,1977 Board orders parties to identify any outstanding matters:
- 1) on which they intend to supply further testimony or 2) on which.they intend to request further discovery or cross exa.mination.
Parties directed to brief issue of whether ACRS letter is clar-ified. Submittal of Dow affidavit required.
October 19, 1977 Parties' response to Board Order due. Dow affidavit due. Brief on ACRS f etter due, f
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November 4,1977 Date selected for prehearing conference to consider proposed r idence relevant to remanded issues and scheduling of further proceedings to extent determined necessary.
November 21 -
December 2, 1977 Hearings commence on date'to be agreed upon.
December 16, 1977 Hearing record on remanded issues closed.
Respectfully submitted, William J.
lms tead Counsel for NRC Staff I tL f
SN Richard K. Hoefling Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of September,1977.
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