ML19338C024

Intervernors',Other than Dow Chemical Co,Response to Util Motion to Strike Further Statement in Reply to Util Response to Intervenors' Motion & Motion to File Instanter.Motion to Strike Should Be Denied.Proof of Svc Encl

ML19338C024
Person / Time
Site:	Midland
Issue date:	10/27/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007310588
Download: ML19338C024 (8)

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ng gg j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION w 0 Before the Atomic Safety andtLicensing Acceal Board In' the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 Midland Plant, Units 1 and 2 )

INTERVENORS' RESPONSE TO CONSUMERS POWER COMPANY?S MOTION TO STRIKE, FURTHER STATEMENT.IN REPLY TO CONSUMERS' RESPONSE TO INTERVENORS' MOTIONS, AND MOTION FOR LEAVE TO FILE INSTANTER Intervenors other than Dow Chemical Company move the Atomic Safety and Licensing Appeal Board for an entry of an order permitting the filing instanter of this document which is a response to Consumers' Motion to Strike and also e is a reply-do consumers response to our motions-which Consumers filed in the alterriat'ive. 4 We ask the Appeal Board to accept these documents ,

instanter (even -though the rules do not necessarily permit a reply,- although our response to the Mction 'to Strike is timely . we ibelieve) because of serious inaccuracies in Consumers' presentation.

Response to Consumers' Motion to Strike

1. When ~ we filed our Motion for 'S tay we - were unaware ofL.the revisions ~to the Commission's Rules'of. Practice which

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were published [in the Federal-Register under date of Monday, May -2, 1977. 'We are a small law firm, do not subscribe to

. the Federal Register, and only would see procedural changes. S in-the yearly bound volume of-the Federal Register or if it was otherwise called to our attention.- In fact, the first Appeal Board decision which we saw. concerning the new rule.was',the' October 14,-1977 decision in ALAB-437 which we received a few days ago:

2. Accordingly, we ask the Appeal-Board to approve our earlier filing of more than seven pages;

3. The fact that our earlier motion was filed more than seven days after the decision is primarily because we believe that appeals within the Commission are both use-less and~ illusory and we have concentrated our efforts before i

the Court of Appeals. However, we filed our papers before the Appeal Board to perni: the Appeal- Board or the Commission toLcorrect the injustice if it chose to do so;

4. JWe believe that. our stay request meets all l the other. requirements of-the revised Commission. rules -

including'the four-point test;

5. It is-abundantly clear that we believe a stay or summary. reversal is-necessary. based solely on questions of. law emanating from=the Court o5 Appeals' decision in Aeschliman'which. prohibits the consideration of sunk costs 1

and the Licensing Board's Order which expressly relies upon sunk costs. ~The reason we filed no~' affidavits is that.it i o

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-is our position that ' the Licensing ' Board applied an- erroneous legal. theory which if' correct' would require a halt in con-struction based upon other of' the Licensing . Board's findings S 4

as we have pointed out; Consumers Motion to Strike is also at odds with I v 6.

Consumers representations'to the Court of Appeals. Thus

- Consumers has argued to the ' Court of Appeals that .the Court

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should not entertain our requests there because the Appeal Board is actively considering our Motion for Stay. Such a.

representation to the Court of Appeals is totally inconsistent with Consumers' Motion to Strike, but, of course, totally consistent with the games Consumers has been playing on this record _with almost everyone it confronts;-

7 The Appeal Board is aware tnat Consumers has no respect for these hearings and no respect for the Commission.

This Appeal Board-has commented before on the inability to i rely upon Consumers' representations. See Consumers Power Co.,

ALAB-106, 6 AEC 182, 184-85 (1973); and Letter, Midland Appeal

- Board to Director of Regulation (Dkt. 50-329 and 330), -.

November 26,I l973. In. fact, Consumers' having licenses in light of-its history both in Midland and Palisades-is nothing less than. regulation run rampant. A plant is being built I

without a valid NEPA review and. under circumstances where

- all. safety questions have never.been addressed and in the face of. blackmail againnt-Dow and-justice. At some_ point O

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Jwe -will' all have to face the reality of the law ~ and we hope that it will beLnow and here before-the Appeal Board. If it is not, we will not' shirk in'our duty to whatever else is necessary.

'8. Sooner or later, particularly in light of the record compiled, as well as the history of* Consumers.

chronicled elsewhere,-Consumers' actions are going to affect the public ' health and safety in a very serious way, just as its stratagems and ploys have dealt a serious blow to justice and due process. Even in.a large organi-zation-like the Nuclear Regulatory Commission, responsibility has to finally rest someplace. If this Appeal Board refuses to recognize the .=eriousness of the situation and rewards Consumers Power Company for what it has done, then no utility anywhere will ever believe that the Nuclear Regulatory 1

, Commission is any more.than a paper-tiger. Leaving philoso-phical concepts aside aid translated 'into reality, such irresponsibility may result in serious injury and.perhaps

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even death. The Appeal Board must enforce the law now, parti-cularly when it i s clear that the fiction of honest ' Regulatory Staff overview is falling to the wayside both in this and other cases. .While nuclear power may be needed, one may argue, for the resolution of our energy ~ problems, it is equally clear that enforcement of the law is needed'to prevent a 3- _

multiplicity of the admitted insults which this record' dis-L Jcloses by. Consumers and!other. utilities. After all,.the

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Nuclear. Regulatory Commission relies heavily upon the

-integrity.of.the utility. . If Consumers is r-warded for its total. lack of integrity and.the Licensing Board's improper legal: principles.are.-allowed'to survive, then we surely foresee'the end'of nuclear power because the

! system of regulation and hearings will.have been destroyed;

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and 9.. Let us not forget that we have yet to have'the remanded hearing which, if fairly implemented, could change'or eliminate the Midland plant. It simply is beyond rational articulation to permit the Midland plantito proceed.

WHEREFORE, we ask that-Consumers' Motion to Strike be denied.

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Reply to-Consumers' Response 9

We have only a very few short remarks to make concerning Consumers' response.

First,off, it is clear that our argument concerns anferroneous' legal application by the Licensing Board regard-ing sunk costs. That legal application has in effect told Consumers and everyone else that alternatives are foreclosed

because Consumers.has already spent money and alternatives wi.11 continue 1to be foreclosed.

Accordingly, under that rule of law the remanded hearings are meaningless'and we believe that it is facetious

! to say that we are not' irreparably injured when construction

( of'a plant is ongoing which has no valid ~NEPA review under circumstances where sunk costs are ceing considered which the Licensing Board has held makes the remanded hearings a i joke.-

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. We believe that - the Appeal Board recognizec ' the L -.

u importance1of the Licensing Board's decision both with n

-respect to this case and to overall regulation and we ask L 'for a' prompt and immediate consideration..

t We ' call attention once again to our requests that oral argument.should be granted only if the Appeal Board feels that it is absolutely necessary and that if' the

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-Appeal Board . feels bound to der:y our motions on the basis 1

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of. Seabrook - that the Appeal Board refer the matter immediately.

to the full Commission.

. .. 5 Respectfully submitted,

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nd Attorneys for In rvenors

-_Othe~

Ong/ p han Dow Chemical Com any .

i 1MYRON M.? CHERRY.

PF.TER'A. FLYNN-

=One IBM P.laza-Sui te ' ~ 4 501~

Chicago,zIllinois 60611-1(312) 565-1177-r~ - " .

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PROOF OF SERVICE I-certify that four copies.of the foregoing document

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~ were mailed, postage prepaid and - properly addressed, to the o

Secretary of the Atomic-Safety'and Licensing-Appeal Board,

.an'd'that' copies'were also mailed, postage prepaidand properly l- addressed, .. to the Secretary of the Nuclear Regulatory Commission and counsel for Consumers-Power Company, the Nuclear Regulatory Staff, and Dow Chemical Company all' on October 23, 1977 U

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One gf he Attorneys for I tervenors Other an Dow Chemical C mpany l

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