ML19338C179
| ML19338C179 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/04/1977 |
| From: | Coufal F Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19338C171 | List: |
| References | |
| NUDOCS 8008050630 | |
| Download: ML19338C179 (6) | |
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's UNITED STATES OF AMERICA g-NUCLEAR REGULATORY COMMISSION g
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b em In the Matter of CONSUMERS POWER COMPANY
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Docket Nos. 50-329 l
3 50-330 (Midland Plant, Units 1 and 2)
ORDER The Licensee has filed a petition requesting that we reconsider paragraphs 9,10 and 11 of our Order of September 23, 1977, denying suspension of Licensee's con-struction permit.
The Staff has filed a document generally in support of the Licensee's position, Dow has not respond-ed, and the'Intervenors, other than Dow, have opposed the Licensee's position.
The discussion in those paragraphs arose because of the Commission's Decision in Seabrook.1!
The specific portion of Seabrook which we discussed has to do with the consideration or not of sunk costs during a proceeding to suspend a construction permit.
That consideration is rele-vant to the decision on suspension and ~ to the decision on the remanded issues.
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Public Service Commission of New Hampshire (Seabrook, Units 1 and 2), CLI-77/8, 5 NRC 503-521 (March 21, 1977).
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I Licensee and. Staff are fearful that the language we.
usednin the paragraphs indicated'aight be considered to-7 constitute findings of. fact on some items which we had Lndi-j cated would not be considered as part of the suspension I
decision One of these is the preparation of the testimony i
of the witness Joseph Temple which was the subject of con-troversy during the suspension hearing.
Though we made no
. reference to the preparation of the Temple testimony in the paragraphs complained'of, there is concern that they may be interpreted to constitute findings against the Licensee on that controversy.
No such findings were made nor intended.
Nor have we concluded that there was any misconduct on the 1
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- part'of' attorneys-in this proceeding in the questioned para-2 Like the Temple testimony, we have put aside the graphs.-
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cuestion of attorneys' conduct to be treated separately.
Paragraph 9 is merely an, attempt'to summarize that
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part of Seabrook under consideration and we think it farily c[ _
does so.
i
. Paragraph 10 is a corment on Midland Intervenors'
' Exhibit 25.
It begins_by reciting that the_ exhibit relates
. that certain1 suggestions were'made.
It.seems to us.beyond doubt that it relates what we have said that it relates.
The Board followed' that recital with a sentence which 1
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,l d reads:- "None of th~ese proposed stratagems were successful."
This may be understood to imply that we have finally con-cluded that the suggestions were made and, further, acted upon.. We did not mean to so imply and the sentence should be amended to make that clear.- The next-to-last sentence i
in the paragraph is a' recitation of events with which we j
assume Licensee does not quarrel and on which we stand.
The final sentence is et the effect that the disclosures of Exhibit 25 raise a suspicion of "similar ploys."
of course i
they do.
That is not to say that we will act on suspicion, or that it will not be dispelled, or that rules relative to burden of proof and p'reponderance of evidence will be dis-regarded.
Paragraph 11 was intended to convey our feeling that a J
l several hundred million dollar penalty imposed on persons other than those who are said to have made the suggestions related in Exhibit 25 would be unjust.
No findings of any sort of -impropriety were made _ and we think that the para-graph may stand.
With. respect to both paragraphs, sunk costs will be at issue at the remand hearing.
That will include neces-sarily determinations on the'" integrity of the NEPA process."
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See-Seabrook, page 533.
Seabrook speaks of questionable conduct on.the part of-applicants,-not attorneys.. We.were speaking in that context and identified an attorney as the person speaking in Exhibit 25 because that accurately. reflects what the doc 6 ment says.
No' findings.'were made against any attorney and none were implied.
There are motions pending before the Board for.
censure and suspension of various attorneys in this c:se which are ':he subject of another order which is issued today.
There are no.such motions against any of the attorneys for
- Licensee, though Intervenors, other than Dow, have suggested the Board consider unspecified'" sanctions."
But whether these are meant to be against Licensee or its attorney, or 4
both is unclear.2/
Licensee repeats its objection to the receipt of Exhibit 25.
For the reasons stated in the Order admitting the exhib-
-it, we reaffirm its admission.
p IT IS ORDERED that our Order of September 23, 1977, q
denying suspension of the Midland construction permits is amended.so that the sentence which appears in its entirety 2_/
See letter dated September. 24, 1977, from Mr. Cherry.
.co the Board.
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k on line 5 of page 8 will now read:
" Assuming that the pro-
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posals set out here were made and acted upon, none were successful." A copy of paragraphs 9,10 and 11 as amisnded are attached hereto.
THE ATOMIC SAFETY AND LICENSING BOARD.
4 Frederic J. Coufai, Chair:ngn j
Dated'at Bethesda, Maryland, l
this 4th day of November, 1977.
i Attachments:
j Paragraphs.9, 10 and 11 i
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- 9..
'Another aspect of Seabrook~ (page 530) influences our
- decision on suspension.
The Commission in Seabrook took the view that in considering matters related to cost-
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benefit balancing as between one plant in wh'ich a substan l
- tial investment has been made and a replacement plant, one must take the. facts found to exist.
Thus credit must be given to the partially completed site for the work already done.
This~ rule holds where the integrity of the NEPA process up to hearing time has been sound; where that is missing, the cost to society of ignoring sunk costs may be justified.if to add sunk costs as a benefit to an existing site would be unjust.
An example of this injus-tice is where consideration of such sunc costs might reward '
an Applicant who had withheld information adverse to his plan for construction.
t 10.
There is evidence in this record that Licensee has consid-1 ered conducting its share of this proceeding in such a way as co not disclose important facts to the Board.
Notes a
e2 ken by a.Dow attorney of meetings with Consumers' attor-neys indicate the desire of the latter to " finesse" the i
dispute with Dow if no Intervenors appeared (Intervenors Ex. 25, page 2, paragraph 3.
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 f
feet" in the hearing process because as long as censtruc-tion continues, Consumers'"has a lever" ('page 3, paragraph 4).
Assuming that the proposals set out mere wore made and acted upon, none 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 cf Dow); and Licensee L
has not slowed the-suspension hearing.- Of course there remains the suspicion, raised by the disclosure of these Lastances, that there may have been similar ploys which
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were successful.
11.
These may be the-kinds of activity that the Commission had
-in mind in describing the situation where the use of sunk costs is unjust.
If so, we decline in this instance to ignore sunk costs.
If it.is generally proper to use sunk costs in the comparison of alternatives, we think that to ignore several hundred million dollars worth as'a
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punishment would workian out-of proportion injustice on those who will ultimately provide the money.
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