ML19344A098

NRC Response to Saginaw Valley Intervenors Motion for Summary Reversal or Stay of Const.Motion Should Be Denied

ML19344A098
Person / Time
Site:	Midland
Issue date:	10/20/1977
From:	Grossman M, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8007310605
Download: ML19344A098 (9)

Text

-

n.

_.l u

.ho :

s.

'10/20/77 UNITED STATES 0F AMERICA

NUCLEAR REGULATORY COMMISSION

\\~-

. BEFORE THE ATOMIC SAFETY AtlD LICENSING APPEAL BOARD

'(

In the Matter of

)

CONSUMERS POWER COMPANY Docket Nos. 50-329

.(Midland Plant, Units-1 and 2)'

' 50-330 NRC STAFF RESPONSE TO SAGINAW INTERVENORS' MOTION FOR

SUMMARY

REVERSAL OR STAY OF CONSTRUCTION

,I.

Introduction.

Construction Permits were granted to Consumers Power Company (Applicant) on December 15,1972. by decision of the U.S. Atomic Energy Commissio'n.

Following review of that decision, the District of Columbia Circuit Court of Appeals remanded.certain issues to the Nuclear Regulatory Commission

~

for further proceedings M The Commission reconvened the Atomic Safety and Licensing Board (Licensing Board) directing it to consider initially whether the Midland construction permits.should be continued, modified,or

.' suspended. :After extensive evidentiary hearings the Licensing Board issued

~

an Order on September 23, 1977 holding that the construction permits should.

.be continued in effect pending final decision on.the remanded issues.

'.Aeschliman, et'al v.~NRC, 547 F.2d 622 (D.C. Cir. 1976).

8n D fg Q /y h

)

_2_

All Intervenors Other Than Dow (Intervenors) filed exceptions to the Licensing Board's ~ 0rder with the Appeal Board on -0ctober 1,1977.

The Applicant filed a Motion for Reconsideration with the Licensing Board on October 3,1977.

Intervenors subsequently. filed with the Appeal Board a Motion for Sumary Reversal of the Licensing Board's Order and/or a Motion for Stay of Construction Pending Remanded Hearings.

Intervenors move the Board to summarily reverse the Licensing Board's decision to consider sunk. costs in concluding not to suspend construction.

Intervenors argue that the 2

Seabrook-decision _/ is not applicable to the Midland issues and request

~

the Appeal' Board to refer its ruling to the Commission if it determines Seabrook is applicable.

In addition or in the alternative, Intervenors move for an immediate stay of construction.

The Staf_f opposes Intervenors' motions.

i II.

Intervenors' Motion Fails to State

)

a Basis for Relief l

Section 2.788 of the Commissien's rules of practice sets forth the requirements with which a party seeking a stay pending rev iew on appeal must comply.

While this Board has distinguished the tests set forth in paragraph "e" of that section previously in this proceeding,3_/ Intervenors' motions make no a,ttempt to address the applicable legal criteria for the relief they seek.

Consequently, it is necessary.to examine first the standards of review for motions for stay and motions for. summary reversal which are applicable to

'this proceeding,'followed by a discussion of the sufficiency of Intervenors' b

argument.

M Public Service Company of New Hampshire, et al. (Seabrook Units 1:& 2),

CLI-76-17, NRCl-76/ll, 451 (November 5, 1976).

-] ALAB-395,.5 NRC 772,. 784 '(1977).

3 I.

2

. '~

3..

~ u.

n

.g

~

. ~10 CFR s2.788(e) is a codification of the Virginia Petroleum Jobbers O est for stays. While this test.has been repeatedly

-- Association v.~ FPC t

applied.in Comission proceedings, the fou" criteria enumerated in the rule.

may not be applicable to Intervenor's current motion for stay since the Commission has determined'that in cases where a record has been found inadequate and remanded,the ' tests for stay are less stringent than those setforthin' Virginia'PetroleumJobbers'.E In such cases, however, the suspension question "must at the least be decided on the basis of-(1) tra-ditional balancing of equities and-(2) consideration of any likely prejudice to further decisions that might be called for by the remand."O The standards for sumary reversal are most stringent since what is sought -

is the extraordinary equitable remedy of reversal by an appellate authority withour, benefit of developed briefs and argument from the part i es. The movant's right to such relief must be " indisputably clear."U M 259 F.2d 921.,'925 (1958)'

E: Public Service Company of New Hampshire, et al. (Seabrook Units 1 & 2)

CLI-77-8, 5 NRC.502 (1977).

E Id.

p. 521; ALAB-395, supra n.3; This test was applied by the Licensing Foar,d in para.: 8.

E ommuni5t Party of Indiana v. Witcomb', 409 U.S. 1235 (1972), J. Rehnquist, C

circuit justice..

y D

-w_.-

r

~

l

- +

-m

( -

l A party moving on motion papers without usual briefs and -full argument:

has 'a heavy burden to demonstrate that the merits of the claim so clearly

~

warrant relief'that'. expeditious action is justified.E/

. }ntervenors-have not justified their motions under the appropriate-legal tests.

Intervenors made no attempt in their motions to demonstrate any injury or: prejudice which might accrue to them if this Board were to amTit full briefing by the par ties before acting on the matters in controversy.

In this Board's October 12, 1977 Order the importance of having adequate briefs with supporting argument and record' references was again called to-Intervenors' attention.E/ Having failed to show equities demanding a stay in the interim,-_ prejudice to a' party in interest, or an indisputably clear right to expeditious. summary actio'..atervenord motions must fail.

S/ etropolitan Washington Coal v. Dist. of Col., 511 F.2d 809, 813 (D.C.

M Cir., 1975); NRDC v. horton, 458 F.2d 827, 832 (D.C. Cir., 1972);

United States v. Allen, 408 F.2d 1287,1288 (D.C. Cir.1969).

E/ resumably if Intervenors' exceptions:without briefing had clearly P

established an. adequate legal basis for resolving the issues on appeal,.

- their motion to. waive further briefing could have been granted.

a

=

!~

J

-v4e'--

,uv-.,--

y

x III. Sunk Costs May.be Considered Where

. Conservation is Not a Complete Substitute for Construction Intervenors' primary ' legal justification for their motions is that the Aeschliman decision specifically prohibits consideration of sunk costs.E That decision, E or the however, does no more than. cite Union of Concerned Scientists v. AEC f

proposition that an alternative to be considered is complete abandonment of the project and that when considering the abandonment alternative,it is not-appropriate to take sunk costs into account in the cost-benefit balance.E But, when considering other alternatives, such as those Intervenors suggested, where.other non-nuclear facilities would necessarily be constructed, then replacementcostsareappropriatelyconsidered.E It is also appropriate to consider that one alternative may be brought into operation more easily thananother.E The Licensing Board specifically relied-on Seabrook in paragraph 9 of its Order.E-If the Order could be fairly read to hold that sunk costs are

-1 appropriately. considered as costs of abandonment in circumstances in which energy conservation is a complete alternative to construction, then Inter-j l

venors would be correct in taking exception..Notestimonybyanyparty,however,j l

E ntervenors' October 8, -1977 Motion, p. 3.

I E499 F.2d 1069,:1084 n. 37'(D.C. Cir. 1974)-

E547.~F.2d at 632 n. 20.

E eabrook, supra, 5 NP.C 534.

S

~

'3 Id

,[

E5 which Intervenors except in their Order 1,1977 exceptions.

^

.i...

~

C 1

showed that' energy conservation was.a complete substitute for cons'truction.

- As indicated 'in paragraph 65 of the Order even the. alternative analysis-

. performed by Intervenors proposed smaller coal fired facilities.

')

I-IV.

Intervenors Have Alleged No Equities Justifying a Stay Intervenors argue that the Licensing Board found that Consumers attempted to prevent Board. inquiry into the Consumers-Dow contract dispute, thereby j

undermi'ning the Commission's NEPA process and also that allowing work to-continue will prejudice the ultimate outcome.

The Licensing Board also discusses the possibility of disregarding sunk costs as a punitive measure necessitated by Consumers " consideration" of a less than -

candid trial strategy concerning the steam contract. The Board indicates

~

in paragraph 11 of its order that it is uncertain whether Consumers' conduct was the type 'of situation which the Commission had in mind in Seabrook.

The Licensing Board reasons that if Consumers' conduct was the type of L

undennining of the NEPA process to which the Commission referred, l.

a penalty of ignoring sunk costs would be too harsh in this instance.

I lL i'

' ' ~

e

. m x

e s,

9.-

The Commission's Seabrook observations apply to the integrity of-the-

^

NEPA process. : The Licensing Board's-findings are to the effect that the integrity-of the NEPA process was' in-fact maintained. While the Licensing

~

~

Board stated there was evidence that " Licensee has considered conducting 3ts{ shareof this. proceeding in such a way. as to not disclose important facts to.the Boardb ~it went on to find that:

4

"[T]heDow-Consumersmatterwasaired;theDow witnesses furnished were highly knowledgeable men...; and Licensee has not' slowed-the suspension hearing."- (Order, para. 10)

~

i lThus all the'possibleLrelevant facts were disclosed.

In any event, were sunk costs to be ignored-because of Consumers conduct relating to

~

f

-the steam contract.. it would not avail Intervenors much. The sunk costs

]

'to be-ignored would be-only those which were incurred.during the period j

of the-NEPA~ violation. Thus in this matter the only costs.which would be ignored.would be those incurred after the remand from the Court of Appeals but before full disclosure of the contract dispute to the Board.

These' costs are a ~small part of the sunk costs at issue in this' proceeding.

. hile Intervenors l argument that' allowing construction to continue will W

.preju' dice'theoutcome;can-beastrong'one,E it is inadequate to justify

. a stay _in this instance. The' Licensing Board -specifically found that.if.

~8 rder Paral, (emphasis added). -It should be noted that Consumers-has O

a -pending motion for Reconsideration.before the Licensing Board concerning nthis statement.

~

l See Public Service' Company of Indiana,-Inc. (Marble Hill Units l L&-2).-

ALAB-437,:6-NRC-

,_ (1977) and_ cases cited therein.

f. -

_y

~

WM

/,

s i

s.,

9 4

- sunk costs were' appropriately consideredJthe possible alternatives were already foreclosed (paragraph 66).

If sunk-costs are not to be considered then Intervenors' argument-is mooted.

Finally' it 'is not necessary for purposes of deciding Intervenors' stay moti'n to determine whether the Licensing Board applied the' correct

~

standard where Intervenors have attempted no showing that they-are-likely to preva'il ion this point.J8/ Intervenors have.not alleged sufficient -

equities on the face of their motions to coun.terbalance the substantial equities foend by the Board favoring' continued construction.

V.

Conclusion While the remand required a review of energy conservation, the Dow/ Consumers steam contract, the ACRS.. letter and fuel. cycle issues, the extensive record developed. continues' to show a need for the project which weighs

.aga nst suspension. Specifically the Licensing Board.found that the need i

for the project, the effects of delay, the foreclosure of alternatives

' b5I The Toledo Edison Company, et al. (Davis-Besse Units' 1, 2 & 3 and L

Perry Units -1 & 2), ALAB-385, 5 NRC 621, 634 (1977).

e e -=-

w

']g

. ;m.

.j.o caused by construction 'and investment, and the cost advantage over the plant's life of the'use-of nuclear fuel all weighed against Intervenors

case for-suspension.

(Order para. 71).

Thus the public interest, injury-to.the Applicant and Dow in the event of suspension and the needs of Consumers-customers clearly demonstrate that the proper balance of equities requires.

that Inter'anors motions be denied.

Respectfully submitted, 5

William J. 01 stead Counsel for NRC Staff hd N doch Dated at-Bethesda, Maryland Milton J. Grossman 2

this 20th day 'of-October,1977 Chief Hearing Counsel 9

b me -

l f

.. _, _