ML19344A123
| ML19344A123 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/22/1978 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007310622 | |
| Download: ML19344A123 (8) | |
Text
~
.. ~. _ _
~ ~ ~ ~ ~
,. 1. ~
~^
8/22/78
,s
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
[' ;
CONSUMERS POWER COMPANY Docket Nos. 50-329 t-:,73 k
TO 370 j.??
T
)
2 7S g, ;9 @,]
(Midlarid Plant, Units 1 and 2)
)
(Remand Proceeding) 3 p
- g. ~,\\P 6)A p y,.:.a m
NRC STAFF OPPOSITION TO INTERVENORS' MOTION TO SUSPEND CONSTRUCTION I.
Introduction Intervenors other than Dow Chemical Company (hereafter Intervenors) filed a Motion on August 2,1978 to Suspend'all Further Construction of the Midland plant pending further inquiry into the revised Consumers-Dow contract submitted to the Boa.d and the parties on June 26, 1978.. The NRC Staff opposes the motion.
.II.
Backoround
- Following the award of construction pennits to Consumers Power Company (Applicant) in late 1972, Intervenors sought judicial review in the Dittrict of Columbia Court of Appeals.E That court re.c nded the matter to the %ommission for further proceedings.2_/ Since a remand was otherwise i
required, the court directed the Commission to consider whether changed circumstances had affected the Dow Chemical Company's (Dow) need for process y See Consumers Power Company (Midland Units 1 & 2), LBP-72-34, 5 AEC, 214 (1972); aff'd ALAB-123, 6 AEC 331 (1973).'
. 2_/ Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir.1976), rev'd and remanded, s
sub nom, Vermont Yankee Nuclear Power Coro, v. NRDC, 98 S.Ct.1197 TTF78).
.~
80.07310 $M C
~
. J steam, which'it had contracted with the. applicant to provide. This Board 3
conducted hearings to determine whether to suspend construction pending con' sideration of the reriianded issues in late 1976 and early 1977.
i After this Board's Order of September 23, 1977 declining to suspend construction, the Appeal Board affinned that decision on February 14, 1978.3_/ Shortly thereafter, the United States Supreme Court reversed the Court of Appeals decision under which the remanded proceedings were beingheld.E Consequently, the Comission requested the parties' views concerning what issues-remained for consideration.5_/ Commission decision i-on its request is still pending. On June 26, 1978, the Applicant filed with the parties, the Comission, the Appeal Board, this Board and the recently established Licensing Board to consider Applicants' OL application, i
a revised general agreement between it and Dow concerning the tenns and.
conditions on which Dow would purchase steam from the Midland plant.
III.
- This Board has Jurisdiction to Deny Intervenors Motion Given the present status of pending issues involving the Midland Prohect, it is appropriate 'to discuss jurisdictional questions. The renegotiated contract is currendly under Staff review as part of its responsibilities to review Lthe Applicant's submittals supporting its operating ilcense application.E The Licensing Board appointed to rule on intervention y ALAB-458, 7 NRC 155 (1978).
4/ 98 S.Ct. 1197,.
U.S.
(1978).
T/ Commission Order of ApriT TO,1978 -(unpublished).,
TJ See 43 Fed. Reg.'19304'(May 4, 1978)
...,, j x
-.+,
- + -,,
m 3
petitions and contentions probably will be called upon to determine whether to admit a contention concerning the revised general agreement in
-near future.7./ This Board cancelled a scheduled prehearing conference on remanded constrQction permit iss'es following receipt of the Comission's Order u
requesting views as a result of the Supreme Court's decision.E The Staff's view expressed in its filing to the Ccmmission was that the Supreme Court's decision finally disposed of the need for steam issue and that it could not be reexamined by the Court of Appeals on remand. The Commission, however, has not issued a decision concerning what modifications it wishes to make in this Board's jurisdiction, if any, as a result of the Supreme Court's decision. Consequently, it is clear that none of the decisions affecting this proceeding had the explicit or implicit effect of removing this Board's jurisdiction as initially granted by the Commission.E Thus, this Board still retains authority to rule on motions made before it concerning the issues originally assigned to it by the Commission.
J 7f See Boards Order of May 14, 1978 (unpublished).
Note: while dated May 14, 1978 the Staff received this order on August 16, 1978.
8/ See Br.
% Order of April 11, 1978 (unpublished).
9/ CLI-76-1. iNRC65(1976);CLI-76-14,4NRC163(1976).
Shortly before f 11.g this response the Staff received the Applicant's response to Intervenors' motion which argues tha+ this Board lacks jurisdiction over this motion citing Houston Lignting and Power Co.
(South Texas Units 1 & 2), ALAB-381, 5 NRC 582 (1977).
That case which rejected a Board's order reopening a hearing where na CP or OL was pending before it, is' inapposite here since this Board continues to.have the remanded issues before it. While a Board carnot expand the jurisdiction expressly given it, that question is not involved here since the Dow' Steam issue is directly before this Board. _ The Board may determine at any tir5e that significant. new information brought to its attention requires a suspension of-construction to prevent prejudice to its decision on the mer.its L of the issues before it.
4 NRC 166 n.l.
4 p
IV.
Intervenors Motion Should be Denied Since the Board took extensive evidence on the Dow-Consumers contact arrangement as part of its responsibility to determine whether or not to suspend applicant's construction permits, Intervenors motion should be construed as one to +eopen the record to received new evidence. E /
In considering the motion the Board is called upon to determine whether the revised general agreement provides a basis for concluding that a different result would have been reached on the suspension question if the agreement had been available to the Board for its consideration.E/ The record might also be reopened if the general agreement tended to show that significant testimony in the record was false.E I If the Board believed the revised agreement warranted reopening the record to complete the evidence, it has the discretion to do so.EI A stay, however, would only be justified where the new evidence tended to show a different result in the balancing of the equitable factors would have been reached had the evidence been available.
Intervenors have utterly failed to show how the availability revised agreement would have affected the Board's decision on suspension in any particular way.
10/ See e.g., Toledo Edison and Cleveland' Illuminating (Davis-Besse Units 1-3 and Perry Units 1 & 2), ALAB-430, 6 NRC 457 (1977); Duke Power Co.
(Catawba Units 1 & 2), ALAB-359, 4 NRC 619 (1976); Northern Indiana Public Service Co. (Bailly Nuclear -1), ALAB-227, 8 AEC 416 (1974);
11/ ALKB'-227, Suor'a'.
12/ ALAB-430, Suora.
3 Cleveland Electric Illuminating Co. (Periy Units 1 & 2),
ALAB-443, 6 NRC 741 (1977).
m
~
4 At page 2 of their motion Intervenors state that the " revised contact does not allay the concerns correctly expressed bly the Licensing Board in its September,1977 decisiod herein...".
Thereupon Intervenors rehash Dow's testimony at the remand hearings and conclude that it is consistent with the revised contract in that Dow may at some future time determine not to take steam from Midland. Such an argument is of no avail to Inter-venors because the Appeal Board concluded that the Dow testimony indicated a present intention by Dow to take process steam from the Midland plant.
The remainder of Intervenors' motion argues the impact on need for power and alternative site issues should Dow not elect to purchase steam under the revised agreement. These points cannot support Intervenors' motion unless they first demonstrate that the revised contract puts before the Board significant new factual information which would reasonably be anticipated to affect its original determination.
Far from being a significant change from the positions taken by Consu$mers and Dow at the hearing, the revised contract significantly and specifically supports earlier testimony.
For example, Joseph G. Temple, General Manager of Dow's Midland Division indicated in his direct testimony that the revised agreement must have a specifically stated deadline for commencement of a reliable steam supply..(Tr. 220 p. 7). The revised contract provisions are consistent with the Temple testimony except that
- - =*
.,y o
. it now specifically provides that Dow cannot terminate the agreement for failure to supply steam on or before December 31,1384 (agreement p.56).
During the course of this Board's consideration of this matter, the date when Dow could reasonably treat the contract as void for failure to supply ste3.n was speculative and subject to being interpreted as etrly as 1982.
The Appeai Board determined that Dow's present intention was controlling on the steam question.E The revised contract clearly indicates Dow's intention to purchase steam from Consumers.
In light of the above, it is clear that Intervenors' motion must fail.
V.
Conclusion Intervenors have failed to show any new or significant information which would have affected the Board's earlier decision on whether or not to suspend Applicant's construction permits. ' Consequently, the motion to suspend construction must be denied.
Respectfully submit.ted, b
.l
.-m...
/
William J. Olmstead Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of August,1978 J4/ ALAB-458, 7 NRC 155,167 n. 45 (1978).
- - -. = =. +.
g M
6
=
s
's, UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMt1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330 (Midland Plant, Units 1 and 2)
(RemandProceeding)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF OPPOSITION TO INTERVENORS' MOTION TO SUSPEND CONSTRUCTION" dated August 22, 1978, in the above-
. captioned proceeding have been served on the following by deposit in the United States mail, first class, this 22nd day of August,1978.
Marshall E. Miller, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street U.- S. Nuclear Regulatory Commission Midland, Michigan 48640 Washington, D. C.
20555 Harold F. Reis, Esq.
Dr. J. Venn Leeds, Jr.
Robert Lowenstein, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis and 10807 Atwell-Axeirad Houston, Texas 77096 1025 Linnecticut Avenue WashinIton, D. C.
20036 Dr. Enneth A..Luebke Atomic Safety and Licensing Board L. F. lute U. S. Nuclear Regulatory Commission The Doe Chemical Company Washington, D. C.
20555 P. O.
'ox 271 Midlanc Michigan 48640 Judd L. Bacon, Esq.
Legal Department Mr. Steve Gadler Censumers Power Company 2120 Carter Avenue 212 West liichigan Avenue St. Paul, i'innesota 55108 Jackson, Michigan 49201 l
1
e W4 r e#-
._med.m.ews.h wq.h ah
~ *
- Michael I. Miller, Esq.
Atomic Safety and Licensing Ronald G. Zamarin, Esq.
Appeal Panel
(
Martha'E. Gibbs, Esq.
~
U. S. Nuclear Regulatory Commission -
- Caryl A' Bartelman, Esq.
Washington, D. C.
20555 Isham, Lincoln & Beale One First National Plaza Docketing and Service Section 42nd Floor Office of the Secretary Chicago, Illinois.60603 U. S. Nuclear Regulatory Commission Washington, D.. C.
20555 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Norton Hatlie, Esq.
Attorney-at-Law P. O. Box 103 Navarre, Minnesota 553927 (bUt/bt,t.
A. !Y William J. Olmstead Counsel for NRC Staff 9
S-g
.