ML19344A138

From kanterella
Jump to navigation Jump to search
Intervenors,Other than Dow Chemical Co,Suppl Statement Re Util 770714 Responsive Findings & Brief Concerning Suspension Issue Per ASLB 770715 Order.Const Should Not Be Halted
ML19344A138
Person / Time
Site: Midland
Issue date: 07/26/1977
From: Cherry M, Flynn P
CHERRY, M.M./CHERRY, FLYNN & KANTER
To:
Atomic Safety and Licensing Board Panel
References
NUDOCS 8008060411
Download: ML19344A138 (36)
v • d • e


Text

.. ._ -.

l j ,e;f$ -r

/, 0

.v < t .

n c;\@ ,. .,

-Wl, 7j ,,s g .\

g% ._ A * [

UNITED STATES OF AIERICA #M' 5' NUCLEAR REGULATORY COMMISSION '. - f' I w a ,

en i Before the Atomic Safety and Licensing Board i

' In the Matter of )

)

CONSUMERS POWER COMPANY ) Doc 1:et Nos. 50-329

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

1 SUPPLEMENTAL STATEMENT OF

'INTERVENORS OTHER THAN DOW CHEMICAL COMPANY CONCERNING i

RESPONSIVE FINDINGS AND RESPONSIVE BRIEF OF CONSUMERS POWER COMPANY By Order dated July 15,' 1977, the Board permitted

}i e

the filing of additional comments on the Briefs, Findings and related submissions of the--parties concerning the suspension issue, provided that any additional comments reach the members of the Board in Bethesda, Maryland on or before July 27, 1977.

This document is submitted in response to that Order, and discusses the Responsive Findings and Responsive Brief tendered by Consumers Power Company (" Consumers") 6n July 14,1977.

Introduction

. Before turning to a- detailed examination of Consumers '

Responsive. Findings (Part I below) and Responsive Brief (Part II below), a brief -overview concerning the positions -taken by the parties and the seriousness - of th'e situation before this Board 8008060.fy -

L 3 . .  %

i' i

4 is in. order,.so that_the more detailed analysis which follows c will be placed in its proper context.

l

, The Impact.of Continued Construction. .First, it l is important to. remind ourselves that these suspension hearings

~

vere conducted--and 'the remanded hearings on the merits (yet to  :

i i

- commence) 'willEbe conducted--because Intervenors obtained a-i- decision by the Court of Appeals requiring: (i) further hear-

) ings, and (ii) a restriking of the entire cost-benefit analysis  :

l

[.

in light of the further hearings. Aeschliman v. NRC, 547'F.2d

)

622, 632 (D.C. Cir. 1976). Certiorari has been granted in that case, as in the companion case, Natural Resources Defense j Council v. NRC,.547 F.2d 633.(D.C. Cir. 1976). But those i decisiens have not been reversed, and as the Appeal Board held

, in Censumers Power Company-(Midland Plant, Units 1 & 2),.ALAB-

! .395,15 NRC (April 2;8, 1977), the fact that the Supreme Court granted certiorari does not in the least affect the obligations of this~ Board-concerning either the suspension he'arings or the ' full. remanded heaxings on the merits.*

1 1

  • In' fact, the Board's obligations fully to consider the facts as the~y presently exist, both -:ba the environmental

, . context of NEPA and in the crucial safety context of this  ;

, - Board's obligations.under'the. Atomic Energy Act, will be l unaffected regardless of what disposition ~the Supreme '

- Court makes of the case. Consumers' argument that the Board must' blind 11tself' to all facts other than those specifically discussed by the. Court of Appeals 'is not t only wrong but directly contrary to Consumers ' own state- -i

. mentsito the: United States Supreme-Court. See pp. 10-12,

~15-17,-27-29,_below.

+ *- ' ' __a-m- *__a.- , + g --w y9 - , y

1-1 No one : seriously' doubts that the obligations of ,

~

- this Board, both in the. suspension hearings.and in the

" remanded hearingsLon.the merits which have yet to be. held,

.begin'with :and are colored by *.he proposition,- both as _ a matter o! !act and as a matter of law, that-continued con-struction risks. rendering impossible any fair and meaningful recalculation ~of' costs and benefits. Consumers knows that; it told Dow as much on at least two separate. occasions.

Midland Intervenors' Exhibit 3 (Dow's notes of a July 15, 1975 Consumers-Dow meeting), p. 4; -Midland Intervenors ' Exhibit 25 (Dow's notes. of a September 21,'1976 Consumers-Dow meeting) ,

p . 3. .Both Consumers' witness Keeley and Staff witness

.Crocker so admitted. Tr.-1066-68, 1138; Crocker Testimony, fol. Tr.-4177, p.-3. 'And.the Appe'al Board squarely so held in Consumers Power Co. (Midland Plant, Units 1 & 2) , . ALAB-395, 5 NRC- (April- 28,1977) , Slip Op. at 13-14: "The more 4 .that is expended,-the less-likely it-is-that, on account of

environmental considerations,- either the cost-benefit balance will:be tipped against the plant or potential alternatives will. remain; feasible." -Quite~ simply, that-means--as Consumers

~

has - admitted. by admitting that .it bears the burden of proof on the suspension issue--that weibegin consideration of the

~

. suspension issue with the proposition that, other things ~being

, equal,1 continued construction should not be authorized. It w

is;'then, up'toJConsumers to persuade this Board, through

-: evidence .rather than ' sanctimonious pronouncements and ipse s

4 r

+  : -

,. . . , ,, - . - , . ~ . , ,, . -.

x r

J' -' -

4 ya- .

a

-= .dixits, ythat continued construction must be authorized, des-- -

pite?thej acknowledged adverse effects of continued construction

.onLa-fair.restriking of the cost-benefit analysis.: Otherwise, 4

.asthefAppealBoardpungentlynoted,Consumerswillbe"having its cake.and eating'.it.too."

Consumars ' Method of Meeting .Its- Burden of Proof.

- 'We have previously commented.: on rue Staff's Proposed Findings on the-suspension issue.. We p.;inted out that the Staff's ultimate conclusion defies its own' Findings concerning the l benefit of the Midland Plant to- Dow (Staff Findings, 1 57),

the ultimate cost of the plant (I_d.., 11 68, 79), Consumers' ability to complete. the' plant by the . end of-1984 regardless of any suspension ( M ., 11 69-70,:72,~80), and the combina-tion of increased ECAR reserve margins - I_d . , 1 42) and , ,

4 leereased need for power (resulting from rejecting as un-

)

supportable Consumers ' derating of Falisades and its ' capacity sales to? municipalities and cooperatives', (Id . , 1 36) , leading

.-to the conclusion that a suspension will not unduly impair

~

Consumers' reserves (see Tr. 1696-97, 1840-41). .s Consumers' Responsive Findings are uven less candid (than the Staff's. :Almost without exception, on every signi-t

, ficant issue Consumers , abandons r'easoned argument in fa- or

.of a' combination of;three evasive tactics--refusing to analyze the issue because it is . allegedly beyond this -Board's juris-

' diction ((e_.g. . Responsive Findings,. 11 6, 16, 20-21), obscuring

' ~

- F 9 r t r e-r- <- 4 + =, e--,ea a w --4., ,- = .-w *%- +1--- + +~v-*-

m 4

the' facts by indulging in vituperative personal attacks on Intervenors ' witness Dr. ' Richard Timm (e.g. , Id,. , 11 29, 49, 73), and, when Consumers perceives that its approach of simply ignoring unpleasant facts will not suffice, indulging in outrageous - and self-serving ipse dixits to make up for its lack of evidence (e.g. , Id. , 11 24-25, 37, 45, 54, 80). A-particularly egregious example of the ipse dixit tactic is found in 1 45 of Consumers' Responsive Findings, at p. 40.

The Board will. recall that throughout the suspension hearings, we pressedLConsumers (which could easily have done so) to l provide some sort of meaningful evidence, other than its own unsupported say-so, concerning_ the power needs of the muni-

~

cipalities and cooperatives. The Board will also recall that throughout the hearings, no such evidence was produced by Consumers--a silence which led even the Staff (at 136 of i

its Proposed Findings) to reject Consumers' inclusion in its demand projections of sales to the municipalities and coopera-i tives. Despite that stubborn silence, however, we are now--

aLmost two months after the record closed, and nearly half a year since1 Consumers ended its presentatibn of direct testimony--

confronted with the astonishing and totally unsupported assertion 1 that Consumers "has in fact reviewed the load forecasts of the cooperatives and-they appear accurate."

4 Evidently.we ere expected to accept that statement, simply because Consumers has made it.

If that were the-test, 4

. ig
k.
  • i

~

.we might as well dispense with regulation. . We would simply ask each. utility'to review its own analysis and pronounce itself satisfied:with.what it had done. By no stretch of i - the imagination can-that sort of thing be considered to.

e

- meet Consumers ' burden of proof.*

2

, The Importance of the Suspension Ruling. In'short, just as the Staff's Proposed' Findings-(and its argumentative j

. report on the . inconsistencies between~ Consumers' positions in

j this proceeding ~ and .in -the pending Michigan rate case) have

(

l simply-supported the point made at 11 36-37: of our Proposed j Findings concerning its failure to conduct any independent analysis of the issues and its tendency to rely uncritically

- on whatever~ Consumers puts forth, so the 81 pages and'340 d
footnotestof Consumers' Responsive Findings serve primarily-4

F as further evidence ' of Consumers ' contemptuous dismi.ssal of.

. these : proceedings as ' a futil'e exercise in support of a forgone

conclusion. .In-all honesty, this record does not disclose-a i '
~

singlefinstance of: genuinely independent analysis of any of-4

. the critical issues by- the Staff, or of a genuine search for

' Consumers footnote 1181 purports to provide authority for i its demand- that wei accept without question its j review. of; the ^ municipalities ' and cooperatives ' purported load fore- i c

< casts. ;Butithe Lapinski TestLaony cited merely. refers ~to  ;

thef transcript; and the : transcript consists in turn only of  ;

what Mr. Heins termed "my understanding;of :the understanding" (Tr.1787), ~ coupled with Mr. Heins ' unexplained and un-supported statement that '.'we ga be -'a ccurate"T(Tr. 21789) .

m think [the load forecasts]

Less than a page later, Mr.

nelnsJ admitted that. the forecasts 'might not be- accurate 1:

(Tr. 1790). In"short,1 Consumers' citation of " authority-

forLits tremarkable -ipse dixit consists l entirely of 'another-ipse~ dixit.

Y -

6-p $ p y ,w .m-- e e - e -

b aw-,-m e n-,^ v,+wc wm '

.s information by the ' Staff ~ as opposed to uncritical blanket reliance on Consumers. It does not disclose a single Consumers Power Company witness forthright enough to admit t-that there are two sides to this case, and that Consumers'

" judgments" and " assessments" and. " estimates" are not the last word, to be accepted without inquiry. It'does not even disclose a Dow witness willing to volunteer the truth t

about the bitter and bruising Consumers-Dow dispute over issues fundamental' to the Midland ' project, other than through the impetus of Interveno'rs ' cross-examination.

Saddest of all, the defects in this record have evoked from-Consumers (and in large part the Staff) not an honest response, but rather' attacks-on Dr. Richard Timm (who has been willing, i at considerable risk to his job, to work for little or no pay 1

I -in the public interest during the course of these proceedings),

and wholesale attempts to slough off the serious problems L

disclosed by 'this record-on the ground that the Board is not permitted to consider them.

[In one sense, the suspension issue presented by-

-this record is narrow. The issue-is not whether nuclear power is good or bad; it is not even whether the Midland nuclear project is good or bad. The issue.is simply whether continued l

construction 'of the Midland project should be suspended so l- that the' serious 1 problems ~ disclosed by this record can be i

. fully:and. fairly; examined without the-significant and increasing-i

~

_7

S ri'sk that Consumers ' continued construction will accomplish by fait' accompli what Consumers' evidence has completely failed to support, On this record, and in terms of that narrow issue, it is manifest that construction cannot pro-ceed. Ipse dixit arguments aside, no one can really claim s

that a halt in construction during the remanded hearings on the merits will adversely affect either power supplies.or the Dow contract. As we explained in our Proposed Findings (and as the Staff agrees), there is more than time enough to complete the remanded hearings during a halt in construc-tion and still permit a Dow-Consumers connection if the record ultimately so warrants.

In a far broader sense, however, the issues facing with this Board go to the very heart of administrative regu-lation of the nuclear industry. This Board is well aware, i

and has frequently mentioned, the major public interest implications of the suspension issue. This case is something of a ' bellwether,, and will widely be regarded as an indication of how seriously the Commission takes its; environmental and safety obligations in the face' of prevarication and outright

dishonesy on the part of an applicant. If on this record--

after reversal by a Court of Appeals of a Commission decision,

.an d-under circumstances where even the Staff-has concluded that the chief. beneficiary of the project and its sole environ-mental raison d'etre might even now conclude that the project is no more than~~a hideously expensive white elephant (Staff c #

_ ,_ __ _. ~--

T

~

i .- . s f

Findings, T 57)--the- Board _ does not deny Consumers ' request to continue. construction, a signal will have been given to

the entire ' industry that' environmental considerations really do not matter and that half truths, evasions,-and deliberate distortions and. suppression-of evidence are perfectly'~ acceptable.

-We cannot and do not believe that this Board will allow such a result.

I.

CONSUMERS' RESPONSIVE FINDINGS ARE ESSENTIALLY WORTHLESS '

e s

1 - We turn now to an- analysis of Consumers ' Responsive j Findings.. Even a cursory examination of.those Findings reveals j!

that-- despite their length--they do' not seriously question the g

great bulk of Intervenors' Findings'. Even where Intervenors ' - ,

- Findings ~are' challenged,.moreover, in' instance ~after'inscance the challenge falls - far
short of any meaningful rebuttal.

F LA. TheiDow Issue. i 4

Consumers largely misses (or attempts to evade) the ,

tpointiinLits' Responsive. Findings concerning the Dow-Consumers r +? ,

b - relatiionship .3 .'Although it emphasizes the fact:thatin 1974

,the-:C6nsumers-Dow/contractJwas amended-to provide for certain

,L

  • minimum requirements 1(1.2), Consumers-. omits:: completely the

[ _

y 1 fact that thoseLrequirements'are less'than half of the D ow

~ . s

purchasesEdescribed inJthe original' Environmental Impact State-Ai ,

~

[ '

4 } +[

n.

y y , t -p'. 1 f- y --=, y w - -. .+9'n, -y , , - , g. .aw., -

qw4,.ysw- ,pm.-- 9+ -p-w s- -

ment in1this case, and on which the cost-benefit analysis

. was based. See_Intervenors' Findings,11 4-5. In addition,

- Consumers omits to mention the fact that--although Consumers refers to projected electrical purchases by Dow--Dow has no intention whatever of making any such purchases beyond the bare minimum necessary to. fulfill its contractual obligations (Tr. 2385-89), and indeed would make no electricity purchases in the event that Dow generates its own process steam (Tr. 2405).

Similarly, although Consumers repeatedly tells us that Dow intends to abide by its " contractual obligations" 4

(e.g. ,1 3) , Consumers totally omits. the crucial fact that throughout the suspension hearings--and in its own Findings--

Dou has deliberately avoided any statement as to what it conceives those " contractual obligations" to be. As a matter of Dow corporate policy, in fact, one of the " realistic options" open to Dow is to determine that any " contractual obligations"-it might have had are no longer binding as a result of Consumers' breaches of contract. See Intervenors' Findings , 11 4 0, 47, 50.

s Finally, Consumers demonstrates with respect to the Dow issue the same evasive tactics it uses in other areas.

~

It insists that this Beard has no jurisdiction to consider the Dow question (1 6), and that the ultimate NEPA cost-benefit analysis does not in any way' depend on whether the Midland project is economically advantageous or disadvantageous-

to Dow (1.10). Both assertions are nonsense. In the first place, the final Environmental Impact Statement in this proceeding squarely premises the entire cost-benefit analysis on the Dow relationship, and makes it clear that if the Dow relationship becomes unstable or is terminated, the Midland plant is a futile exercise. As paragraph 46 of the Licensing-Board's initial decision noted, the " chief benefits" claimed for the Midland plant "are-the production of electricity (and process steam) and the elimination of the air pollution from Dow's.present fossil-fuel steam plant." Page XI-3 of the final Environmental Impact Statement is quite forthright:

"If [ Consumers) were not to supply process steam to [Dow],one unit of the Midland nuclear power plant would be canceled and considera-tion would be-given to transferring the other unit to a different site, probably the exist-ing Palisades site."

In light of those statements, and the obviously central role the Dow relationship plays in the cost-benefit analysis, it is nothing short of absurd for Consumers to insist that in restriking the cost-benefit analysis this* Board may not con-sider the Dow dispute. That argument becomes outrageous, in fact, when we note that Consumers has told the United States Supreme Court exactly the opposite. At page 47 of Consumers' Brief on.the. merits in that court, Consumers states:

"The hearings pursuant-to the mandate of the Court'below have dealt further with the Dow relationship, and the Commission itself

~ ^

-is of course empowered either sua sponte or on motion by a party to again determine whether any moditication of its position is-warranted."

.In short, Consumers' position is as lacking in candor as it is devoid of merit.

Nor is it true that this Board must make some sort of " prediction" concerning Dow's intentions . We need only take Dow's own statements, through Messrs. Temple and Oreffice, at face value.

Consumers itself admits that Dow's

" intentions" are relevant (see,. e.g. ,1 13) , and on this record it is by no means difficult to determine what Dow's intentions are. As the Staff itself has recognized (Staff Findings , Y 57), if Dow were to conduct a corporate review of its position right now it might well conclude that the Midland plant has become disadvantageous and pursue the other

" realistic options" open to it.

Consumers does not challenge the accuracy.of our description of the testimony in 11 42-51

.of our Proposed Findings. Its previous attempts to prevent the Board from considering that testimony. (see, e.g. , Tr. 266) were uniformly rejected by the~ Board during the hearings, and should~be rejected now.

B. Consumers'-Ability To Finance the Midland Project.

Paragraphs 12 through 14 of Consumers' Responsive Findings, which concern.its ability to finance the Midland

, _ , - - - - - - , e ' " '

4 project,, consists ' entirely of ipse dixits and wishful think-ing. =Nowhere-does Consumers: deny--because it cannot--that it has demanded a-$400,000,000 loan from Dow in order to i J help' finance the project, a demand Dow's President charac-i terizedras " extortion." See Tr. 2724 Nowhere does Consumers deny, again because it'cannot that Consumers has treated the hypothetical sales to municipalities and cooper-atives--so doubtful-that the Staff, quite properly, declined j to include those sales in its own Findings (136)--as so 4

important to Consumers ' ability to finance the Midland project .

!- \

that it has asked-Dow to agree to amend the Consumers-Dow l

, contract so-that'those' sales can be made.* Nowhere does Consumers even acknowledge, let alone deal with, the fact

, that, as recognized by the Staff's Findings (T68), the costs of the N1dland. project may exceed two billion dollars by the time the plant is completed, at which point the plant will clearly be uneconomic to Dow. As for Consumers ' claim that it has:" demonstrated . . . the reasonableness" of rejecting q Bechtel'sL Forecast- 2 (1 14), the record ' speaks for itself.

Consumers'~ " demonstration" consists solely of a unilateral d decision by one ofiits' employees-'to' disregard not only Forecast 2 but also.the carefully thought out conclusions U l

ofI Consumers '*own in'-house review team. _It is absurd (although not surprising, in ligh't. of - Consumers ' general Lapproach;tonthe? facts in/this case) for Consumers to claim l p, 'that it.has] demonstrated the1 reasonableness of that unilaterali

  • JSee Midland Intervenors' Ex'hibits129 (Consumers' ' September 14,'

19761 file memorandum)fand: G7 $ (Dow'_ si. notes (of a Seotember I'l . 1976

determination--a determination never subjected-to cross-examination, and never even fully explained.

C. The ACRS Report.

  • Perhaps the high watermark of Consumers ' novel approach to facts is its discussion, at 11 15-19 of its Responsive Findings , of the ACRS issue. Consumers begins

[1 15] by flatly contradicting the conclusions reached by this Board in the Board's letter to the ACRS of- January 28, 1977. We need not dwell on that point. As both the Board's t

letter and the comments of Drs. Remick and Leeds in Tennessee Valley Authority (Hartsville Nuclear Plant), LBP-77- , 5 NRC (April 28, 1977), make clear, the ACRS has not)et complied with the~ direction of the Court of 1-Appeals. Indeed, if we are to judge from the ACRS ' Ma' rch 16, 1977 letter to the Chairman of the Commission, the ACRS has

- no intention of complying with what the Court of Appeals directed.

4 Apparently recognizing the weakness of its position, Consumers next (1 16) asserts that in any event the ACRS' '

"other problems" are irrelevant here. Once again, that is nonsense.

.Both Staff witness .Crocker (as Consumers admits) arul Consumers ' witness Keeley directly testified that without further explanation from ACRS they could not tell whether, in what way, or at what cost the ACRS' "other problems" could - be resolved during the1 construction process. Although Consumers '

l

4 attacks our reference to Mr. Keeley's testimony, the fact is-that Mr. Keeley scuarelv testified that "I have no idea" how much it.will cost consumers to comply with all applicable regulatory guides (Tr. 1073-74); that Midland Intervenors '

Exhibit 3, a Consu,mers ' document stating that "if Consumers has to comply with all the NRC. guides, it will have a very adverse economic effect on the project," is correct (Tr. 1055-56); that the amount Consumers has budgeted for implementation of regulatory guides--on which Consumers heavily relies in l T 18 of its Responsive Findings--is based on "no hard facts" (T . 3719); and that continuing construction will foreclose, l

~

or at the very least render substantially more expensive, compliance with applicable regulatory guides and ACRS items (Tr . 1066-68) .*

That lack of information alone shows that, contrary to Consumers ' attempts to sweep them under the rug, the un-resolved ACRS items in this proceeding are far from irrelevant.'

They may have a direct and significant impact on the cost of n the Midland plant, and thus on the cost-benefit analysis. In addition, it ' must _ not. be overlooked ' that the ACRS conclusion

  • We mightLadd that it is sheer nonsense for Consumers to assert.that it-has already made appropriate allowance for l resolution 'of all outstanding ACRS items , when even the C6mmission . Staff ~ concedes (as Mr. Crocker did) that it has.no idea how much resolution'of those items will cost,

-or-even what the' ACRS means by stating that "due considera-tion" must be given to =those items . See 1 53 of Intervenors '

Proposed Findings.

that the' Midland. plant will not present an undue health or

. safety. hazard specifically depends upon "due consideration" being given to'those unresolved matters during construction.

What the ACRS June 18, 1970 Report said is: ". . . if due consideration-is given to these items, the nuclear units proposed for.the Midland plant can-be constructed with reasonable assurance that they can be operated without un-due risks to the health and safety of the public." In other words, until we know what the ACRS meant by "due consideration", and what it meant by "these items," we cannot say with assurance that the F1dland plant will even be safe 21et alone~that resolution of the outstanding items

~

will not affect the. cost-benefit analysis.

D. ~ The QA-QC Issues.

Most of Consumers' attack on our Findings con-cerning QA-QC issues consists of the familiar, shopworn.

argument that this' Board must blind itself to serious and.

. continuing safety problems because the Court of Appeals did not specifically direct that they be considered. To state'that proposition is to
refute it. In the.first place, Consumers itself has. admitted that the continuing QA-QC;

. problems'may have,"a very adverse economic effect on the project" ande" result in a' big: potential; cost exposure for Consumers"..-Midland Intervenors'-Exhibit 3 (the accuracy L

1,. .

of which was conceded by Consumers' witness Keeley, Tr. 1055-56).

Obviously, then, QA-QC matters cannot be ignored in restriking

. .the cost-benefit analysis. Since Consumers admits that the cost-benefit analysis must be restruck in light of currently available information (1 21) and that a Licensing. soard. "may raise issues, such as QA-QC, on its own prerogative pursuant j.

to 10 C.F.R. 5 2.760a" (1 21), . the conclusion is inescapab'.e that the ~ serious and continuing QA-QC problers disclosed by

this record must be further investigated. Nor can Consumers' attempt' to minimize the seriousness of those problems be

- given. credence. At 1 23 of its Responsive-Findings, Consumers admits that resolution of only one of .the continuing QA-QC problems may cost as'much as $800,000; that forcafully suggests the. magnitude of the problems and their impacts on the ultimate

- cost-benefit analysis. (It'is irrelevant, of course, whether it is an, insurance company or Consume's, r or for that matter

Dow,'which must pay for-Consumers negligence. 11e significant point is that the negligence continued to occur, despite the

(

repeatedly expressed concerns of ~ the Appeal Board, see 1110, 56 of our Proposed Findings, to such a degree that as recently as April- 29,-1977 the Commission's Region III Office 1 expressed doubt.toLConsumers as to the functioning of the entire QA-QC program. See 1 56 of our Findings.)

~

In. fact, Consumers ' entire attempt to downgrade the significance .of its QA-QC problems is seriously disingenuous .

f I ~T d *

  • 4 *%

As stated-in 1 56 of our Proposed Findings--without challenge from' Consumers anywhere in its Responsive Findings--Consumers itself has admitted both-the seriousness of its. continuing

.QA-QC problems and the dissatisfaction of the Commission

. with Consumers ' performance. Midland Intervenors ' Exhibit 68', p. 21 E. Need for-Power.

The weakness lof Consumers' rebuttal of our Proposed Findings concerning the need for the power to be generated by ,

the Midland plant.during the interim period of a suspension

'(Responsive Findings, 11 26-39) appears from the extent'to which Consumers feels itself obliged to magnify a typographical error concerning the identification of its short-term budget forecast into a major issue. Indeed, virtually the entire discussion of Consumers' load forecast in its Responsive Findings consists of.little more than personal attacks on Dr. Timm and nitpickings over minor. points. Consumers' tactics, -it. would appear, are designed principally to obscure.

'the fact that Consumers does.not challenge most of the sub-stance -of our Proposed Findings. Consumers does not deny that-its own Energy' Forecast' Executive Review Committee believes:that.there is a 50% chance that its load growth will notJexceed 57. (Intervenors' Findings, 1 66), or that its long-range forecast is based essentially on subjective and: unverifiable 1 considerations, as its own witnesses j.

. ~ '

repeatedly testified (Id. , T' 65,), or that Michigan foresees no net change in State population (Id. ,1 67,), or that its witnesses are unfamiliar with existing energy conservation programs, and even with the plans of its customer, General Motors, regarding energy conservation (Id., SV 65, 67).

Consumers effectively admits that its long-range forecast (like its verifying study) failed to explicitly consider p' rice elasticity--as its own witnesses testified on cross- d examination, see 1 67 of our Proposed Findings. It asserts i that General Motors has no commitment to reduce its energy consumption, even though Midland Intervenors' Exhibit 21,

p. 2, flatly asserts GM's " corporate goal of 5% savings in total energy.use" for the year 1976 alone. And Consumers' statement that its verifying study " reflects conservation I programs by GM as well as price elasticity" (137), to take i but one ' example, is completely false. Nk. Bickel specifi -  !

- cally. admitted that he had not considered the potential impact of price increases on GM energy consumption (Tr. 2007),

and it is ridiculous to claim that he considered GM energy conservation efforts when he admitted that lua was not even

-familiar with GM's own submission to Consumers in~ that regard

' (Tr. ;1985) .* -

Consumers'~1 37 also accuses-us of a " misconception" con-cerning-Dow's commitment to the FEA Energy Conservation LProgram.

--The misconception is-Consumers , not ours. We pointed out Dow's familiarity with that program not to l question the accuracy of Dow's load forecasts, but rather to!show the extraordinary weakness of the information on -

l which Nk. Bickel based his predictions. Mr. Bickel admitted  !

l l((and Consumers does not' dispute) that he was "not particularly Footsote continued oh the.following page.)

- _ ~

4

. . - ' s There is little point in engaging'in a'line-by-

. line refutation of Consumers ' nitpicking efforts . It ir

.important' to point out, Lhowever, that Consumers ' entire argument.seems to ' assume that it is-Intervenors who bear the burden of proof Lin. this case. For example, Consumers accuses Intervenora of' not having prepared an in~ dependent -

load. forecast for ~ Consumers ' system (1 30), which ignores the . fact that' it is up - to. Consumers--not Intervenors--to

. present, -and to ? support with hard evidence rather than ipse dixits , a, demonstratio~n~ of. need for the Midland plant.

) . .

Consumers has simply not done its job, and it cannot claim that Intervenors are 'somehow obliged to. remedy its deficiencies .

Consumers essentially admits that its forecasting methods are-T at best ' doubtful, tin fact, by abandoning attempts to justify its methods 'in favor of the claim that "it is . . . the result of the forecasting analysis:that is essential."

(1 39.) What b

that statement overlooks, .of course, is that results reached

- by improper methods--or, as in the case of the " probability encoding" analysis, methods ~ impossible to objectively retrace s

I-or verify--are no substitute for the kind of hard evidence

' (Footnote. continue'd from~the preceding-page.)

.out familiar" that with the:FEA' program, Tr. 1990; we simply pointed becomes-' his: ignorance,. difficult:to justify on any basis, startlin

Dow--intimately.g indeed when coupled with the fact that P.

involved'with the Midland project and its-major; FEA program.:proposed-customer--issaffirmatively committed to:the

~

E e -- w e - a wr.. .,w_. -e , . -, ---ww , .

  • 4 a

required to satisfy.the burden of proof which Consumers bears.

i F. Reliability'and' b Reserve Requirements.

Paragraphs 40 through 55 of Consumers' Responsive p Findings, which. concern reliability and reserve requirements, need.not detain us long. Those paragraphs omit completely

) the ' fact that the Commission Staff itself has concluded that i

neither the Palisades derating nor the sales to municipalities 3

and cooperatives should be included in determining reserve

, needs (Staff Findings, 1 36).- They omit the fact that Consumers' own' witness *estified that, if Palisades is not

!i derated and the sales to municipalities and cooperatives are

{ excluded,. Consumers ' reserve requirements will be ample during any suspension period'-(Tr. 1840-41). While making much of i

5 ~t he asserted differenc.e in result which occurs if Dow's demands are taken from Midland Intervenors ' Exhibit 18 rather than Midland Intervenors' Exhibit 30 (1 42), Con'sumers omits

{

i to ~ note that,1as shown by Table A to Dr. . Timm's Rebuttal

- Affidavit,-the overallsdifferences in' calculation-are insigni-

.ficant and do not substantiallyJaffect.the conclusion that Consumers. improperly handled the; Dow:salesin projecting its

- reserve requirements. : Although it befogs the question with y ' :a great deal of irrelevant argument (1 50), Consumers does .!

- not: deny; that its. projected unit availabilities are attain- l

-able, given~its substantial maintenance budget increase and it 2j _

1 the fact--also not denied--that. it will have six years to regain the'overall unit availability-lost during only three years of sharply reduced: maintenance budgets. And through-out its' discussion of reserve requirements, Consumers relies

~

heavily'and without explanation on what it has "found" or

" concluded" (e.g. ,- 1 54)--a practice which not only is no substitute , for proper evidence, as we have previously pointed 1 out, but also. adds no~ weight whatever to Consumers ' arguments .

It will be recalled that: Consumers also " concluded" te ignore the findings of its own in-house review team, as well as f Bechtel's formal Forecast 2, in estimating the cost of the c  : Midland plant. The weakness of .that sort of " conclusion" i

~

nee's d no. explanation.* In addition, Consumers ' reference to "the impact of.the reduction in pumped storage cperation" l

(166) is dealt.with in Intervenors ' response to tne Feld/ l

)

. Gundersen Report on.the inconsistencies between Consumers' .!

4

  • It.should.also-be mentioned that Consumers repeatedly

- engages:in cries of " prudent planning", in order to

' excuse the weaknesses which result when the lack of.

factual' basis for its assumptions is exposed. Although ECAR projected. reserves are now = known .to b'e very sub-

, stantially higher than those on which Consumers based

itsjplanning,

-the -reserves mConsumers. wants to ignore ay not materialize. . that because Although.a Palisades- ~-

.deratingfis manifestly :unlikely to occur, Consumers insistsuthat'we should include that in planning reserve

-requirements because it;is " prudent" to anticipate the worst. The trouble with that is that,.as Consumers' Mr. Moselyxadmitted1(Tr. 3318), "it hurts the company

- as well'ast the' customers if you overestimate" demand .I or reserve needs  : Consumers.' consistent. retreat into

" prudence"'is nothing more than a-smokescreen intended

.# toicover'the1 deficiencies of its analysis.

  1. 1 9 y r- = *-.,,y .=r . -

,-,,w ..'r. gr ,e . - - . -,e.rr

a s <

w < ..

f. " *

~

F <

- ratefease filings and its filings in this proceeding, at-I :pp. 6-7. ~ Sinc'eiboth Purchase 10 purchases and economically.

~

I dispa'eched purchases are available on peak :(which is the e

e sole necessary condition concerning pumped storage) , the

. alleged. reduction in1 pumped storage' operation produced by

[r having-purchase: power.available during on-peak' periods is-

[ exactly the'same~whether the purchased power is'" forced"

! without-regard to its. cost-(as happens under Purchase 10)

~

[ .or is economically dispatched. Consumers omits to' point o'u t that even'the Feld/Gundersen Report concluded that l some 12.37. 6f:the total Purchas'e 10 amount--or 110,000 l

} MWhr--could have been generated more cheaply by Consumers even in the 1982, five-month suspension case t despite the

i. .

fact that that case is unrepresentative and involves

[ comparatively' small amounts of Purchase 10 purchases. See

theLFeld/Gundersen Report at pp. 36-37, and Intervenors' i

Response'to the Report at pp. 5-6.. _(Pages 4-5 of Intervenors

l .Responselto the Feld/Gundersen Report also discuss the

!~ _. ~ weaknesses of the " iterative run" technique to which Consumers I t

[- refers at 1'69_ of. its Responsive Findings. As 1 22 of Dr.

fTimm's2 Rebuttal:Iffidavit'and his Attachments B2 sand B3' demonstrate,

' ~

those ."it:erative- runs" are totally meaningless for practical purposes , andicertainly ' od not support Consumers assertion =

'that Purchaset10 has no effect oniits(repzacement power cost- '

h ', Lescimate.)- Finally, sit should . be ?no ted .that Consumers ' own

[,

s-

\Re'spons'ive- Findings J (at T1. 66) prove Intervenors ' point that y

' _- +

^

l- -

?:

4-

,e - - - - _

o . . ,o ; . - --

Purchase'10--which, according to Consumers' own work papers

, (Midland Intervenors ' Exhibit 37) , automatically requires a purchase of power. without regard to cost whenever the reserve level falls below 20% on Consumers' system--is a completely At 1 66, Consumers squarely admits unrealistic assumption.

that it does not automatically purchase power whenever the 4

reserve level falls below 20%.

. G. Costs of Alternatives.

The short answer to Conaumers ' discussion of the costs of alternatives (11 72-89 of its Responsive Findings) is that the discussion is almost entirely devoted to an irrelevancy. Consumers spends a great. deal of t!me hammering away. at Midland Intervenors ' Exhibit 46, on the ground that that exhibit contains' errors. But Midland Intervenors' Exhibit .46R corrects those errors (if " errors" they were),

and also bases its calculation on updated information beyond that which was available when Midland Intervenors ' Exhibit 46 was prepared.* Accordingly, Consumers' labored argument is beside theroint. Similarly, Consumers' 1,86, asserting that errors continue to be reflected in Midland Intervenors Exhibit 46R, completely ignores the detailed response to those alleged errors in 11-32-36 of Dr. Timm's. Rebuttal Affidavit.

In short, _ Consumers ' argument concerning alternatives to the Midland plant consists almost exclusively of a red herring.

  • - In addition, Consumers' 1 62 notes that Dow used Consumers' own figures'in preparing Dow's examination of alternatives (Midland Intervenors- Exhibit 26). But Dow--independently of Intervenors-- '

there concluded that~, on Consumers ' own figures , the Midland proj ect is .very..likely, no.t. Dow's. cheapest option. See 1 50 of -Intervenors ' Propose 3771ndings ~(which Consumers nowhere os . , , -- -- s

. ~.. -

It'also includes examples of cne of Consumers' favorite defensive tactics--attempting to infer by innuendo the i

existence of a fact concerning which it has produced no evidence of record. 'At 1 80, Consumers attempts to imply that " environmental review' requirements in Michigan have changed." But Consumers never asserts that, in fact, any such. change has taken place; nor does Consumers tell us what the hypothetical change is, or explain why it would

" increase the lead time" required to construct a new generating facility. Thus the entire reference to some unknown change in environmental regulations must be dis-regarded. It serves only to indicate how far afield Consumers is required to go in order to prop up its other-l wise unsupportable case..

As we pointed out in commenting on the Staff's 4

Proposed Findings, the-Staff has admitted (at 11 126 and 132 of its Proposed ' Findings) that the only way Intervenors '

suggested alternative ' to the Midland project can be shown to be economically disadvantageous is by ,considering the very " sunk. costs" which Aeschliman,.547 F.2d at 532 n.20, prohibits. Consumers Responsive' Findings do not alter

- that conclusion.

1 R. Conclusion.

Because of time constraints and because we do not'wish unduly to add to;the volume of paper confronting 4

m a -- +

this Board, we have deliberately kept the foregoing analysis t ~of consumers' Responsive Findings as brief as possible. Even so, the analysis shows plainly that Consumers--after 81 pages

. of argument and 340 footnotes, during which it is fair to assume Consumers has raised'every attack it can concerning

^

Intervenors' Proposed Findings--has complete' failed to present any serious challenge to the facts on which Intervenors' Findings are based, or to redrass or even explain away the glaring deficiencies in Consumers' presentation during the 4

suspension hearings. The Responsive Findings are a tissue of ipse dixits, unsupported conclusory statements , omissions ,

inaccuracies, and ad hominem attacks. Like Consumers' initial Findings, they deal with unpleasant facts and plain deficien-2 cies in Consumers' reasoning by ignoring them outright.

Taken as a whole, the Responsive Findings support Intervenors' position, by the very weakness of their-attack on that position. The simple fact that Consumers ' dozens of

" experts" and attorneys can come up with nothing more f

persuasive than the Responsive Findings is itself an eloquent proof of why construction must be halted here, and of Consumers' failure to justify ' continuing construction pending the remanded

' hearings.

II.

CONSUMERS' RESPONSIVE BRIEF IS WITHOUT MERIT A few brief comments concerning Consumers ' Responsive .

- Br'ief are'in order.

Y First. As to. Consumers' attempt to limit'this 3-

. Board's . jurisdiction : solely to the precise issues remanded

~

.by the Court of Appeals, we .repeatf that Consumers ' argument

.is not only contrary to its own statements to the. United 4

States Supreme ' Court. (see pp.10-12, supra) , but also in-supportable. As we pointed out at pp. 16-17,_ supra', '

Consumsrs itself admits that the cost-benefit analysis in

! this case must be restruck on the basis of all currently '

4 available information; both common sense and the Court of 4

) Appeals ruling-require no less.. Consumers also admits

{

that this' Board is in no way obliged to blind itself to

. serious and continuing safety problems in reaching an ultimate determination concerning whether the Midland

!i project should. proceed. See pp. 16'-18, supra. Both the duty to consider all of the presently available evidence

! and.the duty to consider all pertinent safety: issues, however, arise not from the' decision of the Court of Appeals but rather from the Commission's own decisions and this

~

Board's own obligations under NEPA and the Atomic Energy

- Act.
  • It-is sheer sophistry to say that the Court of j-Appeals,- wh'en directing-that the cost-benefit analysis'be l 1restruck,/ intended to preclude the' Commission from consider- - - - - ' '

4-

' ing facts'.which its own decisions indicate must be taken 4

into account-in any cost-benefit analysis. That would amount to concluding.that the Court of Appeals ~ overruled-Commonwealth-427-N'+,e 'N-

- .- - - , y e ,-,A., , 'r - . ,

w ,, , --

t Edison Co., ALAB-153, 6 AEC 821, 823-24 (1973), Duquesne Light Co.,_ALAB-408, 51NRC (June 2,1977), and the Appeal Board's QA-QC decision in this very case, Consumers Power Co.

(Midland Plant, Units 1 &' 2) , ALAB-106, 6 AEC 182,184-85 1

(1973). . But the Court of Appeals, of course, did no such thing. ma the' contrary, the Court of Appeals ' decision to I 4

reject. Intervenors ' QA-QC arguments 'was explicitly based, Aeschliman, 547 F.2d.at 632 n.21, on the fact that the Appeal Board had taken affirmative action concerning QA-QC matters and would continue to superv'ise' Consumers' QA-QC performance.

3 Similarly, Consumers' attempt to downgrade the significance of the ACRS' refusal ~to comply with this Board's requests not only contradicts its own statements to the United States Supreme Court (where. it has taken the position, at p. 35 of its Brief on the merits, that the ACRS determination by the Court of Appeals was both " substantive" and itself an indepen-dent ground for the remand), but also ignores the Commission's statement.to the Supreme Court (at p. 67 of the Federal Respondents ' Brief on the ' Merits) that safety "is a major.

function of the Commission" and that the " independent expert i

technical advice" provided by ACRS is needed by the Commission I in order to fully perform its safety function. Obviously, l if f the ACRS Report is a necessary element of an adequate

- safety determination,.as the' Commission says, and if the Court 'of Appeals considered the Report's inadequacies so

~

important as to provide an inde' pendent basis for remand, as

-28 . '

wy'--e y gr - *-- - 'T g-

W

.s .

Consumers says, an adequate and clear report is essential to this proceeding. In addition, as is explained at TY 56-57, 81 ,

of our Proposed Findings, the record here shows that further i

QA-QC and ACRS exploration is indispensable not only to proper resolution of safety issues but also to a proper restriking of the cost-benefit analysis. See also pp. 14-18, supra . - In light of all that, it is ridiculoas for Consumers now to argue that this Board may not consider those issues or that those issues are unimportant.

Second. Consumers ' attack on our formulation of the test to be applied on the suspension issue (Responsive Brief, pp. 6-8) is unfounded. In the first place, it is obvious that if, as in Hamilton Watch Co. v. Benrus Watch Co. ,

204 F.2d 738, 740 (2d Cir. 1953), a "more deliberate investi-gation" of " serious , substantial, difficult" questions is required before the revised cost-benefit analysis can be struck--and even Consumers does not dispute that that is true--what is called for is a halt to continued construction, not a centinuation of construction. Consumers' attempt to

-confuse the matter by putting Intervenors in a position of a party seeking an injunction cannot succeed. As we pointed out at pp. 2-3,Lauprai, consideration of the suspension-

' issue'in this case must begin with the presumption that, absent strong reasons to the contrary, construction should not be allowed to continue. .Put another way, Consumers must carry a iheavy burden of proof before-it can be permitted, in

- . _ _ ._ _ _ . ~ _. .

d s ' the words of the Appeal Board, to -"have its cake and eat

'it too." -As the Staff correctly recognizes, that has nothing

' to: do with probability of success on the merits of the remanded 7 hearings. Rather, .it. has to do with the integrity of the very hearing process itself.- What consumers overlooks is the fact j

.that' continued construction risks effecting the outcome of the remanded hearings--in other words, risks irreparably

~

altering _the status qtm in a manner which strikes at the -

very heart of the ultimate decision this Board must make.

8, As long as there are any " serious, substantial, difficult

{ and doubtful" questions concerning what that ultimate deci- ,

4 sion-will be--an unavoidable conclusion from this record--

the present status quo should be preserved, and construction i

halted, so that the decision will not be affected, consciously >

or otherwise, by continuing expenditures on the Midland project A

and so that alternatives to the project (including redesign i of the project, both for economic reasons and to meet develop- .

ing safety' problems) will not become unfeasible. That

' ~

continued construction will both affect the ultimate cost-benefit decision and foreclose alternatives to the Midland -

.projectL in its present formfis indisputable. As we pointed out at pp. 2-5, ' 10-11 of our Brief on the suspension issues and in 11 81-82 df.our Proposed Findings,JConsumers and the Staff have_both recognized that continued construction will

~

' affect the outcome of the co t' bs - enefit analysis and will

. w_

I T 5 y

~- 30 '

~

M4 e 4 1 / w e . w . * -.re + e-~, .,a g , F- ,+r+.w-yy e

  • av.+ - -- g- --= rvg- a--

i L

L foreclose alternatives.*-

Third. -At pages 10-12 of.its Responsive Brief, Consumers; attempts to argue that--contrary to the perfectly I straightforward and explicit language of.the Court of i.ppeals~

in~Aeschliman- " sunk costs" can be taken into account in this' proceeding. The sh' ort answer to Consumers ' argument lies. g simply'in'the fact that the Court of Appeals, as quoted by Consumers'at p. 11 of its Responsive Brief, did not say that " sunk costs" could be. considered, even in the context of.abandonmentofthefacility...Tothecohttrary,theCourt of Appeals said: " sunk costs are not appropriately con-sidered costs of abandonment." To be sure, the Court added

- that replacement costs may be considered, if under the circum-stances some sort of replacement facility c'an be anticipated as a consequence of : abandonment. But replacement costs, obviously, are the : costs ' of the alternative facility--for example, the' alternative facilities discussed in' Midland l

l I

Intervenors ' Exhibit 46R. In no sense- do they include: the ,

l

- sunk costs of the abandoned project '(which the Court of Appeals carefully l differentiated from replacement costs).

~ *. Consumers? contrary claim :in its : Responsive Brief 'is L  : based / solely on:its conclusion that the outcome of the full remanded hearings on:the merits will necessarily

be-- a 'de~ cision - to proceed with the Midland .proj ect as presently planned.. That reasoning, of: course,not only partakes ofisubstantial' arrogance in its' bland.

i.

' " assumption:that.this Board.will-do whatever Consumers -

wants, but also is completely circular.- It assumes b ,

- the' very ultimate conclus~ ion which, for purposes of- .

this suspension. hearing, is by hypothesis ope _n to doubt--

, a hy.uothesis amplyJjustified by the record'made so far; .

+

-j -31 .

I 3 . y,

'k O fT ,# q d v ev *,w< + =--v=*~we, -+=r-"

l ,

s Consumers' argument on this point is not only unsupported by the. language it quotes, but plainly contrary to what NEPA requires. As we pointed out at pp. 16-18 of our Brief on the suspension issue, the reason " sunk costs"

.cannot be considered is precisely because to consider them i

would be to allow Consumers to frustrate the cost-benefit analysis which lies at the heart of NEPA, in the very process of pretending to proceed with it. That is the i process the Appeal Board described as "having your cake and eating it too." But the " incremental cost analysis" Consumers now urges upon us is simply another version of that very thing. Whether we consider sunk costs by adding them up and looking at the total amount (which even Consumers admits' we cannot do), or by adding them up and then sub-tracting them from a hypothetical total so that a figure for " incremental costs" is obtained, we are still looking at sunk costs. We are still altering the cost-benefit i analysis on the basis of how much money has already been spent on the project under' discussion. And that is precisely l i )

what we may not do.

l,

~Just as Consumers' legal arguments are incorrect (as we have seen), they are 'also still a further indication of Consumers '-inability,to deal with. the actual record in this case. 'In each instance,. Consumers' legal arguments represent an attempt either to avoid the issues (as by I claiming that this Board 'is forbidden to ' consider them) or I

to change them (as by suggesting that we should all staply assume Consumers will win on the merits, or by insisting that sunk costs be taken into account) .* What Consumers does not do, either in its Responsive Findings or in its. Responsive Brief, isna come to_gxips with the issues as they really exist. We submit that the reason Consumers does not deal with the-issues is the same reason which underlies its attempt T

to manipulate testimony in the suspension hearings, its reliance on ipse dixits rather than evidence, and its attempts to mask the shortcomings in its presentation through a series of personal attacks on other witnesses: Consumers knows that, on a - fair analysis of the facts , its position is insupportable.

CONCLUSION i

We are' angry' We are angry not only for ourselves i

but for the licensing process which has been put upon by Consumers' arrogance and the Staff's negligence.

  • Similar problems appear in Consumers' attempt to deal 4

with the preparation of the Temple Testimony, pp. 13-25 of its Responsive.Brief. However, we see no need to respond to Consumers on that subject. The factual record is so damning, and Consumers' attempts to obscure.its improper conduct so weak, that no refutation is necessary.

One example will suffice. Although ddmitting-that it'tried to present a witness unaware of the Consumers-Dow dispute, Consumers claims that its suggestion "cannot be considered the taking of an action intended to deceive this Board" because in the end, Mr. Temple was the Dow witness.

, . Responsive Brief, p. 21. What that overlooks, of course, is the fact that Mt. Temple became the witness only because Dow insisted upon it--not because Consumers , as it tries to imply, voluntarily selected him. See Tr. 2570, 2703-04.

_22_

4 Can the Board find one witness of the Regulatory Staff who did any independent analysis on a critical issue?

Can the Board find one Regulatory Staff witness

who did;not rely entirely on Consumers' inf rmation and analysis.on all critical. issues?

Can the Board find one Regulatory Staff witness who.took his job. seriously enough.to travel to Michigan or to speak to the municipals or cooperatives or go seek

, information from Dow Chemical in order to arrive at a conclusion upon which sound regulatory judgments can be 4

made?

Can the Board find one Dow witness who affirma-tively (and without the cross-examination of the-Intervenors) f thought seriously enough about the important issues in this

~

case to stand up and be counted and through direct evidence tell the~ truth?

Can the Board find one Consumers' witness who i was honest enough to admit that just maybe there was another side to the story offered.by the- utility, which has already spent $400 million in pursuit of what may be an unattainable objective and certainly an objective which has not been

-critically analyzed?

Is the Board willing.(in the face of the dis-

. honesty 'and deceit in lthis recoid) to accept Consumers '

( _

" judgment" when~that very same utility did not seriously ca  ;

. consider that the hearing process (without the Intervenors--

see Midland Intervenors' Exhibit 26) could affect its destiny?

The answers to all of these questions in any serious way must all be No. And the saddest part of this whole case i

is that cliedefects in the record have engendered not honest -

. response by-Dow, the Applicant or the Regulatory Staff,.busc rather attacks on Dr. Richard Timm, who risked his job to work for little o no pay in the public interest, and attacks upon Intervenors' lawyers, who have been adamant and unwilling j

to put up-with the incredible arrogance that marks the history of nuclear utilities and Staff regulation.

The granting or denial of suspension, of course, will have real and significant meaning to the entire regulatory process and every single utility, utility lawyer and Regulatory Staff employee is looking to this decision as a bellwether to-determine whether the arrogance of Consumers and the negligence

,f.the o Staff pays dividends.

We respectfully suggest that this Licensing Board, on this record, need not be timorous in reaching a decision to halt construction. The record supports.--and demands--no

-other conclusion.

Respectf lly submitted,

/ t-

/> A M in> 1

.Myron M.LCherry. One bf A' he Attofnefs'for. tervenors Peter A. Flynn othedihan Dew Chemical mpany

'/

One. IBM Plaza-

. Suite 4501 Chica 60611-

.(312)-565-117.7 go , -Illinois l

~ ~

e .. . . . _ .. .

PROOF OF SERVICE 4

- I.hereby certify that that "Intervenors' Response to Objections by Consumers' Power Company to the Admission into Evidence of Certain Additional Exhibits Offered by Intervenors," " Supplemental Statement'of Intervenors-Other than Dow Chemical Company Concerning Responsive Findings and Responsive Brief of Consumers Power Company,"

and a letter to the Board dated July 26, 1977 were delivered by Federal Express' messenger to arrive in the Board's hands by July 27, 1977, A.M., in the office of Frederic J. Coufal, Esq.,

Chairman, and that copies were mailed to Mr. C. R. Stephens, Chief, Docketing and Servicb Section, Office of the Secretary of the _

Commission, Washington, D. C.,.to counsel.for Consumers Power Company, the. Regulatory Staff-and Dow Chemical Company, pos age i

prepaid and properly addressed _on July 26 1977.

~

S us WMf dFllIC Cher:p'yl ._)

e N g

/

h i

f' 44 .

.s

~

R @$

O

\  % y e

e nr

_, -

Retrieved from "https://kanterella.com/w/index.php?title=ML19344A138&oldid=2481340"