ML19344A145

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

ML19344A145
Person / Time
Site:	Midland
Issue date:	10/23/1977
From:	Cherry M, Flynn P CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19344A143	List: ML19344A142 ML19344A145
References
NUDOCS 8008060427
Download: ML19344A145 (8)

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UNITED STATES OF AMERICA 2 OCT2 71977 > r-NUCLEAR REGULATORY COMMISSION h ,,,,.s,,

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Before the Atomic Safety and Licensing Appeal Boa g

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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 a which is a response to Consumers' Motion to Strike and also is a reply to Consumers response to our motions which Consumers filed in the alternative. _

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 Motion to Strike is timely we believe) because of serious inaccuracies in Consumers' presentation.

1 Response to Consumers'

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Motion to Strike

1. When we filed our Motion for Stay we were unaware -

of the revisions to-the Commission's Rules of Practice which 8008060 M2k _ _

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were published in.the Federal Register under-date of Monday,

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May 2,'1977. We are a small law firm, do not subscribe to the Federal Register, and onlycwould see-procedural changes in the yearly bound volume of the Federal Register er if it was otherwise called to our attention. In fact, the first Appeal Board decision whichswe 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 the Court of-Appeals. However, we filed our papers before the Appeal -Board to- permit the Appeal Board or the Commission -

to correct the' injustice if it chose to-do so;

4. We believe that our stay request meets all -'

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 l emanating from the Court of Appeals' decision in

[ .Aeschliman which prohibits the consideration of sunk costs-

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i. and'the Licensing Board's. Order which expressly relies upon.

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. sunk costs. The reason we. filed no affidavits is that 4.t p.

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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 ba' sed'upon other of the Licensing Board's findings as:we have pointed out; .

'6. Consumers' Motion to Strike is also at odds with Consumers' representations to the Court'of Appeals. Thus Consumers 'has argued to the Court of Appeals that the Court 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 that censumers has no respect for these hearings and no respect for the Commission.

This Appeal Board hasEcommented before.on the inability to 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, 1973.. In. fact, Consumers' having licenses in light of its historyLboth in Midland and Palisades is nothing' less. than regulation run rampant. A plant is'being built without a valid NEPA review and under circumstances where

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all s'afety questions have never been-addressed and in the

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k ' face.of: blackmail'against Dow and' justice. Atesome point

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j:: we irill all:have;to face the reality of the law and we hope c

.that it.will-be'.now and-here before.the Appeal Board. If it <

is:not,-we will not shirk in our duty to whatever else is 2 1 necessary.

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. 8. ' Sooner or later, particularly1in light of the record compiled,'as well as the history of Consumers

l. chronicled elsewhere,' consumers' actions are going to

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. affect the public health.and safety in a.very serious way, L just_as its stratagems and ploys have' dealt a serious.

1 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. seriousness' of the -situation and rewards Consumers Power Company for-what'it has.done, then no

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utility anywhere williever-believe'that the Nuclear-Regulatory

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Commission is a'ny:more'than a paper-tiger. Leaving philoso-phical concepts'aside'and translated into reality, such

' irresponsibility-may result in ~ serious injury and perhaps- -

even-death. {The Appeal Board must enforce the law now, parti-cularly when 'itti s c1 ear: that- the fiction of honest Regulatory

St'aff o'verviewtis falling'-to 1.he wayside both in this and other l

_ cases. . -While a nuclear power may; be needed, one may argue,-

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[- ifor'the resolution ofJour energy. problems, it is equally; I l

i clearl that:' enforcement. of' the law l1u . needed to prevent -a-.

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1 . multiplicity _of thel admitted insults which this: record dia-

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closesiby Consumers and other utilities. -After all,-the

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Nuclear Regulatory Commission relies heavily _upon the 1

. integrity of the-utility. If Consumers is rewarded _for

.its total' lack of. integrity

and.the Licensing Board's 1

. improper legal principles!are allowed to survive, then

we surely foresee the en'd of nuclear power because.the

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l. system of regulation and hearings-will.have been destroyed;:

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r 9.- Let us not forget that we h' ave yet to L have the remanded hearing which, _ if fairly implemented, i

l could L change .~or - eliminate the Mid land plant. It simply I is beyond rational articulation to permit the Midland, plant _to proceed.

h3EREFORE,-we ask that Consumers

• Motion to Strike be' denied.

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Reply to Consumers Response

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We have only a.very few short remarks 1to make concerning Consumers' response.

-First off,_it is clear that our argument concerns

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an erroneous legal application by'the Licensing Board regard-

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ing sunk costs. That legal application has in effect told i

Consumers and everyone else that alternatives are foreclosed l

l' because Consumers has already spent money and alternatives l will continue to' be foreclosed. ,

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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 being considered which ..

-the Licensing Board has held wakes the remanded hearings a i

i joke.

[ We believe that the Appeal Board recognizes the ,

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l importance of the. Licensing Board's decision both with '

l l- 'respectLto this-case' and to'overall regulation and we ask l for~a prompt'and Lumediate consideration.

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 i

Appeal-Board feels 1 bound to deny'our motions on-the basis

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of' Seabrook that the Appeal, Board refer the' matter immediately i

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Respectfully submitted, l

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l Ongebf f1E Attorneys for Int rvenors

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Othed han Dow Chemical Com any l-l l

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MYRON.M. CHERRY. l PETER A.'FLYNN l

-One. IBM Plaza- '

'Sule.e-4501

= Chicago, Illinois 60611

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PROOF OF SERVICE 1

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I certify that four copies of the foregoing document were mailed,, postage prepaid and properly addressed, to the Secretary of the Atomic Safety and Licensing Appeal Board, and that copies were also mailed, postage prepaid and properly addressed, to the Secretary of the Nuclear Regulatory Commissi~on and-counsel for, Consumers Power Company, the Nuclear Regulatory I Staff, and Dow Chemical Company all on October 23, 1977 m

One of dA&i / h he Attorneys for I tervenors Other an Dow Chemical C mpany M1Iam

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