ML19344A176
| ML19344A176 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/30/1977 |
| From: | Cherry M, Flynn P CHERRY, M.M./CHERRY, FLYNN & KANTER |
| To: | |
| Shared Package | |
| ML19344A177 | List: |
| References | |
| NUDOCS 8008060499 | |
| Download: ML19344A176 (23) | |
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.4 UNITED STATES OF AMERICA 2 %g'2,6117 NUCLEAR' REGULATORY COMMISSION & 2 46y,% , s b ^
Before the Atomic Safety and Licensing Board 6 4 i s, In the~ Matter of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-190
) % -330 (Midland Plant, Units 1 and 2) )
BRIEF OF INTERVENORS OTHER THAN DOW CHEMICAL COMPANY 7/iNr Introduction The Proposed Findings and Conclusions which accompany this Brief set forth in considerable detail Intervenors' posi-tion-concerning what the evidence developed during the lengthy suspension hearings shows, what the crucial questions for deter-mination are, and how those questions should bc answered. This Brief does not repeat that material. Rather, it expands somewhat the reasoning which underlies our framing of the questions to be considered (11 25-27 of our Proposed Findings), and comments briefly on the Proposed Findings submitted by Consumers and Dow Chemical Company. *
.Before taking up those matters, however, we must once again point-out that suspension is required here as a matter of law, quite apart from what the various proposed findings say.
That has been true since the Court of Appeals ' mandate issued almost a year ago--a year during which Consumers has deliberately 8008060 Y
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p .m raced ahead with ' construction,- because "[t] hey feel that the
'more fof the plant that- is built :the -less likely it becomes '
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thattit will be. stopped" (Midland Intervenors' Ex. 3, Dow's notes of a July 15, 1975 Consumers-Dow meeting, at 4) and because."as long as construction continues, Consumers has . U lever" (Midland Intervenors ' Ex.- 25, Dow's notes of a September L
21, 1976 meeting, at 3)--and it becomes increasingly unavoid- !
sble as time goes on. Even without the Appeal Board's timely reminder, Consumers Power Co. (Midland Plant, Units 1 & 2) ,-
ALAB-595, 5 NRC (April 28, 1977), infra., pp. 10-11, or i
consumers' unnervir. gly frank explications of its tactics, we have all known since this Board was convened that ongoing constructio,n' distorts the cost-benefit analysis, forecloses ,
alternatives with increasing speed, and puts Consumers in the l position of "having its cake and eating it, too." It has also 1
i been clear from the outset that the Court of Appeals' ruling cut the ground from under Consumers ' construction permit (see pp. 8-10, infra), so that ongoing construction is anomalously premised on a license judicially declared to be without-legal foundation. -
Those things alone reauire, let alone justify, an immedia t halt to construction. No' fair cost-benefit analysis f
can he-conduc*.ed when "each additional increment to the amount of money. invested in~the project tilts 1the balance away from theLside of environmental concerns." Coalition for Safe Nuclear
)
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Power v. . AEC, 463 F.2d 954, ' 956 (D.C. Cir.1972) ; see also Consumers: Power Co., ALAB-395, supra. Apart from that, no continuing construction can be authorized under a permit' lacking the absolute statutory prereouisites of a valid EIS
- (42 U.S .C. 5 4332(2) (c) '; Calvert Cliffs ' Coord . Comm. .' Inc.
- v. AE C , : 449 F. 2 d 1109, 1118 -19 (D . C . Cir . 1971) ) and a valid -
ACRS Report (42~U.S.C. S 2232b; 10 C.F.R., Part 2,-55 2.101(b), '
(c) , 2.743 (g) ; Id. , App . A, .1T I(a) , (d) , V(f) ; Aeschliman v.
NRC, .547 F.2d 622, 631 ~(D.C. Cir.1976)) .
But as these hearings developed, additional compel-ling reasons to halt construction came to light. We found that-Consumers, in a desperate effort to " finesse" its dispute _with-Dow, had tried to present a. witness ignorant of'the facts, to 1
" blackmail" Dow into submission with threats of litigation, and (here it nearly' succeeded) to suppress the facts through preparing testicony Dow called " disingenuous" and its own sponsor branded'as dishonest. Midland Intervenors ' Exhibit 25 (Dow's notes of its September 21, 1976 meeting with Consumers);
Tr. 2307, 2379-82,. 2394-95, 2399-2400, 2703.~ The' question of ssnetions agcinst Consumers may per se be a collateral issue, as the Board indicated in its June 15, 1977-Memorandum. But' the implications'of Consumers' conduct in terms of the evidence-and the issues'here are not " collateral." They go to the heart of .the. matter, by; virtue of the .long-established rule that such
-conduct warrants'"t:.e natural, indeed the~ inevitable, conclu-m
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sion"-that the guilty party has withheld evidence adverse to-it .* Alab ama Power Co . v . FPC , 511 F . 2d 383 , . 391. (D . C . Cir .
1974) ; Warner Barnes & Co. v. Kokosai Kisen -Kabushiki Kaisha, 102 F.2d "450, 453 (2d Cir.1939) ; McCORMICK, EVIDENCE (2d Ed.
1972), 5:337. That' warranted a prompt halt to construction so that matters could be kept in statu ouo until we found out the truth. -
We also learned that continued construction was (and still is) having an unknown, but possibly vital, effect on crit-ical safety issues. We found that the . opacity in the ACRS j 1
Report criticiza.d by the' Court of Appeals in Aeschliman, supra,- l 547 F.2d at 631, is indeed significant: neither Consumers (Tr.
1074-75, 3711-12, 3718-19, 3756-58) nor'the Staff (Tr. 4217-21, l l
4259-4261) has the faintest idea whether, or how, or at what '
cost outstanding safety . issues can be resolved, or even vpt,3'e
' issues are (since the. ACRS has refused to honor this Board's request for clarification), and, worse yet, Consumers admits that continuing construction may well foreclose resolution of those issues (Tr. 1066-68) . The same is true of QA-QC issues, with the significant addition that even now, let alone if the
-state of ongoing construction necessitates retrofits, Consumers mayfbe financially unable to comply with.all applicable QA-QC requirements. Tr. 1054-56; see also Midland Intervenors' Exhibit 3!(Dow's notes of a July 15, 1975 meeting with Consumers),
noting-the " big potential cost exposure Eor Consumers" and "very
.In fact,, Consumers has continued to do so. Despite repeated requests, it has never produced Messrs. Falahee or Aymond to deny'oriexplain the threats and outrageoustadtics ascribed
- to them by Dow .(Midland Intervenors ' Ex. 25) .
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adverse . economic .effect:on the project"-of continuing QA-QC
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p _ problems',J and: Midland Interven'rs' o Exhibit 68-(Dow's notes of a May- 19 ~, .1976 LDow-Con'sumers meeting) , remarking- thac:
The ' NRC 'is concerned. about the' trend of I
[QA-QC}' problems. The NRC feels that this l
- is a very important [ adverse]1 trend.
)
[T]his problem spotlights the effectiveness of the whole Midland QA-QC program."
r ,
On top of the NEPA mandate and Consumers' concealment--either a
sufficientJof itself to warrant-a halt to continued construc- 1 l
tion without further ade--we therefore confront a record l 1
, admitting that the ACRS 'has not done..its job; that'we cannot ]
'tell-what the-vital. safety issues are (let alone.how to resolve I them); that the. entire Midland ~ QA-QC. program, the essential primary line_ of . defense 'against safety problems (see AEC ' Doc.
. No . WASE-1240. -(19 73) , . at 2-1ff. , 3-19) , shows unmistakable signs of dry rot and penny-pinching, and that continued con-struction will render redress of those' vital safety issues impossible. In the face of those facts, continued construction
[is impossible to justify.- This ' Board has: an obligation to the i
. l public, . lae.' alone the parties, to be certain that safety issues arefpunctiliously resolved'b.efore one further tendon sheath is misplaced or Lrebar .omitted or Regulatory Guide violated. See=
Duquesne~ Light Co., ALAB-408,- 5.NRC (June 2, 1977)', Slip Op.
Lat 8;4 Vermont Yankee Nuclear Power Corp., ALAB-124, 6 AEC 358, 1362 (1973)'; Consumers-Power Co. (Midland-Plant, Units l'& 2),
1 ALAE-106, 6~AECL182, 184-85 (1973). H
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In sum,;we ibelieve1that 'construetion should be-
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stopped. now, as :a matter of. law, : and we urge the' Board to so
-hold. NEPA,-Consumers' gleeful use of further construction
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' as a " lever :and itsJ studied lack :of candor in thes e hearings,
~ the ACRS ' refusalL to comply.with the . Board's requests, and the Board's independent obligation- to consider and resolve-important QA-QC issues demand ~no'less.. -In-the event that the ;
i o Board declines to halt constructio as a matter of law, however, we.also note that--as our: Proposed Findings show--the evidence before the Board : overwhelmingly _(indeed, almost unilaterally)
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' argues against continued construction. In that context, and
.without in any way detracting from- our position that construc-tion must be halted as a matter of law, we discuss below the nature of the " evidentiary issues" and the way in which'they must be approached. l I-. ,
f THE EVIDENTIARY ISSUES FOR '
'DETE'ffINATION IN THIS- PROCEEDING
- Consumers agrees with us (Br. ,. pp . ' 5, . 23) that the issu~es.'to-be' determined'and'the ultimate findings to be made in thesefsuppension hearings derive from two sources--the
.. opinion of the' Court.of Appeals in Aeschliman vs. NRC,-547 4
F.2d' 622; (D.C. Cir.1976) , cert . granted, 45 U.S .L.W. - 3570 (February : 22, 1976) , . and-the Commission's.-August 16, 1976 t
tGeneral Statement >of Policy (41 Fed. Reg. 34708, 34709). .
. Consumers also agrees 1(Br.,-pp. 5, 24-25, 31) that the focal .
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. point ofidiscussienLf.s the ultimate. cost-benefit analysis to .
be un'dertaken during the full remanded _ hearings on'the merits, and that the1 suspension rul'ing must address that ultimate analysisLin three basic ways: -(i) what effect full hearings on .the issues remanded. by .the Court of Appeals are likely to have on the ultimate cost-benefit analysis ;- (ii) what effect
!, a suspension.of construction will'have on Consumers' ability to serve its customers pending che ultimate _ cost-benefit analysis;- and (iii) what effect the incremental costs reasonably- ~
. attributable to a' suspension pending the_ cost-benefit analysis will have on-Consumers'. Three caveats _ appear at.this stage,
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however. First, as..a~ matter of law we must app *.oach the issues in light of the principle that, other things being equal, con-tinued construction pending the rema'nded hearings should not be .
authorized. Second, the test of whether Consumers has met its i
- admitted f(e.g. , Tr. 4126) burden of proving that construction should go on despite the invalidity of its construction license
'and the-admitted. adverse environmental and safety effects-of {
l~ continuing: construction'(see pp. 2-5, supra) is not Consumers '
" probability of success on the merits ."' Both as a matter of basic injunction;1aw (from which Consumers' own test is allegedly
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' drawn, Br'. atL31-32) Land because of the unique context of this
, case,'the proper test'is whether we can say with assurance that ;
' the full remandedihearings .cni the merits will not affect the cost-benefit analysis--or, put another way, that no substantial issues have b~een n raised 11n these. hearings. Third, we do not
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believe that the incremental costs of a suspension are appro-priately.conaidered at all; at the very least, only a remarkably strong ' showing in that area can possibly. lead to a continuation of construction not otherwise warranted . We discuss each of those three points below.
A. Jus A Matter Of Law, .
Continued Construction Pending The Remanded Hearings Cannot Be Authorized Save Upon A Strong Showing That It Is Necessarv.
The dominant legal principles. applicable to the sus-pension issue, _but consistently overlooked by Consumers, are straightforward.. First, Consumerc does not stand in these hear-ings in the shoes of a licensee with a vested interest. To the contrary, - the - Court of Appeals in Aeschliman squarely held that two of the absolute statutory prerequisites to a valid construc-tion license--a proper ACRS Report and a proper Environmental
. Impact Statement--are lacking here, and directed the Commission
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to reopen the entire license issue so that both safety and {
environmental matters could be given full and proper considera-tion. Consumers . does not now have, therefore, a valid construction license. It is~ not now the beneficiary of a valid determination that a' construction license should issue. Rather, it stands now in-exactly the same position it occupied before the 1972 initial
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. decision--that'ofLan applicant-for a license. ~ The' Court of
' Appeals left no- doubt; on that score. Concerning.the ACRS issue, the Court of Appeals made it : clear that a proper ACRS Report is essential. not only because the Atomic Energy Act affirmatively reqrires it, but.also because without a proper report safety contentions cannot adequately be raised and safety issues cannot
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adequately.be addressed. Aeschliman, supra, 547 F.2d at 631.
Concerning the-fatally flawed EIS and the need for full and fair consideration of environmental issues, the Court of Appeals plainly stated that a total reevaluation, in light of presently existing facts rather than the stale and incomplete information on which the original EIS was based, is required (Aesch1.aan, supra, 547 F.2d at 632) :
"As this matter requires remand and reopening of the issues of energy conservation alternatives
' as well as recalculation of costs and benefits, we assume that the Commission will tske into account the changed circumstances regarding Dow's need for process steam, and the intended continued operation of Dow's fossil-fuel generating facilities."
The. Court.made it quite plain that.the. fresh cost-benefit re-evaluation is not to be undertaken"in a way which assumes that Consumers has a valid construction permit or chat its construction.
activ -tes since 1972 hz- e been proper; to the contrary, the
-Court expressly stated that " sunk costs" may not be considered, Aeschliman, supra, 547_ F.2d at 632, n.~20, so that we.must 1
approach the cost-benefitLdetermination (and the remanded hearings
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as .a whole)' as Lthough no li~ cense. had:been granted in 1972 and
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-no construction activity had occurred since then.*
In terms of Aeschliman alone, then, it is admittedly (Tr. 4126)1 Consumers which must showLthat its request to- pro-ceed with construction _should be granted--not-Intervenors who must show- otherwise. . Consumers ' burden 'is - a heavy one, because of the=other controlling 1(and also admitted: Tr . 1066-68, 1138) .
principle that centinued- construction inevitably tends to fore-close alternatives, to increase the difficulty _of providing a full, fair and dispassionate cost-benefit analysis , and to impermissibly distort that analysis by presenting the proposed
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project asf a fait accompli. As the Appeal Board recently held in l this very case, Consumers Power Co. (Midland- Plant, Units 1 .
& 2) , ALAB-395, 5 NRC (April 28,.1977),' Slip Op. at 13-14: -
'" . . The basic issue which is before- the Licensing Board on- the merits--whether to reauthorize the con -
struction of the-Midland facility in the face of claims that the project as presently structured cannot-
- These circumstances, of course, distinguish this case from ~
the " typical" case with which the Commission dealt in its August 16;-1976: General Statement f Policy. The question of how to. handle an existing and p,oroper license flawed only by a possible' defect in the old " fuel cycle" rule is' manifestly differe'nt from the question of-how to deal with a license
' which has not yet-been granted or (it amounts to the esme
-thing) has been specifically held _ invalid. The General
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Statement. of Policy, in fact, expressly recognized that distinction by-imposing an automatic moratorium on the
_ grant of new licenses,-while treating existing licenses as effective unlessLa suspension hearing indicated:otherwise.
As" demonstrated'in the text, what.we have here is a "new"
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slicense1 situation.
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a's a whole): as.~ though no~ license had been granted in 1972 and no:constructioniactivity.had. occurred since then.*
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. In. terms:of:Aeschliman alone, then, it is admittedly (Tr. 4126) Consumers which must show that its request to pro-L ceed.with construction should be -granted--not Intervanors -who F must show otherwise. Consumers' burden-is a heavy one, because of'the other controlling (and also admitted: Tr. 1066-68, 1138) principle that continued construction inevitably- ten'ds to fore-close alternatives,-'to increase the C.fficulty of roviding a
)_ full, fair and dispassionate cost-benefit analysis, and to i
j- impermissibly distort that analysis by presenting the proposed- ;j i
project as a fait accompli. As the Appeal Board recently held !
in this very case,. Consumers Power Co. (Midland Plant, Units 1
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& 2) , ALAB-395, 5 NRC (April -28, 1977) , Slip Op. at 13-14:
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l 1 l' . . .'The basic issue which is before the Licensing Board on the merits--whether to reauthorize the con .
I struction of the Midland facility in the face of claims that the project as presently structured cannot
- These circumstances,'of course, distinguish this-case from-the " typical" case with wtbh the Commission dealt in .its August 16,:1976 General. Statement.of Policy. The question of.how to handle an" existing and proper license flawed only by a possible! defect-in the old " fuel cycle" rule is manifestly different from the question offhow'to deal with a license
- which: has not:yet ~been granted or (it amounts to the same thing) ; has been specificallyl held invalid. The General Statement of. Policy, in fact, expressly recognized that-distinction by imposing an automatic moratorium on the grant of new licenses,7while-treating er.inting licenses as-
. effective'unless a: suspension hearing indicated otherwise.
As-demonstrated-in the text,.what we have here is a "new" license 1 situation.=
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4 survive' a proper ' NEPA cos t-benefit' analysis-~-can
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-be-prejudiced by a continuing commitment of resources -
to the project.- -The more that :Us expended, the less U ~~
.likely :it is. that,fon' ect;c?t of environmental: con-siderations, either; the fcost-benefit balance 'will be tipped against the plant or potential alternatives will_
. remain 1 feasible. In essence. [ Consumers] is seeking to defer' decision on the wisdom or completing the-
. _ facility while continuing the' construction activity-2 that could' tilt the decision-making process in its-favor. There is a saying for this--having your. cake
-and eating it,-too._ Only the-most extraordinary l- circumstances 3could justify our r.equ. iring a party to
- stand byfwhile another
- Ls satiated at its expense." -
[ Emphasis added.]
That'is especially true here, where we. deal not-with a potentially l
minor adjustment in one item.of the cost-benefit analysis (the y situation-the Commission considered,to.be presented in-ahe General Statement 1of ??olicy), but rather with a need to completely restrike the cost-benefit analysis, starting. anew, in light of i
the major changes in the facts t which have' occurred betkofm'1972 and these hearings. Contrary to Consumers' claim that the Board is somehow required- by the Court of' Appeals ' ruling to blind itself to all facts save ones specifically identified by that Court,* both the~ courts and the Commission have made it clear that the cost-benefit analysis is to be achieved in light of'all Javailable up-to-date information. The Commission so held in-Commonwealth Edison Co. , ALAB-153, 6 AEC 821, 823-24 (1973) :
- *1' Consumers'jposition is not supported even by the language.
.of'Aeschliman itself.- The CourtL of Appeals itself remarked
! '(see page 9-above) that since:the cost-benefit analysis would i
~ vhave.to be reoptaed,-it assumed that-the1restriking process '
lwould : consider all relevant updated information; l
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""~. .v. [I]t is 'not proper to resolve a major environmental question on the-basis of.a set of
- facts existing in.the past ifLthere is good reason to believe that there may have been an appreciable and material change in the factual-situation."
Accord, - Environmental Defense Fund' vs. TVA, 468 F.2d 1164, j-
-ll76?(6th .Cir.1972) ; Society For Animal Rights , Inc. vs . .
u Schlesinger, 512: F.2d -915 (D.C. Cir. '1975) ;- see als~o Calvert-Cliffs ' Coordinating Committee, Inc. vs. AEC, 449 I .2d 1109, 4
1118-19 (D.C. Cir.1971) , and - 40 C.F.R. , Part '1500, S S 1500.13.
Under the' circumstances, then,.both the courts and c
the Commission require us completely to reexamine the record, and to. undertake not a pro forma adjustment of the cost-benefit analysis but.rather a fresh analysis de novo. . Considerations of. delay or cost in no way diminish that obligation. Calvert-4 Cliffs ' Coordinating Committee, vs . AEC, supra, 449 F.2d at 1113. When that is juxtaposed with the- fact that Consumers is in no: sense " entitled" to proceed with construction pending .
completion of a proper cost-benefit analysis (since it must be regarded as an applicant rather than as a licensee, and cannot use an invalid construction permit to justify continued expendi-ture any. more than to justify past sunk costs") and the further
-fact that continued construction unavoidably interferes with a proper cost-benefit analysis, it becomes clear that at the very least Consumersimust demonstrate--in the words of the Appeal Board, quoted.at page ll, supra,- " extraordinary circumstances" if it is Q
toijustify having - [its) cake and eating it, too."
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. B . -- Continued. Construction 7
Cannot Be Justified.If -
, Any: Substantial ~ And Un -
resolved! Issues' Pertaining lTo- The-Cost-Benefit Analysis Appear-From'This. Record.
l t In ~ essence, _ Consumers' has attempt ed to analogize. these-
'hearint,s to hearings on a request for -injunctive relief; . it argues that' the. predominant factor is its " probability. of success- on the -
merits." _Br.,- pp. 31-35. That, tiowever, evades the central fact,
, discussed above :(and conceded by Consumers) ,. that it is Consumers and not Intervenors which bears the burden of. proof. In light of the po~sture of this proceeding, including Consumers ' status !
as:an applicant rather than a typical licensee and the serious
. risks (noted_ by th'e Appeal Board and admitted by Consumers) that
.J continued c'onstruction will impair the cost-benefit analysis,.it
=is .ai.sleading toEspeak of " probable success-on the merits".
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. 'Rather, continued construction cannot affirmatively be authorized--
which is what Consumers asks this Board to do--unless the Board can affirmatively fit 4 that there are n_o substantial and un-1 resolved. issues for determination in-the remanded hearings, and that the ultimate cost-benefit analysis will not be affected by
- any.of-the facts now of record. The-very case law concerning
. inj,unctio'ns on which Consumers relies makes that clear. As the Court of Appeals hald :in Benson' Hotel Corp -. vs. Woods, 168 F.2d 694,: 696 -(8th Cir.1948), a preliminary injunction:
.e. .does not' involve'a finairdetermination on t- _the merits;.in-. fact, [its] purpose. . .is not to
' determine any controverted _right, but'to prevent
.. . _ .any; further . perpetration of -injury, or the 4
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e doing of iany act -pending th~e -final determination -
ofcthe action whereby rights.may;be threatened or i _ -endangered',-:and to' maintain things in.the condi-
. tion ;in which they.. arci in at the-time.
. - . .until thefissues can be determined after a full hearing.
1[ Emphasis added.]
That,Lof course, is'~ exactly.the situation here. We know that continued construction will " threaten or endanger rights," and 2
.that suspension is the only way .to '_' maintain things in the condition in which ' they are in at the time" pending further -
hearing. We know that continuation of' construction, far from being the unexceptionable foregone conclusion Consumers tries:
. to make it,: so far achieves ' unfairness as to put Consumers in-the position of."having its cake and eating it, too." We know
-that even noa,. continuing construction.is increasingly precluding
-full consideration not only of environmental; costs and benefits, but of safety issues as well. Indeed, we also know (because Consumers frankly admitted it to- Dow) that that is precisely what Consumers hopes will happen.. See pp . 1-2, supra . .
-In-such circumstances, even in injunction cases'the-7 test'is not who will win on the merits , but rather, as Judge .
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Jerome Frank' held in Hamilton WatA Co. vs. Benrus Watch Co.,
206 F.2d 738, 740. (2d Cir.1953):
it will ordinarily be e ough n th ta the plain-
~t iff has raised questions going to the meries'~so
. . serious , substantial, ' difficult and doubtful, as
!to make them a fair ground-for litigation and thus.
t for:more deliberate ; investigation."
-It is for;that1 reason'that-the courts, particularly in environ-i a
, ment'al cases,i have. not hesitated to enjoin further consummation
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obtheenvironmentallyichallengediconduct,.inorderato-allow
-precisely theS"more deliberate investigation"Lof the costs ~and 4
benefits which NEPA'requiresiand which the' Court of Appeals' c
specificallyLdirected th'e Commission ~to undertake. ' See, e;.g.,
EnvironmentalLDefense Fund vs. TVA, 336 F. Supp.'806-(E.D.
[;
Tenn. - 1972):, aff'd, 468 F.2d' 1164?(6th L Cir.1972) , . stay denied,. _
~4141U.S.:1036E(1973);l RICE vs. GSA, 397'F. Supp. 41,.61;(D.R.I. .
1975) ;E see_ also United. States- vs . Ingersoll-Rand 'Co . , 320 F.2d 509, 523-24.(3rd Cir..J19.63), noting that where important con-
.siderations of -the public . interest are involved, as is the case
'here in: view of the explicit statutory mandates that all environ -
, ' mental and safety issues be fully aired, injunctive. relief is
[ warranted.
The unique circumstances of this case ilso play a
- part here. ' All agree that we cannot 'now conduct the ultimate cost-benefit analysis? required
- byf the ' Court of Appeals, because weldo not have enough facts. See, e.g. .Tr. 1183, 1191-94. In large-part, the reason we ido not.have those facts is because Consumers has . refused to present them, or has so distorted the fadtsfit chose to present as to render them virtually useless as-bases for'a meaningful decision. But everyone also agrees. .
that the-longer construction continues, the less likely it is that-the ultimate decision will truly be meaningful. Under
, those' circumstances, consumers is in no' position to complain' .
lof- the consequences Lof its own failure to be. candid and forth-,
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-coming.
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.. ,f, '! W e-C. The Incrementalt Costs
. Attributable To A Suspension Are Irrelevant.
Itiis clear from the-foregoing that the public interest in a fullLand ' fair determinacion both of environmental cost-benefit issues and of safety-related issues is pro tanto irreparably injured by each day of continued construction. Each nail driven and each dollar spent, as Consumers admits and indeed hopes s see pp.1-2, supra) , taints that consideration, and fort-cl'oses the feasibility and implementation of alternatives, so much more.- As the Appeal Board held (see page 11 ~ suora), continued l
construction simply permits Consumers to satiate itself at the public expense.
l Conversely, however, a halt to construction would.not j l irreparably injure Consumers. It is settled NEPA law that " sunk i i
L costs" may not be considered in undertaking environmental analyres; the principle-is that coets incurred without complying with NEPA (or as a necessary result of NEPA's requirements) cannot be taken into account, because to do otherwise would permit wholesale l evasion of NEPA requirements in a matter quite similar to what Consumers hoped to accomplish here. Aeschliman vs. NRC, 547 F.2d 622, 632 n.20 (D.C. Cir.1976); Union of -Concerned Scientists vs .
AEC, 449 F.2d '1069,1084 En.37 (D.C. Cir.1974) ; -see also Calvert Cliffs' Coord. Comm., Inc. vs. AEC, 449 F.2d 1109, 1118-19 (D.C.
Cir'.1921)', pointing out that no considerations of " administrative-difficulty," " delay," or " economic cost" can justify a failure to
' ~
fully comply with' NEPA requirements .
, ( [+
- y i .
d 5
. Consumers ' claims 'of costs rattributable ' to a ' sus-
, pension, however, are nothing more than aidisguised version r of " sunk ~ costs" . To take them into account would a directly contrary to the holding. in Calvert Cliffs , supra, because it p would in.effect put:a price tag on compliance with NEPA byz-suggesting that full and fair consideration of environmental matters may be -ahort circuited if it is. inconvenient or expen-sive to do'what the/ law requires. In addition, Consumers' delay costs are essentially mere " costs of litigation,"
which ~ fail to rise to the dignity of irreparable injury. " Mere litigation exnense, even. substantial and unrecoupable cost, j does 'not constitute irreparable injury." Renegotiation Board vs. Bannercraft, 415 U.S. 1, 24-(1974), quoted in Consumers
. Power Company (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC (April 28,1977) , Sliy Op._at 12.
3 Accordingly, we. contend that-the entire " cost of delay"
?
- analysis in_which we have engaged during these. hearings is as irrelevant as.our Proposed 1 Findings show it to be inaccurate and insufficient. At the very least, 'it necessarily follows from the
. - foregoing-that if-delay costs are to be considered at all--as j they would :not be, for example, were we undertaking the cost-l l benefit analysis forL the- first time *--only an ' extraordinarily F
- As weihavefdemonstrated at-pp. 8-11, supra,,that is essen-tiallysthe situation we confront here. . Accordingly, we
' repeat lthat sunk costs--including the costs of delaying construction whilesenvironment'al-issues are determined
~(which-isLthe same:as' delaying the issuance of a license ~'
.until NEPA?has'beenicomplied with,'and has never b2en c .
thought to1 giveg rise . to : claims of -injury through " delay -
! costs,!_')--cannot be 'considered -here .-
zam-
,.7
+ r s _
~
- . ? --; . . /-
, s; .
strong showing of unusualiand' irreparable injury could possibly
~
ljustify swhat ' amounts Dto a= refusal to' comply .with NEPA's proce-
- dural requirements . on(prohibited grounds of expense, . see Calvert
- Cliffs,1 supra.
, II. l iCONSUMERSAND-DOW'S PROPOSED n FINDINGS DO NOT~ DEAL WITH THE ISSUES A brief word is appropriate concerning the Proposed 1
l, Findings which have'been submitted by Consumers and Dow. Of.
Consumers Proposed Findings,.we need say.only that they ignore.
out-right the hundreds . of. pages of testimony and dozens of exhibits submitted by Dow and-by Messrs . Temple and Oreffice.
The purported. legal : basis f for that ostrich-like behavior--that
- 1 Messrs . Temple and -Oreffice 'do not speak -for Dow (Consumers '
l i Br. at 10-ll)--is completely absurd. It might be that a-minor- !
Dow official (one of the underlings, not ' privy to the thirking, of LDow -corporate management, - Consumers tried to 'get Dow to
!present) .would be unable- to testify. concerning Dow's -position. '
But'it is nonsense to say that either Mr. Temple--former General Manager of the Michigan LDivision of Dow-and thus directly responsible for. matters pertaining to the Midland
.proj e ct--or i Mr .3 0reffice--President of - Dow U.S .A . --cannot
- testify. to Dow's ? corporate position. In large part, as their testimonyishows~,J they-create that. position. They made it clear-f.n Jtheir ~ testimony,1moreover, that they spoke not for themselves
--al one,;b ut (in4 ways : reflecting- their. understanding of the con- .
. J 1
- 3
-18 '
. _ . _ -. _. _. -_. . . . - - . _ __ _ _._.-~_.
54
- b . <- - - *
- I-
[ p.
sensus.ofhDowmanagement. JJust as it'would besabsurd to
~
claim,_for example',.that.:they would not qualify as " managing agents" of Dow- for- purposes of- Rules -30(b) (6) and 32(a)(2) of.the1 Federal-Rules of Civil Procedure, it is-' absurd-to
. claim that:theirztestimony'is somehow irrelevant =here. See
- 8 WRIGHT .& MILLER FEDERAL PRACTICE - AND PROCEDURE -(1970) ,
~
5 2103; Tomingas v. Douglas' Aircraft Co.,-45'F.R.D. 94, 96 (S .D.N.Y.1968) ; Terry v. Modern . Woodmen of America, 57 F.R.D.
141, - 143 (W .D .Mo . 1972) . A-corporation acts through its agents. In the! case of Dow, -it would be difficult if not
- t. impossible to 'findjtwo " agents" better qualifie'd to testify-in-this proceeding than Mr. Temple and-Mr. Oreffic'e.
Unfortunately,.the same insistent refusal to accept the facts colors the_ remainder of Consumers'-Proposed' Findings. -
Space doe's not permit a point by poi .t listing ;of Consumers '-
~
repeated failure to so much as concede the existence of Inter-venors' cross-examination of its witnesses, or-the presentation ~
of Intervenors' witness Dr. Timm, and in any event.our Proposed !
Findings sufficiently indicate the material Consumers has omitted. l to mention. We cannot, 'however, avoid noting that just as Consumers.' concealment of the truth concerning Dow and its
-repeated failure to. produce witnesses to testify about Consumers' threats sto Dow, the; alleged "needs" of the municipalities and cooperatives , andJother matten requires - an adverse inference
- (see 'pages13-4? above, and: paragraph 35 of 'our Proposed Findings)',
4 isoLitsifailure even now toccome to grips with the real facts and
~ the.real issuesiin this procu ding lcannot aid its position, ae
.2' m
. _ _ .19 -:- , ._. . .- ..._ __ .. . ...
- , 7 A word concerning Dow's findings is also in order.
The notable, . indeed glaring quality of those findings is their silence'concerning the testimony of Messrs. Temple and Oreffice, and concerning whether Dow regards itself as contractually obliged to purchase electricity and steam from the -Midland plant, or whether Dow regards the Midland plant as presently l advantageous to it. :It is noteworthy.that the Dow findings
- nowhere contradict
- any- of the testimony of Mr. Temple or Mr.
Oreffice. Instead, they bypass that extensive testimony completely. From the record before this Board, two conclu-sions are inescapable.from that fact. First, D'ow obviously
- does not wholeheartedly support the Midland proj ect; if it did, we can be sure that it would have said so in order to defuse Consumers repeated threats of litigation.~ Only a
. cursory examination of the gtestimeny of Messrs . Temple and i Oreffice 'is necessary to show that ~Dow's steadfast silence !
indicates at.best extreme unhappiness with the Midland project.
.Second,-it seems clear that Dow's Proposed Findings--like its
~
reluctant " official" decision to' temporarily continue support--
ing the Midland project--have their genesis primarily in l Consumers' threats.of litigation. See if 42-51 of our Proposed Findings , and see Tr. 2311, . 2494, 2699, 2707-09, 2714-16.
l Under those-circumstances, it is manifest that the silence of
- Dow's . Proposed Findings-~cannot -be construed as disagreement
.with anyLofl the facts straightforwardly presented by Mr. Temple and Mr. 0reffice.
~
t- 4 W $ry a 7 Y-W g e *Yf g+ t-
v .
/.
19,..
1
, CONCLUSION-
, -This proceeding presents this Board with a sorry spectacle--a nuclear project: (i) whose primary customer 's I
.' , reluctant acquiescence in its continuation results only from-outright coercion; .(ii) which.has so hugely increased 'in cost -
as tolbe au best " marginal"; (iii) whose sponsor's financial
' ability lto proceed is highly dubious and rests in large part on a $400 million loan which will never be obtained (see Tr.
[ -2427-30, 2711-12, 2720-21,'2723-24); (iv) the need for which ,
is at best ~ doubtful- and can be supported only by demand pro -
jections regarded as questionable by their own authors; and (v)1which is a morass of serious, continuing, and unresolved safety violations. Even thut remarkable ca'talog is only a cursory; sampling of the -evidence turned up so far in these proceedings. That evidence,'and_the legal principles discussed above,ocompel an-immediate halt to further construction. The L problems of the Midland project may .be capable of -resolution, unlikely'as that-now seems. Only further, more detailed probing
.of the issues" raised in these hearings will tell. n til t'.tey U'
are resolved, however, to authorize continued construction
.w ould'be a gross violation of NEPA, .the Atomic Energy Act, L
.this Board's obligation to the parties and'the public to fully
~
Land' carefully . consider and resolve the serious safety and cost- '
1 1
.: l l
- J
?]
' 1* -
]
benefit issues confronting us'(and the other issues we have ,
f not yet even begun to probe, owing to lack of information),*
. and com' mon sense itself.
Respectfully submitted, Myron M. Cherry Peter A..Flynn Attorneys for Intervenors other than Dow Chemical Company 4
One IBM Plaza Suite 4501-Chicago, Illinois 60611 (312) 565-1177>
'* - Including,.we note, the environmental.."en.d-use". issue'we were barred from exploring during these hearings' (Tr. 2468-73)'as'well as the many other " unknowns" identified-in our Proposed Findings.-
._. . -. ._ ._..-a.