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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20070E4671991-02-26026 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Upgrading Design Basis Threat for Radiological Sabotage of Nuclear Reactors.Recommends That NRC Deny Petition to Increase Design Basis Threat for Security ML20207C1331986-12-18018 December 1986 Order Terminating CPPR-81 & CPPR-82,per Util 860711 Motion to Withdraw Applications for OLs ML20215E7301986-12-17017 December 1986 Memorandum & Order Authorizing Withdrawal of OL Application & Dismissing OL Proceeding,Per Applicant 860711 Motion. Served on 861218 ML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20211L6391986-12-11011 December 1986 Affidavit of Gb Staley Re Preparation of Answers to Board 861203 Questions on Termination of OL Proceeding. Certificate of Svc Encl ML20211L6181986-12-11011 December 1986 Response to Board 861203 Questions Re Util Request to Terminate OL Proceeding ML20214Q4431986-12-0303 December 1986 Memorandum & Order Granting Motion to Expedite Completion of Withdrawal Proceedings & Posing Questions to Parties.Served on 861204 ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20214T7361986-09-26026 September 1986 Memorandum & Order Dismissing OM Proceeding as Moot & Deferring Action on Applicant Motion for Authorization to Withdraw OL Application Pending NRC Preparation of Environ Assessment.Served on 860929 ML20212M7661986-08-25025 August 1986 Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20212B0311986-08-0101 August 1986 Memorandum & Order Withdrawing Retention of Jurisdiction Over Radon Issue Presented in Facility CP Proceeding & Vacating ASLB Partial Initial Decision on Remedial Soils in Consolidated CP Mod & OL Proceeding.Served on 860801 ML20212B0521986-07-31031 July 1986 Order Extending Time Until 860815 for Util & Other Parties to Respond to Questions Posed by 860716 ASLB Order.Time Extended Until 860825 for NRC Response to ASLB Questions & Util Motion.Served on 860801 ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20207E2851986-07-16016 July 1986 Order Presenting Questions in Response to Util 860711 Motion to Dismiss OL Proceeding & to Terminate Order of Mod Proceeding.Served on 860717 ML20202G1621986-07-11011 July 1986 Notice of Change of Address for Washington Ofc of Isham, Lincoln & Beale,Attys for Util.Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20202G0491986-07-10010 July 1986 Affidavit of JW Cook Re Conversion of Plant Into combined- cycle,gas-fired Power Plant.Plant Never Operable as Nuclear facility.Nuclear-related Equipment Will Be Sold ML20202G0281986-07-0808 July 1986 Affidavit of Ta Mcnish Re True & Correct Extracts of 860408 & 0618 Minutes of Meetings.Resolutions Recited Therein in Full Force & Effect ML20198J3861986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20198J4651986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechhoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20137E0041985-11-21021 November 1985 Notice of Appearance in Proceeding ML20137D9651985-11-21021 November 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20133F6421985-10-0909 October 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20134N3771985-08-30030 August 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl DD-84-17, Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 8506241985-06-24024 June 1985 Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 850624 ML20127N7591985-06-20020 June 1985 Transcript of Commission 850620 Affirmation/Discussion & Vote in Washington,Dc Concerning Denial of 2.206 Petition for Midland plant,SECY-85-60 Concerning Pressurized Thermal Shock Rule & Shoreham Order.Pp 1-4 ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4751985-04-19019 April 1985 Memorandum in Response to Aslab 850405 Order Re Dismissal of OL Application.Application Neither Abandoned Nor Delayed in Dilutory Manner.Certificate of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20107K8011984-11-0101 November 1984 Affidavit of Jd Selby Re Plans Concerning Facilities.Const Will Be Resumed Only If Proposed by Appropriate Governmental Agencies & Officials & If Funds from Some Other Source Become Available.Related Correspondence ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20092J0241984-06-22022 June 1984 Reply to B Stamiris Second Supplemental Proposed Findings of Fact & Conclusions of Law on QA & Mgt Attitude Issues. Certificate of Svc Encl ML20092J0361984-06-22022 June 1984 Reply to NRC Further Supplemental Findings of Fact & Conclusions of Law Re QA 1991-02-26
[Table view] Category:PLEADINGS
MONTHYEARML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20212M7661986-08-25025 August 1986 Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20084J6111984-05-0404 May 1984 Responds Opposing Sinclair 840419 Motion to Request Caseload Forecast Panel Evaluate New Const Completion Schedule.Aslb Should Deny Request for Relief Contained in Motion. Certificate of Svc Encl ML20084H2581984-05-0202 May 1984 Memorandum in Opposition to Govt Accountability Project (Gap) 840417 Petition for Review.Gap Policy on Disclosures to Press Rules Out Genuine Claim That Affidavits Were to Be Maintained in Total Confidence.Certificate of Svc Encl ML20083N6481984-04-17017 April 1984 Petition for Review of Aslab 840330 Decision & Order ALAB-764 Re Subpoenas Directed to Govt Accountability Project.Aslab Erroneous Re Important Questions of Law & Policy.Certificate of Svc Encl ML20087M9821984-03-30030 March 1984 Response to B Stamiris 840304 New Contention Re Transamerica Delaval,Inc Diesel Generators.Bases in Support of Contention Clarified.Certificate of Svc Encl ML20079M6481984-01-23023 January 1984 Request for Leave to File Encl Corrected Copies of Applicant 831209 Memorandum in Opposition to Appeal of Govt Accountability Project.Table of Contents & Table of Authorities Inadvertently Omitted.Certificate of Svc Encl ML20082U0311983-12-0909 December 1983 Memorandum Opposing Govt Accountability Project (Gap) 831021 Appeal of ASLB Order Granting Util Motion to Depose Gap Witnesses.First Amend Argument Inapplicable Since Affiant Identity Will Not Be Disclosed.Certificate of Svc Encl ML20082E1341983-11-22022 November 1983 Request for Extension Until 831209 to File Brief Opposing Appeal of Govt Accountability Project Deponents.Certificate of Svc Encl ML20086A8801983-11-0404 November 1983 Response to Util Motion to Compel & Application for Enforcement of Subpoenas.Submission to Discovery Would Cause Immediate Grave & Irreparable Injury to Organizational Viability.Certificate of Svc Encl.Related Correspondence ML20081F8991983-11-0202 November 1983 Motion to Compel & Application for Enforcement of Subpoenas Against Govt Accountability Project Deponents,L Clark, T Devine,Bp Garde & L Hallberg.Response from Deponents Must Be Filed Before 831110.Certificate of Svc Encl ML20081E8931983-10-31031 October 1983 Reply to Applicant 831014 Response to Second Supplemental Memorandum in Support of B Stamiris 831005 Motion to Litigate Two Dow Issues.Issues Timely Raised & Present New Evidence.Certificate of Svc Encl ML20090H4271983-10-26026 October 1983 Motion to Continue Beginning Date of Hearings Scheduled for 831031 to 3 Days After Date.Extended Hearing Necessary to Allow Time to Receive Responses to 831011 Discovery Requests.W/Certificate of Svc ML20081B1751983-10-25025 October 1983 Motion to Compel CPC Responses to 831011 Interrogatories & Request for Production Re Investigation of Alleged Violation.Certificate of Svc Encl ML20090H3401983-10-25025 October 1983 Motion for Admission Into Evidence of Transcript of Jl Donnell 831015 Deposition.Certificate of Svc Encl ML20081E9481983-10-25025 October 1983 Memorandum in Support of 831021 Appeal of ASLB Orders Granting Issuance of Subpoenas.Subpoenas Violate First Amend Rights.Certificate of Svc Encl ML20081B0681983-10-21021 October 1983 Memorandum in Support of Appeal from ASLB Orders Granting Discovery Against Govt Accountability Project.Subpoenas Violate Common Law of Privilege.Util Showed No Compelling Need for Discovery ML20078K3141983-10-14014 October 1983 Response to B Stamiris 831005 Second Supplemental Memorandum Supporting Dow Issues.Stamiris Fails to Show New & Significant Info Justifying Reopening Record.Certificate of Svc Encl ML20078F5561983-10-0505 October 1983 Second Supplemental Memorandum in Support of Intervenor Stamiris Motion to Litigate Dow Chemical Co Issues Against Applicant.Dow Documents & Complaints Support Litigation of Issues Raised in Original Motion.Certificate of Svc Encl ML20080P1161983-10-0303 October 1983 Errata to 830930 Motion for Reconsideration.Certificate of Svc Encl ML20080P9131983-10-0303 October 1983 Motion to Stay Depositions of L Clark,T Devine,Bp Garde & L Hallberg as Directed in ASLB 830831 Order.Depositions Should Be Stayed Pending Review of 830930 Motion for Reconsideration.Certificate of Svc Encl ML20078A3471983-09-21021 September 1983 Supplemental Memorandum in Support of 830808 Motion to Litigate Dow Issues.Documents Reveal That Util Knew Fuel Load Dates Presented to NRC Jul 1980 - Apr 1983 False. Certificate of Svc Encl ML20077S7161983-09-19019 September 1983 Motion by L Clark,T Devine,Bp Garde & L Hallberg for Extension Until 830930 to File Motion for Reconsideration of ASLB 830831 Order Denying Motion to Quash Subpoenas. Certificate of Svc Encl ML20024E8261983-09-0202 September 1983 Response Opposing M Sinclair Motion to Reconsider Privilege Ruling.Presence of Bechtel Officials at 821124 Meeting Does Not Destroy Privilege.Bechtel & CPC Share Common Legal Interest.Certificate of Svc Encl ML20024E8771983-09-0202 September 1983 Motion to Reconsider Schedule for Submitting Proposed Findings of Fact on Remedial Soils Issues.Intervenors Should Be Required to File Proposed Findings on Remedial Soils Issues by 831115.Certificate of Svc Encl ML20076F3261983-08-23023 August 1983 Motion for Extension Until 830902 to Respond to Intervenor Motion to Reconsider Order Upholding atty-client Privilege Protection for 821124 Util/Bechtel Meeting.Motion Received 5 Days After Mailing.W/Certificate of Svc ML20076C6711983-08-17017 August 1983 Response to M Sinclair & B Stamiris 830728 Motions Re Dow Vs Util Lawsuit.Aslb Should Defer Motions for 30 Days.Motions Could Be Refiled After Documents Reviewed.Two Oversize Drawings Encl.Aperture Cards in Pdr.Certificate of Svc Encl 1986-08-25
[Table view] |
Text
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UNITED STATES OF AMERICA ,y y g/B >
NUCLEAR REGULATORY , COMMISSION ~, bU -
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Before the Atomic Safety and Licensing Board g
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In the Matter of )
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CONSUMERS POWER COMPANY ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units 1 and 2) )
)
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OPPOSITION OF CONSUMERS POWER COMPANY TO MOTION TO SUSPEND CONSTRUCTION On August 2, 1978 All Intervenors other than The Dow Chemical Company ("Intervenors") moved this Atomic 4
Safety and Licensing Board (" Licensing Board") to promptly direct Consumers Power Company (" Consumers Power" or "Licen-see") to halt further construction of the Midland Plant.
That motion was prompted by the recently executed renegotiated contracts between Consumers Power and The Dow Chemical Company ("Dow") . For the reasons set forth below, Consumers Power opposes the motion to suspend construction.
I. THIS LICENSING BOARD LACKS JURISDICTION TO GRANT THE RELIEF REQUESTED BY INTER-VENORS As the complex history of the Midland Plant pro-ceedings has been set forth at length in previous pleadings
- and decisions, it will not be repeated here. The salient points to be kept in mind are, first, that the United States 80080'50 $6 } h _
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Supreme Court.on; April 3, 1978 reversed the Court of Appeals'
. decision in Aeschliman v. Nuclear Regulatory Comm'n, 547 ,
F.2d 622 -(D.C. Cir.1976), which had caused the Nuclear
. Regulatory Commission (the "NRC" or the " Commission") to l direct this Licensing Board to hold hearings on various issues related to the construction permits for the Midland Plant. Second, by Order dated April 10, 1973 the Commission requested that the parties state their views as to what issues, if any, remain for further NRC consideration in light of the Supreme Court's decision. All parties except i
, Dow submitted briefs on that question, which is now awaiting .
, determination by the NRC. ,
In view of the procedural posture of this case, 1
Intervenors have brought.their motion to the wrong tribunal.
As the suspension hearings'have long been concluded and there are no other proceedings pending before this Licensing Board, there is no authority for the Licensing Board to
, suspend construction of the Midland Plant or to take,any
- 1. Other action regarding Licensee. See. Houston Lighting and N 1
Power Company (South Texas Project, Unit Nos.1 and 2),
ALAB-381,.5 NRC 582 ~ (1977). - Rather, the Commission is now
, vested with _ jurisdiction over whatever remains of the p construction permit proceeding by virtue of its April 10, '
- 1978_ order, and 'it. is to that _ body that Intervenors should have presented their motion. .
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Despite the fact that Intervenors' motion must be
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I denied on jurisdictional grounds, Licensee will address the o
[ substance of that pleading to demonstrata that the motion L :
lacks any merit and would not be. granted even if it were i before the proper tribunal.
1 j' II. INTERVENORS HAVE NOT PRESENTED ANY ARGUMENT
- WHICH WOULD JUSTIFY SUSPENDING CONSTRUCTION
. OR REOPENING THE RECORD Intervenors have moved "to~ halt all further con-struction of the Midland nuclear plant pending further inquiry into the terms of and circumstances surrounding the l
t revised Consumers-Dow contract of which a copy was trans-mitted to the Commission under date of June 26, 1978." This
} is essentially an attempt to reopen the evidentiary record l
l of the 1976-77 suspension hearing on the issue of the Dow-l l Consumers Power contractual relationship. For several ,
. reasons, which Licensee will discuss below, such an attempt
.is doomed to failure. -
i- .
A. The Commission Has the Necessary Information 4
Consumers: Power has already provided the Commission l
J
.with copies of the recently. signed renegotiated contracts between Licensee and Dow. Thus,.the NRC now possesses all 4
the information required,ano here is no-need to reopen the record for further inquiry.
Intervenors, however, have relied upon'this fact to create a false impression.. The motion states,-in reference *
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4 to the fact'that: Licensee transmitted-copies'of the rene-l lgotiated contracts to the-Commission, that "Intervenors C
agree with Consumers that'the Dow issue continues to be s
-- vitally [important in this case." This is~most certainly not
-the position of. Consumers Power. Rather, Licensee's - trans-
.'mitta10 1etter of June 26, 1978 sets forth the history ~of-the
. Midland-Plant construction permit proceedings and notes-that the question of whatLissues, if any, remain'for further-(-
consideration in light of the Supreme' Court's decision is presently before the' Commission. It was in this context that Licensee stated that'the. Commission should be aware of' r the recently' renegotiated contracts between Consumers Power and Dow.
As this-Licensing Board is' aware, parties to NRC proceedings have an affirmative duty to keep the appropriate
. tribunal, and other parties,. abreast of changing ~ circum-stances which bear on their cases. See Duke: Power Co.
(Catawba Nuclear Station, Units 1 and 2) , ALAB-355, 4 NRC:
397:'(1976)' and Duke Power Co. (William 1B. McGuire Nuclear -
~
Station, Units 1.and.2), ALAB-143, 6 AEC 623 (1973). .Be-cause'ofithis' obligation Consumers Power' transmitted copies o '~ -of'the-contracts'to the Commission andlto everyone on the.
l l service lists.offboth the construction. permit and operating L
' license proceedings. This~ action.in no way.-negated:or l-
- altered'the position'ofl Consumers Power, as expressed in its.
c April 24,-1978 brief to the Commission, that "nothing remains 1
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-to be' considered regarding the Dow-consumers Power contractual relationship," Licensee Brief at 19.
- B .' : Th'ere is No'Significant Issue Requiring Reopening the Record Int'ervenors have'not-even attempted to allege-the 3
+
type ofJ facts necessary to justify reopening the record in fthe suspension proceeding, for Commission precedent is clear that.that is.an unusual step. Decisions by the Atomic
- Safety and Licensing Appeal Board (" Appeal Board") have
~
l ' established that the propo'nent of a motion to reopen the record has a heavy-burden, and that the motion must be both 4 -timely presensed and addressed to a significant safety or environmental issue. Kansas Gas and Electric Company (Wolf-Creek Generating Station, Unit No.1) , ALAB-4 62, 7 NRC 320, 332 (1978);LVermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-167, 6-JAEC 1151, 1152 -
(1973); Georgia Power Company' (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291,'2 NRC 404, 409 (1975).
In addition,.it.must be established that a different result , .
-would have been reached initially had the new information .
'been considered. Wolf Creek, supra; Northern Indiana Public Service Company, (Bailly[ Generating Station, Nuclear-1) ,
ALAB-227, 8-AEC 416, 418f(1974)..
, .Not only have1Intervenors failed to come: forward
., :with this type 'of :a - showing', but it should also be noted
,that thetquestion.of:thelDow-Consumers Power relationship
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does not. involve a. safety issue, and as the Appeal Board pointed out in its February 1978 decision concerning the Midland. Plant, no environmental or NEPA issue is presented by the Dow-Consumers Power situation. Conseners Power Co.
(Midland Plant, Units .1 and 2) , ALAB-458, 7 NRC 155, 167 (1978) (hereinafter " Midland Plant").
Turning to the substance of Intervenors' argument, it,quickly becomes apparent that their assertions regarding
- the renegotiated contracts are without merit and that nothing in those contracts justfies reopening the record of the suspension proceeding. First, the fact-that Dow has culmin-ated months of-negotiations by executing the new contracts is-proof that that company continues to be vitally interested in participating in the Midland Plant, for businessmen do not enter-into such complex and important agreements lightly.
The Appeal Board, in assessing Dow's intentions regarding the former contracts in a February 1978 decision, found that j " extensive probing on this point at the suspension hearing
- yielded convincing evidence that Dow's present intention is -
to adhere to the contract's terms." Furthermore, as the Appeal-Board state'd, "
(w]e must take Dow's present intention as' controlling ._. . . , " Midland Plant, ALAB-458, 7 NRC at
- _ 167 n.45, 168. To find that Dow's current intentions, as to i contracts which were executed less than two months ago and which resolved- the parties' many disputes, is somehow "specu-lative" when the Appeal Board has already determined that l -
.. _ _ . . . ~ _
m -
.Dow intended to honor the old contracts, would be patently ludicrous.
Intervenors rely heavily on the fact that.the new contracts give Dow the option of terminating its participa-tion in the Midland Plant to bolster their argument that Dow's participation is " speculative." This theory-is'errone-ous in two respects. First, while it is true that Dow may withdraw from the project under several different. conditions,-
it is equally true-that the contract requires Dow to pay a substantial sum of money (an amount totalling mi' lions of dollars) to Consumers Power in order to terminate.
The practical result of that fact is that Dow would not terminate its participation in the Midland Plant
-except'for the most drastic of reasons. Including a termina-tion provision in a contract does not indicate that the parties lack confidence in either each other or the venture -
itself. -Instead, it is the act of rational businessmen who attempt to provide in their contracts for contingencies that may occur, even'if remote.
~
Intervenors also ignore the fact that the previous Dow-Consumers Power contracts, executed in December 1967.and January-1974,-also contained provisions which enabled Dow to withdraw from the project. Although the withdrawal provisions are different'in the 1967, 1974 and 1978. contracts, the important = fact is that each of those contracts did contain Eterms allowing Dow to cease its participation in the Midland b
o
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m -
4-Plant. The Commission reviewed the 1974 contracts, which included withdrawal provisions, and concluded that there
, were no changed circumstances which warranted reopening the construction permit proceedings. Consumers Power Co.
. (Midland Plant, Units 1 and 2), CLI-74-15, 7 AEC 311 (1974).
~
A final area in which Intervenors err in their analysis of the Dow-Consumers Power contractual relationship concerns the emphasis which the motion places upon whether the contracts are economically advantageous to Dow. Once again, Intervenors have chosen to ignore a decision directly
, on point which runs counter to their theories. The Appeal Board disposed of this economic argument once and for all when it held that economic analysis had no place in a NEPA cost-benefit analysis of the Midland Plant once it had been established that the nuclear plant was the environmentally-preferable alternative. As the Appeal Board stated in its -
February 14, 1978 decision: ~
At the suspension hearing and in that Board's decision, extraordinary attention was paid to the relative financial costs .
of various alternatives. But there was' no serious. suggestion that any-of.those alternatives was preferable to Midland
- from lui environmental standpoint. . . .
This being so, we do not perceive that financial matters are.as crucial as the Board below-thought they were. Unless the proposed. nuclear plant:has environ-mental disadvantages'in comparison to possible alternatives, differences in financial l cost are of little concern ~ ,
to us. . . . Midland Plant, ALAB-458,.
l 7 NRC~at 161-62. '
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f i' ,. o Furthermore, the. Appeal-Board made specific refer-ence to'the question of the economics'of the Midland Plant from Dow's. perspective when it commented:
3 s
4-Whether er not it is_.in Dow's best finan-cial. interests to honor its contract is not for us but for Dow to determine.-
- Midland Plant, ALAB-458, 7 NRC.at 168.
It must be remembered:that the Appeal Board's decision is the " law of the case" for any further proceed-4
~ing's regarding the construction permits.* Therefore,
'Intervenors' argument regarding the economics of the Midland j Plant is without' merit, j
In addition to the fact that Intervenors have not i-
^
demonstrated that there is any justification for suspending construction and~ reopening.the record, Intervenors have ignored a : strong _ reason for not doing so. The Supreme
- Court's-April 3,--1978 opinion in Vermont Yankee Nuclear
- Power'Coro. v. Natural Resources Defense Council, which essentially upheld the 1972 grant of construction permits
~
l for-the_ Midland. Plant, has resolved the Dow question. In
- reference to the brief' statement in Aeschliman concerning i
"The, rule.of the law of the case is a rule of_ practice, based upon' sound'-policy that when an issue is once litigated
'and decided, that should be~an end of the matter." U.S. v.
= United States Smelting-Refin..& M. Co.,;339 U.S. 186, 198 (1950). -This doctrine has been held to have a " rightful and 7 . reasonable application to the_ workings of administrative agencies," Retail Clerks Union v. NLRB, . 463 F.2d 316, 322 (D.C' Cir. 19 7 2) . .
4 8
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r Dow,** the Supreme Court found that this was not an independ-ent basis-for. remanding the' grant of the construction permits
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! and, furthermore,1that.the Commission had reconsidered the
~
" changed circumstances" and had refused to reopen the pro-
-ceedings on that ground. LThe Commission's actions in this
, regardiwere approved by the Court, which disposed of the Dow topic in a: footnote, Vermont Yankee, slip op, at 33 n. 22.
Because the Dow-Consumers ~ Power relationship has already been considered at levels from the Commission to the United j States Supreme Court,.and because_the NRC already has copies
- of-the. renegotiated' contracts, there is no need to order a re-examination.-
i Finally, much of Intervenors' argument that con-
-struction of the Midland Plant should be suspended is based i
- upon the fact that' the Commission ordered a suspension of i
construction activities at another nuclear facility in .
i Public Service Comoany of New Hamoshire .(Seabrook Station, ;
\
Units 1.and 2) , CLI-78 __, . 7 NRC (June 30, 1978) . ** The ]
f Seabrook decision is totally inapplicable, however,_for ,l
'there-the Commission ordered a-suspension while the still l
- "As this matter requires' remand and~ reopening of the issues of energy conservation, alternatives as well as re-calculation of costs and benefits, we-assume that the com-mission-will take~into account the changed circumstances iregarding Dow's need for process steam, and the intended continued operation of Dow's* fossil-fuel generating.facil-i tie s .' " 547 F.2d at4 632f (footno'te 'omitted) .
- The commission! lifted _the suspension by-an Order dated August 10, 1978. _
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., n uncompleted construction permit proceedings were remanded to
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correct various deficiencies in the comparison'of alternatives
~
mandated by NEPA. -
The grant of construction' permits for the Midland Plant,- on the other-hand, was approved by an Appeal ~ Board,.
became.'the final action of the Commission when that body declined to review the decision, and was upheld by the United States Supreme Court. :Thus, there has been a valid _ assessment of alternatives under NEPA for the Midland Plant.- Furthermore, the~Dow questien is not an NEPA issue. Therefore, comparison of-the. proceedings.regarding Midland Plant and Seabrook Station indicates that Intervenors-have both misread and
_ misapplied the Commission's decision in the latter case'in a vain-attempt to support an argument that is without merit. ,
CONCLUSION In summary, Consumers Power believes that this Licens.'ng. Board is without jurisdiction to grant the relief sought by Intervenors. However, even if the motion were before the-appropriate. tribunal it would have to be denied
.I for the reasons' set forth above.
Respectfully submitted,
{C0 hY Michael I. Miller- (
NW j
A .- 1
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C., -
-Martha E. Gib W
[ab(
'ISHAM,LLINCOLN &>BEALE'
'One First National Plaza- -
' Chicago,? Illinois- 60603. '
.)
- (312) 786-7500 I lu -
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' UNITED STATES OF. AMERICA o NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and' Licensing Board
~
4
> )
In the Matter'Of )
- ) ..
-CONSUMERS POWER COMPAHY. ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units 1 and 2)- )
)
l )
l CERTIFICATE OF SERVICE 1
i*
I hereby certify that copics of the attached
" OPPOSITION OF CONSUMERS-POWER COMPANY TO MOTION-TO SUSPEND CONSTRUCTION" in the above-captioned proceeding, have been served on the following' parties by united States ~ Mail, first-class postage prepaid,.this 17th day of August,-1978:
i Marshal E. Miller,_Esq. Atomic Safety and Licensing i Chairman Board Panel
-Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.
. Board Panel Washington,-D.C. 20555 U.S. Nuclear Regulatory Comm. ..
. Washington,.D.C.- 20555' Mr. C. R. Stephens Chief, Docketing & Service
. Atomic Safety and Licensing Section
' Office of the Secretary of Appeal Board:
U.S. Nuclear Regulatory Comm. the Commission
. Washington,'D.' C. 20555 U.S. Nuclear Regulatory Comm.
Washington, D. C. 20555~
Richard Hoefling, Esq.- ..
-Counsel-for NRC Staff Dr. J. Venn Leeds, Jr.
] .U.S. Nuclear Regulatory Comm. 10807 Atwell Washington, D.:C. 20555- Houston, Texas 77096
[ Dr. Emmeth A. Luebke L. W. Pribila, Esq.
i Atomic' Safety and Licensing Legal-Department Dow Chemical U.S.A.
4 Board Panel: .
- U.S. Nuclear Regulatory Comm. Michigan Division, Bldg.#47
.W ashington',!D. C. '20555 Midland,-Michigan. 48640 JMyron M. Cherry,-Esq.
4 Suite 74501, One IBM Plaza .
--Chicago,-Illinois _'60611
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Martha E. Gibbs '
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