ML19344A286

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Intervenors,Other than Dow Chemical Co,Form of Order Compelling Util to Promptly Cease & Desist from Further Const of Facilities Pending Completion of Remanded Hearings. Related Correspondence
ML19344A286
Person / Time
Site: Midland
Issue date: 07/15/1977
From: Cherry M, Flynn P
CHERRY, M.M./CHERRY, FLYNN & KANTER
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML19344A280 List:
References
NUDOCS 8008070665
Download: ML19344A286 (5)


Text

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n=h UNITED STATES OF AIERICA

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NUCLEAR REGULATORY COMMISSION

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l to Before the Atomic Safety and Licensing Board f[

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In the Matter of

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CONSUMERS - POWER COMPANY -

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Doeket Nos. 50-329 r

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50-330 l

(Midland ~ Plant, Units 1 and 2) )

-FORM OF ORDER PROPOSED BY l

INTERVENORS OTHER THAN DOW CHEMICAL COMPANY J

I On the basis of the Board's Findings and Conclusions, and its opportunity ' to observe the witnesses and judge their l

credibility, the Board concludes that Consumers Power Company has not borne 'its burden 'of proving that' construction of the Midland nuclear facility should be permitted to continue and furthar-construction expenditures should be authorized pending i

completion of the full remanded hearings on the merits pursuant to the mandate of the Court of Appeals.

The Board further con-l cludes that neither the Commiss' ion' Staff nor Dow Chemical l

-Company has demonstrated that construction should be continued.

t Although both have submitted proposed Findi'ngs, neither has

critically and independently assessed the underlying issues--

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in Dow's case, apparently because of its concern over Consumers '

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threats of litigation (see paragraphs.40, 42-51 of our rindings l

and Conclusions), 'and in' the Staff's case, because of an almost complete failure to undertake the task of independent data gathering.and analysis contemplated by'its role in contested

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1 Commission proceedings -(see paragraphs 36-37 of our Findings

. and Conclusions). ' Virtually without exception, the Staff has simply _ accepted Consumers' conclusions, on the basis of infor-4' mation obtained from Consumers'itself_and without any attempt to' verify the' facts underlying. Consumers' assertions.

(But for the Saginaw-and Mapleton Intervenors, those assertions and factual allegations would have gone essentially unquestioned; this. Board has neither the time nor the resources to conduct, on.its own, the kind of detailed and searching inquiry mandated

' here both 'by NEPA and-by the important and unresolved safety concerns disclosed by the record.)

Accordingly, and pursuant -

to the Atomic Energy Act of 1954, as amended, and the Commission's.. reguladions,.IT IS ORDERED that Consumers Power Company, its agents and employees shall promptly cease and desist from al1~further construction activities with respect to the Midland plant, Units 1 and 2, pending completion of the - remanded. hearings and until-further order of ~ this Board.

IT IS FURTHER ORDERED, in accordance with 10 C.F.R.

155: 2.760, 2.762, 2.764, 2.785, _ and 2.786, that this Order shall become effective _immediately and~shall_ constitute, with f

- respect to the matters. covered'hereiniand in our Findings and-Conclusions, the 'fina11 action of - the Commission 30 days af ter -

.the-date;of the issuance _ hereof, subject to any review pursuant to the Commission's: Rules of Practice.

Exceptions to this initial decision may be filed by any party within seven -days.

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- after service hereof,'and a brief in support of such excep-tions may be filed by any party within.15 da'ys: (20; days in l

. the case of the Staff)' thereafter.. Within 15 days of the

filing and service'of the'brief of the appellant (20 days

' in the case:of the Staff), any other party may file a brief

- in support of, or in opposition to, the exceptions.

IT IS FURTHER ORDERED that the request of Consumers Power: Company for a '. stay. of the effectiveness of this Order.

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pending' review ~, pursuant to 10. C.F.R. S 2.764(a), is denied.

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- In part, our' denial of-the-stay request rests upon_the fact that 'to grant it would be to authorize, for an indefinite l

period.the length of which we cannot-determine,' the very continuing construction which we have cone'luded'should'not t.

- be allowed-because'of Consumers Power Company's failure to

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~show 'that's'uch relief ~i57hicessary.. Thesame factual, legal,

. and' equitable'. considerations-pertinent to'our ruling (and f;

set forth in ourl Findings and Conclusions) apply with equal

. force to.the' stay request.

Un' der the circumstances, the language of-the. Appeal Board in-denying' Consumers' earlier _

stay request'is precisely applicable.

Co'nsumers Power Comoany (Midland Plant, Units ' 1 & ; 2), ALAB-395, 5 NRC (April 28, 1977),- Slip, Op. at.13-14,: quoted ;at paragraph 22 of our Findings'

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and Conclusions.

We note that neither the Court of Appeals l

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- nor thelppeal Board has 'seen fit to grant any of Consumers '

other stay requests. "In addition,-we'cannot conclude that

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equitablelfactors warrant a grant of the requested stay.

' Denial of-the stay will not cause irreparable injury to.-

Consumers, any--more-than denial.of its request to continue construetion-pending.the remanded hearings; there is sub-stantial doubt, moreover, whether that test is. even applicable

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here in. view of' the posture of this ' case: following - the rulings of-the Court of Appeals.

Mere financial injury to Consumers, even the incurring of what the Appeal Board described in ALAB-395 as " substantial and unrecoupable' costs," does not warrant a ' finding of irreparable injury, Renegotiation Board

v. Bannercraft, 415 U.S. 1, 24~. (1974), any more than it warrants a failure to follow the clear mandate of NEPA and ensure the integrity of the ultimate cost-benefit analysis.

. Se'e Calvert Cliffs i Coord.-Comm., Inc. v. AEC,'449 F.2d 1109,

-1115 (D.C.'Cir. 1971), holding that neither " administrative 4

difficulty" nor " delay" nor " economic cos t" can jus tify a failureLeo' comply fully with NEPA requirements.

Finally, it follows from~ our ruling _on the suspension issue that we cannot-conclude that. Consumers has made the neces'ary showing, see 2

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Public Service Co. of New Hampshire ;(Seabroolt Station, Units

. 1 and :2), ALAB-349, NRCI-76/9. 235, 260-62-'(1976), - that con-

' tinued construction. will not. impair the integrity of the ultimate cost-benefit analysis or (M., at 258-59) render

'more difficult.the~ unbiased: evaluation of complete or partial

- alternatives. -See also Public Service Co. of New Hamoshire f

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- (Seabrook Station, Units.1. and 2), ALAB-366, 5 t1RC (January

.21,,1977), Slip ~0p. at 65l-68:*

... continuing the commit-l

' ment of resources poses a threat to 'the integrity of the final

. governmental decision' because it may lead to 'public agencies and.. courts-: accepting-less desirable and limited options or,

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worse, countenancing a fait accompli * * *'."

Precisely the same threat-is posed here,- as both Consumers (Tr. 1066-68, 1138)

'and the Staff (Crocker Testimony, fol. Tr. 4177, p. 3) have conceded.

It is so ORDERED.

Respectfully submitted, i

tO l0 Mytoh/. Cherry

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Peter A. Flypn l

l Attorneys' for Intervenors other than Dow Chemical Company i

t One: IBM Plaza Suite 4501

. Chicago, Illinois 60611-L (312) 565-1177

  • ~ Modified on other--grounds and, as modified, affirmed in

- CLI-77-8, 5 NRC 503 (March 31, :1977).

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