ML19344D800
| ML19344D800 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/18/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8007170731 | |
| Download: ML19344D800 (9) | |
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o 3/18/77 UilITED STATES OF AliERICA NUCLEAR REGULATORY C0l?ilSSIO!!
BEFORE THE ATOMIC SAFETY Afl0 LICE!!SIflG APPEAL BOARD In tne Matter of
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CONSUMERS POWER C0F1PANY
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Docket flos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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NRC STAFF ANSWER TO E!1ERGEi!CY MOTI0ft FOR DIRECTED CERTIFICATI0!!
Introduction By virtue of the decision of the Court of Appeals for the District of Columbia Circuit in flelson Aeschliman, et al. v. U.S. Nuclear Reaulatory Commission, flos. 73-1776, 73-1876 (July 21, 1976) (Aeschliman), a number of issues were remanded to the Commission for consideration.
The Commission reconvened the Licensing Board in its Memorandum and Order of August 16, 19761/
and extensive hearings have taken place before that Licensing Board.
Hearings are to resume in Chicago, Illinois, on March 21, 1977.
Throughout the proceeding, All Intervenors Except DowChegicalCompany(Intervenors) have requested financial assistance for counsel and/or experts from the Licensing Board.
Consumers Power Company (Licensee) and the NRC Staff 1/ onsumers Power Company (Midland Plant, Units 1 and 2), CLI-76-ll, C
flRCI-76/8 65 (August 16,1976).
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' l (Staff) have opposed such requests on the authority of the Commission's
" Statement of Considerations Terminating Rulemaking" (Statement)2_/
In letters to the Licensing Board dated February 19, 1977 and February 21, 1977, Intervenors continued to argue for financial assistance.
The Licensing Board by Order dated February 25, 1976 denied Intervenor's request for financial assistance on the basis of the Counission's Statement.
"All theories ignore the clear published Commission policy bywhichwearebound."E Intervenors in a conference call among the parties on March 11, 1977 requested that the Licensing Board certify the question to the Appeal Board.
Both Staff and Licensee opposed Intervenor's motion and it was denied by the Licensing Board in an Order on March 11, 1977.
Interve'nors filed on llarch 13, 1977 an " Emergency Moti'on for Directed Cert'ification" (itotion) with the Atomic Safety and Licensing Appeal Board (Appeal Board) wherein Intervenors urged the Appeal Board to direct certification of the denial by the Licenying Board of Intervenors' N n the Matter of lluclear Reaulatory Commission (Financial Assistance Ito Participants in Commission Proceedings), CLI-76-23, flRCI-76/11 494 (flovember 12,1976).
E oard's Order, page 2.
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. request for financial assistance.
Intervenors caption their Motion in the alternative:
if the Appeal Board is viithout jurisdiction to entertain the question, Intervenors seek a determination from the Commission.
The Staff opposes Intervenors' flotion.
Argument I.
The Appeal Board Has Jurisdiction over Intervenors Intervenors' Motion is properly before the Appeal Board.
The Appeal Board has the power to direct the certification of legal issues raised in a proceeding, which are thought deserving of early dispositive resolution.
See Public Service Company of flew Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-271,1 flRC 478, 482 (1975).
By 10 C.F.R. 52.785(b), the Appeal Board has been delegated to exercise the certification authority which would otherwise have been exercised by the Commission under 10 C.F.R. 52.718(i).
While it is permissible for the Appeal Board to certify questions to the Commission,4/ and for the Commission to sua sponte
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direct questions to it, it is not open to an Intervenor to petition the Commission directly for certification.
See 10 C.F.R. s2.785(d).El
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U ee Portland General Electric Comoany, et al. (Pebble Sprinas Nuclear SPlant, Units 1 and 2), ALAB-333,fiRCI-76/6 804, 307 (1976).
El Intervenors' reference to Appendix A to 10 C.F.R. Part 2 particularly V(f)(4)isinapposite.
That section speaks to the discretion vested in Licensing Boards.
In any event to the extent that the rules of Part 2 are inconsistent with Appendix A, the rules govern.
See Appendix A, asterisked footnote.
..a II.
Intervenors Make tio Showing that the Public Interest Will Suffer Absent Certification The question before the Appeal Board then is whether or not to grant the requested certification on the issue of financial assistance for Intervenors in this proceeding. A required showing for certification was laid down in Seabrook, supra at p. 483:
We believe, then, that at the very minimum, a party asking that we invoke our Section 2.718(i) certifica-tion authority must establish that a referral would have been proper; i.e., that, failing a certification the public interest will suffer or unusual delay or expense will be encountered.
Intervenors make no argument that absent certification "unmaal delay or expense will be encountered" The thrust of Intervenors' Motion is that "the public interest will suffer." But Intervenors' Motion does not demonstrate that this is so.
The posture of the suspension proceeding is important.
Both Licensee and Staff have presented their pre-filed testimony.N Intervenor has pre-filed their direct written testimony and cross-examination of Intervenors' witness, Dr. Timm, is scheduled to commence March 21, 1977.
A transcript in excess of 4500 pages has been developed.
The susoension proceeding is O oth Licensee and Staff contemplate presenting supplemental direct Band rebuttal testimony and have filed such testimony with the Board.
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-S-close to its end.
The only question which would justify the emergency-nature of Intervenors' Motion would be the availability of Dr. Timm for cross-examination.
Intervenors have never taken the position that, absent financial aid, they could not continue in these proceedings or that Dr. Timm would not appear.
And the Licensing Board so noted in its February 25 Order:
We have not received from him or his clients an unequivocal release of Dr. Timm so that anyone other than these Intervenors has the freedom to deal with Dr. Timm as a free agent.
At pp. 2-3.
Nor do Intervenors indicate in their Motion that, absent financial assistance, Dr. Timm cannot appear.
We have only a vague allusion in the Motion's footnote that the issue of financial assistance is " critically tied to Intervenors' further participation." On page 4 of their Motion, Intervenors argue that the Appeal Board should act "to assure that the testimony of Dr. Timm will be made available to the hearing Board."
Nothing more is said in the entire pleading as to how the public interest will suffer if the Appeal Board fails to act.
Intervenors have failed i
to make the showing required for certification by Seabrook.
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The Commission's Statement on Financial Assistance Apart from the lack of an adequate showing that the public interest requires an interlocutory appeal, Intervenors' Motion must fail for the further reason that the Licensing Board ruling was obviously correct.
On the issue of financial assistance, we have clear and recent direction from the Commission.
In its Statement, the Commission explicitly discussed the issue of financial assistance in licensing proceedings and rejected it:
On the bases of these considerations, as set forth hereafter, the Commission has determi..ed not to initiate a program to provide funding for participants in its licensing, enforcement and antitrust proceedings, and, as a general proposition, in its rulemaking proceedings.
At p. 495.
The Commission made only a limited exception with regard to the GESMO proceeding and in that limited case, the Commission indicated that it would seek a specific appropriation from Congress.
In view of such an explicit guidance from the Commission, there can be no substantial question as to the correctness of the Licensing Board ruling.
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, If Intervenors believe that the circumstances in this licensing proceeding are so distinct, unusual and compellinga sto require the Commission to reconsider its position,U hey are free to petition the Commission for t
rule making under 10 C.F.R. s2*.801.
Conclusion Intervenors' Motion fails to meet the showing required by Seabrook to warrant certification.
Furthermore, the Appeal Board must give controlling weight to the Commission's Statement on financial assistance.
These considerations require denial of Intervenors' Motion.
1 Resp ctfully submit ed, 4
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ichard K. Hoeffing Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of March,1977 U ntervenors in their Motion makes numerous allegations charging the IStaff with failure to perform an independent (eview (p. 3), with failure to uncover alledgedly dishonest tactics on the part of the Licensee (p. 4); with failure to develop a complete record by a lack of scrutiny, understanding or inquiry (p. 5).
None of these allegations are supported nor could they be.
These allegations are simply a continuation of the reckless diatribe in which Intervenors have engaged throughout this proceeding.
The Staff offers the comment that a petition by Intervenors for rule making before the Commission should deal in fact, not allegation, and references should be made to the record.
The Commission would have little difficulty in dealing with Intervenors' petition if it were so presented.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units.1 and 2-)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO EMERGENCY MOTION FOR DIRECTED CERTIFICATION," dated March 18, 1977 in the above-captioned proceeding, have been served on the followina by deoosit in the United States mail, first class or air mail, this 18th day of March, 1977:
Michael C. Farrar, Chairman Dr. Emmeth A. Luebke Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. Lawrence R. Quarles Myron M. Cherry, Esq.
Atomic Safety and Licensing Appeal 1 IBM Plaza Board Chicago, Illinois 60611 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Judd L. Bacon, Esq.
Consumers Power Company Richard S. Salzman, Esq.
212 West Michigan Avenue Atomic' Safety and Licensing Jackson, Michigan 49201 Appeal Board U. S. Nuclear Regulatory Commission Honorable Curt T. Schneider Washington, D. C. 20555 Attorney,. General State of Kansas Statehouse Frederic J. Coufal, Esq., Chairman Topeka, Kansas 66612 Atomic Safety and Licensing Board Panel Ms. Mary Sinclair U. S. Nuclear Regulatory Commission 5711 Summerset Street Washington, D. C. 20555 Midland, Michigan 48640 Dr. J. Venn Leeds, Jr.
Harold F. Reis, Esq.
Atomic Safety and Licensing Robert Lowenstein, Esq.
Board Panel Lowenstein, Newman, Reis U. S. Nuclear Regulatory Commission
& Axelrad
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Washington, D. C. 20555 1025 Connecticut Avenue Washington, D. C. 20036
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. L. F. Nute, Esq.
Atomic Safety and Licensing Dow Chemical, U. S. A.
Appeal Board Michigan Division U. S. Nuclear Regulatory Midland, Michigan 48640 Commission Washington, D. C. 20555 R. Rex Renfrow, III, Esq.
-David J. Rosso, Esq.
Docketing and Service Section Isham, Lincoln & Beale Office of the Secretary One First National Plaza U. S. Nuclear Regulatory Suite 4200 Commission Chicago, Illinois 60603 Washington, D. C. 20555 Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 Atomic Safety and Liccasing Board Panel U. S. Nuclear Regulatory Commission f
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Washington, D. C.
20555 Richarc K. Hoeflina'
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Counsel for flRC Staff
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