ML20038A417
| ML20038A417 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/09/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-CA, TASK-SE SECY-A-80-134, NUDOCS 8110290516 | |
| Download: ML20038A417 (8) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION W ASMINGTON, D. C. 30555 ADJUDICATORY SECY-A m September 9,1980 i
COMMISSIONER ACTION For:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel
Subject:
Review of ALAB-610 (In the Matter of Consumers Power Company).
Facility:
Midland Plant, Units 1 and 2.
Pet.itions Fcr Review:
None received and none expected.
Review Time Expires:
September 25, 1980.
Purpose:
To inform the Commission of an Appeal Board decisionghich,inouropinion,'
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1 Discussion:
In ALAB-610, the Appeal Board declined to review the Licensing Board's approval of a settlement entered into by the applicant and intervenors disposing of certain antitrust issues in this proceeding.
These issues are discussed in ALAB 452, in which the Appeal I
Board found it reasonably' probable that appli-cant's activities would maintain a situation inconsistent with the antitrust laws.
- However, the Board remanded for an update of the record because information available only subsequent j
to the Licensing Board proceeding indicated I
that the applicant had changed its position on the sale of interest in this facility to local 1
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electric cooperatives.
6 NRC 892, 1098-1100 (1977).
Thereupon, the parties entered into negotiations which resulted in a settlement p/Qf[/h which has been endorsed by the Department of Justice and the NRC staff and approved by the Licensing Board.
Neither the applicant nor the intervenor has excepted to the Licensing Board's decision.
When the parties do not n
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take issue with a. settlement of purely economic issues, the Appeal' Board.will not-review;such sj a settlement in.the absence.of extra-ordinary circumstances. 1/
The Appeal Board-found no-extra-ordinary circumstances in this proceeding Py, 6 ;
and'accordingly, did not: review the Licensing s
Board's approval ~of the settlement.-
L In our opinion, i
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Our independent review of the record leads us 3
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On Fbbruary' 17', 1978', the Commission 1extendeT t
its1 time to review ALAB 452 until'"30 days.
following completion of the' contemplated licens-.
ing; board remand proceedings, and Appeal Board review of those nroceedings."
By Joint Motion l
of September R25,197 9, applicant waived its rights to seek Commission or judicial review of
- ALAB 452 and, in exchange, intervenors released applicant from any antitrust _ claims which could be based on that decision.
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we believe-that TEX,i l
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Recommendation:
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c, ames A. Fi gerald ssistant General Counsel i
Attachment:
ALAB-610 1/
Louisiana Power and Light Co. (Waterford Steam Generating Sta-tion, Unit No. 3), ALAB-258,1 NRC 45, 48 fn. ' 61(1975).
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Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Tuesday, Sectember 23, 1980.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT September 16, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
Distribution Comissioners Comission Staff Offices Secretariat I
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%.s UN1TED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
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ATOMIC SAFETY AND LICENSING APPEAL BOARp'
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Alan S.
Rosenthal, Chairman hs J/
Richard S. Salzman
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329A
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50-330A (Midland Plant, Units 1 and 2)
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MEMORANDUM AND ORDER August 26, 1980 (ALAB-610)
On August 4, 1980, the Licensing Boa::d entered an order in which it approved the settlement reached by the applicant and the intervenors of the issues remanded by us to that Board in ALAB-452, 6 NRC 892, 1098-1100 (1977).
Because the settlerent had the endorsement of both the Department of Justice and the NRC staff, understandably no exceptions have been taken to the August 4 order.
1.
" Absent extraordinary circumstances", we do not "scru-tinize the resciution of the purely economic issues posed in an antitrust proceeding unless one of the litigants is suffi-ciently dissatisfie.. with that resolution to bring it before us".
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LEP-EO-21, 12 NRC i
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Louisiana Power and Licht Co. (Waterford Steam Generating Sta-tion, Unit No. 3), ALAB-258, 1 NRC 45, 48 fn. 6 (1975).
No such extraordinary circumstances appear here.
Accordingly, the August 4 order will not be reviewed sua sponte by this Board.
2.
We wish to commend both the parties and the Board below for thus bringing this protracted litigation to an end without the necessity of still further time-consuming and expensive evidentiary hearings on the question of appropriate relief.
It is obviously far preferable for parties to reach a settle-ment of such questions through arms-length negotiations than it is to compel the adjudicatory tribunal to devise a remedy of its own -- which might prove to be wholly satisfactory to none of the litigants.
In this instance, these considerations were quite apparently recognized by all concerned:
(1) by the applicant and the intervenors in promptly embarking upon good-f aith settlement negotiations in the wake of ALAB-452 and in spending the time and ef fort necessary to bring them to a suc-cessful conclusion; (2) by the Department of Justice and the NRC staf f in the discharge of their weighty responsibility of reviewing the proposed settlement carefully to insure that it was consistent with the public interest; and (3) by the Li-censing Board itself in encouraging the parties' endeavors and
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then fulfilling its role as the ultimate arbiter of the accepta-bility of the settlement.
Parties to other antitrust proceed-ings before this agency might profitably seek to follow this i
example.
i It is so ORDERED.
FOR THE APPEAL BOARD eY 0.
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C. Jdjn Bishop Secretary to the Appeal Board O
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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poexmn WM COMMISSIONERS:
Joseph M. Hendrie, Chairman
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i Victor Gilinsky w
w i= g Richard T. Kennedy b
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Peter A. Bradford i
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In the Matter of
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Docket Nos. 50-329A CONSUMERS POWER COMPANY
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50- 330A (Midland Plants, Units 1 & 2)
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ORDER a
On December 30, 1977, the Atomic Safety and Licensing Appeal Board decided ALAB-452.
On January 13, 1978, the Commission requested that
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the parties to this proceeding comment on whether review of the' Appeal
-t Board decision should be deferred until after the det.ision on remand r
and Appeal Board review of it.
The Commission stated then that "such an y
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approach could avoid possible piecemeal review and enable the Commission i~,
to consider the issues in a more concrete setting."
Views were received from all parties on January 27, 1978, and reply submissions on February 3, f:
1978. Upon consideration of these submissions, and of all relevant
't l l 1 factors, including our previously expressed concerns relating to effi -
_ lj cient utilization of Commission time and resources, the Comission has.
decided to extend the time for review on its own motion and to defer consideration of any petitions for review of ALAB-452 pursuant to 10 CFR 2.fB6(a) and (b) until 30 days following completion of the contemplated
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- l licensing board remand proceedings, and Appeal Board review of those j
proceedings.
In taking this actioggimply no views on the merits of p
any of the issues presented by ALAB-452.
onsumers Power Company's ii motion of January 4,1978, to extend the' time for filing petitions for
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review and to enlarge the page limitations on such petitions is denied, fj without prejudice to its right to renew such a motion following Appeal Board review of the remand proceedings.
It is so ORDERED.
For the Commission.
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SAMUEL J. ( HILK t
Secretary of the Commission L
Dated at Washington, DC,' ' T ',
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.I this [7 day of February,1978.
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