ML20065H688

Response to M Sinclair Resubmitted Contention on Table S-3. Contention Should Be Deferred Until Commission Issues Policy Statement.Certificates of Svc Encl

ML20065H688
Person / Time
Site:	Midland
Issue date:	09/28/1982
From:	West A CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8210050221
Download: ML20065H688 (8)

Text

'

DOLKETED USHf?C i

'$ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '

12 00T-4 Pid6 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE 0F SECRETARY 00CKETING & SERVICE In the Matter of ) BRANCH

) Docket Nos. 50-329-OM CONSUMERS POWER COMPANY ) 50-330-OM -

50-329-OL

)

(Midland Plant, Units 1 and 2)) 50-330-OL CONSUMERS POWER COMPANY'S RESPONSE TO RESUBMITTED CONTENTION BY MARY SINCLAIR Applicant, Consumers Power Company, hereby re-sponds to the " Resubmitted Contention by Mary Sinclair Based On United States District Court of Appeals Memorandum Order",

i and suggests that continued deferral, rather than acceptance,

'is appropriate for this contention at this time.

FACTS A review of the procedural history of this pro-posed contention and of the U.S. Court of Appeals decisions -

i upon which it is based demonstrates that Ms. Sinclair's motion for reconsideration of the contention is premature.

On June 18, 1982, Ms. Sinclair submitted a con-tention for admission into the Midland operating license proceedings which alleged:

The Environmental submission by Consumers and staff have failed to analyze the absolute and incremental effects on the environment (including the cost-benefit and risk benefit considerations) of the entire fuel cycle, as well as the serious -;

problem of the storage of nuclear wastes on site. l The U.S. District Court of Appeals of Washington, D.C. struck down the S.3 Table on April 27, 1982, which had been relied on for this purpose. Because pf this Court decision, Consumers Power Co. and the NRC cannot comply with requirements of the  !

National Environmental Policy Act in their Final l Environmental Impact Statement. l

}

'k ("New Contentions by Intervenor Mary P. Sinclair", June,18, 1982, at p. 1) '

The proposed contention referred to the April 27, 1982 decision of the U.S. Court of Appeals in Natural Re-source Defense Council, Inc. v. NRC, F.2d (D.C.

Cir. Docket Nos. 74-1586, 77-1448, 79-2110 and 79-2131), in

. which the court found invalid certain portions of the initial, interim and final versions of Table S-3. The Commission has employed Table S-3 in evaluating for purposes of NEPA the environmental impacts of the fuel cycle in over 90 construction permit and operating license proceedings to date.

At the prehearing conference on August 12, 1982, the Applicant argued that acceptance-of the contention was >

premature, at best. It pointed out that the court's decision was not yet final because a mandate had not issued; tech-nically, Table S-3 remained in effect and remained binding on this Board. (See Prehearing Conference Order, at p. 11).

Responding to this argument, the Licensing Board deferred ruling on the admissibility of the contention, and explained:

Under these circumstances, we cannot accept con-tention 1 at this time, since it technically still constitutes an impermissible challenge to Table S-  !

3.

Both the Applicant and NRC Staff opinion that the Commission may in the near future issue a policy statement describing how, or whether, Table S-3 (or the Court's recent decision) should be fac-tored into adjudicatory proceedings such as this one. The Staff recommends that we defer ruling on this contention, and we agree that is the pre- ~

ferable course of action at this time. If the Commission's statement should permit litigation of questions such as are raised by contention 1, we

• will be prepared (at Ms. Sinclair's request) to fg.

consider that contention under the standards enunciated by the Commission. (If a request is made shortly after issuance of the Commission's statement, Ms. Sinclair will not have to demonstrate ,

good cause for the untimely submission of such a contention.)

(Prehearing Conference Order, at pp. 11-12).

On August 16, 1982, the D.C. Circuit Court of. "

Appeals issued a Show Cause Order in the case-of Aeschliman #

v. NRC,'in which Consumers Power Company is an intervenor.

1 In its Order, the court noted that the NRC is currently conducting a generic proceeding to reassess the " uncertainties" '

in the availability of safe nuclear waste disposal methods, and recognized that the "results of this proceeding will, in all probability, be utilized by the Commission to adjust its S-3 rule to conform to the requirements announced in NRDC v.

NRC". The court added that it had urged the NRC to arrive at its " waste confidence" determination by June 30, 1983.

(Show Cause Order, at p. 1). The court went on to hold that, because construction at Midland is substantially complete, "little would be gained by requiring the NRC to reevaluate its grant of the construction license." (Order, at p. 2). The-court then ordered petitioners to file a statement to show cause why the' court should not issue an order ' permitting the Commission to ccmply with the mandate of NRDC v. NRC as part of the operating license proceeding now in progress for the subject facility." (Order, at p.

2).

On September 1, 1982, on motion of Baltimore Gas and Electric Co. and others, the D.C. Circuit Court ~of Appeals

~4-

- .o

- entered.an order staying the mandate of the court in NRDC

v. NRC for 30 days, until October 1.

On Septemoer 9, 1982, Myron Cherry, attorney for the petitioners in Aeschliman and attorney for Mary Sinclair

• /

for the construction license issues in these proceedings, - .

filed a "Show Cause' Statement" in response to the Aeschliman ,

order, arguing that Table S-3 issues should be litigated in the construction permit, rather than the operating license, phase of the Midland proceedings.

Four days later, Mary Sinclair resubmitted her Table S-3 contention, asking that it be ad.nitted into the Midland operating license proceedings. She cited the Aeschliman Memorandum Order dated August 16, 1982 as the basis of her request.

On September 24, 1982, Baltimore Gas and Electric filed a petition for certiorari with the United States Supreme Court in a case which had been consolidated for

• • /

appeal with NRDC v. NRC.

The effect of this filing,

• /

See " Memorandum To Chairman Charles Bechhoefer From Mary Sinclair", September 13, 1982, stating that Myron Cherry is still involved in construction license issues on Ms. Sinclair's behalf on a pro bono basis.

• • /

-~ Consumers Power Company also expects to file a petition for certiorari in these consolidated cases in the near future, McCrae.

through its attorneys LeBoeuf, Lamb, Leiby &

A copy of the petition will be sent to the Board after it is filed and the Applicant will keep the Board up to date on other relevart pleadings filed in the case.

i l

I l

l i

m

. , - ,, 4 according to the terms of Rule 41(b) of the Federal Rules of Appellate Procedure, is to stay the effect of the mandate

+

until final disposition of NRDC v. NRC by the Supreme Court.

ARGUMENT The procedural history and the current status of the D.C. Circuit's opinion in NRDC v. NRC rcakes it clear that Ms. Sinclair's present motion for reconsideration of her Table S-3 contention is premature.

In its Prehearing Conference Order dated August 14, 1982, this Board ruled that Ms. Sinclair's Table S-3 contention could not be accepted, because Table S-3 remained in effect. It is even clearer today than it was at the time of the prehearing conference that Table S-3 isstill in effect.

The mandate of the D.C. Circuit has been stayed until the final disposition of NRDC v. NRC by the United States Supreme Court. Because of the stay of the mandate, Table S-3 remains valid and the proposed contention "still constitutes an impermissible challenge to Table S-3" (See Prehearing Conference Order, at p. 12).

Nothing else which has transpired since the Board's Prehearing Conference Order suggests that a Table S-3 contention should now be admitted into these proceedings.

The Aeschliman show cause order was not a ruling that Table S-3 issues should be litigated as a contention in this case. I Rather, it noted that the NRC was currently conducting generic rulemaking proceedings whose results would probably be used to' adjust-the S-3 rule to the NRDC v.

1

- ', . , , . g'3 NRC requirements, and ordered the petitioners to show cause why the Commission should not be allowed to show compliance with those requirements during the course of the present OL proceedings. The Commission was not required, or even advised, by the court of appeals to consider S-3 issues in individual operating license proceedings. Moreover, the

" mandate of NRDC v. NRC", on which the order was based, (Show Cause Order, at p. 2), has been stayed indefinitely.

In its Prehearing Conference Order, the Board deferred ruling on the proposed S-3 contention until the Commission issued a policy statement describing hcw or whether Table S-3 issues should be factored into adjudicatory proceedings such as this one. The Commission has not yet issued such a statement. Until it does, the Board's decision to defer ruling on an S-3 contention should stand.

CONCLUSION Consumers Power Company respectfully suggests that Ms. Sinclair's motion for reconsideration of her proposed Table S-3 contention is at best premature at this time, and that a ruling on the contention should continue to be deferred until the Commission issues its policy statement.

Respectfully submitted,

_6 -

C .6 . W One of the Attorneys for Consumers Power Company Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602

-(312) 558-7500 o -

s UNITED STATES OF. AMERICA U RC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARIf52 ET -4 di *I4 In the hatter of_ ) CFFICEgSjCRETAP{ =

) Docket Nos. 50-3bkb8 RANCH CONSUMERS POWER COMPANY ) 50-330-OM ,

) 50-329-OL s 1 (Midland Plant, Units 1 and 2)) 50-330-OL 1

CERTIFICATE OF SERVICE I, Anne E. West, one of the attorneys for Con-sumers Power Company, hereby certify that a copy of " Con- l sumers Power Company's Response to Resubmitted Contention l by Mary Sinclair Based on United States District Court of l Appeals Memorandum Order" was served upon all persons shown in the attached service list by deposit in the United States mail, first class, this 28th day of September, 1982.

f C a Xhne E. West (WsU l l

SUBSCRIBED AND SWORN TO  !

before me this 28th day  !

of September, 1982.

(7 ILLA A .b dfARY PD6

_My Commission Expires September 10, 1984.

1 I

P

, __ , e--

LW . .

s

/( SERVICE LIST ,

Frank J. Kelley, Esq. Steve Gadler Attorney. General of the 2120 Carter Avenue  ;

State of Michigan St. Paul, Minnesota 55108 Carole Steinberg, Esq. i Assistant Attorney General Atomic Safety & Licensing i Environmental 1 Protection Div. Appeal ~ Panel

- 720 Law Building U.S. Nuclear Regulatory'Comm.

Lansing, MichiganL48913 Washington, D.C. 20555 Myron M. Cherry, Esq. Mr. C. R. Stephens One-IBM Plaza Chief, Docketing & Services i Suite.4501 U.S. Nuclear Regulatory Comm.

Chicago, Illinois 60611. Office of the Secretary ,

Washington, D.C. 20555 r Mr. Wendell H. Marshall 4625: South Saginaw Road Ms. Mary Sinclair Midland, Michigan-48640 5711 Summerset Street Midland, Michigan 48640 Charles Bechhoefer, Esq.

Atomic Safety & Licensing William D. Paton, Esq.

Board Panel Counsel for the NRC Staff U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Washington, D.C. 20555 -

Dr. Frederick P. Cowan Atomic Safety & Licensing [

6152 N. Verde Trail Board Panel +

Apt. B-125 U.S. Nuclear Regulatory Comm.

Boca Paton, Florida 33433 Washington, D.C. 20555  ;

L Admin. Judge Ralph S. Decker Barbara Stamiris Route No. 4, Box 190D 5795 North River Road Cambridge, Maryland 21613 Route 3 Freeland, Michigan 48623 Mr. D. F. Judd

• Bacock & Wilcox Jerry Harbour P.O. Box 1260 Atomic Safety & Licensing Lynchburg, Virginia 24505 Board Panel U.S. Nuclear Regulatory Comm.

James E. Brunner, Esq. Washington, D.C. 20555 Consumers Power Company 212 West Michigan Avenue _ Lee L. Bishop-Jackson, Michigan 49201 Harmon & Weiss '

1725 I Street, NW #506

• Washington, D.C. 20006 -i t

__-______-___u_____. - _ _____.____ _ _ _ . _ _ _ _ _ _ _ _ .- ___ _