ML20084J611

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

ML20084J611
Person / Time
Site:	Midland
Issue date:	05/04/1984
From:	Lauer R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
OL, OM, NUDOCS 8405090160
Download: ML20084J611 (7)

Text

M;y 4, 1984 i

i UNITED STATES OF AMERICA )

NUCLEAR REGULATORY COMMISSION DOCKETED USMPC BEFORE THE ATOMIC SAFETY AND LICENSINQ,AO&AD v, um 9 A10:23 CFFICE OF SECPr. ! Ai In the Matter of: ) Docket NosG00509329#6MI'

) 50J33DkM CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2) ) 50-330 OL APPLICANT'S RESPONSE TO MS. SINCLAIR'S MOTION TO REQUEST THE CASELOAD FORECAST PANEL TO EVALUATE THE NEW CONSTRUCTION COMPLETION

• SCHEDULE By Motion dated April 19, 1984, Ms. Sinclair seeks an order from this Licensing Board requiring the NRC Case-load Forecast Panel to meet for the purpose of evaluating Consumers Power Company's recent estimated construction com-pletion date and possibly requiring the panel to announce its own estimate of the completion date. Applicant opposes this Motion for the reason that this Licensing Board does not have jurisdiction to order the relief sought by Ms.

Sinclair and for the further geason that the issues raised by Ms. Sinclair do not support the action requested.-*/

Atomic Safety and Licensing Boards have only those

• / Applicant makes no response to the specific fac-tual Issues raised in Ms. Sinclair's motion. By not ad-dressing these issues, Applicant does not purport to accept Ms. Sinclair's characterizations of those facts.

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powers which the Nuclear Regulatory Commission has conferred upon them. New England Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271 (1978); 42 U.S.C.A. S2241 (1973). Sections 2.718 and 2.757 of Title 10 of the Code of Federal Regu-lations enumerate the powers and duties which have been delegated to Licensing Boards. These regulations do not authorize Licensing Boards to direct the NRC Staff in the performance of their duties. Hence, this Licensing Board is without jurisdiction to grant Ms. Sinclair the relief re-quested.

In Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514 (1980), the Commission found that the Appeal Board had exceeded its authority when it directed the Staff to

, conduct a preliminary assessment of management qualifi-cations. By directing the Staff "in performance of their administrative functions," the Appeal Board acted beyond the 4 authority delegated to the Boards by the Commission. Id. at 516-17.

A Licensing Board employed similar reasoning in reaching a decision on an intervenor's motion requesting the Board to direct the Staf f to suspend its review of the utility's application, as well as the preparation of a draft environmental impact statement and other studies. New, England Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271 l

O (1978). The Licensing Board's response to this request was as follows:

Since this request involves jurisdictional ques-tions, it will be dealt with first as a threshold issue. We hold that the Board does not have the power to direct the Staff in the performance of its independent responsibilities, nor would it be appropriate to exercise such supervisory functions if we had the power to do so.

Id. at 279. See also, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 353 (1982) (Licensing Board lacked authority to direct the Staff to investigate allegations of a material false statement.)

The Caseload Forecast Panel is not the subject of statutory or specific regulatory requirements. The panel-exists for the purpose of fulfilling a Staff administrative function, that is, primarily to assist in the planning of Staff activities and the allocation of Staff resources. The Licensing Board does not have the authority to direct such Staff activities and, therefore, has no jurisdiction to

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afford Ms. Sinclair the relief requested.

Even if this Licensing Board had the authority to direct the Caseload Forecast Panel to meet and to make public their estimate, such an action would not be warranted in the situation presented here. First of all, the reasons.

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set forth.is Ms. Sinclair's motion do not support'the ac-tions requested of this Board. Indeed, many.of the specific issues raised are not relevant to any perceived need for a l

1 Staff completion date estimate.

Secondly, this Board has already considered the question of the relevance to the Board's inquiry of esti-mates made by Caseload Forecast Panel members and has de-termined that it would not force Staff members to make premature completion date estimates public. Tr. 16734-16738. Moreover, Mr. Paton, counsel for the NRC Staff, has committed to the Board that the Staff will provide the Caseload Forecast Panel report whenever it is completed.

Tr. 16763-16764.

Finally, it does not appear to be necessary for the Boald to order the relief requested in order for Ms.

Sinclair's concerns about the most recent completion date estimate to be considered by the Staff. We understand that a public meeting between representatives of Consumers Power Company and the NRC Staff is scheduled for May 4, 1984 for the purpose of discussing the estimated completion date announced by the Applicant.

• • / Applicant acknowledges that past estimates of the

- Midland Caseload Forecast . Panel may be relevant to one of the proposed Dow issues presently under consideration by the Board.

-d 3 I Accordingly, the Applicant urges the Board to deny l the request for relief ~ contained in Ms. Sinclair's motion.

Respectfully submitted, 4

% m One of the Attorneys For CONSUMERS POWER COMPANY ISHAM,-LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00,gETED BEFORE THE ATOMIC SAFETY AND LICENSING B@lRDMAY -9 A10:23

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CFFICE OF SECFtt.ija-In the Matter of: )

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Docket Nos. Sh5Eh 50-330 OM CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2) ) 50-330 OL CERTIFICATE OF SERVICE I, Rebecca J. Lauer, one of the attorneys for Consumers Power Company, hereby certify that copies of Applicant's Response To Ms. Sinclair's Motion To Request The Caseload Forecast Panel To Evaluate.The New Construction Completion Schedule were served upon all persons shown on the-attached service list by deposit in the United States I

mail, first-class, postage prepaid, this 4th day of May, 1984.

W u- ^

Rebecca J( Lauer

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ISHAM, LINCQLN & BEALE j Three First National Plaza Suite 5200 i Chicago, Illinois 60602 (312) 558-7500 4

DATED: May 4, 1984

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..' SERVICE LIST Frank J. Kelley, Esq. Charles Bechhoefer, Esq.

Attorney General of the Atomic Safety & Licensing State of Michigan Board Panel Carole Steinberg, Esq. U.S. Nuclear Regulatory Comm.

Assistant Attorney General Washington, DC 20555 Environmental Protection Division Dr. Frederick P. Cowan 720 Law Building 6152 North Verde Trail Lansing, Michigan 48913 Apt. #B-125 Boca Raton, Florida 33433 Cherry & Flynn Three First National Plaza Atomic Safety & Licensing Suite 3700 Appeal Board Chicago, Illinois 60602 U.S. Nuclear Regulatory Comm.

Washington, DC 20555 Mr. Wendell H. Marshall 4625 South Saginaw Road Mr. Scott W. Stucky Midland, Michigan 48640 Chief, Docketing & Services U.S. Nuclear Regulatory Comm.

Mr. Steve Gadler Office of the Secretary 2120 Carter Avenue Washington, DC 20555 St. Paul, Minnesota 55108 William D. Paton, Esq.

Ms. Mary Sinclair Counsel for the NRC Staff 5711 Summerset Street U.S. Nuclear Regulatory Comm.

Midland, Michigan 48640 Washington, DC 20555 James E. Brunner, Esq. Atomic Safety & Licensing Consumers Power Company Board Panel 212 West Michigan Avenue U.S. Nuclear Regulatory Comm.

Jackson, Michigan 49201 Washington, DC 20555 Mr. D. F. Judd Mr. Jerry Harbour Babcock & Wilcox Atomic Safety & Licensing P.O. Box 1260 Board Panel Lynchburg, Virginia 24505 U.S. Nuclear Regulatory Comm.

Washington, DC 20555 Ms. Barbara Stamiris 5795 North River Road Ms. Lynne Bernabei Route #3 Mr. Thomas Devine Freeland, Michigan 48623 Mr. Louis Clark Government Accountability Samuel A. Haubold, Esq. Project of the Institute Kirkland & Ellis for Policy Studies 200 East Randolph Drive 1901 "Q" Street, N . ti .

Suite 6000 Washington, DC 20009 Chicago, Illinois 60601 Frederick C. Williams, Esq.

P. Robert Brown, Jr., Esq. Isham, Lincoln & Beale Clark, Klein & Beaumont 1120 Connecticut Ave., N.W.

1600 First Federal Bldg. Suite 840

1001 Woodward Avenue Washington, DC 20036 Detroit, Michigan 48226 l John Demeester, Esq.

Dow Chemical Building Michigan Division Midland, Michigan 48640 L