ML20212M766

Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl

ML20212M766
Person / Time
Site:	Midland
Issue date:	08/25/1986
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-476 OL, OM, NUDOCS 8608270130
Download: ML20212M766 (11)

Text

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USNRC

- 1 August 25'86AUGb866 P3 50

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF ast1AkY 00CKETING A SERVICf.

BEFORE THE ATOMIC SAFETY AND LICENSING BOARDBRANCH In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OM & OL

) 50-330 OM & OL (Midland Plant, Units 1 and 2) )

NRC STAFF RESPONSE TO CONSUMERS'

" MOTION FOR AUTHORIZATION TO WITHDRAW OPERATING LICENSE APPLICATION" I. INTRODUCTION On July 11, 1986, Consumers Power Company (Consumers) filed a

" Motion for Authorization to Withdraw Operating License Application and for Dismissal of Operating License and Order of Modification Proceedings".

On July 16, 1986, the Atomic Safety and Licensing Board (Licensing Board) issued an Order inviting the parties responding to Consumers' motion to address four issues that the Licensing Board believed were raised by Consumers' motion. This constitutes the Staff's response to Consumers' motion and to the questions posed by the Licensing Board.

II. BACKGROUND Construction permits No. CPPR-31 and No. CPPR-82 for the Midland facility were issued on December 15, 1972. See, LBP-72-34, 5 AEC 214 (1972) aff'd , ALAB-123, 6 AEC 331 (1973). As relevant to the instant motion , the following actions took place after the issuance of the con-struction permits. The Commission noticed in the Federal Register an hb fb0 29 DESIGNATEORIGINAD(

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. opportunity for hearing on the Consumers' operating license application for Midland on October 18, 1978. 43 Fed. Reg. 48089. The Licensing Board designated to consider petitions to intervene entered an order ad-mitting a number of petitioners as parties, thus initiating the proceeding.

Special Prehearing Conference Order (unpublished), February 23, 1979.

While the operating license proceeding was pending, the NRC staff issued , on December 6, 1979, an Order Modifying Construction Permits No. CPPR-81 and No. CPPR-82. Although not immediately effective, the Modification Order prohibited Consumers from performing certain soil-related activities pending approval of amendments to the construction per-mits because of excessive settlement of the diesel generation building and other plant structures. Pursuant to Consumers' request for a hearing, the Commission issued a notice of hearing on the Modification Order.

See, 10 C.F.R. 5 2.204; Commission's Notice of Hearing of March 14, 1980, 45 Fed. Reg.18214 (March 20,1980). The Licensing Board desig-nated to conduct the hearing was to consider two issues: (1) whether the facts (concerning quality deficiencies) set forth in Part II of the Or-der were correct; and (2) whether the Order should be sustained.

Subsequently, at Consumers' request, the hearing on the Modifica-tion Order was consolidated with the soils settlement aspects of the ongo-ing operating license proceeding. See, " Motion for Partial Consolidation,"

May 27,1980; Prehearing Conference Order Ruling on Contentions and on Consolidation of Proceedings (unpublished), October 24, 1980. Following hearings on a number of issues but prior to the completion of hearings on all issues, the Licensing Board issued a Memorandum and Order (Imposing Certain Interim Conditions Pending Issuance of Partial Initial Decision),

s LBP-82-35,15 NRC 1060 (1982).

In that Order, the Board required that Consumers obtain Staff approval before commencing certain soil-related activities.

By letter of September 10, 1984, Consumers' counsel informed the Licensing Board and parties that despite its determination to halt all con-struction at Midland because of its inability to finance the project and despite the likelihood that the project would not be renewed in the near future, Consumers intended to " preserve its options" and did not plan to withdraw its operating license application or to " surrender" its construc-tion permits. Letter dated September 10, 1984, from Consumer's counsel to Board and parties.

Despite the potential mootness of the issues that had been litigated in view of the uncertain future of the Midland project, the Licensing Board, on January 23, 1985, issued a Partial Initial Decision (Remedial Soils Issues). LPB-85-2, 21 NRC 24 (1985). Subsequently, the Appeal Board issued an Order in which it expressed doubt as to the need to conduct a sua sponte review of LBP-85-2, in view of Consumers' having indicated that the Midland Project had been indefinitely if not permanently shut down and requested the views of the parties. Unpublished Order of March 13,1985. Since that time, the matter has been held by the Appeal Board pending a determination as to the future of the Midland project.

The status of the proceeding changed when, in a letter of July 1,1986, to Harold Denton , Director, Nuclear Reactor Regulation , Consumers' i

Vice-President James W. Cook requested that both Consumers' pending f application to amend the construction permits by extending the completion 1

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dates and its application for operating licenses for the Midland units be considered withdrawn.

On July 11, 1986, the same day on which it filed the instant motion, Consumers filed a " Motion for Termination of Appeal Board Jurisdiction,"

which was granted by the Appeal Board in ALAB-842. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-842, NRC

( August 1, 1986) . In ALAB-842, the Appeal Board withdrew on mootness grounds its retention of jurisdiction over the radon issue presented in the construction permit proceeding and vacated LBP-85-2 on the same basis.

Thus, as the Appeal Board stated in ALAB-842, the Licensing Board now may act on Consumers' request that the Licensing Board authorize with-drawal of the operating license application and dismiss the consolidated proceeding with such conditions as the Licensing Board finds to be necessary.

TII. DISCUSSION Consumers' Request for Authorization to Withdraw its Operating Li-

, cense Application and for Termination of the Order of Modification

! Proceeding

! Consumers asks the Board to grant it authorization to withdraw its 1

operating license application and to dismiss the pending proceedings.

5 Motion at 1. Consumers states tuat the plant is not now operable as a reactor and that no further step {i are necessary to disable it. Motion at 5. Further, it states that adilitional site environmental modifications beyond those already undertaken are unnecessary to stabilize the site.

t Id.,

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s 6 Consumers asserts that the withdrawal of its application to extend

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the construction permit expiration date, a matter which is pending with the Staff, will result in the expiration of the construction permits, cpi Northern Indiana Public Service Company (Bailly Generating Station ,

Nuclear-1) , LBP-82-29, 15 NRC 762, 767 (1982), modified, LBP-82-37,15 NRC 1139 (1982). Motion at 6. Once the construction permits have ex-pired, the order modifying them will be moot and the OM proceeding may be dismissed. _Id .

The Licensing Board upon receiving Consumers' request to dismiss the operating license proceeding and to terminate the modification order proceeding as moot asked the parties in responding to the Motion to ad-dress certain questions. M 1/ The questions are:

1. Should the requested termination of the OM proceed-ing be regarded as a withdrawal of CPC's request for a hearing, thus resulting in an amendment of the con-struction permits (at least on a tro forma basis) to in-corporate the terms sought by the M6dIReation Order?

2. Would the actions proposed by CPC's motion request i

that the NRC prepare an environmental assessment pur-suant to 10 C.F.R. I 51.21?

3. What conditions, if any, should be imposed by us pursuant to 10 C.F.R. I 2.107(a)? Would environmental conditions be necessary or appropriate to govern the possible situation where the Midland site would not even-tually be used for a gas-fired facility?

4. If the proceedings are dismissed, what agency would have responsibility for actions under NEPA?

s A. - The Need to Amend the Construction Permit to Incorporate the Terms of the Modification Order ,

It is tite Staff's view that, while as a general matter withdrawal of a request for a hearing on an order issued pursuant to I 2.204 results in the order's becomingr effective (10 C.F.R. I 2.204), in the instant case there would be no reason to require the issuance of an amendment to an expired or expiring permit. Here, the Licensee is not withdrawing its hearing request because it agrees to the effectiveness of the enforcement order (although, as indicated above, immediate effectiveness would nor-mally be the result of such a withdrawal); rather, it is seeking to with-draw its request to extend the completion date for its construction permits and its application for an operating license for the Midland facili-ty, thus obviating any further licensing action with respect to the facili-ty. As the Licensing Board indicated in its first question, an amendment at this time would appear to be pro forma. Since Consumers cannot continue to construct the facility because its construction permits will have expired, there is no need for an amendment placing conditions on construction. 2_/

B. The Need for an Environmental Asscssment l The Licensing Board's second question concerns the necessity for preparing an environmental assessment of the proposed action pursuant to l

2/ The Staff had already prepared its response at the time that it re-ceived Consumers' response to the Licensing Board's order of July 16,1986, in which it provided its answers to the Board's ques-tions. While the Staff generally agrees with Consumers' comments, the Staff believes that the Board need not await the determination by the NRC staff to grant Consumers' request to withdraw its request for an extension of its construction permits to terminate the Modifica-(FOOTNOTE CONTINUED ON NEXT PAGE)

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. the Commission's regulations in 10 C.F.R. Part 51. Section 51.21 re-

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quires the preparation of an environmental assessment on all licensing and regulatory actions subject to the subpart except those identified in 5 51.20(b) as requiring an environmental impact statement and these iden-tified in 5 51.20(c) as categorical exclusions. The proposed action is not identified in either 5 51.22(b) or in 5 51.22(c). Therefore, an environ-mental assessment is the proper course of action.

The Staff has already addressed environmental questions to Consum-ers. Letter from Herbert Berkow, Director, Standardization and Special Projects, Nuclear Reactor Regulation, to James W. Cook, Consumers' Vice-President, August 21, 1986. These questions will be answered in an environmental report, which will form the basis of the Staff's environmen-tal review and ultimately of its Environmental Assessment.

C. The Need for Conditions The Commission's regulations in 10 C.F.R. I 2.107(a) provide that withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe. Thus, as a notice of hearing has been issued, the Licensing Board may prescribe appropriate conditions on the withdrawal of the operating license application.

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) tion Order proceeding. Motion at 2; and Consumers Power Compa-ny's Response to July 16, 1986 Board Order at 2. As indicated in the above text, if the Licensing Board determines that it is neces-(FOOTNOTE CONTINUED ON NEXT PAGE) l

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• In the Staff's view, environmental conditions, if found to be neces-sary, will be esigned to assure the stabilization of the site.

D. NEPA Responsibility After Dismissal The Licensing Board raises the question of what agency would have responsibility for actions under NEPA if the proceedings are dismissed.

The NRC will, of course, have the responsibility of inspecting to verify compliance with any environmental license conditions imposed by the l

Licensing Board in an order dismissing the proceeding. 3_/ After implementation of any stabilization plan pursuant to conditions imposed by i

this Licensing Board, the facility could be subject to Federal or state agencies with responsibility for activities carried on thereafter at the j site.

l (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) sary to impose conditions, they can be imposed subject to Staff re-view and this proceeding can be terminated prior to the Staff's completion of its role.

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In a similar situation, the Zimmer Licensing Board dismissed the operating license proceeding pursuant to the condition that the Ap-plicant implement with Staff verification its site " restoration" plan.

Cincinnati Gas and Electric Company (William H. Zimmer Nuclear Pow-er Station, Unit 1), LBP-84-33, 20 NRC 765 (1984). Actually, the site was merely stabilized, not " restored." Id. Subsequently, the Staff verified the Applicant's implementation oT the site plan. See, Cincinnati Gas and Electric Company, Environmental Assessment and Finding of No Significant Impact, 50 Fed. Reg. 15018 ( April 16, 1985).

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- IV. CONCLUSION

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For the reasons discussed, the Licensing Board should hold Consum-ers' motion in abeyance pending completion of the Staff's review of Con-sumers' stabilization plan and the receipt of the views of interested parties.

Respectfully sutmitted, h

lAAA T - J ,&

Ann P. Hodgdon Counsel for NRC Staff Dated at Bethesda, Maryland this 25th day of August,1986

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• 00LKETED USHRC UNITED STATES OF AMERICA 86 AljG 26 P3 50 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAJtDCE OF Edt l Ak'r uuuMETtHG A SLAVICI BR A NC61 In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OM & OL

) 50-330 OM & OL (Midland Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of 'NRC STAFF RESPONSE TO CONSUMERS' i

" MOTION FOR AUTIlORIZATION TO WITHDRAW OPERATING LICENSE APPLICATION"' in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indi-cated by an asterisk through deposit in the Nuclear Regulatory Commis-sion's internal mail system, this 25th day of August,1986:

Charles Bechhoefer, Esq. Frank J. Kelley Administrative Judge Attorney General of the State Atomic Safety and Licensing of Michigan Board Panel Steward H. Freeman U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555* Environmental Protection Division 525 W. Ottawa St., 720 Law Bldg.

Dr. Jerry Harbour Lansing, Michigan 48913 Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Ms. Mary Sinclair Washington , D.C. 20555* 5711 Summerset Street Midland, Michigan 48640 Gustave A. Linenberger, Jr.

Administrative Judge Atomic Safety and Licensing Michael I. Miller, Esq.

Board Panel Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Three First National Plaza Washington, D.C. 20555* 52nd Floor Chicago, Illinois 60602 James E. Brunner, Esq.

Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201

{

i Ms. Esrbara Stamiris Atomic Safety and Licensing 5795 N. River Board Panel ,

Freeland, Michigan 48623 U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

James R. Kates Atomic Safety and Licensing 203 S. Washington Avenue Appeal Board Panel (5)

Saginaw, Michigan 48605 U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Howard A. Levin, Project Manager TERA Corporation Docketing and Service Section Office of the Secretary 7101 Wisconsin Ave.

Bethesda, Maryland 20814 U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Wayne Hearn Paul C. Rau Bay City Times Midland Daily News 311 Fifth Street 124 Mcdonald Street Bay City, Michigan 48706 Midland, Michigan 48640 Frederick C. Williams Bruce Berson Isham, Lincoln & Beale Regional Counsel 1150 Connecticut Avenue, NW USNRC, Region III Suite 1100 799 Roosevelt Road Washington, D.C. 20036 Glen Ellyn, IL 60137*

Myron M. Cherry, P.C. Lynne Bernabel Peter Flynn, P.C. GAP Cherry & Flynn Institute for Policy Studies Three First National Plaza 1901 Que Street, N.W.

Suite 3700 Washington, D.C. 20009 Chicago, IL 60602 '

Ronald C. Callen T. J. Creswell Michigan Public Service Commission Michigan Division 6545 Mercantile Way Legal Department P. O. Box 30221 i Dow Chemical Company Lansing, Michigan 48909 Midland, Michigan 48640 i

Samuel A. IIaubold, Esq.

Kirkland & Ellis 200 East Randolph Drive Chicago, IL 60601 vtAA. .

Q Ann P. Hodgdon i

Counsel for NRC Staff

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