ML20214T736
| ML20214T736 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/26/1986 |
| From: | Bechhoefer C, Harbour J, Linenberger G Atomic Safety and Licensing Board Panel |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| References | |
| CON-#386-888 78-389-03-OL, 78-389-3-OL, 80-439-02-SP, 80-439-2-SP, OL, OM, NUDOCS 8609300390 | |
| Download: ML20214T736 (12) | |
Text
to MP Pl2 37 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING BOARD I.
14a7 va r,c a Before Administrative Judges:
Charles Bechhoefer, Chaiman Dr. Jerry Harbour yoyp() QCD ')o 106 s'ustave A. Linenberger p
Docket Nos. 50-329 OL l
50-330 OL In the Matter of 9
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Docket Nos. 50-329 OM CONSUMERS POWER COMPANY
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50-330 OM (Midland Plant, Units 1 and 2)
(ASLBPNos. 78-389-03 OL 80-439-02SP)
September 26, 1986 MEMORANDUM AND ORDER (Motion to Dismiss /Teminate Proceedings)
Pending before this Board is a motion by Consumers Power Co. (CPC) to dismiss the operating license (OL) proceeding and to terminate the For Onfer of Modification (0M) proceeding for the Midland facility.
reasons set fort.h below ve are dismissing the OM proceeding as moot and are deferring action on t..
. notion insofar as it seeks dismissal of the OL proceeding.
===1.
Background===
There are two adjudicatory proceedings involving the Midland Plant, Units 1 and 2, which are presently before this Board. The first is CPC's application for operating licenses for that facility (OL
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9' The Notice of Hearing for that proceeding was published on proceeding).
October 18, 1978 (43 Fed. Reg. 48089), and was supplemented by our Special Prehearing Conference Order dated February 23, 1979 l
.(unpublished), which accepted a number of contentions for litigation.
The second proceeding arose out of the Staff's " Order Modifying Construction Permits," dated December 6, 1979 (OM proceeding).
That adjudicatory proceeding formally commenced through a Notice of Hearing published on March 20, 1980 (45 Fed. Reg. 18214), supplemented by an
" Amended Notice of Hearing" published on May 28,1980(45 Fed. Reg. 35949) and by our initial rulings on contentions at the special prehearing conference of September 10, 1980 (Tr. 398). Because the issues in the OM proceeding were factually similar to several issues previously accepted for litigation in the OL proceeding, at the request of CPC we consolidated the OM proceeding with relevant issues in the OL Prehearing Conference Order Ruling on Contentions and on proceeding.
24,1980(unpublished).I Consolidation of Proceedings, dated October By letter dated September 10, 1984 (which confirmed an earlier telephone connunication), CPC advised that in late July 1984 it had determined to halt all construction at Midland because of its inability i
at that time to finance the project. CPC did not withdraw its OL 1
A more complete procedural history of the two proceedings appears in our Partial Initial Decision (Remedial Soils Issues), dated vacated as January 23, 1985, LBP-85-2, 21 NRC 24, 30-35, 114-22, (August 1, 1986), review declined by i
moot ALA8-842, 24 NRC Commission, Memorandum "tTioard and Parties dated Septenter 12 I
1986.
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. application or " surrender" its construction pemits because its plans were not definite and it wished to " preserve its options." For that 4
reason and despite the potential mootness of the issues before us (on which we had not yet ruled), we issuSd a Partial Initial Decision on L
some of the technical issues that had been extensively litigated and, if the project should ever be revived, might have some continuing applicability. LBP-85-2,21NRC24(1985).
CPC has now determined that it will not attempt to restart construction and will abandon the Midland Plar.t as a nuclear project.
On July 11, 1986, it filed a motion seeking authorization to withdraw its operating license application, dismissal of the OL proceeding, and temination of the OM proceeding as soon as CPC's withdrawal of its request for extension of its construction permits (pending before the NRC Staff) becomes effective (" Motion"). Simultaneously, CPC filed with the Appeal Board a motion for termination of that Board's jurisdiction i
over certain aspects of the Midland proceeding.2 Upon receipt of CPC's Motion, we posed four questions bearing upon
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the Motion to the parties. Order (Responses to Motions to Dismiss /Teminate Proceedings), dated July 16,1986(unpublished). One of these questions concerned the requested temination of the OM proceeding; the other three questions bore on the environmental aspects of the requested dismissal of the OL proceeding.
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The only one of these aspects bearing on matters before this Board 2
was the Appeal Board's sua sponte review of LBP-85-2, supra, which i
had not been appealed by any party.
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'4 0 On August 15, 1986, CPC filed its response to our four questions.
On August 25, 1986, the NRC Staff filed its response both to CPC's Motion and to the questions we had posed. Neither the present Intervenors nor the State of Michigan has responded either to CPC's Motion or to our questions.
In the meantime, the Appeal Board granted CPC's motion for temination of that Board's jurisdiction.
In doing so, it vacated LBP-85-2.3 The Appeal Board stated that this Board was now free to consider CPC's withdrawal /temination Motion; and it directed us, in considering the Motion, "to detemine whether any conditions should be ALA8-842, suprg,, 24 NRC imposed upon" any temination or dismissal.
u at (slip op.,pp.3-4).
With respect to conditions, we are governed in both proceedings by 10 C.F.R. 6 2.107(a), which provides:
9 2.107 Withdrawal of application.
(a) The Comission may pemit an applicant to withdraw an application prior to the issuance of a notice of hearing on such temt and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such tems as the presiding officer may prescribe.
[Emphasissupplied.]
3 Such action was in accord with Appeal Board rulings in other cases.
While the vacating of our Partial Initial Decision deprives that decision of precedential significance, we believe that the discussion and rulings therein were correct and may serve as useful guidance in some contexts. See also n.1, supra.
l,i 5-As indicated above, notices of hearing have been issued in both the OL and OM proceedings. le will deal with the requested dismissal or termination of the two proceedings seriatim.
2.
OL Proceeding In its Motion seeking dismissal of the OL proceeding CPC asserts (with supporting affidavit) that the plant is inoperable as a reactor, and no further steps are necessary to disable it as a nuclear i
It states that steps were taken to stabilize the utilization facility.
site after the 1984 halt of construction. Further, it expresses its intent to convert the facility to a codined-cycle gas fired generating plant, although it concedes that it has not yet received the necessary In that connection, it regulatory approvals for that course of action.
asserts that such facility will utilize the existing cooling pond and associated facilities; that CPC has developed and implemented a cooling pond maintenance program which the Michigan Department of Natural Resources has, approved; that CPC maintains its NPDES pemit; and that no further site environmental alterations are necessary.
CPC seeks dismissal of the OL proceeding "without prejudice" and i
without any further conditions.
In responding to our questions, however, CPC notes that Licensing Boards have typically adopted conditions agreed upon by the Applicant and the Staff as part of a temination order, leaving supervision of implementation to the Staff 1
(CPCAugust 15, 1986 Response at 8).
In responding to CPC's Motion and our questions, the Staff has l
indicated that it is in the process of preparing an environmental i
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assessment pursuant'to 10 C.F.R. I 51.21 concerning the proposed withdrawal of the operating license application. By letter dated August 21, 1986, the Staff posed questions to CPC on the environmental aspects of project temination.4 It indicates that environmental conditions, if necessary, will be designed to assure the stabilization of the site.
1 The Staff recommends that we hold CPC's Motion in abeyance pending i
completion of the Staff's review of CPC's stabilization plan and the mceipt of the views of interested parties.
As noted above, CPC recognizes that Licensing Board adoption of terinination conditions agreed upon by an Applicant and the NRC Staff would be appropriate. Through its preparation of an environmental assessment, the Staff is developing conditions which it believes l-appropriate for a termination order. Under those circumstances, and absent any current reconsnendations by the Intervenors or the State of Michigan, we agree with the Staff that (insofar as the OL proceeding is concerned) we should defer action on CPC's Motion, pending preparation of the Staff',s, assessment and receipt of conenents (if any) on that assessmentbyotherparties(includingCPC). We are adopting that course of action. Parties may file with us connents on the Staff's assessment within 30 days after service of such assessment.
Copies of these questions have been provided to the Board and 4
parties.
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3.
OM Proceeding The OM proceeding is a type of enforcement proceeding brought by the NRC Staff pursuant to 10 C.F.R. I 2.204. The Staff sought to amend the outstanding construction pemits to incorporate certain remedial provisions for correcting on-site soils settlement conditions and the The management activities which allegedly led to those conditions.
Modification Order, issued on December 6,1979, would have become effective absent a request for a hearing by CPC. CPC in fact requested the hearing. The relief spelled out in the Modification Order is the maximum to which CPC could be subject in the OM proceeding. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980). If CPC had not requested a 10 C.F.R.
hearing, that maximum relief would have been imposed.
I 2.204.
In our Memorandum and Order dated April 30,1982,Ll}P-82-35,15NRC 1060, we put into effect, on an interim basis, certain of the relief sought under the, Modification Order. On May 26, 1982, the construction pemits were amended to incorporate (as Amendment No. 3) the conditions specified by L8P-82-35. Among other matters, those conditions required CPC to obtain Staff approval before undertaking soils-related construction activities. We left those conditions in effect in I
l LBP-85-2, supra.
In seeking to teminate the OM proceeding, CPC indicates that, by letter to the Staff dated July 1,1986 (copies of which were served upon us and the parties), it has requested withdrawal of its pending prior i
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request for extensions of the construction completion dates set forth in its construction pemits.5 (Because no hearing was requested with respect to the extensions, withdrawal of that application is within the jurisdiction of the Staff, not a Licensing Board.) CPC reasons that, when its withdrawal request is granted by the Staff, its construction i
pemits will be deemed to have expired or lapsed; and that, since the only relief available in the OM proceeding is construction pemit CPC amendment, the lapse of the permits renders the OM proceeding moot.
asks us, upon notification by the Staff that CPC's withdrawal request has been granted, to terminate the OM proceeding as moot.
Inasmuch as the Staff was the party seeking the construction pemit modification in the OM proceeding, and thus could provide insight as to whether the OM proceeding is truly moot, we posed a question to the parties in our July 16, 1986 Order, supra, inquiring whether CFC's Motion (with respect to the OM proceeding) might be regarded as a withdrawal of CPC's request for a hearing, thus resulting in an amendment of the construction permits (at least on a pro foma basis) to
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In their incorporate the tems sought by the Modification Order.
responses, both CPC and the Staff oppose teminating the OM proceeding in that manner.
5 That prior request, filed on September 11, 1984, sought to extend the completion dates of Units 1 and 2 from December 1, 1984 and July 1,1984, respectively, to December 1,1989 and July 1,1989.
Although the Staff has not acted on the request, the construction pemits remain in effect pursuant to 10 C.F.R. I 2.109.
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CPC asserts that enforced withdrawal of CPC's request for an OM hearing'would be both inappropriate and potentially prejudicial to CPC.
It stresses that we have already found in substance that there was an f
adequate basis for the Modification Order (Tr.1174) and that, in
.LBP-82-35, supra, we granted all of the substantive relief sought by the Order (eliminating only some of the procedural provisions that we had foundunnecessary). See LBP-85-2, supra, 21 NRC at 35. CPC stresses that the Order imposed as a result of LBP-82-35 (incorporated as On Amendment 3 of the construction pemits) has never been rescinded.
the other hand, CPC points out that there were facts alleged in the Modification Order which have not been covered by any stipulations and which have neither been admitted by CPC nor litigated; and that any de facto admission, which might attach to our placing the Modification Order fully into effect, might ham CPC in other fora in which proceedings are pending or might arise in the future.
For its part, the Staff finds no reason to require the issuance of an amendment to an expired or expiring pemit.
It states that CPC is not withdrawing its hearing request because it agrees with effectiveness The Staff adds of the enforcement order imposed by us in LBP-82-35.
that we need not wait to terminate the OM proceeding until the Staff acts on CPC's request for withdrawal of the construction pemit The Staff states that we may impose conditions subject to extensions.
Staff review (and, presumably, Staff enforcement).
Given the Staff's acknowledgment (as the party initially seeking J
the effectiveness of the Modification Order) that it is no longer seeking further relief under that Order, and absent opposition by any
6 9 party to the proposed dismissal, we regard the OM proceeding as moot.
We are thus able to dismiss it at this time on that basis.
As for conditions, we note that a considerable amount of construction work was commenced, although not completed, to alleviate As one the soils conditions which gave rise to the Modification Order.
example, the auxiliary building underpinning is only partially complete.
We would expect the Staff to assure that partially completed structures For the would cause no danger to the public or to site users.
imposition of such conditions at this stage of the OL proceeding, the Staff's (and our) authority in this regard stems from environmental responsibilities, not from public health and safety responsibilities under the Atomic Energy Act. Since our environmental responsibilities in the OL proceeding encompass these matters, our dismissal of the OM proceeding does not deprive us of jurisdiction to impose further conditions of this type, should they be warranted.
Finally, both CPC and the Staff have relied upon the continued effectiveness of the conditions included in Amendment 3 to the construction pemits and imposed by virtue of LBP-82-35, supra, as a reason for not treating CPC's Motion as a withdrawal of its hearing At this point, we have no way of knowing whether CPC will request.
receive necessary regulatory approvals to convert the Midland Plant to a combined-cycle gas fired generating facility. We also are unsure whether CPC, if it should change its plans, could seek to resurrect its expired construction permits. E. Texas Utilities Electric Co.
(Connanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113 (1986).
In any event, we strongly believe that, if further construction
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under the construction pemits were to take place, Amendment 3 should remain in effect. Our dismissal of the OM proceeding is conditioned on the continuing effectiveness of Amendment 3 to the extent further activities are undertaken under the construction permits.
For the reasons stated, and on the basis of the entire record, it is, this 26th day of September, 1986 ORDERED:
1.
That the OM proceeding is dismissed as moot, subject to the condition set forth above.
2.
That action on CPC's Motion seeking authorization to withdraw the OL application and dismissal of the OL proceeding is deferred pending preparation by the Staff, pursuant to 10 C.F.R. 5 51.21, and consideration by this Board of an environmental assessment.
4 3.
Parties shall have 30 days from the date of service of the Staff's environmental assessment to provide consnents to us on that I
,(M the Staff's request, we will pemit the Staff to reply assessment.
to any such comments.)
4.
In accordance with 10 C.F.R. I 2.760, 2.762, 2.764, 2.785 and j
2.786, ins'ofar as this Order dismisses the OM proceeding, it shall become effective insnediately and will constitute the final decision of the Consission thirty (30) days after issuance hereof, subject to any review pursuant to the above-cited Rules of Practice. Any Party may take an appeal from the rulings applicable to the OM proceeding by filing a Notice of Appeal within ten (10) days after service of this Memorandum and Order. Each appellant must file a brief supporting its l
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- position on appeal within thirty (30) days after filing its Notice of 2
Appeal (forty (40) days if the Staff is the appellant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a brief in support of, or in oppositionto,anysuchappeal(s). A responding party shall file a single, responsive brief only, regardless of the number of appellants' briefs filed.
THE ATOMIC SAFETY AND LICENSING BOARD M rry Hafbour ADMINISTRATIV UDGE
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W Guytaver A. Linenbergdr
'7DfINISTRATIVE JUDGE den m) n j
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Charles Bechhoefer, Chainnan/
ADMINISTRATIVE JUDGE
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