ML19329F613

Requests ASLB Schedule Early Conference Re Environ Matters. Provides Reasons Why Special Measures Are Needed to Expedite Progress

ML19329F613
Person / Time
Site:	Midland
Issue date:	09/02/1971
From:	Wessel M KAYE, SCHOLER, FIERMAN, HAYS & HANDLER
To:	Murphy A Atomic Safety and Licensing Board Panel
References
NUDOCS 8007030394
Download: ML19329F613 (3)

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. . . .','.J.T.,.'.it'J: ,QvisslosM umr ., eaa's esuai 88t:fafsq ha satise g Arthur W. Murphy, Esq., Chairman I ci -'

f Atomic Safety and Licensing Board J Columbia University School of Law ~

435 West ll6th Street IH S DOCUMENT CONTAINS New York, N.Y. 10027 P0OR QUAllTY Pggg3 __

In the Matter of Consumers Power Company Midland Plant, Units 1 and 2 Docket Nos. 50-329 and 50-330 .

Dear Chairman Murphy:

We are writing to request that the Board schedule an early conference on environmental matters.

For several reasons, it seems clear that tnere will be little progress in the Midland case during the next many months, unless special measures are adopted to advance the proceeding to the maximum possible and proper extent:

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1. The AEC Staff has indicated that priority is being given to the preparation of environmental statements in proceedings involving operating rather than construction i licenses. It may be that filing of the i Staff's Final Environmental Statement is still l some time off; although we would object to i any such delay, time should not be wasted I and we believe that consideration shoul'd'be given to the treatment of certain aspects of environmental issues even in advance of ,

receipt of the Statement. I

2. Other commitments of Members of the Hearing Board suggest that consideration be 9 ..} 1

W KAYE. SCHoLER, FIERMAN, HAYS & HANDLER Arthur W. Murphy, Esq. September 2, 1971 given to the hear.llig of isolated env.ironm"ntal.

iccucu on all available dates, including Satur-days, Sundays and holidays.

3 The differences among the parties re-flected in the. record to date, indicate that in-formal procedures have not been cuccescrui. We believe that resolution of the difficult icuues will require tight continuing control by the Hearing Board over each stage of the proceedingn, together with an effort to keep partiec fully and constructively occupied until all inuucu have been resolved.

We believe that scheduling of the requested con-ference need not be delayed awaiting the final further stepn contemplated by the Auguct 4, 1971 AEC' Statement, as referred to in Paragraph IC of the IIcaring Board'n August 26, 1971 Order. The AEC Staff's preliminary draft of reviced Appendix D has been circulated and discucced, and does not interfere with the Board's power in this regard.

Although undoubtedly there will continue to be -

great differences between the advercarieu in thin proceeding, we are hopeful that the presentation of conflicting procedural views at an early conference will recult in adoption by the llearing 13oard of the approach which in bout cuited to the earlient possible and proper recolution of all the innuca.

Our recommendations will be as follows:

1. That the hearing on environmental is-sues move forward promptly, before submission of the Final Environmental Statement or the effective date of revised Appendix D, except '

and to the extent that the Staff advicen that major changes in siting or other aspecta of the proposed plant are contemplated.

2. .That severable environmental issues be l I

identified and the evidence on each heard on a piecemeal basis. Examples are the fogging and Tittabawannee River heating issues.

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KAYE. SCHoLER. FlERMAN, HAYS & HANDLER Arthui W. Murphy, Knq. September 2, l ')'/1 3 That written submiculonc of evidence be employed to the maximum possible extent, with oral evidence adduced only after the crucial final iccucs have been refined.

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4. That the Board cchedule regular and frequent procedural conferences, in order to maintain tight continuing control and koop all parties aa bucy an poscible.

All partica have exproused their deairen that there be no unnecessary delqy, and that thin matter proceed to final resolution at the earliest proper time. We do not expect agreement with all of our suggestions; but we do believe that the substantive and procedural problema presented by the Court of Appeals' Calvert Cliffs decision call on each of us to - succcct techniquen doctCned to expedite the matter under these extraordinary circumstancoc.

Those partiec which opposed the views which ul-timately led to the Court of Appealc for the District of Columbia's strong language in the Calvert Cliffs appeal, may be understandably-sensitive and doubtful concerning future controverted movec. But the Court of Appeals affirmed the Commluulon's control over the procedural conduct of itu hearinga, and criticized procedure only to the extent that it affected cubatantivo rightn; if anything, its decinion confirma the need to develop meaauren to achievo a fair and proper deciclon in the earlieut reanonabic tjmo.

We do not believe that nuch consitivity or doubt should stand in the way of moving forward promptly and aggressively.

Respectfully,

' ,, * ! * ~ .. , , ,

Milton R. Wessel MRW:akl cc: As per attached' certification 3

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