ML19344A295

Util Motion to Strike Intervenors 771008 Motion for Summary Reversal of ASLB 770923 Decision & Stay of Const.Intervenors Have Not Sustained Burden of Proof or Ability to Grant Stay of Const in Any Time Frame.Certificate of Svc Encl

ML19344A295
Person / Time
Site:	Midland
Issue date:	10/20/1977
From:	Mark Miller, Zamarin R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8008070670
Download: ML19344A295 (22)

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5t pd g :a UNITED STATES OF AMERICA b

NUCLEAR REGULATORY COMMISSION I

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Before the Atomic Safety and Licensing Appeal Board

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In the Matter of

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Docket Nos. 50-329 CONSUMERS POWER COMPANY

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50-330

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Midland Plant, Units 1 and 2

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CONSUMERS POWER COMPAN'I'S MOTION TO STRIKE INTERVENORS' MOTIONS FOR

SUMMARY

REVERSAL OF LICENSING BOARD'S DECISION AND STAY OF CONSTRUCTION By filing dated October 8, 1977, All Intervenors i

Other Than The Dcw Chemical Company (Intervenors) pleaded alternatively to the Atomic Safety and Licensing Appeal Board (Appeal Board) and/or the Nuclear Regulatory Commission (NRC or Commission) for summary reversal of the Atomic Safety and Licensing-Board's (Licensing Board) September 23, 1977 decision to not suspend the construction permits for the-Midland _ Plant (hereafter the Licensing Board's Decision or Order); in addition, and in the alternative, Intervenors requested an immediate stay of Midland ~ construction (Inter-2 venors' Motion)..On October 18, 1977 intervenors served a "Further Statement of Intervenors Other Than Dow Chemical Company In Support Of Their Motion For Summary Reversal And y

Stay Of Const-ruction" (Intervenors' Supplemental Motion; 8cosos. C7o

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collectively, the motions will also be referred to as Intervenors' Motions).

Licensee'hereby moves to strike Intervenors' highly improper Motions which completely disregard the Commission's orderly procedures and the methods by which'the procedures must be followed.

In the event that Intervenors e

Motions are not stricken, Licensee today also submits its

" Response to Intervenors' Motion'For Summary Reversal of Licensing Board's Decision and Stay of Construction" and

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asks that the Appeal Board permit this filing instanter, despite the fact that it exceeds the length limitation of 10 C.F.R. 52.788(b).

The only possible framework within the Commission's l

rules for Intervenors' Motions is an application for a stay l

.of a decision pending appellate review, 10 C.F.R. 52.788.

Judged by the procedural standards contained in th'at section, I

l Intervenors' Motions are-totally improper:

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(1)

Both.the original _ Motion and the Supplemental l

Motion are untimely because filed more than 7 days after

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service ~of'the Licensing Board's decision, 10 C.F.R.

S2.788(a);

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The attempted justifidations for the filing of-Intervenors'

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Supplemental Motion.(recognized by Intervenors to be inappropriate):that "it provides further infor=a' tion" and-

"will'be'useful" are patently absurd.

-In fact, no new 1

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.information is provided; Florida Power and Licht Ccmpany-

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(S t.

Lucie Nuclear Power Plant,, Unit No._2) ALAB-435, NRC (October 7, 1977), contains nothing more than a restatement of Public Service Comnanv of New Hamcshire

-(Seabrook Station,. Units 1.and 2),-CLI-77-8, 5 NRC 503,L 530-535 (1977), whichJwas discussed in Intervenors' original

' Motion.

In addition,ithe: discussion'of'st. Lucie is only; a small' portion of_the content of the Supplemental Motion.

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s (2)

Intervenors' filing by the addition of _ the Supple-mental Motion, is 11 pages longer-than the 10 page limitation, 10 C.F.R.

S2. 788 (b) ;

(3)

Intervenors' Motions do not attempt to reference the relevant factors to be considered.in the Appeal Board's

' determination-whether to grant a stay nor does either contain a " concise stateme'nt" of the grounds for stay, 10 C.F.R.

S2. 788 (b) (2), (e);

(4)- Intervenors' Motions lack the requisite supporting references to the record or to attached affidavits, 10 C.F.R. 52.788 (b) (4).

Intervenors' flagrant disregard for NRC proce-dures should not be tolerated.

Licensee therefore requests that Intervenors' Motions be stricken, but if they are not,

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' files the enclosed response herewith.

Licensee's Response is 18 pages long, 7'pages more than the allotment provided in the NRC's Rules of Practice.* 10 C.F.R. 52.788 (b).

The additional-length is necessary because Intervenors' filing, including the "Further' Statement", is 21 pages long, and because~it consists of. unfocused and wide-ranging allegations, allegations which must be refuted because they are erroneous

-inLfact_and in law. 'Therefore, Licensee requests a waiver

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of the page;1 imitation in this circumstance, and asks' leave-

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See footnote on page 2.

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n to file its enclosed-response instanter if Intervenors' o

Motions are not-stricken.

- Respectfully submitted, l

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gg Michael I. Miller I

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Ronald G.

Zamarin V

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caryl A..Bartelman Counsel for Consumers Power Company

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October 20,:1977 ISHAMi LINCOLN-& BEALE One First' National Plaza

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Chicago,. Illinois ~

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Optober 20, 1977 hi.

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UNITED STATES OF AMERICA

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Before th'e Atomic Safety and-Licensing Apceal Board m.*

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Docket'Nos. 50-329 CONSUMERS. POWER COMPANY

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50-330

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l Mi'dland Plant,' Units 1 and 2

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. CONSUMERS POWER COMPANY'S I

RESPONSE.TO INTERVENORS' MOTIONS FOR

SUMMARY

REVERSAL l

OF LICENSING BOARD'S DECISION AND STAY OF CONSTRUCTION o

By fi7tng dated October 8, 1977, All Intervenors i.

Other Than The Dow~ Chemical Company (Intervenors) pleaded alternatively to the Atomic Safety and. Licensing Appeal

-Board (Appeal Board) and/or the Nuclear Regulatory. Commission (NRC or ' Commission) - for summary reversal of the Atomic Safety and: Licensing Board's (Licensing. Board) September 23, 1977; decision so.not suspend the construction permits for the'Micland: Plant (hereafter the Licensing Board's Decision or Order); in addition, and in the alternative, Intervenors

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requested._an..immediate, stay of Midland construction. (Intervenors

j Motion).

On October 18, 1977, Intervenors filed a "Further Statement-of.qIntervenors Other-Than_Dow Chemical Company In

Support OfiTheir. Motion For Summary Reversal And Stay.Of 5 Construction" ~ (Intervenors' Supplemental Motion; collectively,

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Lthe:motio~nscwill aiso bE referred to as Intervenors' Motions).

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L In essence, Intervenors' Motions: constitute both an-attempt-7 L-td summarily.. appeal-the Licensing Board's Decision and an

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, effort 1 to stay -the Decision's effectiveness.

Both are procedurally; improper

• and both fail for lack'of the necessary

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substantive. showings.-

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No NRC-precedent.is claimed to support Intervenors'-

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_,' request lfor: sunmary reversal, and none exists for good l

' reason.: Atomic Safety"and Licensing Board proceedings are~

frequently; the~ subject of extensive and highly complex evidentiary presentations (here over 6,200 pages of transcript

-in addition to-thousands of pages of prepared tes*tmony and exhibits).-

A record which is formed.on the-basis of submittals on disputed facts by numerous parties, consisting of--facts f

gathered on,a number of' issues over a' substantial. period of timel(here 30 days of hearing over a span of approximately 7 i

~ month's),. simply.cannot be summarily judged'on its merits by an appellate _ tribunal ~.

Thus, a party seeking to appea1 an

-in'itiai~ decision must allege specific error (s) in the c

< ion Jand:must.supportJthemLwith legal authority or record cites.

c10 C~.F.'R.._S2.'762.

In addition, an Appeal. Board is entitled-l tofreview:the entire record of'a; proceeding.. 10 C.F.R.

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iS2. 770 (a). 7 :In=either_ situation,,the appellate" review is

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See?* Consumers _ Power-Company's Motion to Strike Intervenors'JMotionsfForf. Summary; Reversal of Licensing-c;

Board's Decision landiStay of~ Construction"Dalso filed:.

withithe: Appeal ^ Board ~today..

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. contemplated to be an~ extensive one, e. q'., Duke Power a

' Comeany - (Catawba' Nuclear ' Station, Units 1 and 2) ALAB-355, NRCI-l 76/10, p. = 397 (1976).

.ViewedLalternatively as a motion for stay of the i

Licensing Board's Decision under 52.788 of the Commission's Rules of Practice, it is clear that Intervenors' Motions are substantively deficient.* Here,,Intervenors seek to achieve more.than'is provided for under the rules:

an immediate stay of construction pending both appellate review and l-

" fair" remand proceedings.** It would be inappropriate for the Appeal Board to prejudge its own a'ppellate review (initiated, by Intervenors' exceptions) by addressing the question of the advisability of a stay pending outcome of the remand proceeding..-It seems ludicrous to posit that, pending l

appellate review, the Appeal Board should make a decision t.

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review itself, i.e., reconsideration of a decision whether-p l.

to suspend construction of the Midland Plant.

Because of thezunusual circumstances surrounding the

. initiation of.the proceedings.resulting in the Licensing Board's Decision,'Intervenors' request could be seen as anLapplication for a' stay of a decision itself denying a-stay.

However, this circumstance is also specifically provided for.by NRCl Rules of Practice, and is governed by theLsame procedures and criteria as other applications-c l

forfstay,.except.that a1temporarymstay, even "to preserve l-

.thejstatus quo", may'not be granted.

10.C.F.R. S 2.' 78 8 (h),

(g).-

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TheJ" remand proceedings":are'those'to be conducted 1as'a direct result of.Aeschliman v. NRC,.547 F.2d

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.e4 Intervenors do not even focus on the four criteria ~

governing the' determination'of the stay. question under the c

Rules of Practice, let alone attempt to. comply'with their standards.

10 C.F.R. S2.788(e).

As a result,_the parties and the tribunal:considering these. questions are compelled

- to both respond to Intervenors'. exhortations that " justice"-

4 and. " integrity"- (Intervenors' Motion, pp. 9, 10, 11) demand that an order be reversed, and to also point out the relevant

-F Lstandards,.then attempting to define the substantive law and facts Intervenors may me re' lying upon in their reckless allegations.. Intervenors single out and rely on all portions I

of the decision that they like; the others are considered to i

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make a mockery of the process." (Intervenors' Motion, p. 3)

.Their emissions are significant,* as it is clear that Intervenors I

cannot meet the. relevant criteria.

Preliminarily, it is important to recognize that 1

it is Intervenors' responsibility to make a1 showing on the i-relevant factors; in requesting a stay,'the burden of proof-is theirs.

Midland, ALAB-395, 5 NRC,at 785 (l'977); Consolidated 1

Edison Co. of New York (Indian Point Station, Unit No. 2) 2

.ALAB-414, 5 NRC 1425,.1432 (if 7 F; ; Toledo Edison Co. and-

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Even if ignorance' of' the new! regulation (effective Jane 1, 1977)1was claimediand found to be an excuse, see Kansas Gas and Electric Ccmpany'and Kansas City Power-and Light Co. (Wolf. Creek Generating _ S tation, 4

Unit No. 1) ALAB-412,. 5 NRC 1415 (1977),-previous NRC decisions applied. precisely.the same standards as Lthosefcontained in thel regulation.

Indian Point, infra in' text; Florida Power & Light Co. (St. Lucie

. Nuclear Power. Plant, Unit No. 2). ALAB-415, 5.NRC

1435:.(1977).

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i Cleveland Electric Illuminating Co. (Davis-Besse Nuclear ~

l' Power Station, Units 1, 2 and 3) ALAB-385,:5 NRC 621, 629, d

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l 634 (1977); accord, 10 C.F.R. 52.732.

This burden of proof has.not been. sustained.

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FIRST, Intervenors have not' alleged

• or shown i

-thatLthey.will suffer any injury, let alone irreparable injury, if the Appeal Board does -not. grant a stay.

10 C.F.R.

52. 788 (e) (2).- Such a failure to even attempt to make l

.a case en the issue is significant and demands resolution of

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l the issue against Intervenorse Indian Point, 5 NRC at 1432.

The reason for the' omission is clear, as there are no possible L

injuries to Intervenors. Expenditures of money, time and l

energy are not considered irreparable. injury.

Midland, 5 NRC at 779; Davis-Besse, 5 NRC at 626.

.The.possible environmental harm flowing from interim continuation of construction activities at a site where construction has

'been in progress for approximately 5 years is'not immediate or particulari much less irreparable.. Florida Po'.er & Light l

Co. (St. 'Lucie Nuclear Power. Plant, Unit No. 2) ALAB-404i 5 l

NRC'1185, 1187-88 (1977); Public Service Co. of New Hampshire i

(Seabrcok Station,. Units 1~and 2) ALAB-338, NRCI-76/7, p.

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10, 15-17-(1976).

The Licensing Board similarly'found l

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environmental effects to be ordinary and non-decisive.**--

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' Mere allegations coul'd'not be enough in any event, Indian Point, ~ 5.NRC at.1432.

'The-Appeal ~ Board may; rely on'the findings of-the Board.

below in a motion:for.a stay until the movant has' demon-strated:their inadequacy.

Davis-Besse, 5 NRC at 629.

Numbered footnotes contain citations to the record in the suspension ~ proceeding t td/or _ thel Board's Order,

'and:are contained.in Appendix ~A to this filing.

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'irreparableLinjury.because their case on.the remanded issues would be jeopardized.in:the interim, based on:possible tilting.of Midland's cost-benefit balance' prior to the appeai or; hearing on the remanded issues..

St. Lucie - ( AIA3-404),'5 NRC at~1188; St. Lucie (ALAB-415).

However, the Licensing BoardLhas concluded that'"no alternative to Midland will be foreclosed due to continued construction because all

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j other-alternatives have now been foreclosed."

It is-also

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clear that continued construction.pending_ full review (or i

_pending the remand hearings) will contribute only slightly to Midland's cost advantage over its alternative; four.

months of continued construction wculd-change the cost ratio-3:/.

-of Midland to.its alternative by only 2.8%.

see St.-Lucie (ALAB-415),. 5 NRC at'1437.'

Given the absence-of a showing of. irreparable injury, an exceptional showing on the other three factors is required.. Midland, 5 NRC at 779.

SECOND, in contrast to the lack of injury to

.Intervenors from. continued construction is the overwhelming hs*7 which-would' result to'the other. parties if the Appeal-

...,;d were to: grant a: stay.

10 C.F.R. 52. 788 (e) (3)... The

' financial ispact on. Licensee is a factor to be seriously

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considered. Seabrook, NRCI-76/7 at 18; St. Lucie (ALAB-404),

3 5:NRC at:.1188;iIndian-Point,~5 NRC.at 1432-33; in this 47

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-circumstance it'would:be substantial.

Evidence in the.

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i record indicates-that the-cost to' Licensee of a 9 month

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9 delay;of Midland ~would reach-$335 million, and that 6

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~other delay periods may have directly: proportional costs.

The

. financial' impact on Licensee would be'further augmented

-becauseLof a construction suspension's adverse impact on 7/-

Licensee's ability to sell securities and raise 1 funds.

A stay would also adversely affect:another party.

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to.this~ proceeding, The Dcw Chemical Company (Dow).

Con-straction suspension might well.put Dow in a position,where i

.it had to choose another alternative than its current economically preferred choice, Midland, for its necessary steam and electric supply, and thus to foreclose a preferable 9/

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alternative.

The Licensing Board so found.

Even if Dow chose.to remain committed to Midland in the event.of a s

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zstay, a. stay would also prevent Licensee'from supplying Dow's steam and electric'needs in the-time frame in which 11 /

they.are required.

THIRD, the public' interest. clearly lies in the direction of denial of the stay request._10 C.F.R.

S2.788 (e)'

(4).

The record shows that; suspension of construction (and

. resultant project' delay) would' severely impair the reliability-12 /

oof anselectric generating system.

relied upon by_l.2 million= customers _in the State.of Michigan.

The Licensing

Board-foundLazneed for.the Midland Plant in-the time frame 14'/.

?it Willicome on-line'.

Resulting harm to Licensee's~

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l customers would also.ba-financial; higher rates would occur-t based'on! additional costs of r'eplacement power, nuclear fuel cost increase's, land' higher annual fixed charges.from increased 15./

capital costs.-

Licensee's investors would'also suffer _from'a stay by a reduction ~ in :the quality of' earnings, the interest coverage on outstanding debt,-and the physical property

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available per investor

~The local and regional Midland.

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' community would be a'dversely affected by construction

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suspension -- 2500 construction workers would be laid off, in. turn resulting in unemployment-compensation: and other H

i public assistance' costs, ' lost tax revenues, a harmful effect 17 /

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on community planning and'the like.

Further, a delay in-l the commercial operation dates of Midland would.cause L

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increased; atmospheric. emissions by. forcing Dow to use its

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existing fossil fuel generating facilities-for a longer t

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period of time.

- Movants_in previous situations have advanced as a 4:

f "public interest" reason for grantini a stay, a ground-J similar :to Intervenors '. repeated-claims here -- that they

.would somehow be[ denied "the opportunity.for meaningful F

^ review""if a"stayJwere not-granted.

Indian Point, 5.NRC at' 1433;-St. Lucief(ALAB-404) ~ '(question of prejudic'.c3. the costJ consideration-of alternative' site).

The Indian: Point

- Appeal: Board succinctly and; correctly.saw'through-that ~~

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argument:

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While we-endorse the goal of providing the' opportunity.

for meani'gful review, we fail to see why it-n requires.giving [Intervenorl relief which we' held

[in aLprevious decision] 'it was not entitled to'-

get,:at the expense of possible substantial harm to. [ Applicant].

If; meaningful-review meant:that every. petitioner.for review were entitled to a stay, the Commission would' presumably have provided

- for-one - automatically. It did not do so.

Indian Point, 5 NRC at 1433.:

FOURTH:and finally, Intervenors have not and cannot make a'" strong showing" that-they are likely to prevail.on the merits.

10 C.F.R.

S2. 788 (e) (1).

.The first

-three' factors discussed above clearly and overwhelmingly 4

militate against-the relief requested by Intervenors.

In

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orderLto be granted a stay, then, Intervenors must make a formidableLshowingDon this fourth factor.

St. Lucie, 5 NRC 4

-at 1189; Davis-Besse, 5 NRC at 631-32.

Based on the discussion

supra, p..3, the Appeal Board should on1y consider the probability lof Intervenors' success on the meritsoof its present'! appeal to the Appeal Board.

Intervenors' wishful claims that the matter of

" sunk costs":was the. sole ~ basis for the Licensing Board's

-decision and that all other equities weigh in-their' favor 3

~.(Intervenors Motion,f pp. 5, 6;. Supplemental Motion, p. 6)

Lare not borne.out by.either the'Or'er or the record. In d

fact' in its final l summary the Licensing Board finds that z

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Intervenors ' claims were timely raised, _ but "[o]n the other e

side of-the balance,. are the need for the project, the effects of delay,_the foreclosure of' alternatives caused by-construction and investment, and the cost advantage over the 19 /

plant's' life of the use of nuclear fuel."

Thus,'"on balancing the equities we should not order suspension..."*

The remainder of the Order and the. record of the proceeding adequately support these findings.

Intervenors would have us reargue the merits of the suspension proceeding based on their reading of the Commission's decision in Seabrook (Public Service Company of New Hampshire (Seabrook Station, Units l~and 2) CLI-77-8, 5 NRC 503 (1977)), its applicability to the instant proceeding, and'its propriety'in view of Aeschliman, supra, note p.

3.

First,.theAppealBoard-isboundbySeabrookashRCprecedent.

10 C.F.R..Part.2, Appendix A, IX (a).

Second, applying Seabrook in this proceeding, Intervenors cannot demonstrate a' likelihood that they will succeed'on the merits of then appeal.

Aeschliman, Seabrook and the decision in Union of Concerned Sc'ientists v. AEC,~499 F.2d 1069 (D.C.Cir. 1974)

' teach Lthat-the. cost-benefit analysis now being considered ItLis not necessary in these. circumstances that the party. opposing the application have. won on all issues

-below.: Indian Point, 5 NRC st 1434.

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.m Ishould be based on a realistic approach.*

In Union of~

Concerned Scientists the court stated:

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.An= alternative-to be' considered is complete abandonment of the project, just as it was at both.

the construction and full-power operating license stages.

.[ citation to record omitted] ~. As at those stages,--sunk costsfare not appropriately considered costs of abandonment,.although replacement costs.

may-be If construction-cf a substitute facility could reasonably'be expected as a consequence of-I abandonment. (Emphasis added, T97 F.2d at 108477 This language was quoted in the.Aeschliman decision itself (547 F.2d 'at 632; 'n.

20), thereby confirming.its applicability-to this' case.

See also Porter County Chapter of the Izaak-Walton League v. AEC,-533 F.2d 1011, n.

10 (7th Cir. 1976),

i cert.- denied, 420 U.S. 945 (1976).

.Thus, it is clear-that " sunk costs",

i.e.,

the total investment.already.made in a facility, cannot simply-4 beaddedtothecostofanalternativetoarriveabthecost

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of' abandoning'the facility.

However, once a need for power has=beenfestablished, replacement costs, i.e.,,the credits

.and debits which would result from abandoning one facility

-i and building another to replace it, can be considered, since i

a " substitute-facility-could reasonably be expected as a I

consequence-of abandonment."- Aeschliman,-547 F.2d at 632,

n. 20. t - ' Replacement costs must be. considered and weighed Intervenors have. lost sight of the' fact that the issue for-purposesief-the. suspension proceeding was whether

- the-cost-benefit' balance will;beLtilted through in~ creased investment,"~not whether~the final cost-benefit balance

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would-favor-the Midland Plant.--NRC General Statement of Policy,LAugust 13,71976,.p. 9, applying-and' citing

.-Coalition for Safe Nuclear Power v. AEC,:463 F.2d; i

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against.the costs of continuation of the project in an

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' incremental cost analysis so that alternatives can be realistically compared on.a current basis.- The-NRC adopted the. approach

of evaluating alternatives on an incremental cost basis considering replacement costs in the Seabrook case.

The Licensing Board, as'it is required to do, applied the'Seabrook-s

. doctrine:in.this proceeding.

As-a predicate to application of the Seabrook standards, and in accordance.withl Union of Concerned Scientists,

.the need for-a comparable facility at some location must be determined. The need for additional generating capacity and-steam supply 11n.the time frame when Midland is expected to become operational has been established, the Licensing 20 /

Board's Order noting Intervenors' agreement.*

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LicensingBoardmerelystateda'truisminsayingtbatsubstantially less demand.could result in the lack of need for a generating-plant. (Supplemental Motion, p. 9; order 125); it in no j

'way> determined that conservation (or any other factor) would

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1 cause such a reduction.in Licensee's' demand forecast.

e Intervenors claim-of major cutbacks in Licensee's

~ demand : forecasts :(Supplemental' Motion, p.

8 and Exhibit A) is'less-than a nalf-truth; rather,-a deliberate attempt to mislead based on a document not of record.

A reducedEexpected load growth for:one year only, 1979, of15.2% to 3.2%, developed and'used for short-term,

. budget planning purposes'(not for long-term-generation planning)lis not'a "40%" drop in future demand".

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jFirst,-it is only'a limited purposelonelyear determination,

'andisecond, it. indicates a reduction in the rate of h

idemand growth;ratherothanfaoreduction in demand.

Nor are JDow's new projections of electric demand relevant: for-ithe years 1977-1980;'the1effect on Licensee's demand

forecastfof-:anyJreduction in-later years--has yet to be

. determined. And Intervenors--can hardly claim antinnocent'-

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.purpoco toitheirTapparent confusion of Dow's steam-

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yersus electric; ne.edsf(Id.c atfoo. i8--9 f.

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.ThroughoutJits decision, the Licensing Board refers to " sunk costs" and concludes ~that "considering.

future operating costs and sunk: costs, there is no alternative

- which if now begun,=would not result in an increase.in total-22'/

costs of several hundred million dollars."

The-Li6ensing Board sometimes refers to the costs of abandonment as " sunk

~

23 /

costs".

Yet, when the substantive findings are examined,

~

it is c1 ear that there was not' simply a mindless addition of the present " sunk costs" of Midland to each of the alternatives it considered,.but rather.an-attempt at the type of incremental cost analysis described'in the Seabrook decision and required by the Aeschliman and Union of concerned Scientists decisions.

In analyzing Licensee's economic comparision.

betkeen' Midland and an alternative coal plant, the Licensing Board compared the cost to complete Midland with-the cost to

. build a'newLcoal plant, adding expenditures made necessary by-abandonment of Midland and deducting'such cost items as the. salvage value of' Midland.

This is a proper approach. It

- should-be pointed-out that the accur'acy of'the various 4

. computations.made by the Licensing BoardLis questionable, andJrevision.by the Appeal Board may occur after full review of the' Licensing Board's decision and the record.

For 1

1 purposes;of the instant Motion, Licensee:merely points'out that-the recordLeontains substantial. evidence-from which an /

- incremental cost. analysis can be made.

Moreover, g

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n inLtwo differentfanalyses,1 both of.whichs used'a-total rather~

than: incremental' cost approach, the~NRC staff also found S

-25 /

Midland;tonbe clearly advantageous to.its alternatives.*

3-

' Finally, it should'be pointed out that the. tilt of the cost-benefit analysis'during'the pendency of a remanded proceeding,7 referred to in Coalition for Safe Nuclear Power,

' supra,.and, indeed, the "restriking" of the cost-benefit

analysis directed by the'Aeschliman. decision itself, is not-limited to an economic comparison.

As the Coalition case-makes clear, it is the environmental values in the cost-benefit analysis which mustLnot be overcome by the continuation i

of investment in construction during the-pendency.of a remand hearing.

Intervenors' Supplemental Motion (p. 3) claims Seabrook1 to be inapplicable here as-it involved an " unusual"

~ situation of alternative site comparisons. 'To the contrary, Seabrook' applies because it is exactly analogous on this point. s As in any NEPA' analysis, the analysis of the' costs and~ benefits of different-alternatives was predicated on a

. preliminary determination that a need for the major. federal

- action'had been demonstrated..The alternative of not building F.

the proposed generating ~ facility was initially evaluated s

(

(Contrary'.to1I7tervenors'1 assertions, it.has not been

~ *-

Leoncluded1that the alternative they presented was

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o consideredJal" feasible" one (Intervengra' Motion, p.

"5),fnor'that Midland isEbeing. constructed:"without exploration 7of7 alternatives" (Id., p.

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.inLthe early Seabrook proceedings and.found not to be a feasible one.

Seab;'ook, LBP-76-26, NRCI-76/6, pp. 857-949',

I 881,/899-902,:906-07, 929-35-(1976).*

Similarly, in these proceedings, the. question of Dow's intent to purchase Midland-4 produced steam has been raised and determined co support building a plant, and..the Licensing Board hastfound that all parties-agree that there isia need for the Midland' Plant's 26 /

. electric generation.

Presumably, if need for the facility is not demonstrated, no action will be taken; the proposed project will not be built only-because it is more advantageous than an equally unnecessary alternative.

In that circumstance, money already spent is, clearly irrelevant,

.Seabrook, 5 NRC'at-534.

Intervenors' conclusion ~that the-Seabrook standards do,not permit an incremental cost analysis here.because of a

')

lack of: integrity in the original NEPA process is also J

without foundation.

First, Intervenors state, without citation, that the Court of Appeals found- (and "everyone agrees") that there has been a knowing and willful erroneous

~ NEPA review (Supplemental Motion,-pp.

4, 7). Eve'n assuming

. an erroneous NEPA review by the-agency,'there is no. evidence of any attempt.to contradict the law.

Intervenors would have us adopt the-incorrect. notion that any time an individual In this regard, see Union of' Concerned Scientists, H

-sucra,Jp. 11, clearly stating that.the abandonment alternative:is to'be considered at the construction

permitLand operating. license stages as well'as on

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other relevantLoccasicns.

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takes;.or omits? action'which is.later found,-after contested

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established ~that the-individual had intentionally _ attempted-

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.to break-Eh'eflaw.-

4

.Second, the Seabrook method of analysis cannot be avoided based on Intervenors' views-of Licensee's and its 1

attorneys' " disdain for.the integrity of the-licensing process."-(Supplemental Motion, p. 4).

Licensee considers the Board's findings on the subject of the propriety.of 1-27 /

Licensee's conduct in the proceedings (which are not 4<

exactly as' set forth in Intervenors' Motions) to have been 1

erroneous and improper,-and awaits their reconsiderstion.*

If1 reconsidered, Licensee: expects;them to be changed.

Licensee:also expects:the Appeal Board to review the record i.

and make a determination on the subject contrary to that of

-the Licensing - Board's September 23 Order.

In any case, the

~

Licensing Board made its own conclusionson the subject 4

(following~its indication of remaining " suspicion"):

iti assumed'the applicability of the Seabrook standard, but

-28 /-

declined'to abandon the incrementa1' cost' approach.

In' this: ultimate conclusion, the' Licensing Board was correct.

Thus, the Seabrook decision does not assist Intervenors.-

In accordance with Seabrook, the " integrity" of the-NEPA process leading up to the point of hearing was not absent, i

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• t Licensee'-filed ~a'Petitionifor. Reconsideration of'those-

_ portions ofcthe' Licensing Board's; Order on~ October-3, 11977.-

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.the' NEPA process has been; " fundamentally sound"~, and-time L

!and monsy have'not b'een " misspent". Seabrook,'5 NRC at 533.

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Florida Power and Licht Co.,(St. Lucie Nuclear Pcwer Plant, i

Unit No.-2) ALAB-435,-

NRC-(October 7, 1977) adds nothing to Intervenors' case.

That Appeal Board merely alluded 1tolthe: Seabrook language,. handling it la a footnote f

'by choosing not~to apply it, supporting the propriety of viewing the cost-benefit balance in. terms of presently i

~ existing facts.

p l

l The relevance of the preceding. discussion must lun kept in perspective.

The probability of success on the merits question is only 1 of ll factors the. Appeal Board l-should.now consider.

In turn, the cost-benefit-balance was L

onlyfone of four major-issues in the suspension proceeding, and,tdun. question was actually whether the cost-benefit

~

balance would be tilted pending full remand hearings. Economi~c costs were'only one' aspect of that particular question, and a Seabrook.incrementil cost approach is only one basis for 29 /

its resolution in favor of Licensee.

Intervenors fall far short of making a substantid1 showing that they will

. prevail on the: merits of any issue at appellate review, and certainly-not on the merits as a whole.

3

.In summary,Lbased on a proper consideration of the four i

relevantDfactors,r Intervenors have not sustained their l

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burden of proof and shown themselves-entitled to the granting of a stay of. construction, in any time frame.- In fact, S

Intervenors have not shown the equities to be in their favor on any'one of the factors._* ' The' Appeal Board should therefore ava11Litself of the benefit of full briefing on the appeal, Seabrook (ALAB-338), NRCI-76/7 at 14, and deny Intervenors' Motions.

' Respectfully Submitted, 7 & b d.t h Y' g

Mi a 1 I. Mi

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/ Ronald G Zam 4Lk / N h Caryl 2. Bartelman Attorneys for Consumers Power Company October. 20, 1977 Isham, Lincoln & Beal'a One First. National P.'aza Chicago, Illinois 60603

' In any event, a. determination on no-single factor is dispositive',. e.c., Seabrook (ALAB-33 8 ), NRCI-76/7. at.14.

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P APPENDIX-A-

1. -

Licensing Board's' September 23, 1977' Order I

l(Order), 128.

2..

Order, 166; also:see Order,-141'.

3.

Licensee Exhibits;20 (5/6/77),: 21 (5/6/77),

.22a (5/6/77),. 23 c (5/6/77)'; written testimony of G.S. Keeley at:IV-8,ffollowing Tr. 3646; (as explained in Licensee's

Proposed _ Findings,.1108)..

l

~

~4.

Order,'136.

5.5 Written testimony of G.S. Keeley at III-3-7, "following,Tr. 3638; Licensee Exh. 16 (2/4/77) -(attached

.to:Keeleyitestimony, following Tr. 3638);' written testimony of G.L.,Heins, following Tr. 1648; Licensee'Exh. 14-

-(2/7/77).

16.

Licensee Exh. 4,.5 (attached to-Keeley testimony,

following Tr.~,606); Licensee Exh. 16 (2/4/77) (attached to.Keeley testimony,.following Tr. 3638); Licensee Exh. 22 (5/6/77), 23 (5/6/77) (attached to.Keeley testimony, following

.Tr.~3646);._ Licensee Exh. 373 (attached to written testimony of W.R. ~Boris,f following Tr. 4912) ; Board ' Exh.

4, Table 4.1-1 [as explained in Licensee's Proposed Findings, 111].

7..

Order, 137;LBoris testimony at 5-6,.following Tr. 4912;:Tr..~4937-4946.

8.-

4 Order, 11_ ~ 2 9, 3 8..

.9.-.JTr.;2608-09; Licensee.Exh.~31 at 11, 13-14, 20; written testimcny'of~J'.G.fTemple at 4-5, following Tr. 220.

~10.

Order, 138.

ll.

Order,111 39, 17; Temple ~ testimony at 3, 8, following

~

Tr. 220L(correction at Tr. 219); Tr. 1302-05, 2088, 2144,.

2467, 2646,-2669, 2733; Licensee Exh. 7c, pp. 29-30,(attached toLwritten testimony of S.H. Howell, :following Tr. 2074).

12.

. Heins testimony at 11, 13, following Tr. 1648; Licensee Exh. 11, 12,~13 (attached to Heins testimony, i

following Tr.-'1648);' written. testimony of Gundersen at.

2 ~

5-6,- following.Tr.'5105; Tr.:-4801-02, 4829-30, 4871.

13.

Board Exh.

4, p. 1.1-1.

- 14.

Order,.139.

15. -

Order, 129; Climer affidavit at 2-3, Attachments j:

A,3 B.

-l'6.

-. Order,-129;iFisher affidavit at 1-7, Attachments B-E.

-17.x EOrder, 129; Keeley testimony at III-7-12c following Tr.13638;-Board Exh.: 4,LTable 4.1-1.

18.

Licensee Exh. 31 at.pp. 25-26; Board Exh.

4, pp. 5.6-1, 5,6-2,-~ Tables' 5.6-1, 5.6-1A.

19.

Order, 171.

20..

Order,.1139,z 71; (see Licensee's; Proposed Findings, 1115-59)_..

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' Order,-125.

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' Order,.171.

23. '

Order,1162..

24.

Licensee Exh..17, 19, 20, 21,'22, 23; _ Keeley

. testimony-Part IV, following. Tr. 2646, Tr. 3665,=3689,-3720--

-3724, 3730-3749, 3865-3866, 3878-3899, 3907-3910, 3919-3922, 3926-3929.

25.:

. Order,.11.50,.59.

26;.

Order, 139.-

27.

Order, 119, 10.

2 8.-

Order, 111.

2 9.'

Order,.1150, 59.

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-October 20, 1977

.1

.U :.0. <' $.

~ UNITED' STATES OF AMERICA

' pp NUCLEAR REGULATORY _ COMMISSION 1

Before-the Atomic Safety and'Licens'nq Appeal Board

)

In the-Matter of

)

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Docket Nos. 50-329 1 CONSUMERS POWER. COMPANY

)

50-330 f

)

Midland Plant, Units 1 tad 2

)

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CERTIFICATE OF SERVICE e

I hereby certify that copies of the enclosed " Consumers

.l Power-Ccmpany's Motion to Strike Intervenors' Motions For Summary Reversal of Licensing Board's Decision and Stay Of Construction" and " Consumers Power. Company's Respo$se to Intervenors' Motions For Summary Reversal Of Licensing Board's Decision And Stay Of Construction" both dated October 20, 1977, in the above-captioned proceeding, have been served upon the following by deposit'in the U.S. mail,' first

' class, postage prepaid, this 20th~ day of October,_1977:

MichaelC. Farrar, Chairman Atomic Safety and Licensing Atomic _ Safety and Licensing

. Appeal Board U.S. Nuclear Regulatory Appeal Board Panel Commission Nuclear Regulatory Commission Washington,_D.C. 20555 Washington, D.C.

20555 4

~

Mr.

C..R.

Stephens Richard S.

Salzman Atomic Safety _and-Licensing

_ Chief,.Docketingfand Service

Section Appeal Board Panel Nuclear Regulatory Commission

_ Office of the Secretary of the. Commission Washington,7 D. C '.

20555

-Washington,.D.C. 20555 I

-Dr.'W. Reed Johnson Richard-Hoefling, Esquire Atomic Safety-and Licensing Counsel for the NRC Staff Appeal Poard Panel

' Nuclear Regulatory Commission.

U.S. Nuclear Regulatory Washington, D.C.'

20555 Commission Washi'ngton, D.C.

20555 l

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l Atomic' Safety'and Licensing L. F.~Nute, Esquire.

_o

. Board. Panel.

Legal. Department-

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U.S. Nuclear; Regulatory.

Dow Chemical U.S.A.

Commission ~.

Michigan Division Wa'shington, ' D. C.-

20555 Midland, Michigan: '48640 Myron'M. Cherry, Esquire Suite 4501'

'One IBM Plaza Chicago, Illinois-- 260611 Ql.

Caryl 'A.

Bartelman

- One of the Attorneys.for' Consumers Power Company

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- Isham, Lincoln.& Beale

' One/First-National Plaza

- Chicago, Illinois-.60603 a

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