Answer of CPC to Motion by M Cherry,Representing All Intervenors Other than Dow Chem Co,For Joint Consideration of Oper & Constr Matters.Cpc Asserts That Consolidation Is Neither Req Nor Justified.Cert of Svc EnclML19289C206 |
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Midland |
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Issue date: |
11/28/1978 |
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From: |
Gibbs M, Mark Miller ISHAM, LINCOLN & BEALE |
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To: |
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References |
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NUDOCS 7812140362 |
Download: ML19289C206 (12) |
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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20070E4671991-02-26026 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Upgrading Design Basis Threat for Radiological Sabotage of Nuclear Reactors.Recommends That NRC Deny Petition to Increase Design Basis Threat for Security ML20207C1331986-12-18018 December 1986 Order Terminating CPPR-81 & CPPR-82,per Util 860711 Motion to Withdraw Applications for OLs ML20215E7301986-12-17017 December 1986 Memorandum & Order Authorizing Withdrawal of OL Application & Dismissing OL Proceeding,Per Applicant 860711 Motion. Served on 861218 ML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20211L6391986-12-11011 December 1986 Affidavit of Gb Staley Re Preparation of Answers to Board 861203 Questions on Termination of OL Proceeding. Certificate of Svc Encl ML20211L6181986-12-11011 December 1986 Response to Board 861203 Questions Re Util Request to Terminate OL Proceeding ML20214Q4431986-12-0303 December 1986 Memorandum & Order Granting Motion to Expedite Completion of Withdrawal Proceedings & Posing Questions to Parties.Served on 861204 ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20214T7361986-09-26026 September 1986 Memorandum & Order Dismissing OM Proceeding as Moot & Deferring Action on Applicant Motion for Authorization to Withdraw OL Application Pending NRC Preparation of Environ Assessment.Served on 860929 ML20212M7661986-08-25025 August 1986 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 ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20212B0311986-08-0101 August 1986 Memorandum & Order Withdrawing Retention of Jurisdiction Over Radon Issue Presented in Facility CP Proceeding & Vacating ASLB Partial Initial Decision on Remedial Soils in Consolidated CP Mod & OL Proceeding.Served on 860801 ML20212B0521986-07-31031 July 1986 Order Extending Time Until 860815 for Util & Other Parties to Respond to Questions Posed by 860716 ASLB Order.Time Extended Until 860825 for NRC Response to ASLB Questions & Util Motion.Served on 860801 ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20207E2851986-07-16016 July 1986 Order Presenting Questions in Response to Util 860711 Motion to Dismiss OL Proceeding & to Terminate Order of Mod Proceeding.Served on 860717 ML20202G1621986-07-11011 July 1986 Notice of Change of Address for Washington Ofc of Isham, Lincoln & Beale,Attys for Util.Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20202G0491986-07-10010 July 1986 Affidavit of JW Cook Re Conversion of Plant Into combined- cycle,gas-fired Power Plant.Plant Never Operable as Nuclear facility.Nuclear-related Equipment Will Be Sold ML20202G0281986-07-0808 July 1986 Affidavit of Ta Mcnish Re True & Correct Extracts of 860408 & 0618 Minutes of Meetings.Resolutions Recited Therein in Full Force & Effect ML20198J3861986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20198J4651986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechhoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20137E0041985-11-21021 November 1985 Notice of Appearance in Proceeding ML20137D9651985-11-21021 November 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20133F6421985-10-0909 October 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20134N3771985-08-30030 August 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl DD-84-17, Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 8506241985-06-24024 June 1985 Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 850624 ML20127N7591985-06-20020 June 1985 Transcript of Commission 850620 Affirmation/Discussion & Vote in Washington,Dc Concerning Denial of 2.206 Petition for Midland plant,SECY-85-60 Concerning Pressurized Thermal Shock Rule & Shoreham Order.Pp 1-4 ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4751985-04-19019 April 1985 Memorandum in Response to Aslab 850405 Order Re Dismissal of OL Application.Application Neither Abandoned Nor Delayed in Dilutory Manner.Certificate of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20107K8011984-11-0101 November 1984 Affidavit of Jd Selby Re Plans Concerning Facilities.Const Will Be Resumed Only If Proposed by Appropriate Governmental Agencies & Officials & If Funds from Some Other Source Become Available.Related Correspondence ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20092J0241984-06-22022 June 1984 Reply to B Stamiris Second Supplemental Proposed Findings of Fact & Conclusions of Law on QA & Mgt Attitude Issues. Certificate of Svc Encl ML20092J0361984-06-22022 June 1984 Reply to NRC Further Supplemental Findings of Fact & Conclusions of Law Re QA 1991-02-26
[Table view] Category:PLEADINGS
MONTHYEARML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20212M7661986-08-25025 August 1986 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 ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20084J6111984-05-0404 May 1984 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 ML20084H2581984-05-0202 May 1984 Memorandum in Opposition to Govt Accountability Project (Gap) 840417 Petition for Review.Gap Policy on Disclosures to Press Rules Out Genuine Claim That Affidavits Were to Be Maintained in Total Confidence.Certificate of Svc Encl ML20083N6481984-04-17017 April 1984 Petition for Review of Aslab 840330 Decision & Order ALAB-764 Re Subpoenas Directed to Govt Accountability Project.Aslab Erroneous Re Important Questions of Law & Policy.Certificate of Svc Encl ML20087M9821984-03-30030 March 1984 Response to B Stamiris 840304 New Contention Re Transamerica Delaval,Inc Diesel Generators.Bases in Support of Contention Clarified.Certificate of Svc Encl ML20079M6481984-01-23023 January 1984 Request for Leave to File Encl Corrected Copies of Applicant 831209 Memorandum in Opposition to Appeal of Govt Accountability Project.Table of Contents & Table of Authorities Inadvertently Omitted.Certificate of Svc Encl ML20082U0311983-12-0909 December 1983 Memorandum Opposing Govt Accountability Project (Gap) 831021 Appeal of ASLB Order Granting Util Motion to Depose Gap Witnesses.First Amend Argument Inapplicable Since Affiant Identity Will Not Be Disclosed.Certificate of Svc Encl ML20082E1341983-11-22022 November 1983 Request for Extension Until 831209 to File Brief Opposing Appeal of Govt Accountability Project Deponents.Certificate of Svc Encl ML20086A8801983-11-0404 November 1983 Response to Util Motion to Compel & Application for Enforcement of Subpoenas.Submission to Discovery Would Cause Immediate Grave & Irreparable Injury to Organizational Viability.Certificate of Svc Encl.Related Correspondence ML20081F8991983-11-0202 November 1983 Motion to Compel & Application for Enforcement of Subpoenas Against Govt Accountability Project Deponents,L Clark, T Devine,Bp Garde & L Hallberg.Response from Deponents Must Be Filed Before 831110.Certificate of Svc Encl ML20081E8931983-10-31031 October 1983 Reply to Applicant 831014 Response to Second Supplemental Memorandum in Support of B Stamiris 831005 Motion to Litigate Two Dow Issues.Issues Timely Raised & Present New Evidence.Certificate of Svc Encl ML20090H4271983-10-26026 October 1983 Motion to Continue Beginning Date of Hearings Scheduled for 831031 to 3 Days After Date.Extended Hearing Necessary to Allow Time to Receive Responses to 831011 Discovery Requests.W/Certificate of Svc ML20081B1751983-10-25025 October 1983 Motion to Compel CPC Responses to 831011 Interrogatories & Request for Production Re Investigation of Alleged Violation.Certificate of Svc Encl ML20090H3401983-10-25025 October 1983 Motion for Admission Into Evidence of Transcript of Jl Donnell 831015 Deposition.Certificate of Svc Encl ML20081E9481983-10-25025 October 1983 Memorandum in Support of 831021 Appeal of ASLB Orders Granting Issuance of Subpoenas.Subpoenas Violate First Amend Rights.Certificate of Svc Encl ML20081B0681983-10-21021 October 1983 Memorandum in Support of Appeal from ASLB Orders Granting Discovery Against Govt Accountability Project.Subpoenas Violate Common Law of Privilege.Util Showed No Compelling Need for Discovery ML20078K3141983-10-14014 October 1983 Response to B Stamiris 831005 Second Supplemental Memorandum Supporting Dow Issues.Stamiris Fails to Show New & Significant Info Justifying Reopening Record.Certificate of Svc Encl ML20078F5561983-10-0505 October 1983 Second Supplemental Memorandum in Support of Intervenor Stamiris Motion to Litigate Dow Chemical Co Issues Against Applicant.Dow Documents & Complaints Support Litigation of Issues Raised in Original Motion.Certificate of Svc Encl ML20080P1161983-10-0303 October 1983 Errata to 830930 Motion for Reconsideration.Certificate of Svc Encl ML20080P9131983-10-0303 October 1983 Motion to Stay Depositions of L Clark,T Devine,Bp Garde & L Hallberg as Directed in ASLB 830831 Order.Depositions Should Be Stayed Pending Review of 830930 Motion for Reconsideration.Certificate of Svc Encl ML20078A3471983-09-21021 September 1983 Supplemental Memorandum in Support of 830808 Motion to Litigate Dow Issues.Documents Reveal That Util Knew Fuel Load Dates Presented to NRC Jul 1980 - Apr 1983 False. Certificate of Svc Encl ML20077S7161983-09-19019 September 1983 Motion by L Clark,T Devine,Bp Garde & L Hallberg for Extension Until 830930 to File Motion for Reconsideration of ASLB 830831 Order Denying Motion to Quash Subpoenas. Certificate of Svc Encl ML20024E8261983-09-0202 September 1983 Response Opposing M Sinclair Motion to Reconsider Privilege Ruling.Presence of Bechtel Officials at 821124 Meeting Does Not Destroy Privilege.Bechtel & CPC Share Common Legal Interest.Certificate of Svc Encl ML20024E8771983-09-0202 September 1983 Motion to Reconsider Schedule for Submitting Proposed Findings of Fact on Remedial Soils Issues.Intervenors Should Be Required to File Proposed Findings on Remedial Soils Issues by 831115.Certificate of Svc Encl ML20076F3261983-08-23023 August 1983 Motion for Extension Until 830902 to Respond to Intervenor Motion to Reconsider Order Upholding atty-client Privilege Protection for 821124 Util/Bechtel Meeting.Motion Received 5 Days After Mailing.W/Certificate of Svc ML20076C6711983-08-17017 August 1983 Response to M Sinclair & B Stamiris 830728 Motions Re Dow Vs Util Lawsuit.Aslb Should Defer Motions for 30 Days.Motions Could Be Refiled After Documents Reviewed.Two Oversize Drawings Encl.Aperture Cards in Pdr.Certificate of Svc Encl 1986-08-25
[Table view] |
Text
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UNITED STATES OF AMERICA
<[V NUCLEAR REGULATORY CCMMISSION .
Before the Atomic Safety and Licensina Board In the Matter of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units )
1 and 2) )
ANSWER OF CONSUMERS POWER COMPANY TO MOTION FOR JOINT CONSIDERATION OF OPERATING AND CONSTRUCTION MATTERS On November 13, 1978, Mr. Myron M. Cherry, who represents All Intervenors Other Than The Dow Chemical Company ("Intervenors") in the reopened construction permit proceedings, sent a letter to the Chairman of this Atomic Safety and Licensing Board (" Licensing Board") which purported to ask for advice concerning the Memorandum and order of the Nuclear Regulatory Commission (the "NRC" or the " Commission")
dated November 6, 1978, which relates to the Midland Plant.
For the reasons explained below, Consumers Power Company
(" Consumers Power" or Licensee" ) is treating Mr. Cherry's letter as a motion for consolidation of the operating license and construction permit proceedings in this docket, and therefore files this answer in opposition to Intervenors' -
motion.
~
78121403 6}
p emww- eWie e
I. MR. CHERRY'S LETTER MUST BE VIEWED AS A MOTION ,
Consumers Power objects strongly to the tactic $
employed by Intervenors in writing a letter to the Chairman of the Licensing Board rather than filing a motion pursuant to 10 C.:. $ 2.73C. Certainly, there are instances in -
which a party may, and sometimes must, write to the Licens-ing Board concerning a pending matter. Letters informing the Licensing Board of new developments or changed circum-stances regarding a case, or dealing with minor administra-tive matters, are two examples of letters which would be appropriate. When what a party actually seeks to accomplish, however, is to suggest that the Licensing Board take a certain course of action and, concomitantly, to persuade the Licensing Board to do so, a letter to the Chairman is a most improper means to that end.
The letter from Mr. Cherry to the Chairman of this Licensing Board must be viewed as an attempt to persuade the Licensing Board to order consolidation of matters in the operating license and construction permit proceedings.
Consumers Power opposes this course of action, and therefore submits an answer to Intervenors' de facto motion, as provided by 10 C.F.R. S 2.730(c).
To prevent a repetition of this problem, all parties to this proceeding should be instructed that the -
correct vehicle for communicating with the Liv-.1 sing Board in matters of this nature is a motion filed according to the Commission's Rules of Practice. .
-m* e m-
~
II. JOINT CCNSIDERATION OF MATTERS IN THE OPERATING LICENSE AND CCNSTRUCTICN PERMIT '
PROCEEDINGS IS UNWARRANTED AND SHOULD BE DENIED Contrary to the implications of Mr. Cherry's letter, there is no justification for any type of " joint consideration" being given to the construction permit and operating license proceedings for the Midland Plant. That action is neither mandated by the Commission's November 6, 1978 Memorandum and Order nor warranted under the standards governing consolidation of Nhc proceedings, 10 C.F.R. $ 2.716.
A. The Commission's November 6, 1978 Order Because this Licensing Board is farailiar with the complex procedural history of the Midland Plant, only the salient features will be repeated here. The orders authorizing construction permits for the Midland Plant were remanded to tha Commission by the Court of Appeals in Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976). After evidentiary hearings, the Licensing Board decided not to suspend or modify the construction permits pending the outcome of the hearings on the remanded issues; that decision was affirmed by the Atomic Safety and Licensing Appeal Board (" Appeal Board"). ,
Consumers Power Company (Midland Plant, Units 1 and 2),
LBP-77-57, 6 NRC 482 (1977), affirmed, ALAB-458, 7 NRC 155 (1978). Before the remand hearings were to begin, however, the United States Supreme Court reversed Aeschliman in Vermont Yankee Nuclear Power Corp. v. NRCC, 98 S.Ct. 1197 er e ><m
=
(1978). After requesting and receiving the views of the
~
parties, the Commission ruled which issues remained for NRC consideration in view of /ermont Yankee in a Memorandum and .
Order dated November 6, 1978.
It is from that Order that Intervenors draw the conclusion that there should be joint consideration of the operating license and construction permit proceedings. As Mr. Cherry stated in his November 13, 1978 letter:
The Memorandum and Order of the Ccmmission dated November 6, 1978, suggests that some joint consideration may be had on both the operation and construction matters.
This characterization of the Commission's November 6 Order is simply erroneous. The Commission's latest pronouncement in the Midland Plant case does set forth two issues to be considered by this Licensing Board; it does not indicate in any way that the consideration of those issues should be combined with proceedings related to the application for operating licenses for the Midland Plant.
In its Order, the Commission determined that, although none of the issues raised by Aeschliman remained to be considered, two other issues warranted resolution by the Licensing Board. The first concerned the envircnmental effects of radon, which became litigable in individual proceedings when the NRC removed the values for radon from Table S-3, 43 Fed. Reg. 15613 (1978). The second ssue concerned an attorney conduct question which arose during -
the Midland Plant suspension hearings.
Nothing in the text of the Commission's Order indicates, even obliquely, that the consideration of those two issues by the construction permit Licensing Board should .
be somehow combined with the conduct of the Midland Plant operating license proceedings. In fact, a reading of the November 6 Order demonstrates convincingly that the Ccmmis-sioners expected and intended that the two proceedings would run concurrently. The only matter discussed in the Order which entails reference to the operating license proceedings is the question of the ACRS letters and reports regarding the Midland Plant. The Commission stated that no issue remained in that area, and then went on to consider the general question of unresolved safety issues, stating:
The absence in the staff report [ Supplement No. 2 to the Safety Evaluation Report] of some indication of a problem which will create serious safety concerns, and the fact that the construction and operating license proceedings will overlao, lead us to believe that in this instance the remaining unresolved safety issues can be more profitably considered under the standards appropriate to an operating license proceeding. Order at 6 ( footnote omitted) (emphasis supplied).
This quotation shows that the Commissioners were fully aware of the fact that the reopened construction permit hearings and the operating license hearings would occupy the same time frame. There is no hint in that quota-tion, or in the Order as a whole, that the two proceedings should somehow be combined or that one hearing should await .
the completion of the other. Indeed, the Commission's justification for removing the issues of unresolved safety
-m e
r concerns from the jurisdiction of the construction permit
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Licensing Board was that the matter could better be consi-dered at the operating license hearings. _
B. Consolidation of Proceedings Under C.F.R. 5 2.716 Because the Commission's Order of November 6 does not require, or even suggest, that there be joint considera-tion of the Midland Plant operating license and construction permit proceedings, the only other justification for doing so would be 10 C.F.R. 5 2.716. That regulation provides that:
On motion and for good cause shown or on its own initiative, the Commission or the presiding officers of each affected proceeding may consolidate for hearinga or for other purposes two or more pro-ceedings, or may hold joint hearings with interested States and/or other federal agencies on matters of concurrent juris-diction, if it is found that such action will be conducive to the proper dispatch of its business and to the ends of jus-tice and will be conducted in accordance with the other provisions of this subpart.
A. ' hough that section was recently amended the standards governing consolidation were not changed, so that NRC opinions decided under the previous version of 5 2.716 are applicable here. Several of these will be reviewed so as to gain an .
understanding of the circumstances under which consolidation is appropriate.
The Commission had occasion to analyze 5 2.716 in Edlow International Comoany (Agent for the Government of India on Application to Export Special Nuclear Materials),
e 6
CLI-77-16, 5 NRC 1327, 1328-29 (1977), in which that section
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was analogized to Rule 42(a) of the Federal Rules of Civil Procedure. That rule provides that, if actions involve .
common questions of law or fact, they may be consolidated if consolidation would " avoid unnecessary costs or delay." The Commission ordered consolidation in Edlow, emphasinng that the issues in the two proceedings to be consolidated appeared to be identical.
Consolidation was ordered by a Licensing Doard in Allied General Nuclear Services (Barnwell Nuclear Fuel Plant), LBP-74-50, 8 AEC 101, 102 (1974). In reaching that decision, the following facts were relied upon: The conten-tions to be litigated in the two proceedings were identical, the same Licensing Board was assigned to both proceedings, and it was determined that no prejudice to any party would result from consolidation.
Another Licensing Board ordered consolidation in The Toledo Edison Comnanv, et al. (David-Bessee Nuclear Power Station), LBP-74-13, 7 AEC 282, 286 (1974). In that opinion the Licensing Board considered the facts that the parties supported consolidation and that that procedure would eliminate waste of time and would reduce cost and .
duplication of effort in reaching the conclusion that consolidation under 9 2.716 was warranted.
a Consolidation was not ordered under 9 2.716, since that applies only to adjudicatory hearings . However, the Commission looked to S 2.716 for guidance in deciding whether or not to consolidate.
ae
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Another factor to be weighed in the consolidation decision is whether consolidation would cause unreasonable delay. Alabama Power Company (Alan R. Barton Nuclear Plant, .
Units 1, 2, 3 and 4), CLI-75-12, 2 NRC 373, 374 (1975).
Finally, the comments which accompanied the amend-ments to S 2.716 stated that:
These changes allowing Atomic Safety and Licensing Boards to consolidate hearings or to hold joint hearings with other agencies are expected to be used to avoid costly and time-consuming duolication of effort. Consolidation is separately approved by each of the affected Licensing Boards. 43 Fed. Reg.
17798, 17800 (1978) (emphasis supplied.)
A comparison of the relevant factors listed above to the facts of the Midland Plant case demonstrates convinc-ingly that there is no basis for ordering a consolidation of the operating license and construction permit proceedings.
It is apparent that the crux of the consolidation decision is whether the issues to be determined in the two proceedings are identical. If they are, it naturally follows that consolidation would save time and reduce cost and duplication of effort. This is the element which is lacking in the instant situation, however, for there is no identity of issues between the operating license and construction permit .
proceedings. The Commission has assigned this Licensing Board two narrow issues to resolve, the environmental effects of radon and the attorney conduct question. These matters are not identical, or even related, to the issues which will be considered by the Licensing Board assigned to the operating license proceedings.
w- - o
An intervenor in the operating license proceed-
~
ings, who is represented by Mr. Cherry, has filed extensive contentions which she seeks to litigate before the Licensing .
Board conducting the operating license hearings. None of the contentions raises any issue regarding radon. While some seek to raise the question of the conduct of Consumers Power's counsel in the construction permit suspension pro-ceedings, those contentions are manifestly inappropriate for consideration in the operating license hearings and are unlikely to be admitted as a matter in controversy in that proceeding. Indeed, the Commission has clearly indicated that it is this Licensing Board alone which has jurisdiction to consider the attorney conduct issue.
Because the issues in the two proceedings are not the same, consolidation would not result in savings of time, cost or effort. On the contrary, consolidation of the Midland Plant proceedings would result in delay, for the schedule for the operating license proceedings would be set back if the radon and attorney conduct questions had to be heard in addition to the operating license issues. Thus, Consumers Power would be prejudiced by an order directing consolidation of the two proceedings.
For the reasons set forth above, consolidation under 9 2.716 would be unwarranted in the Midland Plant situation.
e M-
CONCLUSION As Consumers Power has demonstrated that consoli- .
dation of the operating license and construction permit proceedings is neither required by the Commission's November 6, 1978 Memorandum and Order, nor justified under 10 C.F.R.
5 2.716, Intervenors' motion for consolidation must be denied.
s , ,
_ L - - .- .. , c ' , . e . ._ --
Michael I. Miller
., _. i I .? ' r. "s 1. ~ . M' Martha E. Gibbs Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 786-7500 November 28, 1978 6
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,
Before the Atomic Safety and Licensing Board
)
In the Matter of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-329 -
) 50-330 (Midland Plant, Units 1 and 2) )
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the attached
" ANSWER OF CONSUMERS POWER COMPANY TO MOTION FOR JOINT CONSIDERATION OF OPERATING AND CONSTRUCTION MATTERS" in the above-captioned proceeding, have been served on the following parties by United States Mail, first-class postage prepaid, this 28th day of November, 1978:
Marshal E. Miller, Esq. Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.
Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Comm.
Washington, D.C. 20555 Mr. C.R. Stephens Chief, Docketing & Service Atomic Safety and Licensing Section Appeal Board Office of Secretary of the U.S. Nuclear Regulatory Comm. Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Comm. -
Washington, D.C. 20555 Richard Hoefling, Esq.
Counsel for NRC Staff Dr. J. Venn Leeds, Jr.
U.S. Nuclear Regulatory Comm. 10807 Atwell Washington, D.C. 20555 Houston, Texas 77096 .
6 m -
7 Dr. Emmeth A. Luebke L. W. Pribila, Esq. -
Atomic Safety and Licensing Legal Department Board Panel Dow Chemical U.S.A.
U.S. Nuclear Regulatory Comm. Michigan Division, Bldg. # 47 ,
Washington, D.C. 20555 Midland, Michigan 48640 Myron M. Cherry, Esq.
Suite 4501, One IBM Plaza Chicago, Illinois 60611
' ~
) & 3ll 30a\.,\ . .m Martha E. Gibbs Attorney for Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 786-7500 November 28, 1978 e
e e