ML20064G881
| ML20064G881 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/28/1978 |
| From: | Gibbs M, Mark Miller ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| NUDOCS 7812140087 | |
| Download: ML20064G881 (49) | |
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3 i UNITED STATES OF AMERICA
- , A* 6 NUCLEAR REGULATORY CCMMISSICN "Q ff s, ll -
6 '\# fj'y/ '6 Before the Atomic oafety and Licensine Board f/ >
'eni ts
) i In the Matter Of )
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CONSUMERS POWER COMPANY ) Docket Nos. 50-329 1
(Midland Plant, Units 1 and 2) ) 50-330
)
)
BRIEF CF CCNSUMERS PCWER CCMPANY IN RESPCNSE TO THE ATCMIC SAFETY AND LICENSING BCARD ORDER OF NOVEMBER 13, 1978 The Atemic Safety and Licensing Board (" Licensing Board") designated to rule upon intervention petitions and to preside over the evidentiary hearings related to the operating license preceedings for the Midland Plant, Units 1 and 2, issued a Memorandum and Order on Ncvember 13, 1979, requesting that the parties set forth their positions with respect to certain matters. In respense to tha Order, Censumers Power Company ("Censumers Pcwer" cr " Licensee")
suhmits this brief which presents the answer of Consumers Power to the supplemental cententions of Mary P. Sinclair and Wendell H. Marshall and discusses the possible effect upon this prcceeding of the Ncvember 6, 1973 Memcrandum and Order of the Nuclear Regulatory Commissien (the *NRC" er the "Cc= mission") in the Midland Plant construe:icn permit pro-ceedings.
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, e I. SUPPLD! ENTAL CCNTENTIONS OF MARY P. SINCLAIR By petition filed on June 5, 1978, Marv. P. Sirclair requested a hearing and leave to intervene in the operating license proceedings for the Midland Plant on behalf of the Saginaw Valley Nuclear Study Group ("Saginaw"). The Licensing Board ordered a hearing on the application for operating licenses and admitted Mary Sinclair as a party to the pro-ceeding; Saginaw was denied admission. The contentions con-tained in Ms. Sinclair's petition to intervene were not evaluated by the Licensing Board in its August 14, 1978 Memorandum and Order, hcwever, for the Licensing Board stated that it was premature to rule upon the adequacy of the contentions as issues in controversy at that time.
Pursuant to the provisions of 10 C.F.R. 52.714, Ms. Sinclair was permitted to amend cr supplement her contentions on or before 15 days prior to the prehearing conference. Accordingly, Ms. Sinclair submitted supplemental contenciens on October 31, 1979, which are "in seme instances amendments of, and in c her instances additions to," the June 5 petition.
Consumers Power has evaluated the supplemental contentions and has determined that certain of them are not admissible in this proceeding. The bases suppcrting this conclusion fcr each inadmissible contentien will be se: forth individually. Scme of Ms. Sinclair's cententiens do specify matters which may properly be litigated in this proceeding.
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It is not appropriate for Censtmers Pcwer to respond to the merits of those contentions at this time; thus, silence en that subject should not be taken to indicate agreement with any of the allegations in those contentions. Furthermore, Consumers Power intends to mcyc for summary disposition with regard to certain matters raised by Ms. Sinclair, as provided in 10 C.F.R. 52.749, at a later stage of these proceedings.
A. Legal Standards To Be Used In Evaluating The Sufficiency of Ms. Sinclair's Contentions Before a judgment can be made as to which of Ms.
Sinclair's supplemental cententions are admissible and ahich are not, the legal standards employed by NRC tribunals in evaluating contentions must be reviewgg. The Ccemission's recently amended Rules of Practice provide that a petitioner shall file a supplement to his original petition to inter-vene setting forth "a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." 10 C.F.R. 52.714(b). This requirement tha: the bases for cententions be set forth with specificity was carried ever frcm the previous version of 52.714; thus, cases decided under the cid rule are applicable to this preceeding.
Cententions which fail to provide the necessary specificity and factual bases recuired by $2.714 have never met with favor from Licensing 3 cards. In Tennessee Valley Authority (3rcwns Ferry Nuclear Plant, Units 1 and 2),
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LBP-76-10, 3 NRC 209, 212 (1976), general allegations which contained cpiniens abcut the safety of nuclear pcwer plants were rejected, and the Licensing Scard went on to quote from an Atomic Safety and Licensing Appeal Board (" Appeal Scard")
opinion on this subject: ,
If facts pertaining to the licensing of a particular nuclear power plant are at issue, an adjudicatory proceeding is the right forum. But if someone wants to advance generali:ations regarding his particular views of what applicable policies ought to be a role other than as a party to a trial-type hearing should be chosen. Duke Pcwer Company (William B. McGuire Nuclear Station, Units 1 and 2) ALAB-128, 6 AEC 399, 401 (1973).
Another Licensing Board decision which demonstrates how contentions are judged under the specificity requirement is Offshore Power Systems (Manufacturing License for Ficating Nuclear Power Plants), LBP-77-48, 6 NRC 249 (1977). In that case, the Licensing Scard ruled that numerous cententions l
were inadmissible because they were conclusional, unparticu-lari:ed and failed to provide the necessary specificity and factual bases as required by the Rules of Practice. The l
I cpinien went on to point out that:
Cententions which are barren and unfocused are of no assistance to us in the resolution I cf the issues to be decided. See 3PI v.
l Atomic Energy Cc= mission, 302 F.2d 424, 429 (1974). 6 NRC 249, 251.
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In addition to those contentions which were denied admission because there were vague and unspecific, the Licensing Board ruled that ancther contention was inadmissible because it was
" pure argument" and did not qualify as a contention, 6 NRC 249, 255.
A Licensing Scard again faced the problem of un-specific contentions in Long Island Lighting Cemeany (Shoreham Nuclear Power Station, Unit 1), L3P-77-50, 6 NRC 261 (1977).
None of the petitioner's 117 contentions was found to be admissible as stated, for the petitioner had not set forth the bases for his contentions with particularity. Many of the contentions were challenges to the Ccmmission's rules or dealt with generic issues which were not preper subjects of an operating license proceeding, and many were held to be
" vague and/or nonspecific." 6 NRC 261, 264.
It is interesting to note that the Licensing Scard in Shcreham made the folicwing ccmment with reference to the inadequacy of the contentions:
Section 2. 714 (a) clearly puts the onus en the petitiener to identify the contentions on which it wishes to intertene and set forth the basis of each cententien. This is not tco great a burden especially en this peti-tiener which had appeared in ancther NRC pre-ceeding er Special Counsel who likewise is experienced in NRC proceedings. As the matter now stands neither the Applicant nor Staff are adequately apprised of the issues that petitioner seeks to raise. 6 NRC 261, 264.
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i That statement is particularly pertinent in evaluating the supplemental contentions of Ms. Sinclair, for she is repre-sented by an attorney who has participated in many NRC pro-ceedings over the years. l
- 3. The Following fupplemental Contentions Sub-mitted by Ms. Sinclair are Inadmissible Contentions 1 and 2 These contentions seek to put into issue the competency of the NRC Staff with respect to the performance l
of its technical and managerial tasks related to the Midland Plant. This is a prime example of an atte=pt by Intervenor Sinclair to bring into this proceeding a "non-issue," for there can be no justification for turning the operating license proceeding for the Midland Plant into an investigation into the procedures, practices and general ability of the NRC Staff. The two findings menticned in contentiens 1 and 2 which must be made by this Licensing Board before an operating license may be issued, 10 C.F.R. SS 50. 57 (a) (2) and
- 50. 57 (a) (3) (i) , do not recuire that the Licensing Scard make any such investigation.
Furthermore, the two reports cited in contention 1 canno turn the vague topic of the NRC Staff's ccmpetancy into an issua in this preceeding. The first repcrt mentioned is a five-year old study cf the licensing process which does net meri any ccmment, and the ccher is a recent General Acccunting Cffice (" GAO " ) reper: which recc== ends certain
l changes in the NRC's procedures for inspecting nuclear plants under construction. The fact that the GAO believes that improvements could be made in the inspecticn process (some of which have already been Emplemented by the cccmis-sion) does not create a new issue for this operating license proceeding.
Ms. Sinclair seeks to bolster the argument in contentions 1 and 2 that the competency of the NRC Staff is a litigable issue by alleging that Consumers Power will not ccmply with Commissien rules and regulations without constant monitoring by the NRC Staff. However, Ms. Sinclair supports
. the allegation by referring to an Appeal Board decision from 1973. This ignores the fact that the quality assurance and .
quality control programs of Consumers Power have subsequently been closely reviewed and approved by a Licensing Board and an Appeal Scard, Consumers Power Cemeany (Midland Plant, Units 1 and 2), LBP-74-71, 3 AEC 584 (1974), affirmed, ALA3-233, 2 NRC 11 (1975), clarified, ALA3-315, 3 NRC 101 (1976). In addition, the inspection reports referenced by Intervenor Sinclair merely demonstrate that the Cc=missien's inspection and enforcement procedures are working properly--
they do not provide a basis for investigating the NRC Staf f's ccmpetency. Indeed, Ms. Sinclair's citations to a string of inspection repcrts itself refutes any insinuation that the NRC Staff is not being diligent in inspecting Constners ?cwer's ccmpliance with all regulatory standards. These inspection
t reports cover a wide variety of asserted non-conformance with regulatory standards, all of which must be resolved to the satisfaction of the NRC Staff. In addition, inspections
! will continue after the Midland Plant is in operation.
In su= mary, contentions 1 and 2 are inadmissible because they attempt to raise a subject, the competency of the NRC Staff, which is not a proper issue at an operating license proceeding. The Licensing Board is not required to make a finding concerning that subject, and the contentions do not set forth any reasons with the requisite specific.'.ty which would justify making the competency of the NRC Sta:'r an issue.
Contention 4 This contention is inadmissible because it is nothing more than a generalized attack on the use of nuclear l power because of alleged unresolved safety problems. While Consumers Power acknowledges that certain of the NRC's Task Action Plans do provide the basis for admissible contentions in this proceeding, the bald statament that the Midland j Plant cannot be licensed because there exist 133 unresolved
} generic issues in the nuclear industry, not all of which 4
even apply to pressurized water reactors such as the ones for which operating licenses are sought here, does not set forth a viable centention. To say that the findings required by 10 C.F.R. 5550.57(1), 50.57(2) and 50. 57 (3) (ii) cannet be T.ade en account of these 133 unresolved generic issues is hardly specific encugh = meet the NRC's pleading requirements.
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0 Contention 4 is an example of the type of conclu-sional and unspecific statements ruled inadmissible in offshore Pcwer Systems and Shoreham, supra. Especially in view of the fact that other of the supplemental contentions submitted by Ms. Sinclair do set forth acceptable contentions concerning specific Task Action Plans, there is no reason to burden this proceeding with such a broadside attack on the nuclear industry.
Contention 5 Contention 5 is similar to contentions 1 and 2 in that it seeks to litigate a non-issue, this time the alleged lack of independent inquiry conducted by the NRC Staff.
Cnce again it is clear that this type of rambling and gener-alized attack upon the abilities of the NRC Staff falls far short of the specific and supported statement necessary to set forth an admissible contention.
As part of this contentien Ms. Sinclair refers to the attorney conduct question which arcse out cf the suspen-i sion hearings in the Midland Plant proceedings. Since Ms.
Sinclair filed the supplemental contentiens, however, the Ccmmission issued a Memorandum and Order en November 6, 1973, which states that this questien shculd be explored by the Licensing Scard in the recpened ccnstruction permit pre-ceeding along with the raden issue. Since the atterney c:n-duct issue is scen to be resclved by ancther NRC tribunal,
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- at the express directicn of the Commissica, it would not be appropriate to explore that topic in the operating license proceeding. Because none of the findings which this Licensing Scard must make before an operating license may be issued are affected by the vague criticism of the NRC Staff's inde-pendence, there is no basis for admitting centention 5 as an issue in this hearing.
Contentions 6 and 7 These contentions attempt to put into issue, through innuendes and vague allegations, the issue of Consumers Power's conformance with quality assurance requirements. Hew-ever, these contentions fail to set forth viable issues because they lack the specificity and factual bases required of con-tentions by Licensing Boards.
Centention 7 also refers to the nonconformance reports mentioned in contention 1 as an example of Censumers Pcwer's so-called tendency to argue with the NRC Staff and make excuses rather than attempt to correct violations.
That statement demonstrates clearly that Ms. Sinclair dces not understand the system she is criticicing, for the repcrts i
! she refers'to were written frcm Bechtel to Censumers ?cwer, l
l not to the NRC Staff. Furthermore, the ncncenfermance reports and the II Inspection Reports demonstrate tha: the quality assurance and quality centrol systams of Censumers l
l Pcwer and the intection practices of the NRC are working properly, they de not indicate that any problems exis which warrant explcration by a Licensing 3 card.
i In connection with quality assurance and quality control, contention 7 alleges that " (i] : also appears that documents may have been ' doctored' in connection with welding certifications at the Midland site." As this is the only statement in contentien 7 whic.h approaches the standard of specificity required of contentions, if quality assurance and quality control is admitted as an issue in this proceeding, that issue should be limited to the question of welding certifications.
Another topic which contention 7 attempts to bring into the operating license hearing is the attorney conduct issue previously discussed in Consumers Power's response te contention 5. That topic is not a proper issue in this pro-ceeding for the reasons set forth in that response.
In summary, there is nothing in contentiens 6 and 7 which set forth the bases for a contention with the speci-ficity required to state a litigable issue in this proceeding.
Contentien S In this contention, Ms. Sinclair attempts tc revive an issue which has been put to rest by the United States Supreme Ccurt and the Ccmmissien. It is true that the 1970 ACRS letter relating to the Midland Plant was criticized by the Ccurt of Appeals in Aeschliman v. NRC, 547 F.2d 62 (D.C. Cir. 19761 Ecwever, subsequen: : the Licensing and Appeal Scard decisicns in the Midland Plant suspensica hearings, relied upcn in Ocntenti:n 3, the Supreme Court reversed the Aeschliman decision on the issue of the ACRS letter, Vermont Yankee Nuclear Pcwer Corp. v. NRDC, 98 S. Ct. 1197 (1978). Cn November 6, 1979, the Cc= mission issued a Memorandum and Order which held that, in view of Vermont Yankee and the fact that a Supplement to the Safety Evaluation Report had been issued which covered the items raised by the ACRS letter, no issue remained for consideration by the Licensing Board conducting the construction permit proceedings. Thus the Appeal Board's instructions that the ACRS matter be considered were vacated by the Ccmmission.
(Ccemission Order at 5-6)
The Order did go en to state that unresolved safety issues could be considered at the operating license proceeding. Nothing in contention 8 properly raised those issues, hcwever, for merely mentioning the phrase " unresolved safety issues" dces not set forth a safety questien with sufficient specificity to crea.e an issue in this proceeding.
Clearly, it is time that the 1970 ACRS letter for the Midland Plant was set aside for once and all. A new ACRS letter for the operating license proceeding will be issued next year.
At that time, parties may submit supplemental cententions if new issues are raised by the 1979 ACKS letter. These cententions, Of course, must satisfy the requirements of 10 C.F.R. 52. 714 (a) (31 s
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! Contention 9 This contentien seeks te bring into the operating license proceeding as a litigable issue the cuestion of the participation in the Midland Plant of The Dow Chemical Company ("Dow"). The Midland Plant is a dual-purpose facility, for it will produce both electricity and process steam. Cow will purchase process steam from the nuclear plant and electricity frcm the Consumers Power system. However, Ms.
Sinclair has not demonstrated a sufficient reason to justify investigating Dow's participation in the Midland Plant at the operating license proceeding, in view of several facts.
! First, this matter was thoroughly ventilated at the 1976-77 suspension hearings involving the Midland Plant.
The Appeal Board, in its decision resulting frcm those hearings, assessed Dcw's intentions regarding the contracts then in effect between Dow and Censumers Pcwer and found that " extensive probing en this point at the suspensien hearing yielded convincing evidence that Cow's presen:
intention is to adhere to the contract's terms." Further-more, as the Appeal scard stated, " (w] e must take Cow's present intention as centrolling. . . ., " Censumers Power Ccmpany (Midland Plant, Units 1 and 2), ALA3-458, 7 NRC 155, 167 n. 45, 168 (1973).
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- Secondly, since that time Dow and Consumers power have culminated months of negotiations by executing new con-tracts for process steam and electricity in June 1978. Ms.
Sinclair attempts to use this fact to show that Dcw's par-ticipation is somehow speculative. This ignores reality, however, for businessmen do not enter into such complex and important agreements lightly. Furthermore, to find that Dow's current intentions, as to contracts which were executed less than six months ago and which resolved the parties' many disputes, is semehow " speculative" when the Appeal Board has already determined that Dcw intended to honcr the old contracts, would be patently ludicrous.
Lastly, in its Memorandum and Order of November 6, 1978, the Ccmmission stated that:
No issue remains in the matter of Dcw's need for process steam. The Supreme Court ncted that the Cc= mission, after consideration of changed circumstances, had properly refused to recpen the preceeding on this matter. In additien, the Appeal Scard fcund that Dew presently intends to live up to its centract.
Crder at 5 (fcotnotes emitted).
Ms. Sinclair also relies heavily en the fact that the new contracts give Ocw the opnien of terminating its participation in the Midland Plant te bcister her argument I
that Ocw's participatien is " speculative." This theory is errenecus in two respects. First, while it is true that Ocw v.ay withdraw frem the project under several different con-
ditions, it is equally true that the contract requires Dow to pay a substantial sum of money (an amount totalling millions of dollars) to Consumers Power in order to terminate.
The practical result of that fact is that Dow would not terminate its participation in the Midland Plant except for the most drastic of reasons. Including a termi-nation provision in a contract does not indicate that the l parties lack confidence in either each other or the venture itself. Instead, it is the act of rational businessmen who attempt to provide in their contracts for contingencies that e.ay occur, even if remote.
The argument in contention 9 also ignores the fact f that the previous Dow-Consumers Power contracts, executed in December 1967 and January 1974, also contained provisions which enabled Dew to withdraw frem the project. Although the withdrawal provisions are different in the 1967, 1974 and 1973 contracts, the important fact is that each of those contracts did contain terms allcwing Dow to cease its par-ticipation in the Midland Plant. The commission reviewed the 1974 contracts, which included withdrawal provisions, and concluded that there were no changed circumstances which warranted recpening the construction permit proceedings.
Consumers Pcwer Co. (Midland Plant, Units 1 and 2), CLI-74-15, 7 AIC 311 (1974).
Another argument presented in cententien 3 to justify examining the Ocw questien in this proceeding is
that the new centracts give Dow " favorable" rates for elec-tricity and steam, rates which have not yet been appreved by the Michigan Public Service Commission. To state this argument is to reveal its flaw, however, for the fact is that Dow will be charged for steam and electricity at what-ever rates are set by the Michigan Public Service Ccmmission.
Therefore, the question of the rates to be charged Dow is not a litigable issue in this proceeding.
For all of the reascns set forth above, Ms. Sinclair has not presented a viable issue in contention 9; Dow's participation cannot be litigated in the operating license hearing.
Contention 10 The thrust of contention 10 is that the Midland Plant cannot be justified ecenemically and cannot, therefore, survive the cost-benefit analysis required by 10 C.F.R. 551. 2 0 (b ) and 51.21.* This contention does not state a viable issue for the simple reason that it misapprehends the nature of the ecst-benefit balance demanded by the Naticnal Environmental Policy Act ("NEPA"). Centrary to Ms. Sinclair's l
-keory, ecencmics, in the sense that term is used in centention l
9, does not play a role in the cost-benefit balance.
- Section 51. 20 (b) applies :: the ces:-benefit balance which is struck a: the ccastructicn :ernit stage,
! =ad thus has no application bere, i
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This fact was brought out in the suspension hearings for the Midland Plant. The Appeal Board dealt exhaustively with the topic of economic analysis under NEPA in its February, a
. 1978 opinion and found that economics had no place in a cost-benefl analysis of the Midland Plant once it had been established that the nuclear plant was the environmentally-preferable alternative. ALAS-458, 7 NRC 155, 161-63. That opinion is directly on point.
At the suspension hearing and in that Board's decision, extraordinary attention was paid to the relative financial costs of various alternatives. But there was no serious suggestion that any of those alternatives was preferable to Midland
, from an environmental standpoint. . . .
This being so, we do not perceive that financial matters are as crucial as the Board below thought they were. Unless the proposed nuclear plant has environ-
= ental disadvantages in ec=parison to possible alternatives, differences in financial cost are of little concern to us. . . .
That Act (NEPA] requires us to censider whether there are environmenta.lly preferable alternatives to the proposal sefore us. If l there are, we must take the stsps we can j to see that they are implemented if that
- can be accc=plished at a reasonable cost; i.e., one not out of proportion to the
, environmental advantages to be gained. But i if there are no preferable environmental alternatives, such cost-benefit balancing does not take place. Manifestly, ncthing in NEPA calls upon us to sift thrcugh en-vironmentally inferier alternatives to find a cheaper (but dirtier) way of handling the i matter at hand. ALA3-453, 7 NRC 155, 161-62 (fec: notes c=itted) (emphasis in original) .
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Because Ms. Sinclair has made no allegation that an alternative to the nuclear facility would be environmen-tally-preferable, the economics of the Midland Plant cannot be an issue in the operating license proceeding. Therefore, contention 10 is inadmissible.
Contention 11 Contention 11 ties together the econcmic argument of contention 10 with the questien of Dow's participation in the Midland Plant found in contentien 9. This ccmbination is no more viable as an issue than its ccmpenents, however, for the econcmics of the nuclear plant to Dow is simply not of interest in this proceeding. The cost-benefit balance mandated by NEPA weighs the benefit from the Midland Plant, electricity and process steam, against the environmental costs which will result frem the plant's operation. The l
econcmic cost of the project to Dow does not enter into the equation. As the Appeal Board has stated:
Whether or not it is in Cow's best financial interests to honcr its contract is not for us but for Ccw to determine. Midland Plant, ALA3-458, 7 NRC 155, 163.
One other point should be made. Contrary to the statements in contention 11, the Michigan Public Service Ct= mission dces not have to approve the new Ocw-Ccnsamers Power centracts. Aside frem setting rates for process steam
and electricity, the Michigan Public Service Cc= mission has no authority to consider the provisions of the new contracts.
Therefore, Ms. Sinclair has not set forth any issues in contention 11 which are admissible in the operating license proceeding.
Contention 12 This is another attempt by Intervenor Sinclair to bring a non-issue into this proceeding, in this case the safety of the nuclear power industry. As other NRC tribunals have indicated, however, the licensing of an individual plant is not the proper forum in which to stage a debate +n the desirability of nuclear power, cee McGuire, ALAB-128, supra, and Browns Ferry, L3P-76-10, supra.
The Rasmussen Repcrt and the Lewis Committee's review of it, and the other repor':s referenced in contention 12, have no direct bearing upcn the operating license pro-ceeding for the Midland Plant. Thus, what they say is irrelevant to this case, and the repcrts do not prevent a valid cost-benefit balance from being conducted for the Midland Plant.
Furthermore, Ms. Sinclair has not set forth facts with sufficient specificity to establish that there is a safety questien which has a bearing upcn the Midland Plant and thus upcn this preceeding. Tc the extent that the i
1 i statements in contention 12 assert that the Environmental Statement for the Midland Plant must consider Class 9 accidents, the contention is an Lnproper challenge to the validity of NRC regulations and runs afoul of 10 C.F.R. 52.758.
Therefore, because contention 12 is merely a generalized diatribe against nuclear power, it is inadmissible as an issue in this proceeding.
4 Contention 15 Once again, Intervenor Sinclair co-mingles the concepts of the economics of the Midland Plant, in itself and with relation to Dow, with Dow's commitment to the project. And again the result is an inadmissible contention.
In the response of Consumers Power to contentions 9, 10, and II, Licensee has explained why the matters of the econcmics of the nuclear plant and Dow's participation in the project are irrelevant to this proceeding. As cententien 15 is basically a restatement of those old arguments, based upon a miscenception of what the NEPA cost-benefit analysis recuires, there is no reason why this contention should fare any better than its predecessors. It, too, fails to present a 4
litigable issue.
Part (c) of centention 15 adds the allegation that
' the process steam and electricity from the Midland Plant h
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will be "uneconcmically priced and unsalable, and a burden l on Consumers' ratepayers." The answer to this, of course, is that the rates for the process steam and electricity will be established by the Michigan Public Service Commission.
Therefore, there is nothing for the Licensing Board to consider with respect to rates.
Contentions 16, 17, 18 and 19 These contentions all concern the general topic of the need for the power to be produced by the Midland Plant, and the subtopics of energy conservation and the loss of load probability ("LOLP") criterion used by consumers Power None of those contentions establishes a valid issue for the operating license proceeding, however. This is true because Ms. Sinclair does not demonstrate that there has been a sufficient change in Consumers Power's need for power projections to warrant a re-investigation of the subject at this hearing.
In general, need for power, as well as other environmentally-related issues, may be re-examined at the cperating license stage if information has changed since the
, time of the construction permit proceedings. 10 C.F.R. 5551.21, 51.23(e). In the case of the Midland Plant, how-ever, the need for pcwer issue has already been re-examined subsequent to the 1971-72 construction permit proceedings.
Curing the suspensicn hearings held as a result of Aeschliman, 1
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supra, the parties explored the question of need for power in great detail; Consumers Power, the intervenors (which included Ms. Sinclairl and the NRC Staff all presented witness on the subject. Those hearings were held from November 1976 through May 1977. Thus, need for power sta-tistics five to six years more recent than those presented at the construction permit hearings were reviewed by the Licensing Board, the Appeal Board and the Commission.
The Appeal Board, in its February 1978 decision, found that there was a need for the power to be produced by the Midland Plant and that the need for that power would not be so decreased by energy conservation that any substantial portion of the nuclear facility's capacity would be super-fluous. ALA3-458, 7 NRC 155, 165-67, 168-69, 173 (1978).
The NRC cited the Appeal Board's conclusion in the Ccmmission's November 6, 1978 Memorandum and Order regarding the Midland Plant.
- Given the fact that the need for pcwer projections of Consumers Power have so recently been reviewed and appreved by NRC tribunals, Ms. Sinclair would have to establish that there had been a significant change in demand projections si;.ce the suspension hearings before the subject could be re-litigated at the operating license hearings. Clearly, Ms. Sinclair's contentions 16, 17, 13 and 19 fail to set fcrth with specificity any f.icts which demcnstrate such a significant caange.
Moreover, when considering the need for pcwer gaestion, it is important to keep in mind what the Midland Plant Appeal Board called the "' substantial margin of uncer-tainty' inherent in any forecast of future electric power demands," ALAB-458, 7 NRC 155, 167 n. 43 (19 78 ) , quoting from Niacara Mohawk Power Corporation (Nine Mile Point, Unit 2), ALAB-264, 1 NRC 347, 365-66 (1975). See also Public Service Company of Indiana, Inc. (Marble Hill Nuclear Gener-ating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 184-85 (1978). As one Appeal Board has remarked regarding need for power forecasts:
Given the legal responsibility imposed upon a public utility to provide at all times adequate, reliable service--and the severe consequences which may attend upon a fail-ure to discharge that responsibility--the most that can be required is that the fore-cast be a reasonable one in the light of what is ascertainable at the time made.
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 328 (1978).
The two subtcpics raised in contentions 16-19 do not set forth separate subjects for consideration. Rather, energy conservation is "just one factor which must be con-sidered alcng with many others in connection with need for pcwer projections," according to the Midland Plant Appeal Scard, ALA3-453, 7 NRC 155, 165 (1970). Similarly, the LCLP index and reserve margins are =erely ccmpenents of the energy forecasting prccess. Because Ms. Sinclair's con-r i
tentions do not establish need for power as an admissible issue in this proceeding, energy conservation and the LOLP criterion are similarly inappropriate for consideration at the operating license hearing.
Contention 20 In this contention, Ms. Sinclair alleges that Con-sumers Power and the NRC Staff have failed to analyze the environmental effects of the uranium fuel cycle, which allegedly invalidates the cost-benefit balance for the Midland Plant. What this paragraph amounts to is an attack upon the validity of the Commission's interim fuel cycle rule, Table S-3, which Intervenor Sinclair terms " illegally and invalidly developed and promulgated." It has long been established, however, that a party may not challenge the validity of an NRC rule in a licensing proceeding. Under the provisions of 10 C.F.R. 52.758, which sets forth this principle, a party who seeks a waiver or exception of an NRC rule in an individual proceeding must demonstrate "special circumstances;" such a waiver or exception can be granted only in unusual and compelling circumstances. Northern Stateq Power Ccmpany (Mcnticello Nuclear Generating Plant, Unit 1), CLI-72-31, 5 AEC 25, 26 (1972); Duke Pcwer Ccmpany.
(William 3. McGuire Nuclear Stacica, Units 1 and 2) , ALAS-126, 6 AEC 399, 401-02 (1972).
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In addition, portions of contention 20 consist of generalized statements criticizing the entire waste management program. As Censumers Pcwer has pointed out earlier, however, an individual licensing proceeding is not the proper forum in which to launch a debate on nuclear power.
As far as the specific question of the interim fuel cycle rule is concerned, that rule has recently been applied to the Midland Plant during the suspension permit proceedings. The Appeal Board found that the cost-benefit balance originally struck for the nuclear facility before Table S-3 was adopted, was not materially altered, ALA3-458, 7 NRC 155, 163-65 (1978). Ms. Sinclair's al..egation in contention 20 that the rule was applied to this proceeding "on an improper and gx parte basis" cannot stand, for the Appeal Scard stated in its February, 1978 Midland Plant I
decision that:
Like the Scard belew, we are bound by and must give effect to the judgments made by the Ccmmission in this regard. Absent any change mandated by either the Cc= mission (as a result of the rulemaking preceeding new underway to formulate a permanent rule) or the courts, the envircamental effects of the fuel cycle must be taken as insubstantial.
ALA3-458, 7 NRC 155, 164 (footnote cmitted).
The opinien then goes en to deal with the ccmplaint cf intervenors (including Ms. Sinclair) that the Licensing 3 card had evaluated the fuel cycle matter withcut giving them sufficient cppertunity te he heard; the Appeal Scard fcund that there was "nc merit" in that ccmplaint. ALA3-455, 7 NRC 155, 164 n. 30 (1975).
, . ~ .- _- - - - - - - = _ - . . . -
l l
l In summary, centention 20 does not set forth an admissible issue for consideration in this operating license proceeding.
Contention 21 Contention 21 also seeks to raise the question of nuclear waste storage, and must similarly be denied admission as a contention in this proceeding. Contrary to the asser-tions in centention 21, the environmental impacts of storing nuclear waste at the Midland Plant site have been considered by Censumers Power. Final Safety Analysis Report, SS9.1.2.2, 11; Environmental Report, 553.5, 3.5.1.4. Obviously, these matters are also covered by Table S-3.
The remainder of contention 21 consists of another general attack upon the nuclear waste management program of this country, with reference to the off-site storage question.
This is hardly a proper subject for discussion at the operating license proceeding for an individual plant. ;
Furthermore, to the extent that it is an attack upon the fuel cycle rule, it is inproper for tha reascns discussed in the respense to contention 20.
Because contention 21 has not set forth a viable issue, it must be denied admission.
Cententien 22 This contention is inadmissible fer the reason that it dces not set fcrth with specificity the bases for the centention. Once again, Intervencr Sinclair attempts to 1
i i
l ,
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raise the question of the environmental effects of nuclear 4
, wastes, but in such a vague fashion that it is impossible to I
discern exactly what is meant. Because this contention runs afoul of the specificity requirement discussed in Section I.A., supra, it must be denied admission as an issue.
Contention 23 This contention criticizes Consumers Power's Environmental Report for omitting the responses to the 71 questions propounded to Licensee by the NRC Staff in May,
'978. Simply put, the contention is inaccurate, for there are currently only three questions which have not yet been responded to by Consumers Power. The present schedule calls for those questions to be answered by January, 1979.
In any event, contention 23 fails to state an admissible issue, for the vague statement that the Environ-mental Report is "grcssly inadequate" hardly meets the degree of specificity required by NRC practice. Furthermore, an appropriate contentien cannot be framed by relying upon what the cuestions asked of Consumers Pcwer allegedly prove, without analy ing the responses.
Contention 25
_ s cententien attempts to raise the issue of whether . c Const=ers Power will be able to obtain a dis-charge frem the Michigan Department of Natural Resources.
Thir not a proper issue in an NRC proceeding,
however, for the grant or fenial of the NPDES permit under Section 402 of the Federal Water Pollution Control Act Amendments of 1972 is exclusively within the jurisdiction of the Michigan Department of Natural Resources. Thus, to hold a debate in the operating license proceeding on whether or not a state agency will grant the permit would accomplish no thing.
As an Appeal Board has stated with reference to the inter-relationship of state and federal agency jurisdiction j in the nuclear licensing process, l
We are mindful that . . . regulatory juris-diction over at least some aspects of nuclear power projects is exercised by a number of Federal and state agencies. And we can readily agree that it would be productive of little more than untoward delay were each regulatory agency to stay its hand simply because of the contingency that ene of the others might eventually choose to withhold a necessary permit or approval. Scuthern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-171, 7 AEC 37, 39 (1974) (footnote emitted) .
This quotation was relied upon by another Appeal Board in reaching the decision not to suspend constructicn because of the possibility that another agency would take action which was adverse to the nuclear facility. Cleveland Electric Illuminatine Ccmpany (Perry Nuclear Pcwer Plant,
- Units 1 and 2), ALA3-442, 6 NRC 741, 748 (1977).
Furthermore, cententien 25 is in error when it asserts that this Licensing 3 card canno make the finding i,
1
required by 10 C.F.R. 5 50. 57 (a) (2) because the NPDES permit
=ay not be granted. **=' #inding, which states that the nuclear plant will operate in conformity with the application, the Atomic Energy Act and the rules of regulations of the NRC, is not affected by the S401 NPDES pernit, which is issued under a different federal law. An Appeal Board has made clear that "AEC [NRC) licensing is in no way dependent upon the existence of a 402 permit." Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAS-216, 8 AEC 13, 58 (1974) (footnote omitted) .
For these reasons, contention 25 fails to state an issue which is litigable in this proceeding.
Centention 26 This contention relates to the proposed sales of undivided ownership interests in the Midland Plant to various cc-cperative and municipal electric utilities. The thrust of contention 26 is that, because these potential buyers have not been listed as co-applicants for construction permits or operating licenses, the prepcsed sales are illegal and various findings cannot be made.
This contention can only be termed premature.
Censumers Power is well aware of the requirement that co-cwners of nuclear facilities be cc-applicants for licenses.
Ecwever, at this juncture no cwnership interest in the Midland Plant has passed tc any entity and Censumers Pcwer has not received any consideratien for the prcpesed sale.
At the appropriate ti=e, and before any ownership interest is tranferred, Consumers Power will file the papers necessary to amend the applications for construction per=its and operating licenses so as to make any potential co-owners of the facility co-applicants.
Therefore, there in nothing in contention 26 which creates an issue for the operating license proceedings.
Contention 52 This contention is merely a generalized reference to all the generic safety contentions contained in Ms.
Sinclair's supplemental petition. As such, the statement is not particularized enough to constitute an issue in this proceeding. Furthermore, a su==ary of this nature could add nothing to the ventilation of the issues at the operating license hearing.
Contention 53 Contention 53 =akes the vague and conclusional claim that the Environmental Report and cost-benefit analysis for the Midland Plant are inadequate and were " illegally and invalidly prepared." Thus, this is a prime example of the type of unspecific statement, =ingled with pure argument, which was held inad=issible in Offshcre ?cwer Systems,
~3P-77-43, supra. Because that type of statement is nct sufficient to raise the adecuacy of the Envircanental Repcrt er the cost-benefit analysis as issues in this proceeding, contention 53 =ust be denied.
Centention 54 Sinilar to contention 53, the subsequent centention ;
criticizes the adequacy of the cost-benefit analysis of the Midland Plant on a variety of grounds. In this statement Ms. Sinclair again demonstrates a complete misunderstanding of the nature of the cost-benefit balance required by NEPA.
As explained in Consumers Power's responses to previous contentions, the economics of the Midland Plant are not an issue in this proceeding, as the Appeal Board made clear in its February, 1978 decision. Contention 54, however, con-tinues to criticize the ACRS reports for failing to factor the cost of ccmpliance with ACRS concerns into the cost-benefit analysis, ignoring the fact that the Appeal Board considered that exact point and soundly rejected it. With respect to the cost of resolving ACRS problems, the Appeal Board stated:
Thus, an increase in monetary costs may well not alter the plant's cost-benefit balance at all, for the benefit side will increase correspondingly. In short, once it has been determined that a generating facility is needed to meet real demand, that no environmentally preferable type of facility or site exists, and that all cost-beneficial environmentally protective auxiliary equipment has been employed, the final cost-benefit balance will al= cst always favor the plant, simply because the benefit of meeting real demand is enor=cus--and the adverse consequences of net meeting that demand are serious.
ALA3-458, 7 NRC 155, 169 (f ec: notes c=itted) .
This same argument applies to the cost of the other unresolved generic items referenced in contention 54.
Therefore, because of the misapprehension of the nature of the cost-benefit analysis, contention 54 does not state an admissible issue.
Contention 55 Contention 55 involves the claimed synergistic interaction of releases of radioactivity from the Midland Plant with chemicals from the adjacent Dow plant. This supplemental centention is inadmissible on the ground of res judicata.
Consumers Power has previously discussed the application of this doctrine to an operating license pro-ceeding in the Brief of Consumers Pcwer Ccmpany In Support of Its Position That Mr. Marshall's Petition To Intervene Is Barred _bv m Res Judicata, filed October 31, 1978. The essential point of res judicata in this context is that "an operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage." Alabama Pcwer Ccmpany (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AIC 203 (1974).
Like Ms. Sinclair, Mr. Wendell *. d Marshall also attempted to raise the question of synergism at the cpera:-
ing license stage. As Consumers Pcwer peinted out, hcwever, synergism was ene of "the major centested issues" in the construction permit prcceeding. Censumers Pcwer Ccmpany
i
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I (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 344 (1973). An analysis of those portions of the construction permit proceeding record which consider the synergism issue is provided in the October 31, 1979 Brief at pages 3-9.
The Licensing and Appeal Board decisions from the construction permit hearings clearly demonstrate that the synergism issue was ventilated and resolved at the previous stage of these proceedings. As Ms. Sinclair has not alleged any changed circumstances which would warrant re-opening the synergism question, contention 55 must be denied admission on the ground of res judicata.
Contention 56 This contention incorporates by reference Para-graph 9 of Ms. Sinclair's Petition for Leave to Intervene of June 5, 1978, which contained certain " Reservations."
Consumers Pcwer objected to several of those reservations as improper in its June 19, 1978, answer to Ms. Sinclair's petition (Answer at 14-17); Licensee reasserts these objec-tions here.
In an August 14, 1978 Memorandum and Order, this Licensing Scard cc=mented with respect to those reservations that "[t]he Scard will not new rule upcn the reservations except to cbserve that it reccgnizes no right of the peti-tieners unilaterally to bind the Board and the parties simply by reciting its intentions to take certain acticns."
(Crder at 7.) Censumers ?cwer agrees with this statement and urges the Licensing Scard to disregard Ms. Sinclair's reservations for the reasons stated in Licensee's Answer of June 19, 1978.
C. Conclusion For the reasons set forth above, the following supplemental contentions of Ms. Sinclair are inadmissible:
l 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 52, 53, 54, 55, 56.
l l
II. SUPPLEMEN*AL CONTENTIONS OF WENDELL H. M.uSEALL Mr. Wendell H. Marshall has previously filed a 1
late petition for leave to intervene in the operating license proceedings for the Midland Plant, Units 1 and 2. Censumers Power opposed that petition on various grounds, including the fact that the questions Mr. Marshall wished to litigate had already been resolved at the construction permit pro-ceedings, in which Mr. Marshall and a group called the Mapleten Intervenors participated.
This Licensing Scard gave Mr. Marshall te=perary status as an intervenor pending a final determination on the adequacy of his petition. The Order of October 12, 1973, I
also gave Censumers Pcwer the cpportunity to file a brief in support of its posi icn that the aspects set fcrth in the petiticn for leave to intervene were barred frem considera:icn at the operating license stage of the prcceedings by the dcctrine of res fudicata. That brief was filed en Cctcher 31, 1979.
Subsequently, Mr. Marshall sent a mailgram to the Chairman of the Licensing Board setting forth..six additional contentions on behalf of the Mapleton Intervenors. Consumers Power, in accordance with the Licensing Board's Order of November 13, 1978, will respond to thoses contentions seriatim and will demonstrate that none of the supplemental contentions forms an adequate basis to support the petition of Mr. Marshall and the Mapleton Intervenors. Thus, that late-filed petition to intervene must be denied.
A. Legal Standards Applicable To Mr. Marshall's Supplemental Contentions One of the prime legal concepts of interest in evaluating Mr. Marshall's supplemental contentions is the principle of res judicata. The legal standards underlying the application of res judicata to an operating license pro-ceeding have been set forth in detail in the Licensing Board's Order of October 12 and in Consumers Power's Brief filed October 31; those standards will not be repeated here.
It suffices to say that "an operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage," Alabama Power Company (Joesph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AIC 203 (1974). As will be clearly shown, certain of the new cententiens submitted by Mr. Marshall were resolved at the construction permit stage.
I 33_
i
J Another legal principle to keep in mind when re-viewing Mr. Marshall's supplemental contentions is that his original petition was filed out of time. Therefore, it is to be judged by the standards set forth in 10 C.F.R. 52.714 (a) (1) . Of course, the specificity requirement described in Section I.A. is equally applicable to Mr. Marshall's contention;.
B. Mr. Marshall's Supplemental Contentions Do Not Support His Petition to Intervene Contention 1 The first supplemental contention contained in Mr.
Marshall's mailgram appears to be a restatement of aspect 9 fror the original petition. That aspect, which similarly raised the question of the Midland Plant as a nuisance, was disposed of in the October 31 Brief filed by Consumers Power. That Brief pointed out that Mr. Marshall had pre.-
viously filed a suit against Consumers Power in the Michigan courts seeking, inter alia, a declaratory judgment that the Midland Plant would constitute a public or private nuisance.
As explained in the Brief, the Court of Appeals affirmed the trial court's grant of summary judgment for Consumers Power en the nuisance question, the appellate court agreeing that Mr. Marshall had not stated facts sufficient to show that the building of the nuclear facility would necessarily or
)
I inevitably create either a nuisance per se or per accidens.
Marshall v. Consuners Pcwer Co., 65 Mich. App. 237, 237
{
N.W.2d 266 (1975), appeal denied, 397 Mich. 322 (1976).
t a
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Thus, Mr. Marshall attempts in his new contention to rely upon a case which he lost to bolster his argument that the Midland Plant will create a nuisance. Clearly, the issue of nuisance, which is purely a question of state law, has been decided adversely to Mr. Marshall by the Michigan courts. There can be no justification for re-litigating this question at an !TRC proceeding, for the concept of nuisance does not fall within the ambit of issues germane to the Atomic Energy Act or the National Environmental Policy Act.
Contention 1 is therefore barred by the doctrine of res judicata.
! Contention 2 Contention 2, which is vague to say the least, is no more than the naked assertion that there exists such a l
thing as " illegal discharges and spills of radioactivity" from the Palisades Plant--whether in the past, present or future is impossible to say. Aside frem the fact that contention 2 is unintelligible, it is obviously not an 1
appropriate issue to be litigated at a hearing on the Midland i Plant for it does not even relate to that facility. As Mr.
t Marshall has not attempted to tie contention 2 into the factual context of the operating license proceeding for the Midland Plant, that cententien cannot be admitted in this hearing.
l 1
Contention 3 Contention 3 stands on a different footing from the other additional contentions set forth in Mr. Marshall's mailgram, for at first blush it appears to describe an issue which may properly be considered at the operating license proceeding. While the description of the situation involved in contention 3 is not technically accurate, it does relate to the fact that one of the buildings at the Midland Plant is settling. This condition has been reported to the NRC Staff pursuant to 10 C.F.R. S50.55(e).
However, this same subject is raised in a contention submitted by Mary P. Sinclair, who has already been admitted as a party in the operating license proceeding. Paragraph 24 of Ms. Sinclair's supplemental contentions filed on Cctober 31, 1978, discusses the alleged " serious and unre-
, solved questions" related to the " sinking" of a building at the Midland Plant site.
In assessing whether Mr. Marshall's contention 3 is admissible, the fcurth factor listed in 10 C.F.R. 52.714 (a) (1) should be censidered; that factor concerns "[t]he extent to which the petitioner's interest will be representing by existing parties." Clearly, the interest of Mr. Marshall and the Mapleton Intervenors in exploring their contentien 3 will be adequately represented by Ms. Sinclair, whose conten-tien 24 raises the same issue. Censumers ?cwer has net ch;ected to the admissicn of that contention in this pro-ceeding.
i
For this reason, Mr. Marshall's third contention does not set forth an adequate basis for his admission, or that of the Mapleton Intervenors, to this proceeding.
Contention 4 Supplemental contention 4 contained in Mr. Marshall's mailgram, concerning icing and fogging problems, is virtually indentical to contentions 4 and 5 which were set forth in Mr. Marshall's original petition to intervene. Consumers Power has alraady responded to those contentions, and shown that the icing and fcgging questions were definitively resolved at the construction permit phase of this proceeding, in the Brief filed on October 31. The reasoning set forth in that brief, and the citations to those portions of the Initial Decision authorizing the grant of construction-permits and the Appeal Beard decision which affirme,d that authorization, are equally applicable to show that the fogging and icing issues which Mr. Marshall attempts to raise in his supplemental contention 4 are barred by res judicata.
As Mr. Marshall has not set fcrth any new facts or changed circumstances with regard to the fcgging and icing questions, contentien 4 does not present a permissible issue for litigatica in the operating license preceeding.
Cententien 5 This centention merely repeats what Mr. Marshall
-m
4 presented in the sixth contention of his original petition to intervene; Licensee's response to that contention is applicable here. As Consumers Power explained in its Ceto-i ber 31 Brief, the question of the ef fects of the storage of l spent fuel, as well as of other parts of the fuel cycle, are covered by the Commission's Table S-3. To the extent that contention 5 constitutes an attack upon the NRC's regulations, it is improper for the reasons set forth in the response of Consumers Power to Ms. Sinclair's contention 20.
4 To the extent that Mr. Marshall's contention merely seeks to re-litigate this issue, the answer is that l the fuel cycle rule has been applied to the Midland Plant and found not to affect the cost-benefit balance of the nuclear facility. This is also described in greater detail in the response.to supplemental contention 20 submitted by Ms. Sinclair. Thus, there can be no justification for examining that issue in the operating license proceeding.
.For the reasons set forth above, contention 5 in Mr. Marshall's supplemental petition does not set forth an i issue which can be admitted in this proceeding.
Contention 6 The last of Mr. Marshall's supplemental contentiens i
i states that " (p] resent techncicgy prevents nuclear plants frem opera:icn with zero emission." It is immediately cbvicus that centention 6 f ails to state a litigable issue, hcwever. Simply put, nothing in the Atomic Energy Act er l
the NRC rules and regulations requires a nuclear plant to operate "with zero emission;" thus, this question cannot be made an issue in this proceeding. If contention 6 is viewed as an attack on the Cc= mission's rules regarding radioactive releases, it is improper for the reasons set forth in response to Ms. Sinclair's supplemental contention 20.
Furthermore, to the extent that contention 6 raises the general issue of radioactive releases from the Midland Plant it is barred by res judicata. Contentions 1(a), 1(c) and 8 in Mr. Marshall's original petition to intervene in the operating license proceeding for the Midland Plant concerned the subject of radioactive releases. As Consumers Power demonstrated in its Brief of October 31, 1978, that issue was ventilated and resolved at the construc-tion permit proceedings for the Midland Plant. Mr. Marshall has not presented any new information which would warrant relitigating the subject at this hearing.
For the reascns set forth above, centention 6 does not constitute an admissible issue in this proceeding.
C. Conclusion In view of the fact that all but one of Mr. Marshall's original and supplemental contentiens are inadmissible, and that the one centention which could be censidered valid has also be raised by an intarvencr who has previously been admitted as a party in this proceeding, Mr. Marshall's late-filed petitien to intervene must be denied under the standarfs ennunciated in 10 C.F.R. S S 2. 714 (a) (1) and 2. 714 (b) .
i
1 Should this Licensing Board decide to admit Mr.
Marshall as a party in the operating license proceeding, his participation should be limited to whichever issue or issues the Licensing Board determines have been properly raised by Mr. Marshall's petition, as provided in 10 C.F.R. 5 2. 714 ( f) .
Alternatively, Mr. Marshall's participation in the proceeding should be ordered consolidated with the participation of Ms.
Sinclair, pursuant to 10 C.F.R. 52.715a. Either of these steps would provide for a more orderly operating license proceeding, and would thus serve the underlying objectives of the Commission's Rules of Practice.
III. POSSISLE EFFECT OF THE COMMISSION'S ORDER OF
- NOVEMBER 6, 1978, UPON THIS PROCEEDING On November 6, 1978, the Ccmmission issued a Memo-randum and Order which delineated the issues which remained for NRC consideration in the reopened Midland Plant cen-i struction permit proceedings. This Licensing Scard has asked the parties to express their views en the possible effect cf 1
that Order upon the operating license proceedings in this docket. In order to put that questien in perspective, a brief review of the procedural history of the Midland Plant is necessary.
In 1972, permits were issued authoricing construc-
- tion cf the Midland Plant. Folicwing administrative appeals, petitions fcr review of the c ders granting the centruction i.
permits were filed in the Ccurt of Appeals for the District
- t y v-- - - ,, ,, , , ., . . _ . _ , _ _ . - , _ - . _ , , _ _ . _ - . _ , _ _ , _ _ + - - - _ _
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a of Columbia Circuit by two groups which had previously inter-vened before the Ccmmission. Review by the Court of Appeals resulted in a determination to remand the orders granting the construction permits to the NRC "for further proceedings l in conformity with . . . the opinion." Aeschliman v. NRC, 547 F.2d 622, 632 (D . C . Cir. 1976).
Following that decision by the Court of Appeals, a Licensing Board conducted an evidentiary hearing to deter-mine whether to continue, modify or suspend the construction permits pending a decision on the remanded issues. The decision not to modify or suspend the construction permits L
was affirmed by the Appeal Board. Consumers Power Ccmpany (Midland Plant, Units 1 and 2), LEP-77-57, 6 NRC 482 (1977),
affirmed, ALAB-458, 7 NRC 155 (1978).
On April 3, 1978, before the hearing on the remanded issues was scheduled to begin, the Aeschliman decisien was reversed by the United States Scpreme Court's opinion in Ver=cnt Yankee Nuclear Pcwer Ccrp. v. NRDC, 98 S.Ct. 1197 (1973). Subsequently, the Ccmmission requested that the parties to the construction permit proceeding state their views as to what issues, if any, remained for NRC considera-tien in light of Verment Yankee.
The Cc==issien's McVember 6, 1978 order set forth which issues ramained to be censidered in the ccnstruction permit preceeding. While ne issue censidered by the Ccurt of Appeals in Aeschliman was left for resciutien, two c:her
issues had emerged in Aeschliman's wake which the Commission ordered to be considered by the Licensing Scard. The first involved the environmental effects of raden, which became litigable in individual proceedings when the NRC removed the values for radon frcm Table S-3, 43 Fed. Reg. 15613 (1978).
The second issue concerned an attorney conduct question which arose during the Midland Plant suspension hearings.
An examination of the history of the Midland Plant proceedings thus makes clear that the Ccmmission's recent Order has no effect whatsoever upon the operating licensee proceedings. The suspension hearings were required because of deficiencies which the Court of Appeals perceived in the construction permit proceedings, and the two matters left for resolution result directly from the suspension hearings.
The attorney conduct question relates to events which tran-spired during those hearings, and the raden matter is only an issue because the construction permit proceedings were technically pending at the time of the Cc= mission's raden pronouncement.
Furthermore, the fact that the construction permit Licensing Board will be re-striking the cost-benefit balance l for the Midland Plant to consider the environmental effects of radon shculd not be a cause for concern in the cperating i license proceedings. Cecisiens frem cther Licensing Scards t
I which have reopened the records en envircnmental matters te censider the raden question indicate that that issue will
! net affect the cost-benefit balance for the Midland Plant.
1 l
1
In Duke ?cwer Company (Perkins Nuclear Station, Units 1, 2 and 3), LBP-78-25, 8 NRC 87, 100 (1978), the Licensing Board concluded that the health effects associated with increasing the value for releases of radon-222 during the uranium fuel cycle were insignificant in striking the cost-benefit balance for the Perkins facility. The Licensing Board similarly concluded that the environmental impact of radon-222 emissions was negligibly small and had no effect on the environmental cost-benefit balance in Public Service Company o# Oklahoma (Black Fox Station, Units 1 and 2), LBP-78-26, 8 NRC 102, 144 (1978).
Therefore, as the two open issues relate to the construction permit hearings and will be resolved by the Licensing Board which conducted the suspension hearings, there is no reason for the existence of those issues to impinge in any way upon the operating license proceedings to be conducted by this Licensing Board. The two proceedings are distinct and may proceed simultaneously, each on its cwn path, without interfering with one another.
Nothing in the text of the Cc= mission's November 6, 1978 Order leads to a different conclusien. In fact, a reading of the Cc=nission's Order demonstrates convincingly that the Cc=missioners expected and intended that the two preceedings would run ccncurrently. The only matter dis-cussed in the Order which entails references tc the operating license prcceeding is the cuestien Of the ACES letters and
+
reports regarding the Midland Plant. The Ccmmission 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 overlap, lead us to believe that in this instance the remaining unresolved safety issues can be more profitably considered under the stan-dards appropriate to an operating license prcceeding. Order at 6 (footnote omitted)
(emphasis supplied). l This quotation clearly shows that the Ccmmissioners were fully aware of the f act that the reopened construction permit hearings and the operating license hearings would occupy the same time frame. Indeed, that was the Ccmmission's justifi-cation for removing the issue of unresolved safety concerns from the jurisdiction of the construction permit Licensing Ecard.
I To have construction permit and cperating license l
hearings proceed simultaneously may not be the ordinary course of events, but the Midland Plant proceedings have been far frem ordinary. Already one of the most pretracted cases of nuclear plant licensing in the history of the Cemmissica, it wculd be senseless to take any action which would delay the licensing process further. There is no reasen why the constructicn permit Licensing 3 card should
~46-
- t not resolve the raden and attorney conduct questions while this Licensing Scard proceeds apace with the matter of the operation licenses for the Midland Plant.
For these reasons, the November 6, 1978 Order of the Commission has no effect whatsoever on this proceeding.
/
i <j Respectfully submitted,
- N .
,t ,, a u. ,~ s' ...: ~ .. ,t. b .
Michael I. Miller
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Martha E. Gibbs Attorneys for Consumers Pcwer Company ISHAM, LINCOLN & BFALE One First National Plaza
- Suite 4200 Chicago, Illinois 60603 (312) 786-7500 November 28, 1973 1
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensinc Board a
)
In the Matter of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units 1 and 2 )
)
CERTIFICATE OF SERVICE I hereby cerr hat copies of the attached "BRIEF OF CONSUMERS POwma COMPANY IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD ORDER OF NOVEMBER 13, 1978" in the above-captioned proceeding have been served upon the folicwing parties by United State's Mail, first-class postage prepaid, this 28th day of November, 1978:
Ivan W. Smith, Esq. Ms. Mary Sinclair
~
Atomic Safety and Licensing Board 5711 St=merset Street
. U.S. Nuclear Regulatory ~Ccmm. Midland, Michigan 48640 Washington, D.C. 20555 Colleen P. Wocdhead, Esq.
Mr. Lester Koinblith, Jr. Counsel for the NRC Staff Atomic Safety and Licensing Ecard U.S. Nuclear Regulatcry Ccem.
U.S. Nuclear Regulatory Comm. Washingten, D.C. 20555 Washington, D.C. 20555 Atcmic Safety and Licensing l Dr. Frederick P. Ccwan Scard Panel 5152 N. Verde ~~d=1 " S. Nuclear Regulatory Ccts.
Apt. 3-125 Washingten, D.C. 20555 Ecca Raten, Flcrida 33433 t
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Atomic Safety and Licensing Frank J. Kelly, Esq.
l Appeal Panel Attorney General of the U.S. Nuclear Regulatory Ccmm. State of Michigan Washington, D.C. 20555 Stewart H. Freeman, Esq.
Assistant Attorney General i
1 Gregory T. Taylor, Esq. ,
Myron M. Cherry, Esq. Assistant Attorney General ;
. 1 IBM Plaza Environmental Protection Div. -
l Suite 4501 720 Law Building ;
3 Chicago, Illinois 60611 Lansing, Michigan 48913 i
l Mr. C. R. Stephens Mr. Wendall H. Marshall i Chief, Docketing and Service 4645 South Saginaw Road l Section Midland, Michigan 48640 J Office of the Secretary l 4
U.S. Nuclear Regulatory Comm. l 4
Washington, D.C. 20555 Mr. Steven J. Gadler i 2120 Carter Avenue l St. Paul, Minnesota 55108 a
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Martha E. Gibbs -
- One of the Attorneys for f CONSUMERS POWER CCMPANY I
I 4 ISHAM, LINCOLN & BEALE Cne First National Plaza
- Suite 4200 3
Chicago, Illinois 60603 (312) 786-7500 November 28, 1978 A
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