ML20112J630
| ML20112J630 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/01/1985 |
| From: | Mark Miller, Williams F CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#285-374 LBP-85-02, LBP-85-2, OL, OM, NUDOCS 8504050246 | |
| Download: ML20112J630 (14) | |
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UNITED STATES OF AMERICA E(f(fC NUCLEAR REGULATORY COMMISSION
- S v 15.-4 120 04 BEFORE THE ATOMIC SAFETY AND-LICENSING APPEAL BOARD r:- -: u - ,
o-~
In the Matter of )
)
CONSUMERS POWER COMPANY ) Docket nos. 50-329 OM & OL
) 50-330 OM & OL (Midland Plant, Units 1 and 2) .. ,_
MEMORANDUM OF CONSUMERS POWER COMPANY In its Order of March 13, 1985 (" Order"), the Atomic Safety and Licensing Appeal Board (" Appeal Board") directed
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the. parties to file memoranda on two issues: (1) whether the Appeal Board should vacate the Atomic Safety and Licensing Board's (" Licensing Board's") Partial Initial Decision in Consumers Power Company (Midland Plant,-Units 1 and 2) ,
LBP-85-2, 21 N.R.C. __,, slip opinion (January 23, 1985)
("LBP-85-2") on grounds of mootness and thereby strip it of any precedential effect; and (2) whether the Appeal Board should remand the operating license portion of the proceeding to the Licensing Board with instructions to dismiss the operating license application for failure to pursue it.
Consumers Power Company (" Consumers" or the " Company") submits that the. Partial Initial Decision, which decides the technical adequacy of some of the soils remedial activities at the Midland site, is not moot because the Company has not abandoned the Midland project. Therefore, neither vacation of 8504050246 850401 gDR ADOCK 05000329 PDR
LBP-85-2 nor dismissal of the operating license applications is warranted.
I. It.Would Be Unjust And Improper To Vacate LBP-85-2 Since It Affects The Construccion Permits For Midland A. -Vacating LBP-85-2 Would Deprive Consumers Of Imoortant Richts The Ccmpany opposes vacation of LBP-85-2 and dismissal of the operating license applications as. legally improper. There is, in addition, a compelling equitable consideration which militates against a decision to vacate LBP-85-2, namely, the adverse impact such a decision would have on the Company, its shareholders, and its customers.
Consumers has invested more than $4 billion in the Midland facility, which is over 85% complete. Consumers has not abandoned the Midland project, although it halted construction in July, 1984. The Company wishes to preserve the option of either selling the plant as a licensable nuclear generating facility or resuming construction itself if sufficient funds become available and if appropriate government officials propose resumption of construction as being in the public interest.
Vacating LBP-85-2 would greatly diminish the feasibility of either sale or resumption of construction
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.because it would adversely affect the construction permits.1/
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.The Licensing Board's decision, which relates to technical adequacy of the soils remedial work, concludes that the ,
-1/ .LBP-85-2 decided principally issues related1to the Midland construction permits. The December 6, 1979 Order Modifying Construction Permits issued jointly by the Acting Director of NRR and the Director of I&E and Ms. Stamiris' contentions arising out of it were the basic framework within which the parties and the Licensing Board developed the evidentiary record underlying LBP-85-2. The issues resolved in LBP-85-2 were substantially all construction permit issues associated with the Order of Modification and Ms. Stamiris' contentions.
The Order Modifying Construction Permits made clear that the principal issue the NRC Staff sought to have resolved was the adequacy of acceptance criteria for the construction of safety-related soils _and foundation systems andistructures, a construction permit issue.
Moreover, in LBP-85-2 the Licensing Board made construction permit type findings relating to the Order of Mcdification. LBP-85-2, supra at, e.g., 10, 16, 140.
It'is unclear to what extent, if any, the Licensing Board in LBP-85-2 decided issues going to the operating license contentions in the consolidated proceeding. Those contentions dealt primarily with the settlement'of the diesel-generator building, an issue specifically not decided by LBP-85-2. See LBP-85-2, App. A, pp. A A-5; LBP-85-2 at p. 13. Any attempt to separate out those-elements of the decision which go only to operating license issues'is doomed to failure, given the substantial overlap of factual findings on such issues-as seismicity between the OM and OL contentions. In any event, the Licensing Board refused to reach any " reasonable assurance" conclusions of law regarding the OL issues.
Certain factual findings have pertinence to both the OL and-OM' contentions. For example, the Licensing Board's findings regarding seismicity are pertinent to all contentions going to the adequacy of soils remedial measures whether those measures relate to the diesel-generator building or other safety-related structures. However, to the limited extent that any operating lic,ense issues may have been resolved, those decisions are tentative and explicitly subject to later revision. LBP-85-2, supra at, e.g., 16, 140, 358.
. 1 concepts and designs embodied in the proposed and partly constructed soils remedial measures, such as underpinning, pipe'rebedding, seismic analysis, foundation rcdesign, and other matters are technically adequate.2/ The Licensing Board resolved these technical' issues in order to preclude the necessity for relitigation of the same issues if work on the project should ever be resumed. LBP-85-2, supra at 4.
Moreover, no party to the case has indicated any intent to object within the time period for appeal, even as extended.
The need for relitigation of these issues would greatly diminish the value of the Midland facility as a nuclear station. A potential' buyer or investor would want assurance that the remedial foundation concepts and designs were likely to be found adequate and that the litigation process which established their adequacy need not be repeated.
The continued vitality of the Licensing Board's technical findings is therefore very important to the Company's ability to market or gain governmental approval and financing for the facility as a nuclear project.
Unquestionably, substantial amounts of effort and resources were expended in resolving the technical adequacy of the soils remedial measures. The actions presently
-2/ The Board reserved judgment on some open questions which are described in L3P-85-2, supra at 10-17.
contemplated by the Appeal Board would render valueless public resources already committed to.the litigation process and now irretrievable. Such a result would be both wasteful and unfair to all existing and potential future parties to the proceeding.
Clearly, only the most compelling circumstances should lead to a result which could impose significant hardship upon the Company and vitiate the worthy efforts of the participants. It appears that the only present circumstance which favors vacating LBP-85-2 and dismissing the operating license applications is the desirability of maintaining the docket of the Licensing Board and the Appeal Board in a current status. Without deprecating the importance of docket management by the judicial boards of the NRC, this factor should be balanced against the severe consequences of vacation and dismissal to the Company and the other parties to the proceeding.3/ When the Appeal Board strikes such a 4'/ Consumers does recognize the Appeal Board's " sensitive regard" for the state of its own docket. Cf. Northern States Power Comeany (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 N.R.C. 41, 54 (1978).
However, docket clearing is fundamentally a housekeeping concern. The Appeal Board is free to keep its own docket clear by not engaging.in review of LBP-85-2 until such action becomes necessary. It should not undertake to clear the Licensing Board's docket, since Midland creates little work for the Licensing Board, and allocation of Licensing Board work load is really the task of the Chairman of the Licensing Board Panel.
. balance it should find that no alteration in the status of LBP-85-2 or the operating license applications for Midland is warranted.
B. There Is No Factual Basis For A Finding That The Company Has Abandoned The Midland Construction Permits In his Affidavit of November 1, 1984, Mr. John D.
Selby, Chairman of the Board of Consumers, stated, inter alia, "In order to maximize recovery (of amounts invested in Midland], the Company intends to carry out two years of surveillance and maintenance activity on the plant and has taken steps to have its NRC construction permits continued."
Mr. Selby stated that Consumers does not contemplate an abandonment decision until 1987. In its status report to the Licensing Board, also dated April 1, 1985 (served concurrently herewith), Consumers restates its intention to retain its construction permits and to maintain the facility in a licensable condition in the hope that it can be sold as an entity.4/ The standard for mootness is clear abandonment
-4/ For exanple, a Quality Assurance plan, which has been submitted to the NRC Staff for approval, is in place for surveillance and maintenance activities. Project records are being maintained so that resumption of construction, if it occurs, will not be hampered by the absence of necessary documentation.
rendering further proceedings entirely academic.5/ Given the present state of the record, it is uncontroverted that the construction permits have not been abandoned.
In the circumstances of this case, it is apparent that LBP-85-2 is not moot insofar as it decided issues relating to the order modifying the Midland construction permits. Whether operating license issues were. decided is indeterminate. Thus, there is no basis for vacating LBP-85-2.
C. There Is No Need To Remove Precedential Effect From LBP-85-2 Since LBP-85-2 is not moot, the Appeal Board has no basis to " strip it of any possible precedential effect."5I Nor is there any need to do so. Given the unique nature of the soils issues in the present case, the likelihood of significant precedential impact of LBP-85-2 is small. One portion of the decisic., the mixed conclusions of law and fact regarding tectonic province and use of probabalistic analysis I
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-5/ Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1) , ALAB-605, 12 N.R.C. 153, 154 (1980). See infra at pp. 8-9.
5/ ' Order at 2. The Appeal Board cites Northern States Power Co., (Prairie Island Nuclear Generating Plant, Units 1 and
- 2) , ALAB-455, 7 N.R.C. 41, 55 (1978), as precedent for vacating LBP-85-2. There, however, all parties agreed that the affected portion of the decision was moot and the applicant sought to strip the Licensing Board's decision of precedential effect. Neither of those conditions is present here.
rr-9 to satisfy Appendix A to Part 50, might have have some precedential effect,'but that effect would not be significant.
In any event, since no one has appealed LBP-85-2, its conclusions do not carry precedential effect. As the Appeal Board itself has noted, "we do not give stare decisis effect to licensing board conclusions on legal issues not brought to us by way of an appeal [i.e., in sua sponte review]." Duke Power Company (Cherokee Nuclear Station, Units 1, 2, and 3),
ALAB-482, 7 N.R.C. 979, 981 n.4 (1978). Thus, even with sua sponte review, LBP-85-2 would have no more than res judicata effect.
II. Circumstances Do Not Justify Dismissal Of The Operating Licensing Applications A. The Operating License Proceeding Is Not Legally Moot The Appeal Board suggested in its Order that the Midland operating license issues may be moot, observing that the operating license proceeding is " deeply comatose."
However, the proper legal standard for deciding mootness is whether the Company has " clearly abandoned" any plans to construct and operate the Midland facility, thereby rendering the hearing issues " entirely academic." Puerto Rico Electric i
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I I.
Power Authority (North Coast Nuclear Plant, Unit 1) , ALAB-605',
12_N.R.C. 153, 154 (1980).1#
- The facts"in the Midland case do not support a finding of abandonment rendering the issues in the operating license-case entirely _ academic. In its September 10, 1984
' letter to the Licensing' Board the Company made clear its I d ntention to maintain not only the construction permits but th'e- operating license - applications. The Licensing Board's analysis of.the mootness question for the Midland proceeding is also instructive. _The Board acknowledged the improbability
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- that the Midland. project would be. reactivated in the near.
future, but recognized the Company's desire to " preserve its options." The Board:found .that the Company has no plans to withdrau its operating license application or to surrender.its construction permits.. LBP-85-2, slip opinion at 4.
In this regard, the Company has repeatedly stated
- that it will attempt to sell the plant as a licensable nuclear power plant. Alternatively, if appropricte governmental 4
agencies and officials propose resumption of construction by
-Consumers Power Company as being in the public interest, and 2
i the financial community or someone else is willing to commit ,
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As we have shown above, LBP-85-2 deals with construction ,
permit issues and is not moot. Even if the decision related solely to operating license issues, however, the f factual predicate for a finding of mootness is lacking.
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L the-funds necessary to enable completion, the Company will consider.rosuming. construction. To better foster either
-possibility, Consumers has committed-to carry out two' years of Staff approved surveillance and maintenance activities.8/
Affidavit of John D. Selby, dated November 1, 1984, furnished to Licensing Board November 5, 1984. See also Consumers. Power Company Letter to Administrative Judges, dated April 1, 1985.
Moreover, since the mootness issue is dependent on a factual determination of' abandonment,1 it would-be inappropriate for the Appeal' Board to make such a finding of fact in the first instance. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1) , ALAB-605, 12 N.R.C. 153, 155 (1980).
B. The Present Status of Midland Does Not Justify.
Involuntary Dismissal of The Operating License Applications The case law indicates that conditions more definitive than suspended construction and an inactive hearing process are necessary to cause a proceeding to be dismissed.
In Long Island Lighting Company (Jamesport Nuclear Power 8/ Of course, the Company is committed to inform the Licensing Board promptly of any change in its plans for Midland.
9/ The Appeal Board in its Order characterized the dismissal grounds as " failure to pursue" the operating license. As this Memorandum indicates, supra at p. 8, the issue is whether Consumers has clearly abandoned the project thereby rendering the hearing issues entirely academic.
Station, Units 1 and 2) , ALAB.628, 13 N.R.C. 24 (1981), the applicants represented to the Appeal Board that Jamesport would.not be built irrespective of the outcome of a pending appeal. The applicants had also voluntarily moved to terminate the proceeding as moot. In Gulf States Utilities Comeany (River Bend Station, Units 1 and 2) , LBP-84-51, 20 N.R.C. 1478 (1984), the applicant's board of directors had formally voted not to build the second unit, resulting in a finding of definitive abandonment. In Cincinnati Gas &
Electric (William H. Zimmer Nuclear Power Station, Unit 1) ,
LBP-84-33, 20 N.R.C. 765 (1984), the applicant voluntarily moved for dismissal of the operating license application, representing, inter alia, that the nuclear steam supply system would be modified to preclude its operation as a " utilization facility" within the meaning of the Atomic Energy Act of 1954.
Here, Consumers is pursuing alternatives that may result in completion of the facility. The Company is strenuously resisting dismissal, not seeking it. It is not representing that the facility will not be built irrespective j of any NRC decision. Consumers' board of directors has not voted not to build the plant. Consumers has not disabled the
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Midland units as nuclear utilization facilities but instead has taken steps to maintain Midland as a licensable nuclear i
facility. Thus, the conditions that would warrant dismissal are simply not present in the instant case.
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CONCLUSION Consumers believes, on the basis of its current intentions to continue to hold the Construction Permits for the Midland plant and to attempt to sell the plant as a 4
-licensable nuclear facility, and on the basis of its its receptivity to a change in attitude by governmental bodies
- toward the plant which might enable the Company to complete the facility, that neither the OM proceeding nor the operating.
license proceeding is moot. The Company therefore requests that the Appeal Board not take any action to vacate LBP-85-2 4
or dismiss the operating license applications.
Respectfully submitted, l '
Michael I. Miller k
(* .?
Frederick C. Williams Two of the Attorneys for
- Consumers Power Company Michael I. Miller
< Isham, Lincoln & Beale Three First National Plaza Chicago, Illinois 60602 (312) 558-7500 Frederick C. Williams Isham, Lincoln & Beale 1120 Connecticut Ave., N.W.
Washington, D.C. 20036 4
(202) 833-9730 Dated: April 1, 1985 I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OM & OL
) 50-330 OM & OL (Midland Plant, Units 1 )
and 2) )
CERTIFICATE OF SERVICE I, Frederick C. Williams, one of the attorneys for Consumers Power Company, hereby certify that copies of the foregoing Memorandum Of Consumers Power Company were served i upon all persons shown in the attached service list by deposit in the United States mail, first class, postage prepaid, this 1st day of April, 1985.
['
Frederick C. Williams l
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Frank J. Ecl1Gy, Esq. Stevo Gadlor, Esq.
'. ' A::::nOy Gencral of :ho 2120 Carter Avenuo Stato cf Michigan St. Paul, Minnoseta 55108 Carole Steinberg, Esq.
Assistan: A::Orney General A :=ic Safety & Licensing Enviren= ental Pr:tection Div. Appeal Panel 720 law Suilding U.S. Nuclear Regulatory C ==.
Lansing, Michigan 48913 Washington, D. C. 20555 Mv.ren M. Cherry, Esc..
Cherrv. & Flvnn .
Chief, Decketing & Services Suite 3700 U.S. Nuclear Regulatery C ==.
Three First Nati nal Pla:a Office of the Secretary Chicago, Illincis 60602 Washingten, D. C. 20555 Mr. Wendell H. Marshall Ms. Mary Sinclair 4625 5. Saginaw Rcad 5711 Sc==erse: Street Midland, Michigan 48640 Midland, Michigau 45640 Charles Bechhcefer, Esq. William D. Paten, Esq.
At:mic Safe:v. & Licensine. C unsel for the NRC Staff Scard Panel U.S. Nuclear Regula:Ory C::=.
U.S. Nuclear Regulatery C:==. Washington, D. C. 20555 Washing: n, D. C. 20555 A::=ic Safety & Licensing Dr. Frederick P. C wan Scard Panel 6152 N. Verde Trail U.S. Nuclear Regula:: y C:==.
Apt. 3-125 Washington, D. C. 20555 Ecca Ra:=n, Tierida 33433 Ms. Barbara Stamiras Mr. D. F. Judd 5795 North Ri"er Read Babceck & Wileex Reute 3 P. C. Sex 1260 Freeland, Michigan 45623 Lynchburg, Virginia 24505 Dr. Jerry Harbcur James E. Brunner, Esq. Atomic Safety & Licensing Censu=ars P=wer C =pany Scard Panel 212 West Michigan Avenue U.S. N Ory C :=.
Jackscn, Michigan 49201 Washin,uclear Regula:
gton, D. C. 2C555 Lynne Bernabei, Esq. Alan S. Rosenthal Thcmas Devine, Esq. Chairman Lccis Clark, Esq. Atomic Safety and Licensing Gcvernmen: Ac:Ountabill:y Pre ect Appeal Panel c '. ~. .". e .'.~.s~..'~.".~.e.'~~=~._'_'~";
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.. . s ~."..' .e s r- / W a 3 2 1901 0 5:reet, N.W. U.S. Nuclear Regulatory Washing :n, D. C. 20009 Commission Washington, D.C. 20555 Samuel A. Haubcid, Esq.
Kirkland & Ellis Thomas S. Moore 2CC Eas Rande'ph Ori"e Atomic Safety and Licensing Ch :ag:, 11: ness 606c; Appeal Panel E/W 532 U.S. Nuclear Regulatory Commission Washington, D.C. 20555