ML19331A828
| ML19331A828 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/01/1971 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | ENVIRONMENTAL DEFENSE FUND |
| Shared Package | |
| ML19331A829 | List: |
| References | |
| NUDOCS 8007230861 | |
| Download: ML19331A828 (3) | |
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ATOMIC E:ERGI C0!G!I3SION 6
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In the Matter of
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CONSUMERS Rf4ER CO!6ANY
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Docket Nos. 50-329
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50-330 Midland Plant Units 1 and 2
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Order with Respect to Environmental Defense Fund Offer of Proof The Board has received fren Envirormental Defense Fund (EDF)
"An offer of proof with respect to the validity of 10 CFR Part 50, Appendix D."
In his covering letter, dated May 17, 1971 EDF's counsel requested that the Board allow an additional 5 days fro:
May 17 for suggestions by the Saginaw Intervenors. The Board has received none.
At the risk of repeating what was said in its order cf April 27, 1971, the Board feels it appropriate to sun =arize the present situation. The AEC adopted, by a valid rule-making pro-
' ceeding, regulations under which it established different rules for proceedings such as this where the Notice of Hearing was issued before March 4, 1971, and those where the notice was issued 1
after that date. In the for er cases, only a limited review of environ = ental matters is permitted. This regulation-was adopted over the vigorous protest of EDF and others and its validity has been attacked by EDF and others in the United States Court of Appeals for the District of Colu=bia.
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As the Board indicated in its order of April 27, we feel that there sas a rational basis for that regulation. But quite apart from our own view of the regulation is the question of the appropriateness of this Board, a subordinate body, challeng-ing the validity of a newly promulgated regulation which is be-ing vigorously defended by the AEC in the courts. Ordinarily, we would suppose, it would not take much argument to support the proposition that for the Board to do so would be inappropri-cte. But, EDF argues, under the doctrine of Calvert Cliffs case, the Board should consider the validity of Appendix D as applied in this case.
Its offer of proof purports to relate to the facts of this case and not to the validity of the Regulation in general.
It seeks to explore (p. 3 of the offer of proof) whether there is an urgent need for electric power which the Midland nuclear plant can meet and whether the "possible environmental issues which will be unresolved as a result of the failure of these issues... do not outweigh the need for electric power which the Midland Plant will meet." It is enough, we think, to point out these are precisely the issues which would be litigated if the cutoff date of March 4 were declared invalid. However it labels its action, EDF is seeking to litigate, under' the guise of a challenge to the regulation, those issues which the re6ulation forecloses.
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EDF's argument is ingenious; it is also a thinly disguised effort to make a collateral attack on _the validity of the regu-lation. The Board has sufficiently discussed in its order of April 27 the reason for believing that the Calvert Cliffs doc-trine does not authorize such an attack.*
The offer of proof is rejected.
For the Atomic Safety and Licensing Board h h?
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Arthur W. Murphy, Chairman Y
June 1, 1971 The offer of proof is premised at least in part on a suggestion of the Chairman as to an appropriate method of challenging 10 CFR Part 20. EDF's declaration that the Chairman's remarks are of gen-eral applicability ignores the fact that in its order the Board went to some pains to distin6uish Part 20 from other Regulations, under the Calvert Cliffs decision.