ML19331A909
| ML19331A909 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/27/1972 |
| From: | Like I REILLY & LIKE |
| To: | Deyoung R US ATOMIC ENERGY COMMISSION (AEC) |
| Shared Package | |
| ML19331A908 | List: |
| References | |
| NUDOCS 8007240490 | |
| Download: ML19331A909 (3) | |
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REILIX. LIKE.LND 3CHNCIDER
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April 27, 1972 Mr. R. C. De Young Assistant Director for Pressurized Water Reactors Division of Reactor Licensing Atomic Energy Commission Washington, D.C.
20545 Re: In the Matter of Consumers Power Company Midland Plant, Units 1 and 2 Docket Nos. 50-329 and 50-330
Dear Sir:
Mapleton opposes applicant's request fo'r a construction exemption contained in its letter of April 18, 19722 1.
The request is premature.
a) Applicant says it does not intend to resume work at this time, and requests the Commission to hold in abeyance authorization to resume work "until such time as the approximate date of receipt of the construction permit is sufficiently predictable and applicant makes a supplementa filing specifying the necessary date for the authon zation".
b) It is highly presumptuous of applicant to assume that a construction permit will be received. Whether applicant should be granted a permit is the ultimate isaue before the Atomic Safety & Licensing Board.
Applicant has not met its burd e of proof that the issuance of a construction permit will not unduly injure public health, safety and the environment.
Environmental and ECCS issues remain to be resolved.
The Midland ASLB environmental hearings have not fet been conducted, and the ECCS rule making hearings are not yet completed. The results of these hearings will help determine whether applicant obtains a con-struction permit.
2.
Applicant has not shown that the alleged benefits of additional investment in resumption of the described site activities prior to receipt of the construction permit, will outweigh the environmental harm and will not pre-KS3 w,
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Reitty Lrxz.uso ScrtNEluElt April-27, 1972 Mr..R. C. De Young-judice the NEPA process.
a)
Applicant makes the strange argument that having almost ruined the ecology of the site as a result of construction activities pursuant to the prior con-struction exemption, applicant should now be per-mitted to complete its destruction.
Under well recog-nized principles of equity, applicant is in the pos-ture of one with unclean hands, and is estopped from benefitting from its own environmental wrongdoings.
b)
In Coalition For Safe Nuclear Power v. AEC (U.S.
Court of Appeals, D.C.
Cir., No.71-139 6, April 7, 1972, 3 ERC. - 2016 ), it was held that when the AEC undertakes to determine the question of suspension of a construc : ion permit pending completion of a full N.E.P.A.
review, it must weigh as a consfderation
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central to compliance with the Calvert Cliffs '
decision, whether the environmental harm outweighs
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the economic cost of abandonment.
To weigh this factor, the AEC must consider in detail whether addi-tional investment of resources in plant might affect the eventual decision reached on NEPA review.
The Court said:
"Since the decision reached on whether to - go forward with the project depends to some ex-tent at least, on a balance of the environ-mental harm, and the economic cost of abandon-ment, each additional increment to the amount of money invested in the project tilts the balance away from the side of environmental concerns."
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The Court remanded the record to the AEC, in-l structing it to l
" consider in detail whether this additional irretrievable commitment of substantial re-sources might affect the eventual decision reached on the NEPA review.
The degree to which this expenditure might affect the out-come of the final NEPA process should be a paramount consideration in the decision en suspension reached after the hearings on remand."
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'Rzit.1x 1.rKR AND SCIINEtaJER April 27, 1972 Mr. R.
C. DeYoung.
c)
The procedure prescribed in Coalition etc.
v.
AEC requires the denial of applicant's request for a construction exemption.
The ASLB must be afforded the opportunity after the completion of the environ-mental hearings to determine the degree to which the resumption of site activities by' applicant might affect the outcome of the final NEPA review.
Since the issuance of a construction permit is dependent on the outcome of the NEPA process, it follows that no construction exemption can be given to applicant prior to receipt of a construction permit.
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Very trhly yours f
' REILLY,/ LIKE & SCHNE1 DER'
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C. DeYoung' Assistant Director for Pre'ss'urized Water-Reactors l
Division of Reactor Licensing Atomic Energy Commission-i Washington, D.C.
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