ML19331A929

Motion to Halt Const of Facility Or,In Alternative,To Clarify NRC Aug 1976 Order Establishing ASLB Pending Remanded Hearings

ML19331A929
Person / Time
Site:	Midland
Issue date:	09/03/1976
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, MAPLETON INTERVENORS, Saginaw Intervenor
To:	NRC COMMISSION (OCM)
Shared Package
ML19331A930	List: ML19331A929 ML19331A934
References
NUDOCS 8007240522
Download: ML19331A929 (6)

Text

, I*

Tat %

UNITED STATES OF AMERICA before the 9 t NUCLEAR REGULATORY COMMISSION , e:[^' gy ,

[- 1 p II q ch? ,We *,'Gb

)

cQ )

In the Matter of ) 4 5

)

f 3 VONSUMERS POWER COMPANY

"" ) Docket Nos. 50-329 /

) ' 50-330 (Midland Plant, Units 1 & 2) )

)

INTERVENORS' MOTION TO HALT CONSTRUCTION OF THE MIDLAND FACILITY, OR IN THE ALTERNATIVE TO CLARIFY NRC ORDER OF A'JGUST, 1976 ESTABLISHING AN ATOMIC SAFETY AND LICENSING BOARD ,

Intervenors, by their attorney, hereby move the Commission formally to halt construction of the Midland Nuclear Facility pending completion of remanded hearings in accordance with the decision in the Court of Appeals e in Aeschliman, et al., v. NRC, decided July 21, 1976, or in the alternative for the amendment of the Commission's Order of August, 1976 in this docket establishing an Atomic Safe y and Licensing Board to make clear

• that the Atomic Safety and i

-

• Our view is that the Atomic Safety and Licensing Board must already consider the expansion of issues requested herein pur-

' suant to the Statement of Policy. Thus while the Statement noted that evidentiary matters on the remanded hearings will I not take place until the mandate has issued, the Statement con-l templated that all issues (not just fuel cycle issues) be con-l . sidered in the ordered suspension hearings. We file this mo-tion out of an over-abundance of caution, and we intend to file a brief before the Atomic Safety and Licensing Board on the ques-i tion of suspension of construction in light of the requirement i for new hearings on multiple issues.

9

- Moreover, notwithstanding this or any other filing, it is clear that the path to obedience to law is the Court of Appeals' de-l cision of July 21, 1976, and not the Commission's Statement of Policy.

I Tills U0CUMENT CONTAINS

~

8007240522 s Q P0OR QUAllTY PAGES

Licensing Board should consider in connection with suspension of construction all of the issues presented by the Court of Appeals' opinio. and not just fuel cycle issues.

In support of their motion, Intervenors state:

2 consumers Power Company's and the Nuclear Regulatory Commission's motions to stay the issuance of the i mandate of the Court of Appeals were denied by order entered in the Court of Appeals on September 2, 1976. On September 3, 1976 the mandate of the Court of Appeals issued in Aeschliman, et al. v. NRC thereby rendering that decision

- final;

2. Prior to the issuances of the mandate, the Nuclear Regulatory.Cormission had issued a Statement of Policy on fuel cycle issues (August 13, 1976) and apparently in implementation thereof (on August 15 and 16, 1976), also issued orders establishing an Atomic Safety and Licensing Board to consider whether_the Midland construction permit ought to be, among other things, suspended pending the Commission's adoption of an interim rule concerning fuel cycle matters. The Nuclear Regulatory Commission expressly noted f

in its Statement of Policy (as did the Chairman of the estab-lished Atomic Safety and Licensing Board) that evidentiary consideration of other issues would await the issuance of the mandate by the Court of Appeals. As noted above, that

- mandate has now issued;

-3 ,. -

3. Since the court of Appeals' decision contemplates remanded and reopened hearings, which hearings could lead to the denial completely or amendments in substantial part to the Midland construction license, it is fair that construction should be halted pending the rcmanded hearings. This is par-ticularly true in light of the cost benefit issues which the Court of Appeals ordered be recast in light of the various issues as outlined in its opiniont

4. Attached hereto as Exhibits A and B are a Ictter by me to Director Rusche and his response indicating that the Director of Regulation agrees that prompt suspension hearings ought to be had concerning halting of construction of the Midlan3 facility pending remandcd hearings. However, the Atomic Safety and Licensing Board has not clearly defined that the sus-pension hearings would consider all of the issues presented by the Court of Appeals' decision. And while we believe that the Statement of Policy properly interpreted means that the Atomic Safety and Licensing Board must consider all issues (not

. .e .

limited to fuel cycle issues) in connection with suspension i

proceedings (and in fact we will file a brief on that basis) we believe the Commission, in the event it does not promptly

' halt construction, should issue an order clarifying its earlier

. , decision so that there is absolutely no room for doubt;

5. Intervenors believe that fairness and logic 4 demand that construction be halted pendint remanded hearings e

but certainly at the very least Intervenors are entitled to 1

. 3_

N a prompt hearing by Atomic Safety and Licensing Board on i suspension of construction considering the full import (and not a narrow version) of the Court of Appeals' Opinion;

6. For that reason and in the event the Commission does not promptly suspend the Midland construction as a direct implementation of the Court of Appeals' Opinion, the Commission should amend its Order to the Atomic Safety and Licensing Board clarifying the direction to hold immediate suspension hearings concerning all of the issues raised by the Court of Appeals' decision and not just the fuel cycle issues.

WHEREFORE, Intervenors request, on an immediate and urgent basis that the Commission implement the decision of the Court of Appeals in Aeschliman, et al. v. NRC (now that.the mandate has issued) by requiring a suspension of construction

' pending the completion of hearings and a final order on the reopened hearings or in the alternative to make clear to the Atomic Safety and Licensing Board which has.been established to consider promptly whether the Midland construction ought to .be halted.in light of the totality of the Court of Appeals' deci-i sion (not just limited to the fuel cycle questi,ons), and in par-ticular whether the facility ought to be shut down until ccmple-

' tion of remanded hearings concerning (a) revised Advisory

' Committee on Reactor Safeguards letter; (b) energy conservation matters; (c) environmental effects of end-use of the energy I

from the Midland facility, including the Dow Chemical question; e

and (d) all of the other safety and en'rironmental factors which s

I .

O O

N

~

flow from the foregoing issues, including the striking of a new cost-benefit analysis, all in addition to the fuel cycle issues.*

ect f'ully submitte ,

. ) &I )l _

Myr@W . Cherry,/ Attorney f Sagina nd Mapleton Interv nors Dated: September'3, 1976 MYRON M. CHERRY Suite 4501 One IBM Plaza Chicago, Illinois 60611 312/565-1177

• By the filing of this motion, Intervenors do not admit that the Nuclear Regulatory Commission has other than an immediate and mandatory obligation to shut down construction of the nidicnd facility as a result of the Court of Appeals' decision. In fact, Intervenors believe that the suspension hearings are not

' necessary to that obligation but are liling this motion in cr-der to demonstrate their good faith. The filing of this motion should not be viewed by the Commission as an indication that Intervenors may not also petition the Court of Appeals to hold the Nuclear Regulatory Commission and Consumers Power Company

- in contempt of the July 21, 1976 judgment, in the event orompt consideration is not given to halting construction in light of the multiple issues ordered to be the subject of new hearings.

The main thrust of this motion is to shut down construction of i

the Midland facility pending remanded hearings. That obliga-tion is mandatory and paramount, in our-judgment, and flows from the opinion itself without any discretion to the Commission.

However, we would consider participating in suspension proceed-ings if they were held promptly and if they consider all of the issues. Out of an abundance of courtesy, this motion is entitled

- in the alternative to clarify the Commission's August, 1976 establishment of an Atomic Safety and Licensing Board with cer-

tain directions. In the event the Commission takes the position 1 that its earlier order was intentionally narrow, then this mo-I tion, in its alternative form, should be viewed as a request to

' ' amend the NRC order establishing the Atomic Safety and Licensing

. (continued) s Y

O

(continued from page 5 Board to expand the' issues for consideration now that the mandate is issued.

Intervenors have diligently waited for honest evaluation by the Commission of the Midland facility. At each junc-ture the Commission and the utility-have taken the view differently from that of Intervenors. Now that Intervenors

' have prevailed and the mandate has ismud, we hope to move forward with the Commission in a prompt implementation of its obligations under the Atomic Energy Act and NEPA. How-ever, if the Commission footdrags or attempts to skew its proceedings in order to somehow "save" (improperly we believe) the Midland facility because of the past investment, we will not participate in any NRC proceedings except to the extent necessary (if any participation is necessary) to make a suf-

- ficient record to present to the Court of Appeals. We be-lieve that further support of this motion is found in the rejection by the Court of Appeals of the arguments made in Respondents' reply to Petitioners' opposition to motion for 0

stay of mandate filed by the NRC with the Court of Appeals under date of August 31, 1976 and filed by Consumers Power

, Company with the Court of Appeals under date of September 1, 1976.

S e m k

. I 1

1