ML19331B017

Discusses Significantly Changed Facts Re EIS & Cost/Benefit Analysis.Requests CP Reassessment,Addl AEC Authority Re Cost/Benefit re-exam Petition &/Or Petition to Reopen CP Issuance Due to Changed Circumstances

ML19331B017
Person / Time
Site:	Midland
Issue date:	02/04/1974
From:	Cherry M AFFILIATION NOT ASSIGNED, JENNER & BLOCK
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8007250707
Download: ML19331B017 (4)

Text

Law OFFICES

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' Secretary of the Commission P00R QUAUTY PAGES U. S. Atomic Energy Commission Washington, D.C. 20545 Re: Midland Nuclear Power Plant .

Dear Mr. Secretary:

This letter is being addressed to you although I fully intend that it be directed to all entities of the Com-mission which may have jurisdiction over the matters raised ,

here, as well as the Commissioners themselves and the Direc-tor of Regulation.

As you know, there is pending a petition to have a hearing on revocation of the construction permits because of significantly changed facts dealing with the Environmental Impact Statement and the cost-benefit analysis. .

I have just learned that Dow Chemical has, in fact, signed a contract with Consumers Power company for the pur '

chase of electricity and steam from the nuclear power plant.

However, to my knowledge, the new contract substantially al-ters the cost-benefit ratio earlier used as a justification ~

for the plant. Since the National Environmental Policy Act and the Council on Environmental Quality Guidelines require a continuing review by the agency, it is incumbent, as noted in our earlier petition, to reexamine these facts.

While I have not seen a copy of the contract (by l

carbon copy of this letter I am requesting a copy of the new l Dcw Chemical contract), I have learned that it is fundamen-tally different in the approach formerly taken by Dow Chem-ical and Consumers. Whereas originally Dow Chemical was to have shut doun all of its fossil fuel steam and electric capacity at the commencement of operation of the nuclear 8007250 70

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l0.Il Secretary of the Commission-I February 4, 1974 Page Two C':

'.ll nuclear facilities, this is no longer true and the Dow con-

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tract permits Dow to continue its own capability. Thus, Dow's purchase of steam and electricity will be reduced  :

from the original proposal, drastically altering the neces-city for the plant. Indeed, I understand that Dow will pur-chase steam not only for process purposes but also for the generation of electricity. Since substantial reliance in the Impact Statement was predicated upon the reduction of f~

fossil fuel pollution (under the assumption that Dow's facil-ities would be closed) and since now those benefits, in sub-i stantial.part, are'no longer available, the need for the. "

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plant has.got to be reanalyzed. The Atomic Energy Commission has an obligation to reanalyze proposals when significant  :.::g changes occur notwithstanding.a prior and approved Impact ,

r Statement concerning the projects. . See Sicrra Club v. Froehlke

- F.Supp.- 5 ERC 1033 (D. Tex. 1973) and Controller General  :

Report to the House of Representatives Subcommittee on Fish- .

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eries and Wildlife Conservation of the Committee on Merchant Marine and Fisheries, "Imorovements Needed'in Federal Efforts p To=Imolement The National Environmental Policy Act of 1969,"

May'18, 1972. Thus, the law requires a reevaluation now of l the construction permits to determine if the cost of abandon-ment of the project outweighs the alleged benefits and, if not, l the proposed project is not supportable under law. ,

i As your agency is no doubt aware,'the entire purpose

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for the Midland Plant was predicated upon use by Dow Chemical i of electricity and steam on the condition that Dow would shut

'down its facilities at some point. Indeed, this matter.was so.

significant that both the Impact Statement and the record of the Midland hearing disclosed that it would be uneconomical solely to generate electricity from the. plant if Dow did not -

make its commitment to shut down its facilities. This sioni-

. ficant fact has now been altered. Since the. latest Compliance 4

Division Inspection Report indicates less than 2% completion 1

of construction, it is clear,-under applicable law, that a re- .) ~

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Secretary of the Commission February 4,1974 Page Three analysis must be made in light of these changed facts. -.

There is no warrant for the Commission's continuing t'o ignore these changed circumstances. Additionally, the Com-mission should take immediate steps to see to it that the new Dow contract is made public immediately so that an analysis can be made by the public and all state and federal agencies concerning the continued viability of the proposed project.

See, for example, Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1971) and particularly on remand 337 F.Supp. 170 (D. D.C . 1972). ,

If the Commission believes that the Midland project should be continued notwithstanding these drastically changed circumstances, then it is obligated to make such decision based on existing facts giving all relevant interests an op-portunity to be heard.

This letter is intended as one or more of the follow-

• ing:

A. A request for reassessment by the Commission or the Director of Regulation of the construction _.

permits in light of significantly changed facts .

which drastically alter the cost-bonefit analy-sis; or B. Additional authority to the Atomic Energy Com-mission in connection with the pending petition l

for hearing on cost-benefit reexamination; or C. A petition to reopen the issuance of construc-I tion permits on the grounds of drastically changed circumstances not known to the Commis-sion at the time of final approval of the con-struction pommits.

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Secretary of tho commission February 4, 1974 Page Four These comments, therefore, are requested to be directed both to the Commissioners and the Director of Regulation for fur-ther consideration. These comments are tendered in letter form rather than under a case caption solely for procedural,

' communication and time reasons and not because we do not fully intend to have these comments and requests addressed to the Commission in a formal, legal manner.

Respectfully submitted,

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MMC:I /* _ 7' " ~

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Myron M. Cherry, Counsel for In-tervenors and Petition'ers in con-nection with the Midland Nuclear Power Plant. ,/

cc: Director of Regulation Commissioners, AEC Counsel for Dow Chemical Company Counsel for Regulatory Staff Counsel for Consumers Power Company Councc1 for Mapleton Intervonors Council on Environmental Quality Honorable John D. Dingell

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