ML19331B161

Motion to Suspend Const,Pending Complete re-evaluation of Issues in Light of Recently Revised Contract Between Dow Chemical Co & Util.Certificate of Svc Encl

ML19331B161
Person / Time
Site:	Midland
Issue date:	08/02/1978
From:	Flynn P CHERRY, M.M./CHERRY, FLYNN & KANTER, CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007250851
Download: ML19331B161 (7)

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a df a b? h it 4QT 4 t t>s47 C UNITED STATES OF AMERICA Ag{

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In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 (Midland Plant, Units 1 and 2) ) . ..

MOTION TO SUSPEND CONSTRUCTION In$ervenors herein other than Dow Chemical Company, by their attorneys, move the Board to promptly direct Consumers Power Company to hair all further construction of the Midland nuclear plant pending further inquiry into the terms of and circumstances surrounding the revised Consumers-Dow contract of which a copy was transmitted to the Commission under date of June 26, 1978.

In support of this Motion, Intervenors state: ,

1. Under date of June 26, 1978, Consumers trans-mitted to the Commission the recently renegotiated revision of the Consumers-Dow contract, asserting that the contract provides information germane to the question of "what issues...

remain for further NRC consideration in light of the Supreme Court's decision" in the Aeschliman and vermont Yankee cases.

Intervenors agree with Consumers that the Dow issue continues ,

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, n to be vitally important in this case.

2. Even without examining paragraph 4 of the ,

revised Consumers-Dow contract (which paragraph Consumers has not provided to Intervenors on the grounds that it contains

" confidential information"), it is clear that the revised contract does not allay the concerns correctly expreesed by the Licensing Board in its September, 1977 decision herein, branding the likelihood of continued Dow participation in the Midland project "sp _ ve. Consumers Power Company (Midland Plant, Units 1 and 2), LBP-77-57, 6 NRC 482, 488 (1977). For example, Dow witnesses testified at the suspension hearings in these Dockets that Dow cannot operate its existing gEnerretng facilities part tTCErd of 198 i. vow witnesses also~ testified that Dow had no confidence in Consumers' ability to meet an end-of-1984 commercial operation date for the Midland project, because: (i) ever since the beginning of Dow's participation in the project, Consumers has been uniformly wrong in its estimates of construction schedules; .

(ii) Dow has no conridence in Consumers' managerial abilities; and (iii) there is at best grave doubt as to whether consumers has the financial resources to complete the Midland project.

The recently revised contract shows that matters have not changed in this regard, because it gives Dow the right to withdraw completely from the project if an end-of-1984 commercial operation date is not met.

3. In addition, Dow witnesses testified at the

.m_ r suspension hearings in these Dockets that continued Dow par-ticipation in the Midland project was at best economically marginal, and probably economically adverse, to Dow, because Dow can build its cwn generating facilities at the same or less cost. Dow witnesses further testified that Dow would desire approximately two years' lead time between deciding to build its own generating facilities and completing con-struction of those facilities. Thus, Dow would have to decide whether to build its own facilities by the end of 1982 in order to bring those facilities into operation by the end of 1984. Here again, the recently revised Consumers-Dow contract, far from cuggesting thac Dow has resolved its doubts about the Midland project, reemphasi=es those doubts.

The recently revised contract gives Dow the right to withdraw completely frem the project upon two years' notice, at any time after the project is declared to be in commercial oper-ation for steam service--a date the contract pegs at March 1, 1982. Thus, even in the unlikely event that Consumers does in fact complete the project by March 1, 1982, Dow still has the option, in its sole discretion, of withdrawing from the project and constructing its own facilities within the time frame testified to by Dow witnesses during the suspension hearings.

4. It is beyond dispute that even on Consumers' theory, Dow participation in the Midland project is the only factor which makes the project even remotely viable, and that l

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without Dow participation neither the present size nor the present site of the project can be justified. As the original Environmental Impact Statement for the project states (at page XI-3):

"If [ Consumers] were not to supply process steam to (Dow), one unit of the... plant would be cancelled, and consideration would be given to transferring the other unit to a different site, probably the existing Palisades site."

In addition, the Licensing Board correctly held in its 1977 suspension decision, supra, 6 NRC at 488, that without Dow's participation:

...the circumstance will be one of a plant at a site for which only very limited alternative? were explored,

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cesignec in substantial part or a pur-pose which will not be fulfilled."

5. The revised Consumers-Dow contract, far from insuring the Dow partnership essential to the Midland project and which the Licensing Board termed " speculative", affirma-tively confers upon Dow the right to end Dow's participation, .

as set forth above. This circumstance is of critical impor-tance to both the size and site of the Midland project. For i

l those reasons, to permit Consumers to continue construction I

l of the Midland project (thus increasingly foreclosing alterna-tives to either the present size or the present site of the project) would flatly contradict and repudiate the recent decision of the Commission in Public Service Company of New j Hampshire (Seabrook Station, Units 1 and 2) , CLI-78 __,

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7 NRC (June 3 0, 1978). The Commission there held, with specific reference to a problem of site selection (which is presented in this case for the reasons stated above) and even without the added factor (present here) of whether the proposed plant size was justifiable, that construction must be suspended pending further inquiry. The Commission said (Slip. Op. at 12) :

" Dropping the site comparison now [or, in our case, truncating all further inquiry) merely on the basis that events have ad-vanced too f ar would mean that no matter

, what crrors are committed, no matter what warnings have been received, if enough work is done on the site quickly enough the facility is an accomplished f act, whether NEPA has been complied with or not. That is unacceptable."

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Exactly the same reasoning is applicable here. In fact, this is an a fortiori case, because here it is not just the plant site, but the plant size as well, which is cubject to grave doubt.

6. In the past, Consumers and the Commission have

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turned aside any genuine confrontation of the Dow issue by asserting that whether Dow liked the Midland project or not, Dow was bound by contract to support it. Throughout these proceedings, Intervenors have maintained that that rationali-

=ation was neither factually nor legally valid. The recently revised Consumers-Dow contract puts an end to the rationali-

=ation once and for all, because as noted above the contract itself now affirmatively provides that Dow has the right to ,

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withdraw from the Midland project. Under those circumstances, 4

and in light of the recent Seabrook decision quoted above,

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further construction of the Midland project must therefore be halted forthwith, pending a complete reevaluation of the issues in light of the recently revised consumers-Dow contract.

Respectfully submitted, Y

iCl k+ s One of the Attorneys I for Intervenors Other Than Dow Chemi :al Company l

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MYRCN M. CHERRY PETER A. FLYNN One IBM Plaza Suite 4501 Chicago, Illinois (312) 565-1177 G

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Certificate of Service I hereby certify that the foregoing Motion of Intervenors to suspend construction in Docket Nos. 50-329 <

and 50-330 was served upon the following counsel at the address stated for each below by first class mail, postage prepaid, this 2nd day of August, 1978.

Dr. Emmeth A. Luebke Dr. J. Venn Leeds Atomic Safety and 10807 Atwell Licensing Board Houston, Texas 77096 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4

Mar.shall F- M 41 1 er, Esq. ._. . . . Jerome.Neison, Esq.

Chairman General Counsel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commi-sion -

Washington, D.C. 20555 Mrs. Mary Sinclair Richard K. Hoeffling, Esc.

5711 Summerset U.S. Nuclear Regulatory Midland, Michigan 48640 Commission .

Washington, D.C. 20555 C. R. Stephens, Chief Lee Nute, Esq.

I Docketing & Services Sbction General Counsel's Office office of the Secretary Dow Chemical Company U.S. Nuclear Regulatory Midland, Michigan 20555 Commission Washington, D.C. 20555 Michael I. Miller, Esq.

Isham, Lincoln & Bekla One First National Plaza Martha Gibbs, Esq. 42nd Floor Isham, Lincoln & Beale Chicago, I linois 0603 One First National Plaza /

42nd Floor Chicago, Illinois 60603 7

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Peter Fly n ,

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