ML19331B220

Requests Const Shutdown Per Court of Appeals 760721 Decision.Refs NRC Refusal to Terminate OL Per Decision. Argument That Util Is at Risk Is Fatuous Considering Huge Investment Involved

ML19331B220
Person / Time
Site:	Vermont Yankee, Midland
Issue date:	08/04/1976
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Rusche B Office of Nuclear Reactor Regulation
References
759, NUDOCS 8007280812
Download: ML19331B220 (3)

Text

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,. \ law OFFICES i M Y R O N M . C H E' R R Y ONE f 3M PLAZA CHICAGO. lLLINol5 6o611 rasa E.ury August 4, 1976 Mr. Bernard C. Rusche Office of the Director of Nuclear Regulation Nuclear Regulatory Commission Washington, D.C. 20555 Re: 73-1776 and 73-1867

Dear Mr. Rusche:

. Immediately upon receipt of the July 21, 1976 judgment of 'the D.C. Court of Appeals in the Midland case, I teleahoned Peter Strauss and asked him to initiate procedures which would result in the immediate halting of construction at Midland since such an action would be consistent.with the

, decision by the Court of Appeals.

In a telephone. call this morning from Mr. Strauss, I was informed of your response to Anthony Roisman regarding his request on behalf of his clients to terminate, pending further hearings, the Vermont Yankee operating license. I understand that you informed Mr. Roisman that the Nuclear Regulatory Commission was not obligated to set aside the Vermont Yankee license but rather, it was the NRC's view, that the Court of Appeals had given the NRC discretion in connection with the setting aside of the Vermont Yankee license.

I gather that the purpose of Mr. Strauss's telephone call was to inform me that if I wrote you a letter similar to l

Mr. Roisman's, I would very likely receive a similar response.

l Accordingly, you may treat this letter as a request to shut l down Midland (our Dockets 50-32? and 330) pursuant to the judgment of the Court of Appeals on July 21, 1976, although I appreciate that I will shortly receive a negative response from you.

80 07280 [ / ]

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1 L&. Bernard C. Rusche Awfust 4, 1976 ;

I might say that I find (quite aaart from technical questions regarding the NRC's receipt of the mandate or NRC's consideration of further appeal procedure) a decision not to shut down Midland as somewhat astounding. As.I read the Court of Appeals in Midland, it requires at a minimum, (1) a revised ACRS letter which in turn would giva my clients an opportunity to raise further safety contentions; (2) further consideration of energy conservation including environmental to be generated, analysis of the end-use of ite electricity which matters were not considered below; (3) detailed consid-eration of changed circumstances because of Dow Chemical's earlier decision not to terminate and shut down its fossil fuel plants, a factor not fully explored below; (4) detailed consideration of fuel cycle matters erroneously excluded below; and (5) a revised or amended Environmental Impact Statement and cost-benefit analysis.

As you can see, unless the Nuclear Regulatory Commission is going to treat the remanded hearings as other than a serious inquiry into whether the Midland plant ought to be built, any one of the concepts listed above could opt very strongly against the building of the plant in Midland. There-fore, it seems clear to me that it is impossible to have pro-ceedings in conformity with the Midland decision withouc having the Midland plant shut down. And, I can tell you that my clients would not feel very comfortable (or fairly treated) if remanded hearings were to take place while Consumers Power cheerfully con-tinues to build the plant now under attack.

While I fully appreciate the argument that Consumers Power "is at risk," I this such an argument, when we are talking about hundreds of millions of dollars, is fatuous and certainly, from my clients' vantage point, unbelievable. Indeed, the case

! of Calvert Cliffs and its progeny underscores the necessity not i to make huge investments in advance of decision-making, and under

that concept, construction also ought to be halted.

1 Accordingly, apart from technical questions involving the mandate, I think Midland should be shut down and at the very minimum, the Commission ought promptly to inform Consumers to go slow in connection with construction pending final receipt of the mandate from the Court of Appeals, if the NRC wishes to wait a few days. Considering the enormous problems in construction which have plagued Midland (not too surprisingly, given the fact that Bechtel is involved) I would think the Commission would welcome an opportunity to halt construction of Midland.

Sinc ely, f I

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/E MMC /vmh cc: Peter L. Strauss, Esq. M M. Che d Honorable Vern Miller At ney for Petitioners Harold F. Reis, Esq.

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