ML19331B376
| ML19331B376 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/05/1971 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19331B364 | List: |
| References | |
| NUDOCS 8007280923 | |
| Download: ML19331B376 (6) | |
Text
-
9 r
<~
1 t
Pn00. & usk. I c. BC-324.9'3(,
UNITED STATES OF AMERICA ATOMIC E'IERGY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD
)
In the matter of
)
4 'SUMER POWER COMPANY
)
Docket Nos. 50-329
)
50-330 (Midland Plant Units 1 and 2)
)
MOTION OF SAGINAW VALLI.Y NUCLEAR STUDY
't, C
g,,
,g; GROUP. ET AL, FOR THE RESCINDING OF
- q t"<'.
3 EXEMPTION TO DO SITE CONSTRUCTION AND
-f
- % 3 i9 71
- PROHIBITING FURTHER PROCUREMENT OR 1l
~'
MANUFACTURE OF COMPONENTS UNTIL AFTER M'
. c a. - 9 q
HEARING AND ISSUANCE, IF ANY, OF A 7
2
.(,%
j CONSTRUCTION PERMIT
'g Saginaw Va13ey Nuclear Study Group, et al, by their attorney, Myron M. Cherry, move the Board for the entry of an Order rescinding authority of the Applicant to do any further construction as is now permitted pur-suant to a specific exemption Franted Applicant pursuant to 10 C.F.R. B 50.12 and for a further Order preventing any further " procurement or manufacture of components" or any part thereof of the proposed units.
The grounds for this motion are as follows:
To the extent that 10 C.F.R. 38 50.10(b) 1.
(2) and 50.12 permit construction of a G
8007280 f 2 y J
l r*
2 utilization facility or procurement or manufacture of components thereof, even at the risk of an Applicant, prior to hearing and construction permit, they are in conflict with and thus invalid pursuan' to sections 11 CC(2), 101, 103(a), 185 and 189 of the Atomic Energy Act. These sections of the Atomic Energy Act, when read to-gether, expressly require a hearing prior to construction of or manufacture of important component parts of a utilization facility; Accordingly, there is no authority to permit any such construction or manufacture, even if an Applicant is willing to assume finan-cial risks. Since the AEC can only promul-gate regulatione pursuant to the Atomic Energy Act (42 U.S.C. 3 2201(p). Act 8161(p), 1,t follows that regulations in con-flict with the Act are illegal; 2.
Even assuming that 10 C.F.R. SS 50.10(b)
(2) and 59.12 are valid regulations, Appli-cant should still be ordered to stop construc-tion and procurement and manufacture of com-ponents because the continuation of such con-struction, manufacture and procurement creates i
f
y,
~.. m e-1 l
..f' 3
k'
- e an atmosphere of underlying pressure upon the Board. Thus faced with the fact of millions of dollars of invest-ment by Applicant, the Board will be less inclined to say "N3" to the Applic7nt than it might if Applicant had not made such an investment. Prudent judicial administra-tion requires the Board to take steps to assure itself the freedcm of objective de-cision, and the continuation of procurement and manufacture with its attendant invest-ment casts an unneeded cloud upon such objectivity and poses a very real built-in prejudice to Intervenors receiving a fair hearing; and 3
As further support to points 1 and 2, continuation of construction and manufacture and procurement is the kind of " irreversible and irretrievable commitment of resources" which section 102(2)(C)(v) of NEPA requires to be analyzed prior to its being made.
Further comnitment of resources by construc-tion, manufacture and procurement will make it less likely that a fair, objective and
-m+
es o.
,m
.s f.-
I 4
meaningful NEPA analysis can be made.
The Court of Appeals in'the recent Calvert Cliffs case has recognized this factor and suggested to the AEC that:
"In order that the pre-operating license review be as effective as possible, the Commission should consider very seriously the requirement of a temporary halt in construction pending its review and the 'backfittting' of technological innovations." Calvert Clif fs, July 23, 1971, Slip opinion, p. 35.
Surely the suggestion of the Court of Appeals is even mere applicable in a situation where no construction permit has been issued.
As a matter of fact, at page 23 n. 28 of its opinien, the Court made quite clear that a full and fair enforcement of NEPA would require the granting of the raticn now being made by Intervenors. Thus. the Court said:
"... rather before environmental damage has been Irreparably done by full construction of a facility, [or final procurement and manufacture of cceponents],
the Commission must consider alterations in the plans. Much the same principle--
of making alterations while they still may be made at relatively small expense--
applies to projects approved without NEPA compliance after the Act's effective date.
A total reversal of the basic decision to construct a particular facility or take a
-l
i
, 3, 5
particular action may then be difficult, since substantial resources may already have been committed to a project. Since NEPA must apply to the project in some fashion, however, it is esser.tial that it apply as effectively as possible--requir-ing alteraticns'in particulars of the pro-ject to which resources have not yet been inalterably commited at great expense."
It is obviously true that the further along Applicant gets in its manufacturing and pro-curement, let alone site construction, the more difficult it will be for the Commission or this Board to disapprove the facility, if that is required after an NEPA analysis.
l For the above reasons, we cannot request the Board to enter an order withdrawing the exemption for site construction and pro-hibiting further manufacture and procurement of components for the facility until such time as the detailed NEPA statement has been submitted and reviewed by this Board and the parties.
Additionally, we also move the Board to rule that the cost-benefit analysis that must be made under NEPA should not give any consideration to costs thus far incurred or to be incurred by Applicant in connection with cons'truction or manufacture or j
I procurement of components. By this we do not mean that the cost i
l of a nuclear power plant may not be compared with the cost of
-i -
rA e'
6 other alternatives in a NEPA analysis; we merely mean that Applicant should not be permitted to argue at a later date that it la entitled to any consideration in such a NEPA analysis because it has already spent sums of money toward construction or manufacture or procurement of components all of.which were expended prior to a HEPA analysis and, indeed, prior to the issuance of a construction permit.
Respectfully submitted, Yl h
/ l{
MyronJM. Cherryj Attorne' for flamed Intervenors CERTIFICATION I certify that a copy of Intervenors' enclosed Motion was mailed postage prepaid and p'roperly addressed to all members of the Atomic Safety and Licensing Board, the Secretary of ':he U.S.
Atomic Energy r ammis sion, and alliccunsel of record on August 3, 1971.
l l
k I
l
).i i ' /
Myron]M.Cnerry mm.
l l
i l
!