ML19344A090

Requests Immediate Facility Const Shutdown Per Court of Appeals 760721 Judgement

ML19344A090
Person / Time
Site:	Midland
Issue date:	08/04/1976
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Rusche B Office of Nuclear Reactor Regulation
Shared Package
ML19344A085	List: ML19344A084 ML19344A090 ML19344A091
References
NUDOCS 8007290977
Download: ML19344A090 (2)

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. MYRON M. CHERRY ONEISM PLAZA e

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CHICAoo. lLLINots Go611 n.n G...n 4 gqt A August 4, 1976' (( Y g$N*C w :! b

- Q 4 0*N g Mr. Bernard C. Ru:che Office of the Director of  ;

Nuclear Regulation Nuclear Regulatory Con: mission ,

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 tele? honed 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 infcmed 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. f I gather that the purpose of. Mr. Strauss 's telephone call'was to inform me that if I wrote you a letter similar to Mr. Roisman's, I would very likely receive a similar responst

'Accordingly, you may treat this. letter as a request to shue down Midland-(our Dockets 50-329 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 yo'u.

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Mr.. Bernard C. Rt ' ihe -

Augus t 4, 1976 I might say that I find (quite a? art 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 give my clients an opportunity to raise further safety contentions; (2) further consideration of energy conservation including environmental to be generated, analysis which of thewere matters end-use of the electricity not considered below; (3) detailed consid-eration of changed circumstances be.cause 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 an,d 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 stron the building of the plant in Midland. There-fore, gly againstit seems clear to me that it is impossible to have pro-ceedings in conformity with the Midland decision without having the Midland plant shut down. And, I can tell you that my clients l

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 apareciate the argument that Consumers Power "is at risk," I thini such an argument, when we are talking l

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 to.make nuge investments in advance of degision-making, and under l

that concept, construction also ought to be halted. ,

Accordingly, apart from technical cuestions involving the mandate, I .think Midland should be shut down and at the very L minimum, the Commission ought promptly to inform Consumers to go L 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 l

that Bechtel;is involved) I would think the Commission would welcome an opportunity to halt construction of Midland.

l

'Sincbely,

, N 0,1V# D MMC /vmh cc: Peter L. Strauss,:Esq.* Myt9yM. Cherry [(

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