ML18347A760

Letter Dated 08/18/1976, Advising of 08/04/1976 Request to Amend Technical Specifications in Connection with Condenser Cooling System of Palisades Nuclear Power Plant Is a Breach of Failure of Performance and Advises NRC to Ignore Request

ML18347A760
Person / Time
Site:	Palisades
Issue date:	08/18/1976
From:	Cherry M Law Offices of M M Cherry
To:	Rusche B Office of Nuclear Reactor Regulation
References
Download: ML18347A760 (6)

Text

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LAW OFFICES MYRON M.CHERRY ONE IBM PLAZA CHICAGO, ILLINOIS 60611 (312) 565-1177 August 18, 1976

~ernard C. Rusche, Esq.

Director, Nuclear React;or Regulation United States Nuclear Regulatory Commission

• Washington, D.C. 20555 Re: Palisades Nuclear Power Plant

Dear Mr. Rusche:

I enclose a copy of* a self-explanatory letter to attorneys for Consumers Power Company. Just so the record is absolutely clear, I thought I would advise you of our view that Mr. Sewell's request to you of August 4, 1976 to amend the technical specifications' in connection with the condenser cooling system of Palisades Nuclear Power Plant is a breach of and failure of performance regarding a certain Settlement Agreement entered into in connection with the Palisades hearings before the Atomic_Energy Commission.

It is our opinion that the Nuclear Regulatory Commission has no power to entertain this request without the agreement of cer-tain intervening persons. Since those persons have not given their-agreement, we trust that you will ignore Consumers Power Company's request.

Should you or your counsel, Mr. Howard Shaper, have any further que.stioris. concerning our opinion, please feel free to con-tact me.

MMC/ldh cc: David Dinsmore Corney, Esq. ,r i

Lewis D. Drain, Esq.

Eric V. Brown, Esq.

Mr. Ralph B. Sewell Howard K. Shapar, Esq.

Mr. James G. Keppler Michael I. Miller, Esq.

~- LAW OFFICES MYRON *M. CHERRY ONE IBM PLAZA CHICAGO. ILLINOIS 60611 (312) 565-1177 August 18, 1976 Michael I. Miller, Esq. BY MESSENGER Isham, Lincoln & Beale Forty-Second Floor One First National Plaza Chicago, Illinois 60603 Re: Proposed Change in Technical Specifications:

Palisades Nuclear Power Plant

Dear Mr. Miller:

Under date of July 29, 1976, Mr. Ralph B. Sewell of .

Consumers Power Company ("Consumers"), made a request of Messrs.

Brown, Cherry and Drain to approve, in their representative capa-cities, changes to technical specifications for a certain closed-cycle condenser cooling system in use at Consumers' Palisades Nuclear Power Plant. The request was purportedly made pursuant to the Palisades Plant Settlement Agreement between Consumers and Michigan Steelhead and Salmon Fishermen's Association, et al.,

dated March 12, 1971 ("Settlement Agreement").

This letter is in response to Mr. Sewell's request and is being made on behalf of the writer, as well as Messrs. Brown and Drain, who together represent all Intervenors including Sierra Club, to whom the original request was made by Consumers. This letter is being addressed to you rather than Mr. P. A. Perry, Secretary of Consumers, in accordance with your letter of August 17, 1976 (a copy of which is attached hereto) that this reponse or notification may be made to you and will be treated as compliance with the notice provisions of the Settlement Agreement.

Please be advised that in accordance with §6.10 of the Settlement Agreement, Intervenors are of the opinion that the proposed change in technical specifications regarding the condenser cooling system represent a breach of or failure of performance regarding the Settlement Agreement. Intervenors further inform you that construction and operation of the condenser cooling system as required by the Settlement Agreement was an important, integral and paramount part of the Settlement Agreement, and unilateral changes thereof by Consumers, such as have been proposed by Mr.

Sewell's July 29, 1976 request, would clearly deprive Intervenors

J'

. Michael I. Miller, Esq. August 18, 1976 of the benefit o_f their bargain and will not be dismissed lightly.

In fact, representatives of Consumers Power Company have recently acknowledged both to Mr. Drain and myself that Consumers is in accord with our view of the Settlement Agreement obligations with respect to the condenser cooling system, and we have been in-formed that Consumers acknowledges that implementation of the pro-posed changes in technical specifications referred to in Mr.

Sewell's July 29, 1976 letter, without Intervenors' agreement, would be a clear breach of and failure of performance regarding the Settle-ment Agreement. In light of-these admissions, we were very dis-tressed to have learned, after the fact, that Consumers, during nego-tiations with us to seek our agreement regarding the proposed changes, had contacted the Nuclear Regulatory Commission ( NRC") to have it 11 consider holding* hearings regarding implementation of the proposed technical specification changes. For your information, we have advised NRC officials that it should not entertain your request to modify or change the condenser cooling system technical specif ica-tions without our agreement. We trust that the NRC will not enter-tain your request in light of the underlying facts and, in particu-lar, the fact that the Atomic Energy Commission (the NRC's predeces-sor) became obligated and bound by the terms of the Settlement Agreement in specific relationship to the condenser cooling system technical specifications, all of which were part and parcel of Intervenors' willingness to withdraw from earlier proceedings before the AEC.

When we were first approached by Consumers to consider agreeing to the proposed change, we assumed that Consumers was act-ing in good faith. After all, Intervenors are not obligated to acquiesce in the request, but were willing to consider doing so in the context of good faith. However, these negotiations broke down for many reasons including, but not limited to, (a) Consumers' insensitivity to environmental values exemplified by its desire to go back on its promises and obligations pursuant to the Settlement Agreement; (b) Consumers' lack of candor with respect to its con-tacts with the NRC; (c) Consumers' failure to provide factual infor-mation to support its asserted conclusions in connection with the proposed changes; (d) Consumers' unwillingness to provide a fair mechanism to permit Intervenors to monitor any changes to the tech-nical specifications without cost to the Intervenors who after all are public intere~t organizations with limited funds~ and (e)

Consumers' attitude that even though it acknolwedges that implemen-tation of the proposed technical specifications would be a breach of and failure of performance regarding the Settlement Agreement, unless Intervenors agreed, Consumers nonetheless believed it had the option of breaching the Settlement Agreement and forcing Intervenors once again to resort to the Courts to enforce the law.

Michael I. Miller, Esq. August 18, 1976 Plea~e be advised that in spite of the difficulties announced in this letter, Intervenors and their representatives have taken great pains fairly to evaluate your request of July 29, 1976, but we have concluded that we cannot agree to amend the technical specifications as proposed because of our opinion that the proposed change is a breach of or failure of performance pursuant to the Settlement Agreement.

If you believe any further meetings are necessary and .

if Consumers is willing to comport itself in good faith regarding such a meeting, please contact us.

Sincerely, ERIC V. BROWN, MYRON M. CHERRY and LEWIS11 DRAIN J i

~n By:

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Myrot1 /¥. CherrYi, onefuiliof the ~1::>,ove representativei of all *rritervenors including Sierra Club MMC/ldh cc: David Dinsmore Corney, Esq.

Mr. Ralph B. Sewell Mr. P. A. Perry Bernard c. Rusche, Esq.

Howard K. Shapar, Esq.

R. Rex Renfrow, Esq.

Mr. James G. Keppler Mr. Robert J. Courchaine Mr. D. H. Brant RECEIVED by messenger a copy of this letter on August 18, 1976 prior to 5:00 p.m.

ISHAM, LINCOLN & BEALE BY

EDWARDS. ISHAM. 1B72-1902 ROBERT T. LINCOLN, 1B72- IBB9 WILLIAM G. BEALE. IBBS-1923

- ISHAM, LINCOLN & BEALE COUNSELORS AT LAW ONE FIRST NATIONAL PLAZA

• WASHINGTON OFFICE 1050 17D:t STREET, N. W.

WASHINGTON, 0. C. 20036 202-833-9730 FORTY-SECOND FLOOR ASSOCIATES CHICAGO, ILLINOIS 60603 RALPH D. STEVENSON A. DANIEL FELDMAN MARLENE R. ABRAMS ROBERT W. KLEINMAN CHARLES A. BANE PHILIP F. PURCELL GEOF'REY A. ANDERSON HUGH R. McCOMBS, JR 312-786-7500 TELEX: 2-5288 WALTER J. HARTMANN SHARON L. KING *MAGARET C. BAXTER WILLIAM S. McKAY, .JR.

DEAN A. ESLING JON R. LIND EUGENE H. BERNSTEIN GERALD 0. MINDELL GENE C. DAVIS MICHAEL L MILLER WILLIAM T. CAHILL TERRY F. MORITZ WILLIAM W. DARROW DONALD J. Mc LACH LAN JOHN G.CAM.ERON,JR. PAUL M. MURPHY f'REDERICK R. CARSON DAVID J. ROSSO JOHN M. CHRISTIAN GLENN E. NELSON RICHARD G. FERGUSON JOHN L. McCAUSLAND 0. KIRBY COLSON, ill JAMES N. NOWACKI RICHARD B. OGILVIE LAURENCE D. LASKY HARLAN M. DELLSY GERRY D. OSTERLAND ROBERT E.CRONIN ROBERT A. YO LL ES CLARK EVANS DOWNS MICHAEL A.POPE EILEEN STRANG C. RICHARD JOHNSON EOSELL M. EADY, .JR. R. REX RENFROW. m ROBERT WOOD TULLIS PETER C.JOHN THOMAS D. EISELE BERYN ROBERTS RICHARD 0. CUDAHY PAUL T. RUXIN ROBERT L. ESTEP .JOHN W. ROWE RICHARD E. POWELL GEORGE W. GILLMOR JAMES A. FLETCHER THOMAS GRADY RYAi~

ROBERT E. GANJA PAUL W. SCHROEDER ALEXANDER HEHMEYER MARTHA E.GIBBS DAVID M. SPECTOR OF COUNSEL REYNALDO P. GLOVER DAVID M. STAHL PAUL F. HANZLIK MARK H.VIRSHBO CHRISTINE McK.HEHMEYER ROBERT H. WHEELER DONALD B. HILLIKER RONALD G. ZAMARIN August 17, 1976 Mr. Myron M. Cherry One IBM Plaza Room 4501 Chicago, Illinois 60611 Re: Proposed Change in Technical Specifications:

Palisades Nuclear Power Plant

Dear Mike:

Our letter dated July 29, 1976 proposed technical specification changes for the Palisades Plant regarding the modified condensor cooling system. These changes were provided to you in accordance to Sections 6.10 and 16 of Palisades Plant settlement agreement. Under Section 6.10 of that agreement your clients are required to notify Consumers in writing in 15 days following delivery of the July 29th letter if the Intervenors are of the opinion that the proposed change is a breach of or failure of perforrrance pursuant to the settlement agreement. Section 16 of the settlement agreement requires that the notice be sent to the Secretary of Consumers Power Company.

If your clients desire to notify Consumers pursuant to Section 6.10 of the settlement agreement with respect to the technical specification changes described above, they may do so by providing a notice to me as attorney for Consumers and otherwise in accordance with Sections 6.10 and 16 of the settlement agreement.

Sif!li:,:

Michael I. Miller MIM:mc

LAW QFFICES MYRON M. CHERRY ONE IBM Pl.AZA CHICAGO, 11.LINOIS 60611

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Bernard c. Rusche, Esq.

Director, Nuclear Reactor Regulation United States Nuclear Regulatory Commission Washington, D.C. 20555

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