ML19347A606

Revises 770927 Ltr Re Time Required for Remanded Hearings, Facility Shutdown,Power Need Projections,Delay Costs & Cost/Benefit Analysis Reassessment

ML19347A606
Person / Time
Site:	Midland
Issue date:	10/03/1976
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Head D Atomic Safety and Licensing Board Panel
References
NUDOCS 8007291054
Download: ML19347A606 (3)

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LAW OFFIC EO

-MYRON M. CHERRY ONE tsu PLAZA

. CHICAGO. lLLINOIS 6cGil g usasses-nrr / g dy *EN October 3, 1976  ; g7o Y@

15- Od ap$h.

[2 6 Daniel M. Head, Esq., Chairman g  ;

4 Atomic Safety and Licensing Board- '

Panel ' '

U. S. Nuclear Regtilatory Commission

. Washington, D. C. 20555 Re: Consumers Power Company (Midla lant, Units 1 & 2)

Nos. 5_-3 ,and 50-330

Dear Chairman Head:

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In light of recent develo the Seabrook decision und receipt of the Staff'pments (includines brief), I sh6uld like to re-vise some of the remarks which I made in my letter dated September

, 27- 1976.

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First, now that the Staff has indicated in its brief filed under date of September 29, 1976, that a period of six months will

- be required in connection with the revised impact statement, I  ;

believe that my projections in terms of the time required. for the remanded hearings are now significantly closer (and could go beyond) l the two years.I mentioned in my previous lettc., and I believe that I the minimum of-six months is no longer a reasonable estimate. j Secondly, I should like to point out that in light' of the l

Appeal Board's decision in Seabrook, there is additional precedent,  !

binding on the ASLB, which opts for an immediate shutdown of the l Midland facility. I understand.that Seabrook decision in part held 1 that there was no way of determining a time p of~an' interim rule.on fuel cycle and further,,eriod for theBoard the Appeal adoption held, that-the Commission's policy. statement did not even contain an obli-gation to adopt an interim rule at any point. Accordingly, reading the Seabrook decision together with the Aeschliman and N.R.D.C.' cases in the Court of Appeals, it is clear that it is impermissible for the Staff "oi- Consumers to. argue or for this Board to rely upon the asser-tion that within-three months the commission will have a satisfactory rule governing fuel cycle. This, added to the Staff's. admissions in-its'brief of September 29 as to its present inability to m'ke a any

. Judgments on the outcome of the hearing or its length, demonstrates the necessity for promptly shutting down Midland.

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Daniel:M. Head, Esq., Chairman October 3,.1976 Page 2 I should also like to point out that the First Staffs brief of of all, the September 29' relies upon multiple errors of law.

need for power issue is irrelevant to the. suspension issue (insofar as reliance upon. continued construction is concerned) because of the requirement to analyze energy conservation. .Thus since energy con-servation was improperly foreclosed below, thereParticularly can be no reliance, is this in'the. suspension hearings, on.need for power.

so since the plant is projected for use in the 80's and as the Seabrook and_other decisions have indicated, need for power projec-tions that far in advance are simply useless.

In addition, costs of delay which the Staff wishes to rely upon are also impermissible because-the Court of Appeals in.Aechliman required that the new cost benefit analysis be structured without re-gard to sunk costs. Since costs of delay presume a valid basis for the present construction permit (which assumption is barred as a mat-ter of law in this case), such costs of delay are irrelevant.

Finally, since a new cos't benefit analysis'is ordered (and cannot rely upon_ costs already incurred), the analysis must be done any further investment will, contrary to the anew,and,accordingly,'

National Environmental Tolicy Act, represent commitments in advance of decision making and by definition, as a practical matter, tilt the cost benefit analysis. Particularly.is this so since the hearf.tg process must assume that energy conservation and the other issues are as likely to opt for a changed facility or abandonment as they are not. Indeed, in light of the increasing demands on our society to deal with energy conservation, the balance of speculation (if that's

-what it is) certainly tips in favor of shutting down the facility.

I confirm receipt of information that the hearings of October: 6 will be lifted and that the Board has not as yet scheduled

- a new date. For my part, I must inform the Board'that my schedule continues to be. committed _and that unless I hear from the Board l

rather promptly, I may be in a position whene I cannot even parti-L cipate in hearings until a week or so beyond the November 15- date earlier set out.

I realize that the Board's order does not necessarily per-mit'any replies to lthe briefs filed. On the_other hand, in light

! of recent events, I~ trust the Board will accept this letter as a

, good-faith attempt by myself'to keep the Board current as to our

. views.to. assist the--Board.

c -R e tfully, ,

y. gi. Cherry! (/

2 Att rney for Saginaw an MMC /1dh? ^het n Intenenor

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Daniel M. Head, Esq., Chairman October 3, 1976 c4 Page'3 m

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Mr. C. R. Stephens C 6.0 g 7 ~51 Richard Brown, Esq. W OCq .5,,. g Harold'F..Reis, Esq.

James N..O'Connor, Esq.

Milton R.-Wessel, Esq.

g' epi ~,;h3 Howard J. Vogel, Esq. *' ' c' ,T-

^ Hon. Curt T. Schneider Dr. Emeth A. Luebke Dr..J. Venn Leeds, Jr.

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