ML18127A254

Intervenors Briefs on Exceptions 2-45 and Motion for Additional Time to Brief Exceptions and Intervenors' Argument to Deny Motion for Summary Disposition of Contention 1.6

ML18127A254
Person / Time
Site:	Saint Lucie
Issue date:	07/03/1975
From:	Hodder M - No Known Affiliation
To:	Atomic Safety and Licensing Board Panel
References
Download: ML18127A254 (34)

Text

1 L'LATPJ) CO1UKSPONDQNCE oocnno VSNRq 9

g UNITED STATES OF AMERICA JiJL 8 igP5 > 1 NUCLEAR REGULATORY COMMISSION 9 orr~i <! ah ge.iyl<gy

/P jDodo" %ivko, Soci/o BEFORETHE ATOMIC SAFETY 'AND'L'ICENS'ING APPEAL BOARD In the Matter of FLORIDA POMER 6 LIGHT COMPANY Docket No. 50-389 (St. Lucie Nuclear Power Plant, Unit 2)

INTERVENORS BRIEFS ON EXCEPTI'ONS 2-45.AND MOTION FOR ADDITIONAL TIME TO BRIEF EXCEPTIONS Intervenors motion for additional time to brief exceptions No. 8, 9, 10, ime ll, and 43 for every reason stated in their Mo'tion for Additional to Brief Exce ti'ons dated June 12, 1975 whk.ch are not address'ed in this brief, Dated July 3, 1975,

'.xce tions 2 24 27 '33

.'hese exceptions state:

,'he ASLB decision improperly failed to consider the possibility and

,ffects of class nine accidents in its NRC Environmental Hearing pursuant to the requirements of 10 CFR 100.

.'he Board finds, as further set forth in paragraphs 69-74 below, that

he Intervenors have failed to show that evacuation planning in the

ontrol area was inadequate. In view of the contention, the Board

elf reviewed this subject matter but found no evidence that would ersuade us to reach a contxary conclusion from that testified to by ts failure to consider a class nine accident pursuant to 10 CFR 100 ailed to develop a sufficently full record.

xce t'ion 27, ccordingly in view of the findings herein the Board concludes hat contentions 3.2 and 2.2(d) are without merit. (PXD p 55> par 74) ~ ~

ontrary to fact and law.'ce

't'ion's '33 he Board'agrees and concludes that the plans, statements and commit-ents of the Applicant meet the intent and requirements of 10 CFR Part 0 and 10 CFR Part 50 Appendix E on evacuation planning at the 'construc-on permit stage. (PID p.64,, par 87) Contrary to law and fact ~

rly in the pr'oceedings Xntervenors had raised a contention known as ntention 1,7 which stated in the" S't'i1'a'tion 'an'd "Joi'nt Motion dated ne 25, 1974 at p, .12 it states.'As to Contention 1.7 on accidents. Intervenors seek to raise the issue of Class 9 accidents."

e ASLB in an Order dated July '12, 1974 stated:

"As to statement on Contention 1'.7 (page 12 Joint Motion) Board agrees there has been'o showing of a reasonable probability of a class 9 accident at St. Lucie and therefore an issue relating to a Class 9 accident is denied."

garding ASLB, Staff 6 Applicants position, there should ba a showing reasonable possibility of a Class 9 accident at St. Lucie 2 as requir-by the Appe'al Boards decision in the Shoreham proceeding.(RAI-73-10) tervenors having read the Shoreham decision respectfully take exception that holding in that the argument supporting the decision does not gicily uphold the result. First the ALAB in discussing the various asses of accidents 1-9 which must be analyzed for NEPA purposes quotes e Commissions Safety Regulations 10 CFR 100.11(a) (1). However, ey simply omit to quote the next and only remaining sentence in e syme paragraph which states "Such accidents have generally been sumed to result in substantial mal'tdown of the core with subsequent league of appreciable quantities of fission products." Somewhere ter on in the Shoreham decision on page 847 in a paragraph unrelat-either to NEPA or Class 9 accidents, in evaluating pressure vessel tegrity, the ALAB states "the probabilit'y of rupture is so low that becomes an appropriate area of inquiry only upon showing of

can pick and'hoose to be exclusion of other portions of 10 CPR 100 (1) (a) nor can the Staff and Applicant apply this conflicting "dictum".

to support their view that special circumstances need be, shown.

Intervenors therefore take exception to Shoreham as interpreted and argued by the Staff and Applicant as having no logical b'asis for the stated result of that decision.

Intervenors witness Richard Schmidt testified a great length concern-ing adverse aspects of evacuation feasibility as 'applied to the problem of quick evacuation of Kutchinson Island in the event of a Nuclear Accidnet; (Schmidt testimony gp. 11-13 following'R 1096) However,.

the various police 'and other civil defense and public safety official's were advised that with additional en'gineered safety features they would have 30 days to achiev'e safe 'evacuation. Therefore the'SLB PID as re-lates to exceptions 24, 27'and 33 were grounded upon the false pre-mise that. the chance .of a'Class 9 accident occuring,was so remote that

"'it-could not be considered by the. parties or the ASLB in -determening

'compliance with lOCPR Part 50,- Appendix E and 10 -CPR Part 100 on evacuation planning.

Contention's'3 '6'n'd '6'aM'e'ad'dM'e's's'e'd'ihi's f

'B'r'i'e .

They state:

Contention 3 The ASLB decision erred by its failure to consider the cost. of perpetual storage and/or taansmutation of trans uranic or trans-plutonic radio isotopes genexated'y St, Lucre Unit ZI in its cost-benefit analysis of the proposed facility wh'en i,t held at preh'earing Conference Order dated Januax'y 24> '1974 such issues we'e genex'ic to the fuel .cycle.

t Con e'n't'i o'n 6 PPL is being subsidized by the Nuclear Regulatory Commission contrary to the intention of, Congress for the costs of waste disposal; This violates the intent of the 'Atomic Energy 'Act of 1954, as amended. j r

At the very outset of the proceeding this issue was raised in Petition to Intervene and Intervenors raised it again as Contention4. Where they sought to consider as a NEFA'cost", long term storage of waste from a nuclear unit. (See p 12 Stipulation and Joint Motion dated June 25> 1974)

I As originally framed Contention 4 stated: I I

The petitioners recognizing that wh'ile applicant may be financially qua1i<<

fied to construct the "proposed facility, note that it may not be financi.al-ly qualified to bear the burden'f disposal of radioactive waste so gene'-

rated which should be properly included in any assessment of prospect cos't ~

Under present law after storage of radioactive wastes by private industry the utility companies may then transfer them to the Atomic Energy Commis!-

sion Ger permanent storage. In assuming the duty of safe storgge and disposal of these very large quantities of extremely lethal substances which will remain deadly for'entureis the AEC is shouldering a burden that should properly be incumbent upon the electric utility companies who having profited upon them'ay now legally evade any furthex,'heir respon-sibility for the wastes the'y generated. This constitutesCongress an immoral if not illegal subsidy of private industry not intended by in the Mandate of the Act of 1954 an'd is infact in contravention of the Act and directly in5urious to the public health and welfare of this nation. The payments presently projected by AEC to be made by the Applicant for waste

'st'orage'o not adequately represent ultimate madagement and disposal costs.

.(Notion to Amend Petition to Intervene dated December 28, 1973)

The ASLB denied the Contention 4 as framed above in an order dated Jane j

24., l9$ 4 and xeaffirmed that denial in a subsequent order dated July wh'ere h

it was described on page A-ll par 6.

12,'9/4

-Inarv nors contend that denial was erxor in contradiction of the Mandate of'the Atomic Energy Act of 1954 and the National Environmental Policy Act .of,1969, In their Environmental Repast, the Applicant states:

Long lived uadioac ve materials will be produ ed by fission of nuclear fuel in the- reactor core by neutron activation of reactor parts near -the 'core, A certain 'amount of space, probably remote from the'Plant site will be ne'eded for the eventual desposal and storage of radioactive materials for' very long period'f time. 'his space> 4n a sense could be considered an irretrievable commitment of resources hut is not peculiar to this plant site. (ER vol2 p. 5-8-1)

Clearly, the operation of St. Lucie 2 will generate hazardous radioisotopes.

The ASLB erred in its failure to consider or allow consideration within the framework of a NEPA cost~benefit analysis, (1) the environmen'tal effec'ts of the storage of long-lived radioactive waste products g2) the true 'cost of perpet'ual stor'age 'of'ong-lived radioisot'opes to be generated at St. Lucie No. 2, Intervenors axe aware 'of the ALAB, 60, Wash 1218 (Supp.l) 459 July 19, 1972, and Shoreham Nuclear Power'tation ALAB<<99., RAX 73-2-53 (2-1-73) as they

,apply to paragraph 1 abo've 'and they re)ect that finding as not reflecting the mandate 'and express intent of the Atomic Energy Act of 1954. as amended 42 O'.S,C. 2011 and the National Environmental Policy Act of 1969 Public Law 91~190, 42 U.S.C. 4321et'.'s'e However, after reading the decisions one can discern that where a fuel cycle issue tha~ was directly applicable to a given plant"such as fuel CXl>> -g

,transportationp,then ALAB allowed that as an item of consideration in the

~

NEPA cost~benefit analysis, The issue in paragraph.2 above as raised by Intervenors has not been ad-dressed by any previous ALAB and thereby is a case of first review. It relates to the actual payment the Applicant Utility makes toward perpetual storage of long level waste and gyes the issue of whether that payment included in "nuclear fuel cos't" is truly adequate to cover payment fox the duty of long term storage of hazardous radioisotopes which may have to be isolated from the biosphere for periods of up to 250,000 years.

Intexvenors contenct. the true cost of fuel as defined above should be included in any NEPA cost benefit analysis as and the ASLB erred in relying an the decisions in Shoxeham as previously cited.

The ASLB decision was error in its failure to consider the limitations of liablility of the Applicant, imposed by the Price Anderson Act of 1957 as amended in 1967 when it hearing order dated January 24, 1974.

considexed site suitability.- See Pre-Intarvenors Contention No. 5 raised in the beginning of this proceeding in a motion dated December 2S, 1973, was denied by the ASLB in an order dated January 24, 1974 as being clearly ouside the Jurisdiction of this Board. The ASLB then citedFl'o'ri'daP'o'w'e'r" a'nd 'L'it Com an (Turkey Point Units 3 and 4) Commission "memorandum and order" March 30, 1972.

That contention as originally fiamed stated:

5. "The Protections of the Price Anderson Act of l957, in limiting "liability of FPL 'arising from a nuclear accident invalving a loss in excess of 560 million dollars should not be available to FPL when they knowingly have sited' nuclear xeactor in an area likely to achieve high population density in the very near future.

'Xt is the position of Interven'ors that the ASLB's refusal to hear evidence on this question (Xntervenors original Contention 5) deprived them of the heaxing required by the Atomic Energy Act of 1954. as amended 42 U.S.C.

2011 et, seq,, the National Environmental Policy Act of 1969, Public Law 91 190, 42 U,S,C. 4321 et seq. as well as rights under the due process clause of the fifth amendmen't of the United States Constitution and the Administrative Procedure Act, Counsel for Int'exvenors dilighntly,searched for the logic or reasoned decision behind the Commission "memorandum andorder". dated March 30, 1972 which was the basis of the ASLB denial of Contention 5, but could

'..Ad u'dication 'Is'su'an'c'es'RAI) or'heCo'm'meice Clea'rin 'ouseA't'omic Ener

,,L'aw'e o'r'ter, Intervenors can only conclude

t e SL and if it was decided by fiat of this be the case 'it is apparent the problem'as not been

'ddressed in sufficient depth by'he Commission. Nearly 20 years ago in 1957 when the commercial'ucl'ear power industry was virtually non-existant and nuclear reactors wer'e 'relatively small and,serious infla

~ , tion was yet to come the Congress enacted the Price Anderson Act, impos-

'~ing limitation of liability over 560 million dollars to encourage the

'udding nuclear industry. This was ev'en'efore the days of Wash~740' decade later which des'cribe'd the terrible toll in lines property and billions of dollars an accident at a co'mme'rcial nuclear reactor can produce, The vast ma)ority of the 57 operating commercial power reactors in the United States have been constructed since 1970.

$ 4ction 170 of the Atomic Ener'gy Act of 1954 known as Price Anderson is not scheduled for review. by the congress again until 1977. In this interim period only the Nuclear Regulatory Commission is charged with the respon-si'bilgty of protection of the health and safety of the public pursuant to th mandate of the ACt. By relying on the position stated in the March 30>' 72 "memorandum and ordex" theCommission is abrogating and breaching

. that esponsibility to look after the public's interest.

Surely the Commission cannot blind itself to the real, though remote, possibility of extensive:loss of life and property in the eventdecision of,a catas-trophic nuclear accident based on'n archaic and ill-.reasoned that liability of an applicant utility is exclusively within the purview of the congress. To do so would be to encourage an "irr'esponsible at-titude on the part of Applicant utility companies building their reactors ever closer to dense population centers. Clearly, the Commission can-not change the impact of Price 'Anderson as to imposition of limitations of liability but neith'er can it ignore the limitations of liability in their consideration of 4a'eactor site suitability within the frame-work of a NEPA cost~benefit analysis where monetary values are ascribed to the costs and benefits of a proposed facility.

In recent year's the courts have become increasingly strict in requiring that Federal gge5446 live up to their mandates to consider the public interest. See e.q, Udall v. PPC 387 U.S. 428 (1967), Environmental Defense Fund Inc. v. Ruckleshaus, 439 P. 2d. 584 (1971). And thus came the decision Calvert Cliffs Coordinating Committee Inc et, al, v. AEC and

@ S.A. U.S. Court of Appeals, District of Columbia which mandated the AEC mast give broader consideiation'o envtronmen'tal impact issues.

The ASL'B in its January 24> 3 974 Order', the'taff in its 'Answe'ro Motion to Amend Peti'tio'n tont'er'v'e'ne.'dated'.January in Applicants ll, Response,to'oti'o'nt'oA'm'ea'dP'e't'i't'i'o'n.

1974 and the Applica'nt to Tnt'erv'ene dated December 28, 1973 all follow the crooked "cowpath" of them'e'mo'r'andum andorder of March,30, 1972 in the 'Turkey'oint case by 'misc'h'arac'teriz-.

~in Intervenors'ontention 5 as an="attack on section" 170 e','nterve~

nors are well aware "the Commission'annot legislate change, however>

's very apparent that ftca'n 'a'nd'Ment consider limitations of li'ability within the framework of a NEPA cost-be'n'efit analysis as mandated in the Calvert Cliffs'ecision whi'ch was what Intervenors desired. It was error for the ASLB to deny Xntervenors original contention 5.

Exce 'tions '5 and 45 The ASLB decision was based in part upon the Applicant's obtaining cex tification from the State of Florida Department of Pollution Control in accordance wi'th section 401 of the Federal Water Pollution Control Amend-ments of 1972 and Sections 301(b) and 302 and Sections 306 or 307 venors contended this certification is defective and are treating

'nter-it in a seperate motion, See PID p. 93, par. 125 and p. 87, par. 118.

4 Intervenors object to admission of Florida Department of variance, Exhibits 8,9 and 10 PID. Pollution'ontrol The ASLB erred in admitting into the'earing Record Applicant's Exhibits',9,10 (Partial Initial D'ecision p.5, par. 8) the alleged certificates issued by'he Flor'ida'ep'artment of Pollution Control (DPC) under Section'01 of the'eder'al Water Pollution, Control Act (FWPCA).

Since said documents we'e 'not properly sponsored by testimony as to their authenticity ox accuracy by, their author or any DPC personnel, or counsel. Counsel for Inter'ven'ors raised the issue at TR. 3300'ine 9.

If the ASLB had properly required the alleged, caitiff.cate to be proper-ly sponsored', they would have 'discov'ered that the position of Department of Pollution Control is that it has not yet certified the site as being in total compliance with applicable water quality the'lorida standards as.req'uired'y the FWPCA Amendments of 1972. The Intervenors tried to cata'bl'ish this by filing the 'Fla. DPC letter of April 24, 1975

"'. with'the ASLB and ALAB.. Howev'er,. this information could be had for the asking if either the 'ASLB, ALAB or NRC Staff made inquiry of th'e State'f Florida Departmen't of Pollution Control or its counsel.

,As a further proof- of Intervenors position that the Applicant does not presently hold a certificate of'01 Compliance, the Intervenors urge this Appeal Board to take 'official notice of the fact that the State of Florida Department of Pol3.ution Control is presently holding site certificati'on hearings on'the 'St. Lucie No. 2 site, pursuant to the requirements of Florida Statutes 403'.501 et seq. and the FWPCA of 1972 and two of the contentions'.being considered a", ...:.. d. at that hearing which commenced June 16, 1975 at Ft. Pierce,'la. are:

'onte'n'tio'n 4.9 Has th'e Applicant dern'onstrated compliance with applicable water quality standards during construction and opera-

, tion of the proposed" facklityf Conten'tion.10 If so, what conditions need to be imposed on the

.'ertification c6 assure 'the issuance by the DPC of all further certification'ecessary under the FWPCA Amendments of 19727 t'ntervenors have addxessed this issue in a separate motion as referredi to i'n Excep'tion 5 which was filed on Hay 5, 1975 in which they attached as an offer of proof and exhibi't a letter from Hamilton S. OVen, Admi-nistrator, of the Florida DPC. Intarvenors adopt herein and incorporate by reference each and every allegation of that motion as constituting part of this Brief.

Specifically Intervenors wish to. point out the ASLB in its PID mis-characterized the DPC letter of November 25, 1974 in stating.... ~

"DPC had no intention of issuing further certification or*Modify-ing its May 28 28, 1974 ceitification pursuant to Section 401 of the FWPCA." (PID p. 88, pax. 118)

The 'Novembex 25, 1974 letter in actual quotation states:

"In response 'to'our letter',of November 25, 1974 we wish to advise you that thepartment has no ~recent* intention to issue further certification............Consequently our "negative certificate" of May 28 willy'bat 'thi's t'i'mef be"'modified in light of .the adoption of the EPA reg'ulations 39 FR 36176,'ctober 8, 1974) to which you ref'er in your letter". *Emphasis Supplied At TR. 3304 lines 8-10 and TR. 3305 lines 18-20 Counsel, for Intervenors stated no final decision can issue until that certification (401) is issued.

.The .gtaff Counsel" and Chairman parmakldes (TR. 3304 line 13)

Mr. Seiffert 'and Chairman Farmaki'des noted agreed.at TR. 3306 lines 6-18 "there need be 'a 401 certificate issued in order to complete the environ-men'tal, site suitability and LWA-2 phase of this proceeding."

Therefo're 'the LWA-2 issued by the'SLB'n its PID as it is presently ground-ed on a defective '401 certification is invalid.

'Br 'e'f'n Exce 'tion's. 7 1 '9';'40 4'1.

The'xceptions addres'sed'n th'is Brief are The ASLB Order on=Motions for Summary Disposition dated September 25, 1974"was error in granting Applicants and/or Staff's Motion for

.Summary Disposition on the following contentions:

(a) 1.6 (a). (b)

(b) 1.7 .

,(c) 2 .1 (a) (c) (d)

(d) 2. 2 .(e) 1'.4--

('3)'e)

'Ex'c'e ti'oa 39..

The Board also agrees with the Staff that conversion of the present plant to a fossil facility is feasible but involves large cost penalties with

,no significant nt improved in environmental impact'.PID p. 85, 'Par. 115)

The Board concludes that nuclear fuel is the best alternative. (PID p.86, par. 115) Alternatives were not sufficiently considered by 'the Board and this conclusion is thereby defective.

Exc'e 'tion1 The Board concludes that the present St.; Lucie design is the best environ-mental choice of alternatives. (PID p. 90, par. 120)

Contentions 1.6(a) and'1".6(b) dea'ling with alternative energy eources and sites, were .summarily dismissed. (PID 30, PAR Board failed to give 'adeq'uate'onsideration to alternative sites 50)'he and eources'ursuan't to 10CPR Part. 50, and NEPA.

Interven'ors adopt and incorporate 'by'efer'enace in this Brief on Exceptions 7 'and 18 ever'y argument raised'n their Argumen't Against Granting Applicant and Staff's', motions as the'y applied to Contentions '1.6(a)p 1 6(b)p 1 7

';.,1(a), 2.,1(c), 2.1(d), 2.2(e)'(5') and 1.4.

At hearing the ASLB allowed sufficien't lattitude to Intervnors in, the areas addressed'y conten'tions 2.1(a)'(c)(d) and 2.2(e) such that Intervenors wer'e .not seriously disadvantaged by. their omission alth'ough. Intervenors contend it was e'rror to have granted'otions for Summary Disposition on those contentions. However,. granting of Motinn for Summary Disposition

of Contention 1.4 is a perfect, ex'ample .'of how Intervenors case was damaged not 'gust due to illness of a poten'tial witness but by lack of funds to

,replace him and his research efforts. Granting of Applicant's Motion~

for Summary Disposition of Contention 1:.7 was error since only the applicant

had this~ information ava ble and .thatter'.shoul ave been more fully discussed since,'if 'the'x'e were 'findings of fact favorable to,lntaxvenors on Contention -2.'2"-and 3.2, the ASLE would necessarily have to consider suitable alter'native sites as theCo'mmission did in the'Newbold Island Case.

Originally Intarvenors had planned'o present their case on altexntive sites through cxoss examination and discovery since only the applicant possessed this knowledge. But,, Intervenors had difficulty with the Applicant in thei'r effort to discovex the" number, locale, and identifice-tion .of altexntive sites. ,Th'e FES indicated the NRC Staff did not even know theidentity of the'ingle 'altexnative site'they list as having been considered in the 'FES Sec.,9,1'.2 Ta'ble:9.1, which Intervenors regard as a serious omission by the Staff. Intexven'ors cou'ld not and did not expect the cooperation of the Applicant by providing affadavi,ts on alternative sites so as to provide th'e 'Inter'ven'ors with a defense to the self-same applicants Motion for Summary Disposition.. Therefore, Intervenors did not seek or request such affadavits whe'n confronted with Applicant's os'iti'on'f Co'n'ten't'ion 1;6 -and at even .greater length in 'Int'e'xveno'rs'rgu-merito Den Motion foS'u'mmar':Di's'o's'i't'iori 'o'f 'Co'n'tentio'n 1.'7 arid'2-2 e pointed out that the Applicant .in,seeXi'ng Summary Disposition of conten-tions 1.6(a) and 1.6(b) and,the Staff in supporting their motion for Disposition had both relied upon Sec'tion 2'.749 of the Commissions Sum-'ary Rules of Practive which 'provides a pzoced'ure for summary disposition-Applicant had stated in his motions for Summary Disposition:

"Section 2.749 of the" Co'mmissions,Rules of Prctice provides a, procedure, for summary disposition of Contentions in AEC licensing p<<ceedkngs which is parallel to Rule 56 of the federal Rules of Civil Procedure'roviding for Summary Judg'ement in the'ederal Courts 10CFR 2.749. Betwee'n thetime '.it.wa's proposed and it was adopted, Section 2.749 was revised to track more closely the Federal Rules of Civil Procedure37 -FR .15127. July 28, 1972. Where the Commissions Rules of Practice clos'ely parallel provisions of the Federal Rules Of Civi3. Proceed'ure, the Atom'ic Safety and Li'cen'sing Appeal Board had interpreted them "in accordance with 'intex'px'itations of the Federal Rules." -Applicants Motion for Summary- Disposition.

Inter'venors conCNS'i with th'is view 'and wo'uld refer this appeal Board to FRCF(f) which provides:

'f"When affadavits are unavailable.'hould it appear from the affadavits a party .opposing themotion tha't he cannot for rea'sons stated pre-sent by affadavit facts es'sential'o )ustify his opposition, the court may refuse the application for judgement or may order a continuance 'to permit affadavits to be obtained or depositions to

,be taken or discover'y to be had or may make such other orde'r as is,gust." The same language 'appears at 10CFR 2'.749(c).

'.Regarding Contention 1.6(a) and 1.6(b) ~ Regulatory Guide 4.7 states:

".Chapter 9 of- Regulatory Guide 4.2 presents the basis for the

.cho'ice .of a site -from among alter'native sites. Although it

.rec'ognises'hat p3.arming method's will diffex among applicants,

!" it states that the.'ppl'icant should present its site-plant selection "process as theconsequence of an analysis of alternatives whose environmental costs and,benefits we'e 'evaluated and compared and then .weighed against:those of the 'proposed facility'. An acceptable

.evaluation of the 'site 'char'aeter'istics discussed'n this guide can generally be based on ex'isting info'rmation and on information derived from site reconnaissance by specialists knowlegeable of

0 the local region of interest. P 4 7-3 Regulatory Guide 4.7 Draf t

'General Site Suitability Criteria for Nuclear Power Stations".

Granting of Applicants Motion for Su'mmary Disposition 'of Contentions 1.6(a) and 1.6(b) was a most serious error of the.ASLB-since Intervenors had raised it in the context of serious and unique site suitability issues concerning, the demography of the site environs and non-feasibility of, evacuation of major portions of the LPZ.

The Applicant alone made the motion for summary disposition of Intervenors Contention l.'6 a-c which stated:

whether the'taffs 'Fi'n'a'1 'E'n'v'i'r'on'me'n'ta'1State'me'nt has sufficiently con-sidered alternatives to the proposed'ction including:

a. alternative fossil generating methods in-that fuel costs and more economical fuel delivery systems have not been explored.

,b., alterntive sites such as sparsely populated areas such as south-west Florida.

c. alternative 'ultimate heat sink methods such as auxiliary ocean intake 'or we't or. dry cooling towers using salt or fre'sh water or treated sew'age 'ef'fluent. *Emphasis supplied.

The Applicant through the affadavits of C.D. Henderson addressed contentions 1.6(a) and 1.6(b) separately in supporting Applicants motion and the ASLB granted that motion in an orle'r dated September 25, 1971 .the ASLB granted that- motion as it related to Intervenors Contentions 1.6(a) and 1.6(b). That was 'error.

Hen'derson stated:

"....These matters are 'discussed iri the following references AE'C Final Environmental Statemen't Sec 9.1.2.

FPL Envir'onmental Report Sec 9.2,9.3 Qhen the St. Lucie site was selected as a site for Unit No. 1, a nuclear power'plant, sites in several other areas of the-state were evaluated.

The" se'le ti'o'n 'of 'th'e St. 'L'u'ci'e sit'e'asb'aseduon'is'tance from o ulation centers ava lia ihl tiy of adequate land, lowest environmental empacts, proximity to the Meat Palm Bea'ch load center, access to navigihle water and availability of cooling water'.

Iwas'ec'id'e'dtha't Uni't Ko'.2 's'h'o'ul'd bn'sta'1'1'edh'i's sames'i'te because

'the 'c'riteria w'e're sti'1'1 'va'1'i'd'o'r 'a 'nuc'1'e'a'run'i't needed to serve the growing demand o South F orida an because it had some additional advant-

'ges t

over any other'i'te". Page 2 .Hender'sons Affadavit *Emphasis Supplied.

N The basic error in Henderson's affadavit was his g6g'tynji~nthat the p'opulation density data "were still valW ." (See Hendersonos Affadavit)

Intervenors had prior to September 9;. 1974p. the date of the Henderson Af-fadavig advised the ASLB, the Staff and L. Manning Muntzi'ng by'etter

,"that the applicants population data wer enon valid]'as pertained to Unit Np. 2 as is devel'oped'ore 'fully fn Intervenors Brief on exceptions

.22p>>23> 28,. 29:and '44,att'ache'd he'r'ei'n. In that Brief it was pointed out that the existance of errors, of consider'able signifigance were established by Intervenors at the" ASLB'earing in the 'PES which resulted in a signifi gant modification of the Staff's PES as listed following TR. 2353 and as .tes'tified to by Mr. Francis A. St.. Mary and Dr. Emile Bernard of the AEC Staff

Henderson acknowledged in his affadavit that none of the six alternative sites considered in the Staff's FES for Unit one at'Table XI-l. :"n page XI-3 were considered since "the Unit one population data was valid.

I Since Henderson's entire affidavit was grounded upon the premise, Staff population data was accurate, his affadavit fails to the extent it be deemed factually supportive of the Applicant's motion and the Applicants can motion should have thereby failed. Furthermore, the. FES failed to reflect th'at the E.R. Sec. 9.2 of Applicant stated at page 9.2-2a:

"Florida Power 6 Light Company is presently developing two inland sites in South Florida that are suitable for either fossil or nuclear gene-ration. These include the Martin site located in Martin County appro-Mimately 50 miles west of West Palm Beach and the South Dade site located in Dade County south of the Turkey Point Plant. The Martin Site is a cooling tower site. -

Two 800-850 Mwe oil-fired fossil units are schedul ed to be installed in the period between 1977 and 1980 at each of tese these sites."

These sites and other in Soutwest Florida such as the Energy Park site near Arcadia should have been considered by the Staff in the FES in view the substantial modification of demographi'c projections.

the Staff did not make such a consideration of alterntiye sites as It is clear

'f alternatives to St. Lucie,No. 2 and only considered one alternative site back in 1967 at the time of 'their selection of the Unit I site as is evidenced in Applicants Response to Intervenors Interrogatory No. 61:

61. Which alternative sites were considered to the Hutchinson Island site for a nuclear reactor?"

Answer:

Sites designated "Salerno" and "Flagler Beach" the location of which is more fully described in the 1967 study referred to in answer No. 56.

Therefore, for all the foregoing reasons the ASLB erred when it granted and. 1.6(b).

Applicants Motion for 'Summary Disposition of Contentions 1.6(a)

Exce tions 12,3.3, 14, 15 16 17 38.

These exceptions address need for power. Rather than "whip this dog to death" in this already lengthy brief Xntervenors. con'cede -that within Applicant FPL's system there will occur the need for the, base load generating capacity represented by the addition;of. St. Lucie Unit No. No 2 at some future time,"

Intervenors were not allowed, to their detriment, to sufficiently consider alternative sources of Energy when summary disposition of their contention 1,6 {a) was granted.

Certain arguments Xntervernors could raise are now moot, For example the parties should take official notice that although Xntervenors took, issue with Applicants use of a 15 minute peak load to set reserve margin requirements at the ASLB hearing, since Jan 1, 1975, the Applicant has utilized the 60 minute peak load as reccomended by the Fedeaal Power Commission.

The only issue remaining then, is determination of when the base load capacity represented by the addition of St. Lucie No. 2 will be required.

Xt is the position of Intervenors that this need will'not ma'terialize until sometime after 1982 since the 'rate 'of growth of peak'oad and sales that has occur'ed in the past two consecutive years in the FPL system has been at the lowest range of the projected growth spectru'm or below 5%.

Fur'thermore, the Applicant has manipulated need calculation by de'ferral of three 800 mw fossil units in the same Eastern Division of Applicants system as the proposed St, Lucie Unit No. 2. Those Units are unnamed//1, Martin No.l and Martin No. 2.

These deferrals were made due to the slowed rate of growth of consumption and peak load .in the Applicants system which is presently occurring and the shorter lead time required to put fossil units on the linc'o the extent the Applicant or ASLB in PID relied on the theory of "substitution".of nuclear for less efficient older gener'ation capacity.

Intervenors wish to note 'the Applicant has gone on'record in the E.R. to the effect t'hey shall: not retire any existing capacity before 1982. (ER 9.1.2.4) Xntervenors motion ALAB take notice of all these facts. Further on need, Xntervenors sayeth'aught.

Exce tion 19 The Board concludes that the proposed system using Big Mud Creek is the best alternative both from the standpoint of cost and environmental impact. (PID p. 31, par. 51) This conclusi'on is =contrary to'he fac't.

In granting Applicants Motion for Summary Disposition Intervenors aban-doned their effort but not their desire to put on a case addres'sing the issue in Exception 19. This is the heartbreaking aspect of the'ituation of where an Intervenor through his impecuniousness must abandon a valid contention. It is an excellent argument as to why Intervenors should receive funding from the NRC. where their case is proven meritorious. The conclusion of the ASLB as grounded upon the record is reasonableigowever, Interven'ors motion pursuant to the substantial good cause requirement of the Commissions Rules of'Practice 10 CFR Part g,</ll that the ASLB and ALAB take official notice of and/or reopen the hearing record and receive as evidence the testimony of the Florida Department of Pollution Control Hearings at Ft. Pierce Florida in,the Matter of State Site Certification o St. Lucie Unit -No. 2 Case No.74-006 Florida Division of Administrative Hearings and specifically con'sider'he testimony of witnesses for the Florida Department of Pollution Control, the St. Lucie County Conservation Alliance and Citizens United Against Radiation in the Environment (C.U.R E ) as ~

the y addressed essed issues of impact on the marine environment around St, Lucie Unit No. 2 and we/.gh said testimony in the NEPA Cost benefit analysis.

Epee tion's 22'3 2 28. 44. are addressed in s Brief.

They state'. 'nd

29. The Board finds the site suitable as to the population de s y'nsit land use requirements of 10 CFR Part 100. PID p 59, par. 8 0 . T'his s fihding is contrary to law and fact.

23. The Board after considering the entire record'concluded that the dif-

,ference between these .experts is largely moot in view, of the testimony of, Van Hie'1 and Bernard and Moore 'tht projected improvements in plant design by the Applicant would allow the LPZ to be reduced to one mile, Even the most conservative population projections of Schmidt will meet the hypothe-tical doubling .of Schmidt's projections for the LpZ apparently does not re-sult in conf'lict wi.th 'the applicable Commission r'egulations.(PID p45, par 62) The decision of the Board is in conflict pith the requirements of'0 CFR Part 100.

22. The Board gave less weight" to his (Dr. Bernard's) opinions on popula-tion progections. (PID p.42, par. 61) As a matter of law the Board'hould have found Dr. Bernard unqulaified'o testify on any future populption.

28. These data were corrected hy the'estimony of

.Board was persuaded that the errors Dr, Bernard. The

p. '58-59 in Fig. 2.5 and par 80,) The'se'errors or similar ones existed 2.6. of the FES (PID PR and PSAR as well. in the Applicants

44. Intervenors wish to note their exceptio'n to ASLB, decision to admit those portions of the Applicant's ER, (4a, TR. 350) PSAR (sa-2H TR 350),

and the'taff's FE'S (s-'1, TR 358) that pertain to population present and future in the proposed nuclear plant site environs."

10 CFR Part 100, "Reactor Site Criteria." Requires. in part:

An Exclusion area surrounding the 'reactor in wh'ich the reactor licensee has the authority to determine 'all activities including removal of per-sonnel and property; A "low population zo'ne" (LPZ) which immediately surrounds the exclusion area and in which the population number and distribution is such that appropriate measures'could be taken in their behalf in the event of serious accident.

That at any point on the exclusion area boundary and on the outer boundary of the LPZ, the exposure of individuals to a postulated release of fission products ( as a consequence of accident) to be less than certain prescribed values.

That the "population center distance" defined as the distance from the nuclear reactor to the nearest boundary of a densily populated center having more than 25,000 residents be 'at least llg3 times the distance from the reactor to the outer boundary of the LPZ.

In order to assess and properly det'ermine population in the site enV>rons

the Applicant and Staf f must expertly and diligently research the popu'la-

- tion projection. in,",the plant area.

The findings of, the'Atomic Safety and licensing Board (ASLB) as characteriz-ed in Exception 29. ( "The Boaxd finds the site suitable as to the popula-tion density and land use'equirements of 10 CFR part,100" (PID p44,,

par 74) ) is contrary 'to law and fact. auc',

Paragraph 74,of the Partial Initi'al Decision is based upon a considera-,

tion of Contention'.'2 which'tates Contenti'on '2.2 "Whether the proposed 'site meet's the requirements of .10 CFR Part population density and use characteristics of the site environs,,

100'as'o

'including: (a) whether Applicant and Staff have adequate'ly considered

, prese'nt population and; future demographic change near 'athe.site, parti-cualrly:

(1) whether incxeased population of Hutchinson -I'sland resulting from high'-'rises, high-density condominiums'nd resort hotel development with larger tenant capacities; (2) whether within the 'low-population zone (LPZ), real estate development's and subdivisinns on the mainland three to five miles "away'rom" the 'proposed site which are, currently more populous than Staff and Applicant estimate 'and whether this will result'in the vexy high population density within the next decade fax in excess of Applicant population "projections in the 'Environmental Repor't (ER) and Piel'iminary Safety Analysis Report (PSAR);

(3) in nearby cities"of Stuart, Jensen Beach, White City, and 'Fort, Pierce-within 10 miles of the proposed site; (b) whether. Applicant's presentation in the PSAR, Figure 2;.1-2,'n aerial'hotograph.'of Hutchinson Island, fails to include the entire area from. five to ten=miles from the proposed site and the- development occurring there, and whether such information is necessary to*accurately assess site'*suitability;.

(c) whether the demographic studies performed for Applicant by First Research Corporation of Miami axe inaccurate and misleading and under-estimate the 'high population in the site environs including the LPZ;

~

(d) whether there is a reasonable probability that approprate measures could'be taken in the event of an accident to protect residents includ-ing evacuation of LPZ personnel, particularly whether. the single, two-lane highway, AlA-, on Hutchinson Island;"

The basis for the. ASLB .PID was the testimony of witnesses 'for the, parties and the then at'omic Energy Commission's (AEC) Final Environmental State-ment (FES) and the Applicant's Environmental Report Volumes I and II ER) and Preliminary Safety Analysis Report Volumes 7-8 (PSAR) This exception specifically addresses Section 2.1 et seq. of the Applicants ER and PSAR respectively foz Unit No. 2.

.The'A licant's Case i, The witness for'he Applicant was Philip Walsh Moore, graduated from Princeton University with a B.A. in English and holder of an M.B.A frok New York University Graduate School -of Business Administration and 'founder/owner and operator of First Research Company Inc. See Educational and Professional Qualifications of Philip W. Moore following TR 751.

Mr. Moore testified that First Research Corp. was engaged by the Applicant to perform a population study for the St. Lucie Site in 1968 ~

Ve should note that Mr. Moore at that time, was not affiliated with First Research Corp and he provided no input into that report since he testified at TR. 736 line 19 that he sold the company in 1967 and went away to New York City for four yea'rs where he was with the First Boston Corp, a financial corporation (TR. 742,. line 9). First Research Corp.

then went bankrupt. (TR. 736)

In July 1971, 'Mr; Moore returned to Miami a'nd took over First Re-search Company from the trustee in bankruptcy, of the holding company First Research Corp(TR 737).

Inspite of th'e fact that the Applicant had submitted demographic studies of unspecified origin'in their application submitted in May, 1973, Mr. Moore furt2a testified that First Research 'Company .was not again consulted by the Applicant from 1968 until late March of 1974 to per-form population studies and projections of the Hutchinson Island Site Environs. (TR. 767 lin'e 8-11) At that time,, for the first time, Mr. Moore became involved personally in the study of Hutchinson Island. His in-.

volvment and study consisted of a field survey of 4 or.5 days wherin he made inquiries of mailmzn (TR. 835), took a sampling rather than an actual count (TR. 835, line 16) in drawing the conclusion that condominium units sold on Hutchinson Island will be occupied only a month or two a year leaving those units unoccupied for remainder of the year (TR. 834, line 3)

In reaching. this conclusion witness Moore states he failed to. consider timesharing or interval sales which are allowed under Florida law.

(TR. 823,'line 4)

At Tr. 839, Mr. Moore testified he failed 'to =research the point of origin of owners of RecVee 'lots on Hutchinson Island, also at TR 841, line 6 he states........"have not done a survey."

At Tr 748, Moore testified he studied the Stuart; Martin County, Hutchinson Island area for the first time in 1974.

Mr. Moore testified plans existed to construct a city of 45,000 population'to be known as "New Town" in conjunction with the Ashland Oil Refinery proposed 20'iles from the Nuclear Plant Site. (TR. 844)

In describing techniques Moore testified he did 'not employthe component method. (TR. 825)

,Mr. Moore after indicating allowed zoning dens'ity reductions would have a retarding effect on development on Hutchinson Island, was un able to cite any zoning reductions in effect in either Martin or St'.

Lucie Counties (TR. 849, line 7)".

The Applicant in providing Witness Moore to authenticate and sponsor the population data contained in their ER and PSAR arid amendments thereto have done a disservice to their own witnesses weight by the very tardi-ness by which they sou'ght his services.

Without even assessing the qualifications of Mr. Moore or First Research Company, it is obvious that the weight to be given Mr. Moore's testimo-ny is impaired by the fact both he and his firm, First Research Company, through no fault of their own, were never consulted by the Applicant on

.St. Lucie Uni't II until almost a year after they'iled their application for a construction permit. This lache on the part of the Applicant is inexdusable.

Mr. Moore testified he performed "other studies" and he then prepared written testimony up dating the submittals of the Applicant in the ER and PSAR.

The INtervenors on voirdire objected on the record to the qualifica-tions of Philip W. Moore as a witness and said objection was over ruled.

(TR. 751) (TR. 764)

In its Partial Initial Decision the ALAB ruled:

"Applicant's Witness Moore based his testimony on relatively extensive experienceover'any years in population forecasts and his familiarity with other projections of population levels in the LPZ and the'urrounding area to the year 2000. Mr., Moore had made numerous short range forecasts for various business enterprises and appeared to have considerable practical experience in this area. The Board was not a ersuaded b his o inions on long range tends, which tneded to extra olate on ast ex erience on y. * (PID p. 43 par. 61) ~Emphasis-supplied.

The=-Intervenors feel based on his lack of time input into the Hutchinson Island Site Erivirons study and his lack of expertese, Philip W. Moore was not qualified by educational experience or actual work effort to assess as an expert witness the projected future population levels on Hutchinson Island and the surrounding area and that the ASLB erred to the extent it gave any weight to the opinions of Mr. Moore concerning future'population levels on Hutchinson Island and within a 50 mile radius of the proposed facility. Therefore the Applicant has failed to extent it relies on the testimony of Philip W. Moore to extablish that the proposed site meets the criteria of 10 CFR 100 as forecasting future population around the proposed site.'he PSAR and ER which was sponsored by Ellis H. O'eil, Assistant Chief Engineer, FPL and Clifford S. Kent, Jr. Engineer, FPL, either Mr. O'eil N

or Mr. Kent who both possess engineering and nuclear engineering educa-tional and professional backgounds are qualified to .authenticate the testimony on population density both, present and projected for the future in the area of the'ite. (TR. 341) During the course of this hearing it was never clearly established who actually prepared the po-pulation data presented in the 'Applicant's Environmental Report and Preliminary Safety Analysis Report. (TR 344) except to the extent carried over from the Unit I ER.: Testimony of Philip Walsh Moore (TR 767) it indicated that First Research Corporation, which is no@ bankrupt, (TR 736) prepared the demographic data submitted by the Appliaant to the AEC in their application, ER and PSAR for Hutchinson Island Nuclear Plant Unit No. I (now ren'amed St. Lucie Nuclear Plant Unit No: I Docket No. 50-335.

(TR 814)

At Tr. 814, line 10, Mr. Moore indicated FPL, not First Research Corp.

or Fir'st Research Company performed the revisions of the 1968 Unit I data, submitted to the AEC in their Construction Permit application for St. Iucie Plant Unit II dated May 1973. Mr. Moore further'estified that~his present firm, First Research Company, the. sucessor to First Research Corporation, which is bankrupt, (TR. 736) was not consulted by the Applicant'until late March of 1974 to perform population studies and projections of the Hutchinson Island site env'irons. (TR.'67, line 8-lip

presentation of the Applicant is seriously flawed by their failure W

The to seek professional timely d'zpert advise. in assessing present and future population data prior to March of 1974 on a Construction Permit Application which was filed in May of 1973. The weight tht the Board should have given to Mr. Moore's teStimony was thereby impaired due to this omission by the Applicant since Mr. Moore testifi'ed he was unable to calculate or count wintertime residents on.Hutchinson Island since he was employed too late by the Applicant to perform such a study.

(TR. 827 line ll) (TR. 830 line 15-17) "The only study we did nn Hutchin-son Is'land pertaining to tourism or the like was done on the basis of other .statistical evidence subsequent to the winter of 1974. (TR. 830 line 15-17) Mr. Moore 'further states in preparing his testimony he did not consult ox rely on the 'Martin County Civil Defen'se population study performed by Mr. E. K. Shinn in February of 1974. (TR. 832) When given the opportunity to do so, Mr. Moore 'did not indicate'he agreed with the Applicant's population figures in the ER and PSAR, but rather that he was in agreement with only the updated figures he prepared in his testi-mony addr'essing Contention 2.2(a) (TR.: 768)

To the extent that'he Applicant relies on population data contained in the ER and PSAR of Unit No. II as sponsored by witnesses Kent, Jr.

and O'eil Intervenors contend such data is not properly in the record since it was'not sponsored by any witness qualified 'as a demographer, economist or any related field.

Intervenors incorporate by reference and adopt as 'part of this" brief their Motion to 'Strike'll 'Popul'a'ti'o'n 'D'ata'ubmitte'd by Appl'icant, Fl'orMa Power and Li't Com an i'nth'e En'v'ixo'nmenta R'e oxt and PSAR. dated Nov.

22, 1974. The aforestated motion was denied by the ASLB in an order dated November 27, 1974. To the ex'tent the ASLB relies on data demographic contained in the Applcants ER and PSAR it sponsored admission .of these documents into evidence.

errs since no qualified witness Concerning relavence, Chairman Farmakides himself questioned the 'relavence c the PSAR in a construction permit hearing when counsel for the Applicant offered it as an exhibit. (TR 348)

It is the position of the Intervenozs that the PSAR was impaoperly admit-ted since it was not properly authenticated and contained immaterial irrelavent and redundant material fox consideration at a Hearing within the framework of a National Environmental Protection Act (NEPA) hearing.

The (NRC) AEC 'Staff 's'Case The AEC Staff witness on demography Emile A. Bernard, Ph.D received a B.S, in. Physics from the University of NOtre Dame, in 1958, an M.S. in Physics from Georgia Institute of Technology in '1963 and a Ph.D in Nuclear Professional Qual fiitl Engineering from the University of Florida in 1968. See Emile A. Bernard, Licpnsing, follows TR. 904.

caonAsccldant Analysis Branch, Directorate of Noting in Dr. Bernard's educational or occupational experience qualifies himI as an expert in the area of demography, economics ox any related fie'ld. Bernard testified that in the past year he had performed popula-tioIn analyses f'r three other sites for nuclear reactors, River Bend, Pextkins and Cherokee. (TR. '988, 989) yet he states'e did not employ any accepted methodologies in the demographic pro)ection.(TR. 990, line 4)

The reasoning behing these assignments escapes the Intervenors to this day.

Xn hie opening statemen't counsel for Intervenors indicated that on to'estify voir d<<e he would contest the qualifications of Dr. BernardBernard (TR 904) as a witn'ess'TR. 296 line 16-2P In an ef fort to spare Dr.

embarassment, Inter'ven'ers reserved the'ir right to question Dr. Bernard's qualifications and give him every cha'nce possible to rehabilitate was not accomplished sucessfully and as a matter of fact and a himself'his matter, of law Dr. Bernard shou'ld have never been allowed to testify as a demographic expert at the St. Lucie Unit No. 2 Construction Perm'it Hearing. The ASLB allowed Dr. Bernard to testify and stated in the PID concerning that testimony:

"By,education Dr. Bernard is a physicist but has been employed recently (r'elatively sho'rt period) by the Regulatory Staff in a capacity that includes population surveys and forecasts relating to proposed nuclear power plant'sl'79'/. He was assigned in this capacity to the Staffs evaluation'f the proposed St. Lucie facility af'ter the Int'ervenors had advised the Staff of what appeared to be errors in the FES and ER 180/ Dr. Bernard provided both fact and opinion testimony. The Board gave considerable weight as to the former; however since he had little or no experience in making regional planning studies .and was not'amiliar with the usual methodology used in planning'and projections, the'oard gave less weight to his opinions on population projections. (PID p.42, par. 61)

Intervenors incorporate by reference and adopt as part, of this brief their Noverber 6, 1974 Motion to Strike portion of Vritten 6'estimony of AEC Regulatory Staff Witness r. m e ernar . n overm er , 4 s o on was amen e 'an rema e o app y o certain additional sup-plemental testimony filed by'r. Ber'nard and to, certain other .staff testimony filed by witn'ess Mr. St. Mary. The motions were denied by an ASLB order dated November 27,'974..'he mot'ions -as submitted herein consti'tute a chronicle of the defects and failures of Dr. Bernard as an expert witness on demography in an NRC hearing and Intervenors rely upon assertions therein in stating their case before the ALAB. Therefore,'o the extent the Board relied upon Dr. Bernard's testimony in finding the site suitable pursuant to the requirements o'f 10 CFR part 100, .it erred, since such testimony was in .admissible and unreliable. as a matter of fact and law. 'The NRC Staff should never again be .a'llowed to treat so lightly such deadly serious issues as 10CFR Part 100,Reactor Site Criteria with unqualified incompe-tent witnesses and it is incumbent upon this Appeal Boardto so mandate.

To the. extent that the ASLB relies upon the FES Intervenors wish to note that timey made a timely op)ection to the FES (Staff Exhibit 5-i )(TR. 358-359) on voir deere. At that time Mr. St. Mary stated he 'could not vouch for thee accuracy of each figure (TR 363 line 18), in the population progeqtions in the vicinity of the plant as evidenced by the presentation

'in thy FES. Counsel for'ntervenors was not allowed at this stag'e to inqui e into the accuracy of the FES further. However, later in the heari g of gr ssly it wa's clearly',established'hat understated population'rojections there were errors consisting in the FES at figure 2.5, 2;6 'a d 2.7 and interpreted in remarks on page 2-6 of the FES Similar 1

t

~ . ~

data in the'ER is found at Sec 2.1 et. seq. and PSAR 2.1 et. seq.

Counsel fox Intervears had advised the Counsel'or the Staff and pxoject managers of the NRC Staff on St. Lucie Unit visit 'to 'in II on a personal theAEC Staff hea'dquarters in Bethesda, Md. a few days before July 4th 1974. (TR 1463 'linel) that the applicant and staff had grossly understate'd'opulation figures in the'R, PSAR and FES.

Counsel fox'ntervenors furthermore had respectively advised the ASLB of these errors in aot'ion 't'o'aen'ds'sees 'i'n 'Co'ntr'overs'nd Conti'nue an'dCom e'1'1'i'sc'ov'er dated August 31, 197., by submitting photo copies of those portions of the Applicants PSAR and the'taffs FHS'hat were qb)ected to's being grossly undexstated. Seeparagraphs land 2 of motions Ref'er specifically,-to- enclosures Bl, B2 and B3 attached to that motion.

At hearing the"'FES was extensively amended on Nov. 6, 1974 following (TR. 2353) by .the 'Sta'ff to ref'lect Dr. Bernards new research and sponsor-

." ed by Mr. Francis St. Mary. Such Amen'dment was improper since Dr. Bernard was not 'sufficien'tly qualified's a demographer or economist~ Co" make the amendmen'ts'hi'c5 'he 'prep'ared. Therefore amendments based on the Bernard Data axe not properly'uthe'nticated as valid, .although they are clearly an impxovemen't over'rev'ious FES data.

The'I't'eave'n'o'r's Case Intervenors presented three 'witnesses on demography, Richard Schmidt a professional uxba'n and transportation regional planner of Peat,Mar-wi'ck, Mitchell and Company of San Francisco, Calif.; J.. Gaxy Ament, St. Lucie Co'unty'lanning Coordinator and E. K. Shinn Martin Co'unty Civil Defense Depufyy Director.

1. Mr. Shinn testified'bout population count he performed on Hutchinson Island in Febr'uaxy 1974:which, established ther'e 'were 4621 persons on the islan'd from theplant site south to the Martin county line approxi-mately 64 miles from the plant (TR'. 1009, 1022) This is contrasted with the testimony of Philip. Moore, who nev'er had performed such a count (R

,(TR. 839, 841) and the applicants ER and PSAR 2.1 et seq as well as the FES sec 2.1 et seq.

2( J. Gary Ament St. Lucie County Planning coordinator had a Master of Science degree in urban and region'al planning. He had been employed by. the Middle Georgia Area Planning Commission and Southeast Alabama

.Regional Planning and Development Commission (TR. 1035, 1037)

Intervenors Witness, Richard W. Schmidt holds a Bachelor of Science degree in Civil Engineering and a combined Masters degree in Civil Engine-eripg (Transportation Planning) and City Planning. See Educational and pxo(essional,qualifictions of Richard W. Schmidt followi'ng TR 1089 TR j,'083-1087.. Zxom 1966 to 1973 Mr. Schmidt was Chief of Transportation Plapning, Fairfax County Virginia. Mr. Schmidt held the rank of Captain in he'.S."Army Corps of Engineer's among his many achieve@en'ts I

~ . 0 Mr. Schmidt assisted in analyzing and developing growth management policies and ordinances for Hutchinson Island (Martin County, Florida).

In addition 1a. is currently involved in reviewing and updating the comprehensive plan, ordinances and development controls for the city of West Palm Beach, Flroida, Mr. Smith was one of the PMM& Co. consul-tants who prepared.'he publication entitled, "Hutchinson Island Planning Study, The Impact of Mangement and Growth", published December 28, 1973 Peat Marwick Mitchell & Company P.O. Box 8007 Ban Francisco International Airport, Sa'n Francisco, CAlif. 94128.

Regarding Mr. Schmidt, the ASLB ruled at PXD, p.43 Par. 61:

"Intervenor witness Schmidt, a professional urban and transporta-tion regional planner was found by the Board to be well qualified to assess the likelihood of population levels,.in the vicinity of the proposed St, Lucie No. 2 site."

Mr. Schmidt testified (1)that on the 22 mile long barrier island known as Hutchinson Island where the proposed St. Lucie No. 2 is to be built, population on the island alon'e could approach between 92,7000 and 133,700 persons within the 40 year life of the proposed facility and (.2) further

.that up to 500,000 persons could be living wi'thin 15 miles of the proposed site. (3) That the population of the LPZ area on Hutchinson.Island would increase fr'om almost'000 persons to approximately 37,000 persons and (4)that this would increase the total LPZ population to almost 67,000 persons. (Schmidt testimony p 10 following TR. 1096) 'Lengthy cross examination by Applicant's counsel did not result in any significant modification in witness Schmidt's testimony.

The Board found-however in PID p 45, par 62 that a hypothetical doubl-ing of Schmidts figures for the LPZ "apparently does not result in con-flict with the applicable Commission regulations". This was error be<<

cause it suggests the LPZ has been or will be modified. The size of the LPZ here has not been modified. There has only been the represen-tation that certain unspecified engineered safety features (ESF's) could be installed which would reduce offsite doses in the event of a postulated accident. The effectiveness or exact design of these ESF has not been stated.

P The United States Court of Appeals for the Seventh Circuit in setting aside an AEC decision authorizing issuance of'a construction permit for the Bailly'uclear Plant observed:

Population density and use characteristics are further defined in 10CFR 100.11. A license applicant is directed to assume:

I

'(a) i a fission product release from the I

core (b) the expected demonstrable leak rate from the containment nd

(.c) the meteorological conditions pertinent to his site in order to derive the three area or population buffer zones of (1) exclusion area; (2) low population zone and (3) population center distance.

)The size or area of the first two buffer zones is determined by

calculating that certain maximum radiation dosages for stated

~

periods after an accident, to an individual located on the outer boundaries of each zone not be exceeded. The third zone is one and one third times the distance from the reac'tor to the second zone 5 ~

In the Bailly case the Applicant, Northern Indiana Public Service Company (NIPSCO) emphasized the complexity of determining the first. two buffer zones (exclusion area and LPZ),, Never the less the present boundary of the LPZ at St. Lucie No. 2 is five miles in radius from the reactor and it is this distance that must be used as a basis for d'etermination of population cent'er distance. 10 CFR part 100. 11(a) '(3) describes that as:

"A population center distance of at least one and one third times the distance from the reactor to the outer boundary of the .low population zone."

10 CFR Part 100.3(c)adds "Population center distance" means the distance from the reactor to the'eareateboundary of a densily populated center containing more than about 25,000 residents."

The Applicant hand Staff considered the City of Ft. Pierce to be the nearest population center and stated that distance as being approximately 8 miles away (FES, 2-6) '(ER 2.2.1,5) It was established at hearing that the actual boun'dary of the nearest population center (Ft. Pierce city limits) was about 6.5 miles away and that. that boundarary occurred on Hutchinson Island 6.5 miles north of the proposed reactor. The Applicant using Ft.

Pierce as a population center calculated it was 1.6 times the dis'tance to the outer boundary of the LPZ away(E.R. 2.2.1.5)

Using the actua'1 distance .of 6.5 miles for the'earest boundary of Ft.

Pierce a calculation w'ould show that the Applicants reactor distance nar-rowly misses the 1 and=1/3 times the LPZ distance requ'ire'dment of 10 CFR Part 100.11(a) (3).

Applicant and Staff erred even more seriously, however,'n their, failure to consider the nearest potential population centers which consist of (1) the city of Port St. Lucie .and (2) Hutchinson Island itself. The Staff witness Dr. Emile A. Bernard offered into evidence as Staff exhibit S~2 the letter of September 30, 1974 of Jessica I. Ritter of General Development Company,=the developers of Port St. Lucie. That letter which contains population projections through the year 2050, .indicated that in the decade from 1974-1985 the cumulative total population projection for the City of Port St. Lucie is 39,180 persons. The eastern boundary of the ci~ty of Port St. Lucie is only 4.5 miles from the St. Lucie No. 2 reactor and since the letter indicates the 1974 population is around 15,000, Port St, Lucie would have been more suitably'onsidered. than, Ft. Pierce as thd nearest population center during the period of time in which the plant )is operational. If this had been done>there would have been the

~

requiqement of a 6 mile LPZ around the reactor and therefore the applicant a five mile LPZ has not complied with the requirements of 10 It is very significant that General Development bp'esignating CFR P r't 100 .11(a)(3) .

pro)e ts a population of 190~305 for Port St. Lucie during the pime frame of 20 5-.2Q24 which is within the 4Q year ex'pected life of St. Lucie No. 2.

,Thh court held in Bailly:

"The ASLB and eventually the ASLAB accepted the Regulatory Staff's argument that the political boundary of Portage was to be ignored and instead some amorphous flexible and movable center or centroid, of population was to be considered. The fatal error in this alleged logic is that AEC itself has defined "population center distance" as the distance from the reactor to the nearest boundary of a d'ensely

~

populated center containing more than about 25,000 residents/10 CFR P<<t 100.3 (c) (emphasis added)'IPSCO's own witness conceded that "the centroid itself doesn't .have a boundary; it is a point"..

e Section 100 .11 (a)(3) also adds:

s applying this guide, due" consideration should be given to the popula.tion distribution within the population center. But giving such due c'onsideration to population distribution does not eliminate t'e need to establish a boundary. . CountyChapter of the Izaak Walton League of America v. AEC etal U.S..Court'of /ii~" '..: for the 7th Circui't No. 74-1751 April 1, 1975.

The most serious omission of the Applicant and the Staff was their failure to consider Hutchinson Island itself as a population center. J. Gary Ament testified that present zoning on Hutchinson Island would allow the construction of 23,893 dwelling units in the St. Lucie county un-incorporated area alone. He testified further that the recently adopted Pla'n f.or Hutchinson Island would permit approximately 10,200 dwelling units in th i's same area if its zoning recomendations were implemented as changes in the zoning law. (See Intervenors Exhibit 1 TR 1057) whether one< uses the, maximum allowable number of units (23,893) or the r'eccomended rec'iuced number of 10,200 at 2.5 persons per units, the unincorporated portion of. Hutchinson Island alone would constitute a population center since it would number in excess of 25,000 persons. As further proof of develop-ment near the pro'posed site Dr. Bernard of the then AEC Staff testified "The Compass Bay Development which will be located on the Northern edge of the St, Lucie site, gust over one mile 'from Unit 1', has received site 'plan 'approval for 740 dwelling units which I have sub-sequently confirmed with St. Lucie County Off'icials." At Compass Bay the density of dwelling units will be about 11.3 units per acre, which is consistent with the proposed density of 9 to ll units per acre of the Hutchinson Island plan for St. Lucie County." (TR 905-906) t 2 ,5.persons

5. per unit we would have dense population beginning at the ery site, boundary in the form of 1644 ppeople in one building cluster s fur(her evidence of development occurring on Hutchinson Island ernard testified:

i ll L newer developm'ent of Deal Development called to be located about four and one half miles south of the Moontide Company St, Lucie s)te, will contain 650 dwelling units at a density of about 99.1 units per acte". (TR. 906) ecent y ASLAB in another case found that the city limits of San Clemente, ith an estimated future population likely to exceed 25,000 was within he population center distance and required a recalculation of radiation osage distances (RAI 74-1'2 pages 957-.959)

h Recalling the testimony of Intervenors witness Schmidt who pro)ected an LPZ population on Hutchinson Island of approximately 37,000 persons and a total island population of from 92.700-133,700 persons>~5ould result the situation on Hutchinson Island where a nuclear reactor is sited in the center of a population center having in excess of 25,000 residents which violates the spirit and intent of the Atomic Energy Act of 1954 as amended 42 V.S.C, 2011 et. seq. and more specifically violates the requirements of 10 CFR Part 100.11(a) (3).

Not"only is Hutchinson Island in and of itself slated .to become a population center within the definition of 10 CFR Part 100.3(c)known but is a population center that is unique since it is the only "'it case where a nuclear reactor is sited on a long narrow island likely to achieve high population density with minimal means of access. Furthermore, the ASLB in i'ts decision did not sufficiently address the large number of transients that might be expected to use the beaches and capp grounds on Hutchinson Island within the 5 mile LPZ during the 40 year life of the proposed facility.

Draft'egulatory Guide4.7 states:

"Sites ad)acent to,some lands devoted to public use may be consider-ed unsuitable. In particular, the use of some sites close to special areas administered by Federal, State, or local agencies for scenic or recreational use may cause unacceptable impacts regardless of design pa (NRC Draft Regulatory Guide 4.7)

It should bemilesrecognized that the Hutchinson Island Nuclear Plant Site is within 4.5 on Nettles Island a commercial cappgoudd.!with 1564 campers spaces (ER 2.2.1.4) within 5 miles of the Savannahs Recreation area (E.R. 2.2.1,6), within 5 miles of Douglas Memorial Park' public beach and park area (ER 2.2.1.4) and there is the ocean beach the entire length of 22 mile long Hutchinson Island. The Hobe Sound National Wildlife Pre-serve is 15 miles south of the site and Johnathan Dickinson State Park lies within 29 milse of the plant site.

As Judge Sprecher queried in Bailly:

"And this is in reference to a quiet Sunday afternoon. What would occur if a large but unknown number of campers"and visitors unfamiliar with the area and with no nearby homes in which to take -shelter heard a public address anouncement to evacuate the area due to a nuclear accident"='. Izaak Walton League~ v. AEC et al.

Therefore foi all the foregoing reasons the ASLB should have found as a matter of fact and as a matter of law that the proposed site failed to mee~t the Reactor Siting Criteria psdshkkdhedtknfXOCPR,Pare~ik80 and that j,t waa not in accordance with the Atomic Energy Act of 1954,. as amended 42 US6 2011 et seq.

SEJM'1%0 Colz<MPOR)ENCE CgkftÃX~TI OW ORRWXCS

'L SRQSSV CCRVYF'f Chat o Csee ae4 eoeeeaC capp eC eke foregy5ee chfe Pr4. Cay ot Je~y, X~~~, to the'o1Xo~tsg; 4 1 I

I RCvavd Local> Roy., Cheka'e@o kffeh@e4 C. Re~ae, C~q., Chal.race hfeeke Shf@Cg h hiCOAIieg S@Ng4 Sot+Cy 4 14eeee4>g kyle~?, '~4e p StlgX504'4tpOi@COS'g"

'Q ~ $ C@'5Q o eae4

<<Aeehkogtee, P,C. i8$ $ $ Se4ieae %ayeieeomy Cene, A

QaMagee', .S.C. R0$ 5$

Niemoe4 QX@eee, Ceq.< .AXCeeeate C4aivoae Oa'>> %. Xee4 Sohaeeo Ae~ie SekeCy 5 'f.4eeeeieg lo@e4. AC~fe Safety A t keeeeiag P0%edX iX%0. Xfeh 5eeaet. Sld. Sowed V'es htegtea, 9.C+ R6036, @04XeCtC Ri@eloCOC'y CoeaCNsieA Coo'Megtea, 5.C. S0$ $ %

Sr. &avid t,. Botfeh Prefeesaa ef ÃeeLeoe SegCaeeeie@ 84ehae4 8. N@Xa~o8eq, VniveriC,cy'd ka'korea kC0844 SageCy 4 f,f4eeo4eg Appeak

~

Teeyeo, 4"C,Naca,85fSL, 54hOE'4 Se4ieht Segeleaaay Coee ieeion MAC'VfCt 4 84SCL Qoeh4@gaoe> P.C. 'I60$ $

Xoehtaieal kdoieet \

kaoeC,e Sofoey 5 Lieeee4@g 80hCt4 Aiao t. Roeeaebai; Cog.

Atoesie SafeCy 4 Lfeoaeteg, C5CC@e@o,

%@OX@0'I 44$ 0%@8C'p'ON'Qa Agrpoei Paeei N@ehiegtoe, Q.C. tS$ $ StSOXCtsS'OgOXatoty Ceeeioeieo 4f454oghoe, O.C ~ 20$ 5$

8o~eW t, Qoie, Req..-

Ab C54Qg S ~ 48%5408CXXOy SQQ 's Qei N'4eeb, F. Soopev, Chyleeee

'LeveeoCeia, VceeN%I, QOC@ 4 4%41%'44 84$ Slft54 CCORORQ Ft'OgFMa X@X$ CoeaeaC%eec Ave+, SCh~X ef See,oeeJ, Se@oogea.e

.ap,ton:, '0<C. RQ.'N' QeiVOI e fCy o f, N4@14gee

%,9<'ash$

kee ks'bee', %4e44geo 484,C'4 .'=

Xegeee A, 'Cekk, Serai 8eCavcy, SeeoX., BeeCee 5 5evC@ lC 4egeXe Qgeehveee I'LrsC 84LteO@X S4@k-NIW4%@g', 5eyety Oieeee,oa $'eo$ eete t44eei; Pie SSXSX @eeX@ae Sogvieeaey Ceee4ee%en Pegey S., SetffetC~ Segekg4 C

VeebCcig Ceo 0. C,. 10$ 5$

cyt'aseX. ger QlC PCC'f LOCA% PQSX%C PACQWc.5tt C.f . Soekeee Reyehaeeey Ceca>> k ivea Jeaior'Col ROC'ediee ie@e LC'bv@vz MALS)1%0@@4& 9 AC 2'0$ $ $ 405 ILL@i,ate Avenue

'lC>> PleVC4, fLO. $ 34)0 C.R. 5eopheee Sepee~teee Qeckeaieg ~e4 Seevfee,Sieefea QtSXCy oi Chb SoCVCC'M')I'2 C,'40 COCA>>

5'QCX4}4L't R4@014$ 4t'p C4'@4+

74oshiaqeee, pp:,gyyyg

~(

v~,.tc e 9 1375 P ftsrCia Sar ef4 "eL4er l

.~v CeeeooL foe';n Cot'veooee

i XTED STATES OF AMERXCA ATOMIC ENERGY. COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING 'BOARD In the Matter of FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389 (St. Lucie Nuclear Power Plant Unit No. 2)

'NTERVENORS 'RGUMENT TO DENY MOTION FOR OF CONTENTION IL.6

SUMMARY

'ISPOSITION Xt should be noted at the outset that Counsel for the AEC Regulatory Staff did not motion for Summary Disposition of Contention 1.6, only the Applicant did this. 'ntervenors view the Applicant's Motion for

'Summary Disposition of Contention 1.6 as a most crucial test of the strength of their case. This is true because Intervenors have raised serious and unique site suitability issues concerning the demography of the site 'environs and non-feasibility of evacuation of major por-tions of the LPZ; Alt'ernative sites are keyed to this discussion since e

if a finding of fact should be mage in favor of the Xntervenors on-Contentions 2.2 and 3.2, the ASLB would necessarily immediately consider available alternative sites for the proposed plant as was done in the Newbold Island case. Xt has been the position of Xntexvenors that the responses by the Applicant to their disaovery attempts to asceitain alternative sites has been non responsive, evasive and incomplete.

In their- response to interrogatories /361 of Intervenors, Applicant has designated the Flaglex and 'Salerno Beach sites as the only alter-native nuclear plant sites considered. Yet, when one reads the E.R.

for Unit 2 there is reference to an unidentified coastal site within 40 miles radius of West Palm Beach (which Intervenors suspect may be the one known as Riviera Beach site) and no mention .ofother alternative sites.

Conversely again, in reading the FES on St. Luci'e Unit 1, there are six alternative sites listed on page Xl-3 complete with ratings as to their areas of. acceptability. It is therefore readily apparent that Applicant has been less than candid and quite confusing in their res-ponse to Motions and requests for discovery by the Intervenors and they should not be rewarded by a granting of Summary Disposition in their favor of Contention 1.6.

Furthermore, since Sec. 2.749 of the Rules of Practice axe said to track closely the Federal Rules of the Civil Procedure, the ASLB should on its own motion allow whatever additional discovery to Intervenors .pursuant to F .R .C .P . 56(f) .

~

it deems appropriate Th motion of Applicant sho~d be denied with respect to contention 1.6 fo 'easons aforestated.

42.~.

~

j

~:;~<<j ~

Martin Harold Hoddex Counsel for Xntervenors

UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION II BEFORE THE ATOMIC SAFETY 'AND LICENSING'OARD In the Matter of FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389 r

(St.;, Lucie Nuclear Power Plant Unit No.. 2)

INTERVENORS.': A'RGUMENT TO'DENY MOTION FOR '

SUMMARY

DISPOSITION OF CONTENTION 1.7'nd 2.2 e)

Regarding Applicant's motion for Summary Dispositions with respect to Contention 1.7 and 2.2 (e), there is indeed an issue of material fact as to whether,: (1.) Whether Applicant has provided appropriate and effective arrangements to control traffic on Highway A1A w$ thin and without the "exclusion area"7 "'2.) Whether in the event of an emergency condition requiring access controls or evacuation, the, Florida Highway

'Patrol, the St. Lucie County Sheriffs Depaxtment and the Martin County Sheriffs 'Depart'tment could be contacted in time and whether A1A a planned response,,adequate to implement access control to Highway exists and/or is feasib'lel (3.) Whether Applicant has relinquished control over the beach area?

Applicant's motion in'regard to 2.2 (e) is supported by only one affada-vit, .which in view of the fact the affiant is an employee of the Applicant, there exists the distinct possibility of intrinsic bias. Counsel Sheriffs for Intervenors in attempting to prove this contention contacted the of the,.affected counties, L. Norvall of St. Lucie.County and James Holt, of Martin County and Captain W.,Oliver, Commander of troop K of the Florida Highway Patrol; As is their custom, each,'of these law enforce-

~

ment officers made candid resp'onses" but declined to give formal Some of them pointed out they were sub)ect to subpoena af-'adavits.

and would ofcourse then testify to the best of .their ability. Never-theless, Intervenors failed to obtain affadavits. Both Applicant and Staff rely on Section 2.749 of the Commissions R'ules of Practice. Com-Counsel for Applicant s'pecifically states: "Section 2.749 of the mission's rules of practice provides a procedure for summary disposi-tion of contentions in AEC licensing proceedings, which is parallel to Rule 56 of the Federal Rules of Civil Procedure providing for sum-mary )udgment in the Federal courts. 10 CFR 2.749. Between the time was proposed and the time it was adopted, Section Civil 2.749 was"...re-Procedure."

vised to track more closely the Federal Rules of 37 FR 15127, July 28;" 1972. Where the Commissicg's Rules of Practice ~

clos)ly parallel pxovisions of the Federal Rules of Civil Procedure, the Ptomic Safety and Linensing Appeal Board has interpreted them in accordance with interpretations of the Federal Rules. Commonwealth Edisbn Com an , ALAB 196., RAI-74-4, 457, 460-61 (April 25, 1974). The Appehl Board's analogy to the Federal Rules is equally applicable Here."

j .

I

~A g

Ihtexvenors concur wi~ this view and would refe he Board to FRCP 56 (f) which provides': (f) "When Affidavits are navailable. Shou'ld it appear from the 'affidavits of a party oppossing the motion that he cannot for reasons stated present by af fidavit facts essential to 5ustify his opposition, the court may refuse .the application for 5udgment or may order a continuance 'to permit affidavits to be obtain-ed or depositions to be taken or discovery to be had or may make such other order as is gust."

It is theexi'sposition of Counsel for Zntervenors that a material issue of fact ts and that Intervenors ax'e unable to obtain af fadavits necessary to support, their position wh'ich information could be adduced at hearing by use of the supoena device. Therefore, Intervenors argue the Motion of Applican't regarding 2.2(e) should be denied. Regarding the Applicant and Staff's similar motion on Contention 1.7, the portion pertaining to transportation of fuel'ffsite, shoihld be similarly denied, since this too is an area of interest to the local .law enforcement authori'ties.

Martin Harold Hodder Counsel for Intervenors

0 a