ML19329F517
| ML19329F517 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/26/1972 |
| From: | Wessel M DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006300722 | |
| Download: ML19329F517 (7) | |
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W In the Matter of
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Docket Nos.
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CONSUMERS P'O'='ER COMPANY
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Ctidland Plant, Units 1 and 2)
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DOW SUGCESTIONS FOR ENVIRONMENTAL AND ECCS PROCEDURES l,
This memorandum is submitted in connection with the State of Kansas' January 12, 1972 letter, received January 19 1972.
It deals with the procedures for handling environmental matters and the validity of the interim ECCS criteria.
I.
ENVIRONMENTAL MATTERS We understand that all other parties desire that a nuclear fuel cycle question be certified.
Accord-ingly, we repeat at the outset that we join in the request for cartification. The discussion which follows is applicable only to the many other still unresolved questions.
NEPA and Calvert Cliffs pose extraordinarily difficult problems.
Certainly every responsible party involved in nuclear power licensing proceedings, from the Commission on down, must be struggling with how to define and resolve en-vironmental issues.
There is no easy answer.
Undoubtedly THIS DOCUMENT CONTAINS i
POOR QUALITY PAGES 8 o o 8 30 0 7'Al e z....
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f there will be a period of time -- perhaps a substantial one -- before the Commission, the courts and others charged with resolvit:g the matter have defined adequate conceptual guidelines applicablo to all cases.
A part at the process may well be in stare decisis tradition.
The fact that there may not presently be conceptual answers, however, need not present insurmountable obstacles in the !!id l a n d case.
Others may be concerned with rules of general application to Indian Point or Shoreham.
But we are concerned only with Midland;. if !!idland's issues can be resolved without broad principles being ;stablished, t
the result will be equally useful.
Kansas' application is very much in point.
Its disposition could very well be made to depend upon precisely what Kansas wishes cc do rather than upon generalities.
Ther<a may be different standards applicable to detarmining (a) what must be in a draft environmental statement, as to which a good measure of agency administrative discretion is necessarily involved; or (b) what must be furnished for purposes of discovery, as to which a proper showing of good cause is required; or (c) what should be received by way of evidence at a Hearing, as to which the nature of the offer and the discretion of the Hearing Board as to what is 2
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cumulative, or remote or otherwise admissible are very much a part of the process.
We sought several times to inquire of the Kansas Attorney General is to what he proposed to do.
Was he concerned with the contents of the anticipated environmental statement? If so, what did he require? Did he wish any discovery? If so, what? Did he wish to intro-duce any evidence at the Hearing? If so, what? He was g
not required to furnish answers.
j We anticipate that there will be additior.al I
difficult questions with respect to environmental matters as this hotly contested litigation proceeds. We urge again that they be isolated and refined to their most specific and precise limits, and that the Board exercise its own discretion and judgment in each case so as to give s
the reviewing authorities the benefit of its background with the voluminous Midland record.
II.
INTERIM ECCS CRITERIA Every party in this proceeding has adverted to the obvious wisdom of dealing with the matters of general environmental interest referred to above, such as the national power shortage, in a single, overall rule-making proceeding rather thau on a case-by-case basis with respect to each proposed nuclear plant.
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I The Commission is doing just that with respect to the ECCS issues.
Yet we seem unable to realize the j
benefits which the rule-making proceeding should make possible.
Some observations seem appropriate?
1.
Opposing Intervenors have a right in some fashion to question the local effective-ness of the interim criteria.
2.
In view of the history of the ECC9 prob-lem to this point, it is certainly possible that following such an attack this Hearing Board would conclude that a sufficient showing had been made to warrant some kind of appellate consideration of 4
the effectiveness of the criteria.
3.
Despite the differences between legislative and adjudicative type proceedings, the times at whigh contentions are presented and otherwise, certainly there are similarities between the issues to be considered in the legal attack on the criteria and in the rule-making proceeding.
As we understand it, Opposing Intervenors are villing to waive their rights to duplicate any part of the rule-making proceeding in Midland, provided whatever rights they migut have thereby gained to appellate review of the effectiveness of the ECCS interim criteria are preserved, including specifically (a) their rights to object to any ptscadural impediments unich might result from the distinction between the evidence and arguments made 4
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in the legislative type rule-making proceeding and those which might have been possible in this adjudicative-f type proceeding (e.g., the denial of access to a witness whom they might have been able to subpoena) and (b) their rights to object to the adoption of the interim criteria during the pendency of this proceeding, should this action come to judgment first.
There are any number of ways in which the rights of all parties might be protected, without either forcing Opposing Intervenors to waive rights or tying this case so tightly to the rule-making proceeding that a delay in the latter would necessarily delay the former.
(We confess to surprise and dismay at the predictions of the probable delay in termination of the latter, and urge its expedition.) The particular way in which this is ac-the concepts of preserving complished is not important the objection by deeming it having been made, or avoiding duplication by incorporation of evidence by reference were suggest.ed at the January 19 Conference, and others are also possible.
We hesitate to speculate about or accept the alternatives if the relationship between the two proc,eedings is ignored. We urge all parties to try again to preserve all rights without the burden of duplication, and suggest 3
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I that the Board fix an early date for the submission of specific written suggestions designed to accomplish these l
objectives.
Dated: New York, New York January 26, 1972.
Respectfully submitted,
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K SCHOLER,'FIERMAN, MAYS.
& HANDLER, l
Hearing Attorneys for The Dow Chemical Company i
1 Milton R.
- Wessel, Allen Kessboa, Joseph P.
Bauer and James N.
O'Connor, Of Counsel.
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("ERTTFICATE OF SERVICE l
I, Milton R. Wessel, Esq., a acaber of the firm of Kaye, Scholce, Fiorman, Ilays & Handler, Hearing counsel to The Dow Chemical Company in this j
matter, hereby certify in accordance with the provisions of 10 C.F.R. 5 2.712 (e)(2) that on January 26, 1972, I served a copy of the at tached Memorandum of Dow Suggestions for Environrental and ECCS Procedures by postage prepaid mail, upon the persons whose names and addresses are listed below:
Arthur W.
Murphy, Esq., Chairman Secretary,
.'.tomic Safety and Licensing Board United States Atomic Energy Commissio=
columbia University School of Law Washington, D.C.
20545 435 West 116th Street New Tork, N.Y.
10027 United States Atomic Energy Commissio=.
Public Document Room Dr. Clark Goodman 1717 H Street, N.W.
University of Houston Washington, D.C.
20$45 3801 Cullen Boulevard 37,,
3,,y 31,,y,g, Houston, Texas 77004 5711 Summerset Street Dr. David B. Hall Midland, Michigan 48640 Los Alamos Scientific Laboratory David Comey, Esq.
o New Mexico 87544 9 o Dearborn Street Algie A. Wells, Esq., Chairman Chicago, Illinois 60602 Atomic Safety and Licensing Board Panel U.S.
Atomic Energy Commission Irving Like, Esq.
Washington, D.C.
20545 Reilly Like & Schneider 200 West Main Street "yron M.
Cherry, Esq.
Babylon, New York 11702 109 No. Dearborn Street Chicago, Illinois 60602 Robert Newton, Esq.
l Suite 1005 U.S. Atomic Energy Commission Washington, D.C.
20545 Thomas F.
Engelhardt, Esq.
Regulatory Staff Hucrable h mler U.S Atomic Energy Commission Attorney General Washington, D.C.
20545 Topeka, Kansaa 66601 Honorable William H. Ward William J. Cinster, Esq.
Assistant Attcrney General Suite 4, Merrill Building Saginaw, Michigan 48602 Topeka, Kansas 66601 Nathaniel H.
Goodrich, Esq.,
James A.
Kendall, Esq.
Atomic Saf'ety and Li ing Board r h Sag w koad Midland, Michigan 48640 U.S. Atomic Energy c mission Robert Lovenstein, Esq.
Washington, D.C.
20545 Lowenstein, Newman and Reis David E.
Kartalia, Esq.,
1100 Connecticut Avenue, N.W.
Washington, D.C.
20036 Counsel for AEC Regulatory Staff U.S. Atomic Energy Commission Joh-K.
Restriak, Esq.
Washington, D.C.
20545 212 k.st Michigan Avenue Jackson, Michigan 49201 Anthony Z.
Roisman, Esq.
Berlin, Roisman & Kessler 1910 N Street, N.W.
Washington, D.C.
20036 Richard C.
Smith, Esq.
Smith & Brooker 703 Washington Avenue Bay City, Michigan Stanley T.
Robinson, Esq., Chief Public Proceedings Branch
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Office of the Secretary of the
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U.S. Atomic Energy Commission e'
j Washington, D.C.
20545 Hilton R.
Wessel i
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