ML19329F643
| ML19329F643 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/22/1971 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | KANSAS, STATE OF, MAPLETON INTERVENORS |
| References | |
| NUDOCS 8007070435 | |
| Download: ML19329F643 (19) | |
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UNITED STATES OF AMERICA ATOMIC ENERM COMMISSION THIS DOCUMENT CONTAINS P00R QUALITY PAGES n_ - H - ',-
In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329 4 fy
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50-330 3
Midland Plant, Units 1 and 2
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ORDER t'ITH RESPEC l' TO VARIOUS MOTIG'!S FILED IN THIS PROCEEDING The Board would like to acknowledge the receipt of many communications from interested groups and individuals urging U"
an early resumption of the hearing.
The Board is sympath' etic to the desire to expedite the proceeding, and intends to do
.what it can to make sure that preliuinary natters such as identification of issues and discovery are expedited.
- However, the Board feels cons + rained to comment that with respect to the ma.jor outstanding issues -- emergency core cooling system
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and environmental matters -- the AEC staff response to the applicant's filings has not been received, and that no purpose would be served by a hearing prior to recei,3t of those responses.
Thisisnotmeantinanysenseasacriticismofthestaffkbut a recognition that.the new regulations have given the staff
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substantial new responsibilities and that it'will take time, J
for the staff to fulfill those responsibiliti'e's..
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The ' petition to intervene by the State of Kansas.
By a petition dated September 13, 1971, the State of Kansas through its attorney general has petitioned to intervene in this proceeding.
In the alternative if the petition to intervene is denied Kansas requests permission to join in the Ih,,,
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boththerequest'lj{t pending interventions of others and in the event to intervene anc the request to join in pending intervention is denied the attorney general serves notice of intention to participate under 10 CFR 8 2.710(c).
Since the filing of that petition, the Commission has published a Supplementary Notice of Hearing dated November 29, 1971, which seems, as to environmental issues, to meet any
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question of the timeliness of the petitica.
Counsel for Kansas
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'has indicated to the Board that the State's interest in this proceeding is limited to the effect of wastes from this reactor on Kansas in light of the proposal to establish a permanent
'high-leve7. waste repository in that State.
On November 23,
,the Chairman by oral order granted the petition to intervene
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for the purpose of arguing the question of whether the impact on the State of ultimate waste storage is an issue in this' i.
proceeding and, if so, to participate fully.vith respect to that issue.
In order to focus the question of Eansas' interven' tion, j'
the Board proposes to -make the following ruling:
the environ-i
-mental ef fects of ultimate high-level waste s'.orage 4e not an q
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issue in this proceeding; neither the applicant in its draft environmental statement, nor the staf f in its detailed statement is required to consider the ef f ects of high-3 evel wastes af ter they leave the reprocessing plant, nor will any party be permitted to introduce evidence with respect thereto, or inquire into such effects by way of interrogatory or otherwise.
Pursuant to 8 2.730(f) of the Rules of Practice, the ruling of the Board is duly referred to the Appeals Board for further proceedings.
On or before January 15, 1972, all parties shall file any comments or arguments with respect to the prcposed ruling, directing their attention both to the substa:ce of the ruling and the proposed referral under 5 2.730'(f).
2.
The request by Mapleton intervenors for a referral by the Board under.4 2.730(f).
In Part II of ibs order of August 26, 1971, the Board denied Mapleton intervenors' motion to dismiss the application.
Mapleton intervenors have rppealed the denial of that motion and their appeal has been met by the claim on the part of the staff that the order of the Eoard being inter-locutory in nature is not appealable.
(The Appeal has now been dismissed on that ground.)
Mapleton interverars have responded with the request "without prejudice, and to (O iminate irrelevant technicalities" that the Board refer the ques. ion to the Appeal Board under 9 2.730(f).
As indicated in our :arlier order we think the notion is without merit.
It is hig:1y technical and
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l has ne discernible purpose except to undo all of the work which has already gone into this proceeding.
The powe'r of the Board p
to make referrals is one that ought to be used,s'paringly and only in those circumstances in which the Board itself feels a substantial question is raised; the request is therefore denied.
3.
Part IA of the Board Order of Au gus t 26 (Issues.other t
than the ECCS nud Environmental Issues.)
(a)
The order of August 26 prescribed that with respect to issues other than ECCS and environ-mental issues no further oral testimony would be taken except upon the specific order of the Board.
Both the Mapleton intervenors and the Saginaw intervenors have objected to this portion of the order.
The gist of the objections is that the order is in violation of their rights either under the Constitution or under the Administrative Procedure Act.
The Board would like to restate its belief that the arguments based on the Constitution are frivolous and further to state that the Adminis-trative Procedure Act (5 U.S.C. E 556 (d)) specifically provides that procedures requirin; written testimony may be adopted except where there is prejudice to J
the parties.
Neither the objections of Saginaw inter-venors nor those of Mapleton intervenors set forth, any basis for a claim of prejudice.
Accordin gl y,'-
the Board adheres to its earlier order.
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. (b)
The August 2G order required that Saginaw intervenors' evidence with respect to quality assurance; Saginaw intervenors' evidence with respect to the claimed synergistic effects of Dow effluents; and Mapleton i
intervenors' evidence with respect to their con-h 6,T U lt lhf tentions No. III and IV be filed on or before 1
September 15, 1971.
Neither Saginaw nor Mapleton-intervenors have made any attcmpt to produce'.that
' testimony, unless the sworn testir:ony of CharJ es W. Huver submitted by Mapleton is intended as such.
Their inaction is apparently based on the view that t
If the decision of the Cou t of Appeals for the District
'I of Columbia.in the Calvert Cliffs case makes irrelevn.nt
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the distinction between radiologidal and environmental issues as previously understood in this case.
We do not agree with that view,.and, accordingly, we propose to continue with the radiological aspects of the proceeding.
(c)
.With respect to quality assurance the Board notes that Saginaw intervenors did not indicate their intention
.to deal with quality assurance until well after'the hearing commenced.
In the Board's view they havb had i
ample time to prepare any material on quality assurance which the'y might wish to offer.
Nevertheless, the Board hereby extends Saginay intervenors' time for y
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-G-filing any evidence with respect to quality assurance or quality control until December 31, 1971.
At the November 23 conference the Chairman ruled that the December 15 date specified in the proposed order would be enforced.
Because the publi-cation of the written order has teen delayed, the time has been extended.
(d)
With respect to synergistic ef fects, Saginaw intervenors' letter of September 30, 1971, states that they no longer regard the mat ter of synergistic effects as a radiological issue but consider that it has been transmuted into an env,ironmental issue.
The Board disagrees.
It may be that evidence with respect to the synergistic effects of Dov, effluents may be a factor in the Board's consideration of environmental factors; however, the question has been raised in this proceeding as to the validity of Part 20 of the AEC regulations in light of the claimed effects of radioactive releases in combination with Dow effluents.
Counsel for Saginaw intervenors repeatedly advised the Board in the course of the hearitgs last summer that he was._ negotiating with unnamed experts to examine the list of effluents produced by Dow Chemical Company and give testimony with respect to them.
Nothing in the Calvert Cliffs decision or tre new Regulations changes the posture of this proceeding with respect
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Accordingly, the Board will allow
.S Saginaw intervenors until December 3.1);,1971, to file any testimony they have with respe'ct to the synergistic effects of radioactive releases with those chemicals listed on the Dow Chemi. cal submission.
After that. time no evidence with respect to that~
3 matter will be received.
i (e)
By the same token,.the Mapleton intervenors wilp^be allowed until December 31, 3971, to produce their' written testimony in support oi their contentions No.
III and IV.
Mapleton intervenors have had more than l
l adequate notice that their presentations in this respect.
would be required in writing and, by any conceivable test, have had adequate opportunity to have such i
testimony prepared.
The Maplaton Intervenors argument- :.
l that conteations III and IV-are environmental raises doubt as to whether.they do in fact challenge the validity of Part 20.
(For the record it should be i
noted that this argument is in flat contradiction to I
their earlier argument that the issues were radio-logical.)
If they do intend to do so now is the time.
The failure to file such evidence will be construed by the Board as an abandonment of their challenge to the validity of.the regulations concerned.
In addition, a
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- although it is not yet clear to the Board exactly how the environmental ef fects of radiological
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phenomena are to be treated for environmental purposes, it may very well be that the failure of intervenors to introduce the testimony at this point may fore-
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close eny opportunity to introduce it later.
At the
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t upon a showing of good cause for re-opening a,s environ-nontal issues, matters as to which an adequat.s oppor-tunity Ior presentation of evidence was given in the radiological hearing.
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- f In view of the uncertainty as to the intention of the
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intervonors to make any filings pursuant to Paragraphs Fi t-c, d and e above, the Board wil'1 now now set a date for responses thereto.
However, at an appropriate time the Board will either. issue an order on its own motion or at the request of any of the parties.
(f)
Under Paragraph IA-4 of the Order of August 26, the Board.
left open the possibility that the rulings of the Appeal Board on then pending quescions'might have an effect upon other matters.
Since that time th,2 Appeal Board has ruled on both open questions.
The Appeal Board ruling with respect to production of documents by'.the I
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AEC staf f does not change the status of the pro-ceedings.
However, the decision by the Appeal Board on the documents of the Westinghouse Corporation seems to make necessary an evideitiary hearing on the underlying question of the proprietary nature of the documents.
As the Board understands the ruling of the Appeal Board, unless there is a finding by the Atomic Safety and Licensing Boarc that the claim that the information sought is proprietary the documents must be made available to intervenors.
We had not in f act made such a finding because we felt that the absence of need relieved the Board of the obligation to do so.
At the November 23, 1971, con ference (which was attended by counsel for Vestinghoase) it was agreed to treat the question as though.it had arisen by the issuance of a subpoena under 5 2.720.
Following that suggestion, Westinghouse has filed a motion to quash the subpoena on various grounds.
The motion to
_ uash is hereby denied.
On or before January 15, 1972, q
Westinghouse shall file with the Board and serve on Mr. Cherry.its arguments and supp>rting data, if any, (by affidavit) to sustain the claim that the infor-mation in question is proprietary.
Unless otherwise J
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.w ordered by the Board, or authorized by Westinghouse, the information filed by Westinghousishall be
.t-subject toLthe same restriction on d[is'c,losure as the documents themselves.
On or before Janua'ry 8, 1972, Mr. Cherry shall advise counsel fo'r Westinghouse (and the Board) of the names of additional individuals t
to whom he wishes to show the documents and'other.
information for the purpose of contesting t h's '-
dt, proprietary nature of the docunents.
In addition.:
to the names Mr. Cherry shall identify the occupation, employment of such persons, and give such i
other information as is pertinent to the problem of l
safeguarding the confidentiality of the information l
pending the Board decision.
If Westinghouse is agrec-
'ounsel shall arrange a stipulation along the
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lines of the protective order now in effect.
If not, l
the reasons for their objection shall be stated in the January 15 filing.
At that time the Board will fix a date for Mr. Cherry to submit counter arguments and supporting information.
l 45 ECCS.
(a) Tlie Board hereby rescinds that por; ion of its
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August 26 order directing that-intervenors file statements within 15 days after the applicant files' its information on'the emergency core cooling system.
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(b)
Motion II of Saginaw inte; venors is denied.
The emergcucy core cooling system is an unresolved issue in this proceeding and, as has been agreed by the parties previously, will be treated as a separate 3
issue for resolution.
If at the close of that
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LS portion of the hearing the Board feels that
- dll1, applicant has not satisfied the regulations, a construction permit will not issue.
The thrust.of
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the motion made by Saginaw intervenors would re-quire that the AEC set aside or dismiss.^an application for a construction permit whenever developmentsiduring L*r the ccIrse of the hearing caused the staff to ask r
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for additional submissions.
To require the dismissal y-of the application in such cases vcould be a reg'ression to archaic rules of pleading and vrould not in any way add protection to the public health and safety.
-(c)
On November 26, 1971, the Commission issued a notice of a public rule making hearing with respect to acceptance criteria for emergency core cooling systems.
'It is not clear what effect that hearing will ha've on pending adjudicatory proceedings i:uch as this, but it-1 seems likely that_the effect will_be substantiali Tentativo,1y the Board has concluded that.it should concern itself only with.the issuia whether the ECCS
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of this 'reactorcomplieswk.th thoLacceptance critoria.
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Since the requests for discovery filed to date deal with questions as to the validity of the criteria as well as compliance, the Board denies all pending requests without prejudice to renewal as to matters of compliance alonr.
(The Board notes in passing that B&W has dropped its claim that certain ECCS information is proprietary so that the refusal by Mapleton intervenors to treat it as proprietary is now moot).
At the meeting of Counsel on January 5, 1972, Counsel should be prepared to discuss with the Board what can and should be done with respect t o ECCS mat ters in light of the rule-making hearing.
5.
Environmental Matters.
The follcwing schedule for dealing with environmental procedural matters, is designed to encourage all parties to exercise their best efforts in good f aith to refine the contested environmental issues in this proceeding, with a view towards disposing-of those which are ripe for hearing or other action at the earliest reasonable time.
The Board appreciates tlat any schedule fixed at this time, before the draft and final environmental statements are availabic, and when important and difficult questions
'.tf law are still undecided, must necessarily be tentative at:1 subject to change when the facts and guidelines are known.
Jt anticipates that applications for extensions of time or other relief may be J
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, necessary, and does not propose to administer sanctions so long as the parties in fact do ex.:rcise their bd t efforts in I
good faith.
- At_the same time, however, the Boarri recognizes the I
many differences of view among the parties in this' vigorously t
contested adversary litigation.
It inter.ds to keep tight.
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l continuing control over these proceedings, and will not l
L-l tolerate y parte actior, by any party in violation of this; l
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- schedule,
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l A.
Applicant 's Environt ental Honort.
(1) On or before December 31, 1971 or.pesing intervenors l
will each serve and file in writing with respect i
to Applicant's Environmental P.cge.rt:
I (i) their contentions identiiying the l
l alleged inadequacies in such report,
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if any; (ii) their positions as to those issues for which they believe sufficient data is presented; and (iii) their requests for discove:'y which they believe is warranted by the issues they are raising.
(2)
Responses, if any, to opposing intervwnors' sub-
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missions in-1(a) will be served and filed on l-or.before January 10, 1972.
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B.
Draft Detailed Statement of Enviren:r. ental Considerations.
(1)
On or before January 14, 1972, the ACC. staff will serve and file it s draft detailed sthtienent of environmental considerations, unless upon written application on ten dnys' notice to all parties and for good cause shown, such time has beeii previo,usly extended by the Coard.
(2)
On or before February 4, 1972, ornosing in t e rv e.riors will each serve and file in wri t - m wi th respec'tDto the Draft Statement, their contentions, positions and requests, in the sane form as with respect to Applicant's Environmental Report in 1(a) (i), (ii) and (iii) above.
(3)
Responses, if any, to opposing intervenors <:ubmissions in 2(b) will be served and filed on or before February 14, 1972.
(4)
Supplemental " contentions, positions and requests" responsive to the comments of agencies to whom the Draft Statement has been circulated may be made at any time up to February 28, 1972.
C; Final Detailed Statement of Environmental Considerations.
(1) On or before March 15, 1972, the Id:C staf f will serve and file its final detailed statew.nt of environmental considerations, unless upon writte:. application on ten
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. days' notice to all parties and for good cause such time has been previously $litended
- shown, by the Board.
1 (2) On or before April 5, 1972, opposing intervenors will each serve and file in writing with. respect l
to the final statement, their contentions, positions and requests, in the same form as with respect to y.
I the Environmental Report in 1(a)(i), (ii) and (iii)j and the Draft Statement in 2(b)(i), (ii) and (iii) above.
(3) Responses, if any, to opposing intervenors sub-l l
, missions in 3(b) will be served and filed on or l
before April 15, 1972.
i 6.
Saginaw Motions dated September 30, 1971.
(a) Motions I and II are explicitly dealt with earlier in this Order.
l (b) Motions III and IV are implicitly covered in the Board's rulings on ECCS matters.
l (c) Motion V is denied.
The Board cannot function
.(as the motion would have it do) as the Compliance Division.
If Saginaw intervenors feel the record as to quality assurqnce, when completed,-
is such as to deny the construction permit they can request appropriate findings and conclusions.
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(d) Motions VII and VIII (there is no Motion VI) are covered by the Board's Order with respect to environmental matters.
(e) Motion IX is denied as burdensome on its face without prejudice to submission of reasonable g
requests for documents as provided under Paragraph
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5 above.
(f) Motion X is denied (except as to those Interrogatories which the parties have agreed to answer) without.
prejudice to the filing of an appropriate set of' interrogatories in accordance with Paragraph 5 above.
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The motion wholly fails to satisfy the. requirement of good cause; although it states that these interrogatories t..
(as to which objections were previously sustained) have d
been reviewed and found "directly relevant to environmental t,
matters," many of them seem. clearly, on their face, to involve radiological or irrelevant issues.
To the extent that interroCatories are addressed to the Staff their Motion makes no attempt to show why the reasons given by the Board in its June 1, 1971, rulings are not still valid.
(g) Motion XI is denied without prejudice to renewal l
t at - appropriate times under Paragraph 5 above.
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Motion XII and XIII are covered by the rulings on the Westinghouse documents.
For the Atomic Safety and Licensing Board
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Arthur W. Murphy, Chairmaq./
D.? cent:er 22, 1971 1
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%A IRTITED STATES OF AMERICA ATOMIC ENERGY COMMISSION jgJ1M /.
In the Matter of
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CONSUMERS P0k'ER COMPANY
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Docket Nos. 50-329, 330 (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of (1 ORD WITH RESPECT TO VARIOUS MOTIONS FILED IN THIS PROCEEDING dated Decem
, 1971, and (2) letter from Mr. Murphy to Counsel of Record dated December 22, 1971, in the captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 22nd day of December 1971:
Arthur W. Murphy, Esq., Chairman Robert Lovenstein, Esq.
Atomic Safety and Licensing Board Jerome E. Sharfman, Esq.
Columbia Lbiversity School of Law Harold F. Reis, Esq.
4 5 West 116th Street, Box 38 Lovenstein, Newman & Reis 3
New York, New York 10027 1100 Connecticut Avenue, H. W.
Washington, D. C. 20036 Dr. Clark Goodman Professor of Physics Richard G. Smith, Esq.
University of Houston Smith & Brooker, P. C.
3801 Cullen Boulevard 703 Washington Avenue Houston, Texas 77004 Bay City, Michigan 48706 Dr. David B. Hall Harold P. Graves, Esq.
Los Alamos Scientific laboratory Vice President and General P. O. Box 1663 Counsel Los Alamos, New Mexico 87544 John K. Restrick, Esq.
Consumers Power Company Dr. Stuart G. Forbes 212 West Michigan Avenue 100 Tennessee Avenue, Apt. 37 Jackson, Michigan 49201 Redlands, Caliiornia 92373 Mr. R. C. Youngdahl Thomas F. Engelhardt, Esq.
Senior Vice President David E. Kartalia, Esq.
Consumers Power Company Robert Newton, Esq.
212 West Michigan Avenue Regulatory Staff Counsel Jackson, Michigan h9201 U. S. Atomic Energy Commission Washington, D. C. 20545 Honorable Frank Olds, Chairman Midland County Board of Supervisors 623 St. Charles Street Midland, Michigan k86h0 hAb
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50-329, 330 page 2 Honorable Jerome Maslovski Milton R. Wessel, Esq.
Assistant Attorney General J. Richard Sinclair, Esq.
State of Michigan Allen Dezsbom, Esq.
9even Story Office Building Kaye, Scholer, Fierman, Hays 525 West Ottava and Handler j
IAnsing, Michigan h8913 425 Park Avenue New York, New York 10022 Honorable Curtis G. Beck Assistant Attorney General William A. Groening, Jr., Esq.
l State of Michigan James N. O 'Connor, Esq.
1 Seven Story Office Buildin ;
The Dow Chemical Company e
525 West ottava 9030 Dow Center Lansing, Michigan 48913 Fidland, Michigan h86ho Myron M. Cherry, Esq.
William J. Ginster, Esq.
Suite 1005 Merrill Building, Suite 4 109 North Dearborn Street Saginav, Michigan 48602 Chicago, Illinois 60602 Mr. Wendell H. Marshall Anthony Z. Roisman, Esq.
RFD No. 10, Mapleton Berlin, Roisman and Kessler Midlar_d, Michigan h8640 1712 N Street, N. W. hth Floor Washington, D. C. 20036 Irving Like, Esq.
Reilly, Like and Schneider James A. Kendall, Esq.
200 West Main Street Currie and Kendall Babylon, New York 11702 135 North Saginav Road Midland, Michigan 486h0 Honorable William H. Ward i
Assistant Attorney General j
Dr. Wayne E. North Chairman State of Kansas Midland Nuclear P'over Committee Topeka, Kansas 66612 P. O. Box 335 Midland, Michigan 48640 Barton Z. Cowan, Esq.
Eckert, Seamens, Cherin & Mellott Porter Builhing, 10th Floor Pittsburgh, "ennsylvania 15219
/f/AC4/> D lC)U'OA1AL' m.
Office of the Secretary of the CeMssion Mr. Engelhardt Mr. Goodrich N. Brown H. Smith
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