ML19330A218
| ML19330A218 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/18/1971 |
| From: | Sharfman J LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Goodman C, Hall D, Murphy A Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19330A219 | List: |
| References | |
| NUDOCS 8007150991 | |
| Download: ML19330A218 (5) | |
Text
_
3 DOCKL1 NUMtstiR S
90CKETED 9
ESDD.M1IL fE.N"Ni mm
~_
.g uw orrices D
b 1
LOWENSTEIN AND NEWMAN TbY noo councericor avcuuc. u. w.
ff s
WASHINGTON, D.C. 20036 j
/
/
zoa ase-rses 2
%j mo e o., t c,w o.
u
. ',, ':(9_
August 18, 1971 uc a u c w,4 4 ~
{.
- ffh{
scaowc c sHAaruau
- -\\
y;,
,k,
~~
\\ 'N'# t,.,
Arthur W. Murphy, Esq., Chairman Dr. Clark Goodman Atomic Safety and Licensing Board Professor of Physics Columbia University School of Law University of Houston Box 38, 435 West ll6th Street 3801 Cullen Boulevard New York, New York 10027 Houston, Texas 77004 Dr. David B.
Hall Los Alamos Scientific Laboratory P.O. Box 1663 Los Alamos, Net. Mexico 87544 In the Matter of Consumers Power Company Midland Plant, Units 1 and 2 Docket Nos. 50-329 and 50-330 Gentlemen:
As the Board well knows by now, the D.C. Circuit's decision of' July 23, 1971 in the Calvert Cliffs case has i'nvalidated important segments of Appendix'D to 10 CPR Part 50.
That decision will have far-reaching although, as yet, not completely defined effects on all pending pro-ceedings.
In its initial response to the decision, the AEC, on August 4, 1971, issued its Interim Guidance on Modification in Applicant's Environmental Reports and AEC Statements Under NEPA, a copy of which is enclosed.
In this document, it states, in part:
"The Commission is presently preparing appropriate regulations to implement the Court's decision.
The Commission will be reevaluating the NEPA environmental state-ments previously issued in connection with its licensing activities and those in pre-paration in order to prepare supplenental THIS DOCUMENT CONTAINS POOR QUALITY PAGES
~
l_'_.
p)
. LOWENSTIMN ANs NEWMAN NEPA statements which meet the require-ments of the Court's decision (Footnote omitted].
In the meantime applicants for construction permits and operating i
licenses for nuclear facilities should review their environmental reports pre-viously submitted in light of the Court i
decision and develop supplemental infor-mation, where indicated, to conform to the Court decision."
The document goes on to specify the kind of supplemental information that applicants should submit.
As the Commission will shortly issue regulations to t
implement Calvert Cliffs, it would be premature for the Board
.to deal with the legal and procedural issues raised in Mr. Cherry's letter to the Chairman dated August 10, 1971.
Presumably, they will be covered by the new regulations.
At the very least, it is clear from O lvert Cliffs t
that NEPA issues must be dealt with withi the hearing process in this proceeding.
Applicant therefore aelieves that reasonable discovery should be permitted on these issues and that it can and should p'oceed promptly, without waiting for the Staff's issuance of its NEPA statement.
We have communicated these views to Messrs. Roisman and Cherry and they have told us_that they and Mr. Like agree.
We therefore propose that the Board order that all discovery motions on NEPA issues be submitted by an early.date in September and we enclose a motion seekincj teat Yelief, i
with'a proposed. order attached.
As intervenors have been urging since last year that NEPA. issues be considered.and as they have had since July 23rd,'the date of the Calvert Cliffs decision, to think more specifically about the environmental issues which they expect-to raise, this would give them a reasonable time to prepare such motions and would be conducive to the expeditious conduct of this proceeding.
Mr. Cherry in his letter dated August 10, 1971 to the Chairman, propos,es that we proceed by informal discovery which would not preclude fermal discovery later.
The extreme L
breadth and burdensomeness of his informal demands for dis-covery, coupled with his reservation of rights to conduct 4
. ~.... - -
y,,
.,.-e r---
e-ww rP-F"-"
- 7 F
.-.e
- g.
- h4WENSTEIN AND NEWMAN 13 l
more discovery in the future, makes it obvious that this
)
proceeding will be completely unmanageable and interminable unicss the Board issues an order of the type proposed in Applicant's enclosed motion.
Mr. Cherry, at p. 11 of his letter, moves for the issuance of subpoenas duces tecum to other reactor manu-facturers requiring them to produce all documents dealing
~
with their emergency core cooling systems.
This motion is contrary to the Board's ruling of June 24, 1971 that a comparative analysis of systems in reactors made by different manufacturers is not within the proper scope of the issues in this proceeding (Tr. 2114 ).
It should therefore be denied.
Mr. Cherry, at pp. 1-4 of_his letter of August 10th, suggests that the record of the hearing to date not be l
closed except with respect to environmental matters and ECCS, as proposed by applicant at the hearing on July 23rd.
His position is based on his interpretations of 10 CFR 52.754 and the D.C. Circuit's opinion in Calvert Cliffs.
Mr. Cherry's argument in regard to 10 CFR S2.754 appears to revolve around his interpretation of.the phrase "the record.is closed".
He argues that a record cannot be closed with respect to any issue in a proceeding until the hearing has been completed with respect to all issues is the pro-ceeding.
This is an unduly narrow interpretation of the rule.
Section 2.754 permits the Board to direct the parties to file findings of fact in "such' reasonable lesser... time" as it may determine.
Moreover, the Board has broad discre-tionary power to regulate the course of the hearing and to -
designate the order of procedure.
See 10 CFR SS2.718 (e) and 2.731.
We submit that'it is within the Board's power and l
would be a reasonable exercise of discretion for the Board to close the record with respect to that portion of the hearing which has been completed and to make findings of fact thereon while leaving open' remaining separable issues.
Mr. Cherry also calls attention (letter, p.3) to that part of the D.C. Circuit's opinion in Calvert Cliffs which l
states that environmentcl, economic and technical considerations must be balanced under
- EPA.
He contends this means that the record may not be closed as to those radiological and safety issues tried in the.first phase of the hearing and that the Board may not proceed to make findings as to those issues.
However, closing of the record as to these issues t
w=-
.-e-,
3
,,.-rye y
,w--.,_-w-,,y-e-
,,yev,3-.-,,,,,u-
-,.m-a--
m,w,--,,,...w,--,,,o,-w-y,-ww4+.-,r-yi,,,w amw
- w rw,
~
q q
~
LoWEN.NTEIN ann NEWMAN would not prevent the Board from weighing all of the factors which should be considered under NEPA at the conclusion of the entire case, in the light of any and all evidence in the record.
It would merely prevent the reopening of issues that have already been tried, after ample opportunity for discovery.
Any findings that would be made would relate solely to issues arising under the Atomic Energy Act and would not prejudice in any way the making of findings on NEPA issues.
The remark on page 4 of Mr. Cherry's letter that the intervenors "are entitled to another crack at all witnesses whose testimony in radiological-safety areas has environ-mental overtones" is reminiscent of the attempt of the Environmental Defense Fund and the Saginaw intervenors last March to defer the consideration of " radiological environ-mental issues" until after the issuance of the environmental statement.
See Memorandum in Support of Motion of Environ-mental Defense Fund, Inc., and Saginaw Valley Nuclear Study Group, et al. for Determination of Environmental Issues dated March 3, 1971 at p. 9.
This matter was argued extensively at the pre-hearing conference of April 2, 1971 (Tr. 619-20, 654-66, 708-27).
The Chairman stated, in part, at that time (Tr. 718-19) :
"Well, we have, all the way through since the 17th o.f November, we have been operating on the assumption that we could separ'te a
environmental from radiological issues.
It dass seem to me that it would be very sur-prising to have.anything come out of the environmental statement that would bd the occasion for inquiry on radiological matters that is not already involved in the proceeding.
"If after the Environmental Statement is issued, you think that there are issues as to radiation, actual issues as to radiation which you want to examine into, then at that time we can decide whether or not these are questions which should have been the subject for interrogatories now."
And he added (Tr. 721) :
"I think the only thing I would suggest at this point is that if you hold off filing interrogatories until after the Environmental Statement is out, it seems to me that you a
-m w-
,e
-r--9
,a
,-w w
wwp,-g g
er v-r-
w-,a
],0WICNNTitIN AN3) NxwxAw
, run the risk that at that point the Board is. going to take the positien that these were watters properly within what we have been operating on as the radiolo~ical aspect of this proceeding, and that we might say at that point that interrogatories were not timely."
We believe that an approach consistent with the foregoing '
statements of the Chairman would require intervenors, as a condition precedent to examining into " environmental overtones" of radiological or safety issuen tried in the first phase of the hearing, to make a showing that they could not have inquired into these subjects in the radiological and safety phase of this proceeding.
Respectfully, erome E. Sharfman Attorney for Applicant Consumers Power Corpany JES:sb Enclosures cc:
. William J. Ginster, Esq.
James A. Kendall, Esq.
Anthony Z. Roisman, Esq.
Thoras F.
Engelhardt, Esq.
l Milcon R. Wessel, Esq.
James N. O'Connor, Esq.
Myron M. Cherry, Esq.
Algie A. Wells, Esq.
Stanley T. Robinson, Esq.
Irving Like, Esq.
l l
6 4
e
-,-s
--+-, --+- --
y
-r
+