ML19330A274
| ML19330A274 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/04/1971 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML19330A273 | List: |
| References | |
| NUDOCS 8007151075 | |
| Download: ML19330A274 (13) | |
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00CMET NUMBER
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IOCtEiEO
'b PROD. & UTIL fac,, 56 321332 auc
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NOV 41971
- d UNITED STATES OF AMERICA gem e me teserf
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8 ATOMIC ENERGY COMMISSION vu (b
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In the Matter of
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CONSUMERS POWEll COMPANY
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Dockct Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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PROPOSED ORDER WITII RESPECT TO VAllIOUS MOT 10N'_,
FII.ED IN TliIS PROCEED) NG The Board would like to acknowledge the rcecipt of many communications from interested groups and indJviduals urging
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an early resutaption of the hearing.
The ficard is sympat het ic
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to the desire to expedito the proceeding, and intonds to do what it can to make sure that preliminary ma s ters such as idenL1-fication of issues and discovery are expedited.
llowever, the Board feels constrained to comment that with roupect to t.ho ma.jor outstanding issues -- cmergency core cooling syr. tem and environ-mental matters -- the AEC staff response to the ap;'licasit't; filings has not been received, and that no purpose would be f:"rved Thi r; is not by a hearing prior to roccipt of those responnes.
j meant ini any scuse as a criticism of the sta f f, 1.u t c 2ecognition l
that the new regulations have given the st:a f f t,ubcl an t ial new responsibilities and that it will take tim fr r the staff to 1T1113 31 those responsibilities.
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1.
The petition to intervenc hv the State of Kansas.
By a petition dated September 13, 1971, the State of
> Kansas t.hrough it.s atterney general has peti tioned to intervene in this proceeding.
In the alternative if the petition to intor-vene is denied Kansas requests permission to,ioin in the ponding interventions of others and in the -cvent both the request to l
intervene and the request to join in pending interventj on in deniod the a ttorney general serves notice of intention t.o participa te tuidor 10 CFR fi 2.713(c).
Were this a request for intervention by a privat.c part y the Board would have no difficulty in concluding that it. should be denied.
The proceeding has been pending for n]most a year,
.some b,000 pages of testimony in the hen $'ing have been taken,'
numeroun. interrogatories have been served and answered.
The immediate interests of the-State of Kansas in 1:his particular reactor licensing proceeding are at least remote.
Kansas argues, however, t. hat having been designated as the proposed n.ile or the Lyons Nuclear Waste Repository where it is cont.cmplat.ed tha L
.all high level wast.cs from reactor operation wil) ult.imately be concentrated, it is perforce an interestod part.y in any reactor licenso application.
Had this applical inn been mado at the outsot of.the proceeding, there would, it seems, tu bc.sont' doubt that Kansas had demonstrated a suf ficient inter (st to in-permiit.cd to intervene.
The wisdom of Ihe proinnued s t ora ge facilit.y surely ought not to be un issue in ever:, proceedin;.
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. I3u t what.over the view of the Board might have been a year ago, tha considerations of orderly administrations argue against intervention even of an interested party at this lato stago.
There are already in this proceeding three groups of intervenors ably represented by three different sets of counsel.
I1. seems quito likely that these counsel will adequately protect the interests of Kansas.
Accordingly, the pet 31 ion to intervene is denied.
Ifowever, the Board sees no reason v.hy Kaunan cannot. join in the interventionis already pending, provided tila t iL is undar-stoed tiiat its so doing will not result in du;ilica t ive presentation of evidenco or argument.
In so ruling, the 1: nard would 1 ihe to make clear its view that the issues of wast.e transportation and storage which form the basis of the petition to interveno ar6 not henith and safety iusues in this proceediun.
The extent to which high level waste transportation and storage is an environsnutal issue in this proceeding remains to be coissidered (aloing vi tb ollier aspects of the scopo of the et,ivironmental issuen) at a fu l.u re ljuc.
It should be made clear, however, tha t. the wisdom o f t he propx ed wast.c disposal facility is not an issun -- even an environmeni a l issue -- in this proceeding.
As pointed out jn Al'plicant's there are adequate -- and better -- avenues to challco;,e answer that decision c]sewhere.
2.
The retpiost by Maplet.on J ul.orvenory:,l or_a,rg eyyn'i by the ficard under !i2. 730(f).
In Part 11 of it.' o rde r o l' A u.g e:., I 20, i
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1971, the Board denied Mapleton intervonors' motion to distaiss tho application.
Mapleton intervenors have apimaled the denial of that motion and their appeal has been met by ihe claim on the part of the staff that the order of the Bemed h< ing inter]ocutory in nature is not aplicalabic.
(The Appeal has now been dismissed on that ground.)
Mapleton intervonors have responded with tiie re-cluest "without prejudice, and to climinate i.re](.vant techni-calities" that the Daard refer the clucution to the Appeal Hoard under.42.730(f).
As inadicated in our earlier order we think the motion is.without morjt.
It is highly Lechnical and has no <lis-cernible purpose except to undo the some 1.welve monihs work which has already gone into thin prococding.
As the sta f f has pointed out, this power on the Board to make refcrral.s is one that o'ught to be used sparingly and only in thoso cirevnstances in which the Board itself feels a substantial question is raised.
The Board agreed with the st.aff position.
3.
Part IA of the Board. Order of Aup.ust 2G (Issues other than the ECCS and Environmental Issues.)
(a) The order of August, 26 prescribed t h.t L wi th respec L to issues other than ECCS and environ.aeni al issues no further oral testimony would be tal.en eecept.
upon the specific orgler of the Board...Doth the Mapleton intervenors and the Fiagina x inIcevenoru havn objected to this portion of the oi cler.
The gi.st of th<t oh.jections is that the-o ralt i-i!: in
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violation of their rights citlier under the Constitution or under the Administrative Procedure Act.
Tlic Board would like to restato its belief that the arguments based on the Const i t.ution are frivolous and further to state that the Administra-tive Procedure Act specifically provides that pro-cedures requiring wri tten testimony m:iy lie adopted except where there is prejudico to the p:i r t i es.
Neither the objections of Sagin:iw in t ervenors noc Mapleton intervenors set forth any coneni vab] c basi:.:
for a claim of prejudice.
Accord Liig] y, it is the intention of the Board to adhere to it.s order not
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permitting cral testimony with.cspect to maltors other than ECCS and environmentaa maLtors.
(b) In J ts August 26 order tile Board ordered tha t Saginaw intervonors' evidence with respont to quality assurance; Saginaw intervenorn' ovi rlence wi th ver:Imet to the claimed syncrgistic effects of Dow offluents; and Mapleton intervenors' evidence w.ith respnet to their contentions No. III and IV he filed on or bej ore September 15, 1971.
Neither Saninave nor Map'loton i n t ervenor:: have made any a tterrpi Io lii4c' n e th > f testimony, unless the sworn test..imon3 of Charles W.
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. is intended as such.
While it is und rstandable, in view of the substantial offcet on t h is, proceed-ing of the decision of the Court of A ppa.:1s for t.he District of Columbia in the Calvert C11 irs cane, that a certain amount of slippage vou'Id occur, fho refusal by Saginaw and Map]el on int erveniorr, t o coniiply with that portion of the ordm' is into1, rah]e.
We do not agree that the Calvert Clifts decision or the new AEC regulations make irrelevant distinctions between radiological and environmental issues nn previously understood in this cano.
Accordingly, we propose to continue with the radiolo;;ical anpoets of the prococding.
(c) With respect to quality assurance ihe INard not:r u that Saginaw intervonors did not judicate their intention to deal with quality assurance until we))
after the hearing coimonced.
In the Doard's view i
they have had ampic time to 1)rcpare any sinLerial on quali ty assurance which they migh t v. ish to o r rer.
Neverthc1 css, the 13on rd hereby ex t ent:s-Mar;inaw I ni. n e.norr; time for r i1i un any ovi sh nee vii h re'- per i to quali!y assurance or quality coniei1 unfi1 December 15, 3071.
After ihat date I.lu- !!a:od will not, receivo any evidouco on this :n.b,he t.
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(d)
With respect to synergist ic effects, Sagislaw intervenors' 1ctter of September 30, 1971, s ta test that they no longer regard the ma tter of' synergistic effects as a. radiological issue bu t considor that it has been trans:cuted into an environment al Jssue.
The Hoard disagrecs.
It may be thal cvidenen wit.h respect to the synergistic ef fectd of th,c. ef t".luon t o may ho a fact or in the Board's considera tion of env ironment al factors; howcVer, the question has been vai:'ed in this proceeding as to the validtty of Part PO of the AEC regulat ions in light of the c3 ained of fcets of radioac t.ive ro] cases in coinbinati na wi t h Daw of f 3 nouts.
Counsel for Saginaw intervenor.s repeatedly advised the Board in the course of the hearin;p last. nuunier t h a t.
he was negotiating with unnamed enporta, to examine the list of effluents produced by Dow Clienical company j
and give testimony with Iespect to them.
No t h i ng, in the Calvert Cliffs decision or the new ile;;ulations i
changes the posture of this proceediun utth respect to that issue.
Accordingly, the I;oard 1.ilI all ow Saginaw intervenars until Decesaber 15, 3 9T1 to file any testimony they have with respec1-to the synergintic effects of radioactive releases u.i t h tbo:m chcuiralt.
3isted on the Dow Chemical subminsion A1ier thai time 1
no evidence with respect to t hat walli e will be received s
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whether offered with respect to radiolo::ical inuues or environmental issues.
(c)
By the same token, the Mapleton inLurvenors will be allowed until December 15, 1971 to p2- *bec their written testimony in support of their contentions No.
III and IV.
Mapleton intervenors lu.ve had 14 ore tlutn adequato notice that their presentai:J ons in this re:4 pre i.
would be required in writing and, by any couccivable test, have had adequate opportunit.y to have such testimony prepared.
The Mapl ton lutorvenors' arguurnt that contentions III and IV nec entir<oonental raises doubt as t o whether 'they do in fac t. chil longe the validit'y of Part 20.
For the record it,should be noted thal this' argument is in flat contradict.Jon to their earlier-arl;ument that the issues were radiological.
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do intend to do so now is the Line.
The fa.ilure to filo such evidence will be construed by the lioard as an abaadonment of their cha31ongo to the validity of the regulations concerned.
In addition, although it is not yet clear to the Board c>:actly how Lhe en v i roniaon t al offcets of radiological phenoraena aro to be treated for environmental purposes, it may very tell he that j
the failure of intervonors to in trodul e t h t< : t.it.cnny at this point may foieclose any oppr,rt uni ty to introduce
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-9 At tho very least the Hoard cout.emplates it later.
that it would insist upon a showin[i of good cause for re-opening as environmental questions as to whJch an adequate' opportunity for }iresout.ation of evidence was given in the radiological hearjng.
In view of the uncertainty as to ihe int.ent ion of to the intervonors to make any filitigs pursuanL the Uoard will not now Paragraphs c, d and e above, However, at an set a date for responses thereto.
either jemuo an order appropriate time the Board will on its own motion or at the request of any of the partics.
(f)
Under paragraph I A(a) the Board 1. ell open the possibility that the rulings of the Appeal 11oned on then pending questions might have an offect upoli Since that time the Appeal Hoard other matters.
has ruled on both open questions.
The Appeal Board ruliq:with respect to production of documents by 1.he AEC 5:taff does not change the status of the proceedings.
'llowever, the decision by the Appeal Board on the documents of the Westinghouse Corporation semis to make.necessary an evidentiary hearibg on the under-documents, lying question of the 1 roprietary nature of the i
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As the Board understands the ruling of Llic Appeal a
w Board, unicss there is a finding by the Atomic the hf Safety and Licensing Board that the claim that.
h information sought is proprietary the documents minst b
be made available to intervonors.
We had not in fact made such a finding because we felt that the absence of need made the question unneccusary to decido.
Accordingly, we grant so much of the.Saginaw inLor-C
venors motion No,'XIIIB as directs the regulat.ory staff to submit to the Board a detailed r,Lat ement of the justificat. ion for the claim that the information-sought is proprietary.
Upon receipt of that state-the Board will take under advisement the uc'cer sit.y ment of further proceedings with respect to 1. hic mal. tor.
4.
.E._C _C S.
(a)
With respect to the cmergency, core coo'Anr. sy0 tem, the Board horchy rescinds that portion of I l.n Augur:L 25 order directing that; intervenors file statermnts reithin 15 days af t.cr the app 3icant files its inIovan Lion.
(b)
The Board grant.s so much of the mot.i on ol' !.h pic ton intervonors datcd October 6, 1D7J as d.! c<'e t: Ihe staf f to produce copies of docuuan'ti; and d;' t.a to be rc)icduponbyiti[1 i t s eva'I tm li on o l' tiu e,wripury co: o cool ing sys t.cm o f t.lu.'.* i c: ! a nd pl a n i..
Tnis diceclinin i n :;nbj r e t 1. 0 1.hc quitliiical. i on that d e,c a;.< n, in Ili.,
public domain need not be fuiniz'hed.
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In view of this ruling,.Saginaw Motion No. XII is denied.
The Board does not believe that any use ful purposo would be served by taking formal depositions.
Ilowever, the Board believes that, the personnel of the National llcactor Testing Station should 12e made available for purposes of questioning by Mr. Webb.
Obviously, however, such an inquiry should not be duplicated by other intervenors and, t he re-foro, the proposed visit and inquiry by Mr. Webb is condi tioned upon agrc'ement among the opposing inter-venors that the proposed visit,will be in liou of any siml]ar requests on their behalf.
(c) Motion II of Saginaw intervonors is denied.
The emergency core cooling system is an unrosolved issuo in this proceeding and, as has been agreed by the parties previously, will be treated an a sopnrato 1
issue for resolution.
If at the closo of that portion of the hearing the lloard feels that applicant has not satisfied the regulations, a construction permit will not issue.
The thrust of.Ihe motion made by Saginaw intervenors would requiro Lital the AEC e
set asido -or dismiss an applica tion for a consi vuci ion
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s permit whenever developments during the cource J
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of the hearing caused the staff to ask for additional l'
!f submissions.
To require the dismissal of the 3
application in such cases would be a regre mion to archaic rules of pleading and would not in any way f
add protection to the public heal th and ::alety.
4 5.
F.nvi ronmen t.al !.la t t ers.
4 Tho files of tho varlons parties since August MG, make cicar that the issues wh5ch intervenors plan to raine are very broad.
In the circumstances the Board does not believo that an attempt to pick out issues which could be processed in advance of the environmental statement-(as suggestod by ceuune3 for Dow) would he fruitful.
Accordingly; all questions of-interrogatories, etc. with respect to environmental questions are postponed until after the receipt of the applicant's revised environmental statement.
The Board will schedule a meeting of counsel to attempt to narrow the issues and focus on quections of discovery, etc.
At that time the Board would also like counsel to be prepared to discuss on a preliminary hasis the legal questions which seem to be fundamental to the future pro-ceedings.
For example, the Doard would liho to diseuan the. inter-s rela tionship of radiological questions and om ironmen tal quent. ions.
Although we are postponing all questions of discovery, we note that the request for production of documents at t. ached i o Sagin.ni's
, Motion IX is unreasonabic on i t.s rnce.
It ashn for documents v;h.ich l
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arc of extremoly remoto connection with the 1: mons hero and in a' volume beyond the capacity of counsol to read; the 130ard does not i n t:end, as did carlier, to unsumo the bonlen of a ttempt.iug to sort out the reasonable from tisc. niu casonstb]c.
2 For the Atomic Sniet.y auct I.icensing I!narri i
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Arthur W. Murphy, Chr. i rria n
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