ML19331A207
| ML19331A207 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/11/1970 |
| From: | Cherry M MCDERMOTT, WILL & EMERY, Saginaw Intervenor |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19331A206 | List: |
| References | |
| RULE-PR-50 NUDOCS 8006180654 | |
| Download: ML19331A207 (47) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY C0?GIISSION In the Matter of CONSUMERS POWER COMPAliY Docket Nos. 50-329 Midland Plant Units 1 and 2 CERTAIN INTERVENdRS' MEMORAliDUM IN SUPPORT OF THEIR DECEMBER 1,1970 MOTIONS AND IN OPPOSITION TO BRIEFS FILED BY APPLICANT AND INTERVENOR DOW CHEMICAL COMPANY ON DECEMBER 15, 1970 e A, b D O C '; E T E D D q uma . ,
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@/ iLD RULE i gpg rRCD. & UTIL. FAC. D5M 3 30 e A UNITED STATES OF A! E CA b B oaC*EiE5 ATOMIC ENERGY COMMISSION _
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. In the Matter of \ s'
'yp CONSUMERS POWER COMPAIN Docket Nos. 50-329 'm.
50-330 Midland Plant Units 1 and 2 CERTAIN II;TERVENORS' MEMORANDUM IN SUPPORT OF THEIR DECEMBER 1,1970 MOTIONS AND IN OPPOSITIO'i TO BRIEFS FTT.En BY APPLICANT AND INTERVENOR DOW CHE4ICAL COMPAIN ON DECEMBER 15 1970
, IlfrRODUCTION On December 1, 1970 intervenors filed eight motions directed against the legality and sufficiency of the cc:::mence-ment of the hearing and the Notice of Hearing. The Atomic Safety and Licensing Board (" Board") ordered all parties idio desired to oppose such motions to file briefs on December 15, 1970 and ordered intervenors to file their supporting briefs on January 7, 1971.
On January 7, 1971, we filed a motion for extension of time requesting permission to file these briefs on Monday, January 11, 1971.
In addition, out of the eight motions, motions Nos.
3(a), 4, 5 and 6 are motions dealing with the Atomic Ener6y
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1 Commission's ("AEC") ob116ations pursuant to the National Environmental Policy Act and the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970. All of these matters are directly related to the Staff's Detailed Environmental Statement and, accordingly, intervenors are delaying their filing of briefs on these motions, as have Applicant and Dow Chemical Company, until such time as the Staff's Detailed Statement has been prepared and submitted to all of the parties and a reasonable briefing schedule has been set up in respect thereto.b!
We will concern ourselves below with the remainder pf our December 1 motions and at the same time will respond
- to the briefs of Applicant and Dow Chemical Company filed under date of December 15, 1970, including Dow's brief in support of its motion to strike certain issues raised by the Saginaw Valley Nuclear Study Group, et al.
At the outset we should like to make clear the meaning and effect of the AEC's memorandum decision In the Matter of Baltimore Gas and Electric Company (Calvert Cliffs case), Docket Nos. 50-317 and 50-318, August 8,1969 Appli-cant and Dow Chemical Company have taken Great pains to rely, throughout their opposing briefs, upon an interpretation of 3j/ We also believe that the delaying of the filing of briefs upon environmental matters is consistent with the Board's recognition that no meanin6 f ul resolution of the environ-mental issues can.be had without the Detailed Statement.
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h Calvert Cliffs which is untenable. Rather than responding s throughout this brief, and because Applicant and Dow Chemical Company place significant reliance upon Calvert Cliffs, we' think it important initially to place that memorandum decision in proper perspective.
The issue with which the Commission was faced in Calvert Cliffs was whether an Atomic Safety and Licensing Board could on an ad hoc basis amend licensing regulations "in individual adjudicatory proceedings." The Commission was addressing itself to the Calvert Cliffs Atomic Safety and Licensing Board and informing that Board that since licensing regulations were adopted by the full Commiscion in a rule making proceeding or pursuant to the Commission's respon-sibilities under various enabling sections of the Atomic Energy Act, the judgment of the Commission could not be displaced by the judgment of an Atomic Safety and Licensing Board. However, the Commission was only talking about amend-ments to licensing regulations and was not suggesting that an Atomic Safety and Licensing Board could not call into question the validity of a Commission regulation or licensing proceeding.
Thus, while an Atomic Safety and Licensing Board may not under Calvert Cliffs, for example, state that the radiation emissions permitted by Part 100 are too high and therefore impose a different obligation in connection with the issuance of a e
t license, an Atomic Safety and Licensing Beard may and indeed has the obligation to declare invalid any Part 100 regulation, or any other regulation, if the record of the proceeding demonstrates that the regulation is illegal and invalid.
An Atomic Safety and Licensing Board issuing a decision declaring a licensing regulation invalid may not thereafter substitute a new licensing regulation. Any void remaining would have to'be filled by the Ocmmission.
Thus the Ccmmission in Calvert Cliffs stated:
" Licensing regulations . . . are not subject to amendment by boards in individual adjudi-catory proceedings." -
However, the memorandum decision continues :
"The foregoing does not, however, foreclose a licensing proceeding challenge to the validity of the Cornission regulation, on limited grounds, if the contested regulation relates to an issue in the proceeding. By limited grounds we mean, whether the regulation was within the Commission's authority; whether it was promulgated in accordance with applicable procedural requirements; and, as respects the Commission's radiological safety standards, whether the standards established are a reason-able exercise of the broad discretion given to the Commission by the Atomic Energy Act for the implementation of the statute's radiological safety objectives." Calvert Cliffs Memorandum Decision, pages 3-4.
Thus, Calvert Cliffs encourages, and does not foreclose, challenges to the validity of the Commission regulations; and such regulations, according to
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l Calvert Cliffs, may be stricken as invalid.2 /
I IIiTE3VENORS' MOTIOUS OF DECEMBER 1, 1970 Motion No. 1 The essence of intervenors' motion No. 1 is that the AEC has not been complying with the spirit and purpose of the Atomic Energy Act respecting the section of the Atomic Energy Act governing the issuance of licenses for nuclear power reactors. A meaningful response to this motion may not be, as Applicant and Dow have responded, that the AEC is unwilling to implement the Atomic Energy Act or, in any
-2/ Applicant's December 15 brief, page 3, recognizes that Calvert Cliffs does not Ibnit or foreclose challenges to the validity of a Ccemission regulation. Thus after having set out the broad "no amendment language in Calvert Cliffs, Applicant's brief states: ,
"While there are exceptions to this ruling, it is clear that the ability to challenge AEC regulations in each individual licensing proceeding could very well lead to the breakdown of the whole administra-tive process."
Applicant is directing itself in reality to its disapproval of the Commission's Calvert Cliffs decision and not to what the decision holds. It might be well to note that an r.bility to challenge AEC regulations in individual licensing pro-ceedings could only strengthen the administrative process; if a regulation is invalid, it should not be protected, it should be exposed and stricken.
We further note that Dow Chemical Company 8s statement of the Calvert Cliffs decision is less candid than Applicant's statement. Dow Chemical Company totally ignores the language above quoted in the text from pages 3-4 of the Calvert Cliffs memorandum decision. See Memorandum of Dow Chemical Company in support of its motion to strike, pages 6-7
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event, that the AEC's erroneous interpretation of the Atomic
. Energy Act will soon be rectified by the passa6e of new legislation.
Sections 2011, 2012 and 2013 of the Atomic Energy Act ("Act") (42 USCA $$ 2011, 2012 and 2013) set forth the affirmative obligations of the AEC. These statements of principle and purpose obviously 61ve the AEC some latitude and discretion in implementing them (see 6 2101(p) of the Atomic Energy Act, 42 USCA 5 2101(p)); however, one thing is clear. The Atomic Energy Act did not intend the AEC to bethealteregoofpublicutilitiesortobeacontinu[ng subsidizer to those who generate electricity commercially.
- Indeed, if this had been the intention of Con 6ress, there would have been more explicit and clear statements so that the United. States public could understand the purpose to which its tax dollars would be ca=nitted.
-For some years now the AEC has taken the position that since it cannot make~a finding of practical value under 6 2132 of the Act (42 USCA 5 2132), licenses may continue to be issued under the research and development section of the Atomic Energy Act (42 USCA 5 2134) or what are ce=monly known as Section 104 licenses.
', Of concern to these intervenors is not, however, the failure of the AEC to obey the Atomic Energy Act which m
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- t results in a subsidization of utilities; we are most concerned
, with the fact t} tt the AEC has been issuing licenses pursuant to standards which are less stringent than those required under the Act. ,
The Act provides that a Section 103 license is to be issued upon the following standards (42 USCA 5 2133):
"(b) The Commission shall issue such licenses on a nonexclusive basis to persons applying
, therefor (1) whose proposed activities will serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utilized; (2) who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property"as the Commission may by rule establish . ..
Thus, after determining that nuclear power plants are commer-
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cially feasible, the Commission is empowered to issue licenses based upon standards which foster a protection of life and property. Congress obviously provided that if a public utility desired to make a profit upon sales of electricity' or other uses of nuclear power to the public, (rather than contributing to research and development), the utility, by virtue of AEC enforcement, would be obligated to make meaning-ful contributions to the protection of the health, welfare and safety of the public.
In contradistinction, a Section 104 license (42 USCA $ 2134) may be issued without the imposition of strict standards as set forth in the Act as applicable to Section
. , _ 103 licenses. Thus an issuance of a Section 104 license is conditioned as follows:
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"(b) The Commission is authorized to incue licences to persons applying therefor for utilization and prcduction facilities involved in the conduct of research and development
, activities leading to the demonstration of the practical value of such facilities for industrial or commercial purpocos. In issuing licenses under this subsection, the Cormission shall innose tl.a mininum amount of such reculations and terms of license as will permit the Commission to ful-fill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public and will be
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compatible with the regulations and terms of license,which would apply in the event that a ccamercial license were later to be issued pur-suant to section 2133 of this title for that type of facility." (Emphasis added. )
It is obvious frcm a reading of the standards controlling a 5 103 license and.a 6 104 license that the AEC and the licensee, in terms of the protection of the health, welfare and safety of the public, have a lesser burden in connection with the issuance of a 6 104 license. In a 104 license the AEC is specifically directed to refrain from imposing upon the licensee regulations directed to the maximum protection of the health, welfare and safety of the public as obviously would be the Commission's responsibility under a 5103 license.2./
In connection with the language of 6 104 licenses, it is inter-3/ esting to note that up until March of 1970 notices of hearings could be issued and licensing hearings could take place with respect to provisional or 18 month licenses. Presumably this practice was responsive to that portion of 6104 of the Act j uhich requires the Commission" to impose "the minimum amount of
. . . terms of license . . . However, since March of 1970 the provisional licenses are no longer issued, and each utilization facility license is issued for a full term of forty years. It l
1s totally' inconsistent for the Commission to have eliminated the " provisional license practice," presumably on the theory l that the experience factor in nuclear power plants long missing is nou present, but continue to license reactors es research
, and development facilities.
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It is untenable to suggest that the section of the Act dealing uith a finding of practical value (42 USCA
$ 2132), is a mere procedural requirement. The position of the AEC, as mirrored by Applicant and Dou Chemical Company, appears to be that the AEC has no obligation at any given point in time, to make " . . . a finding in writing that any type of utilization or production facility has been sufficiently developed to be' of practical value for industrial or commercial purposes . . ." However, the AEC may not
' choose unreasonably when it is to make such a finding; indeed, the AEC is obligated to make a finding of practical value if circumstances exist which would require such a findinc; and the question of practical value, insofar as the AEC's responsibilities toward the Midland facility are concerned, can be examined in the course of the Midland pro-ceedings. Indeed, there is ample evidence existing at the present that the Midland Plants are truly commercial reactors and they cannot be licensed as a research and development facility. Moreover, public statements of AEC representatives are replete with utterance; inconsistent with a failure to make a finding of practical value; and as recently as l
November 19, 1970, commissioner Larson said:
"Even though there have been delays as long as two ycr.rs in the construction of nuclear pouer plants resultin6 in increasing cost, nuclear pouer seems to be maintaining a strong competitive position. AEC News Release, \ 01.1, Ro. 23, pp. 11 et,. seq. (December 9, 1970).
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Assuming then that during these proceedinCs it would be found that the AEC's failure to make a finding of prertical value was in violation of its obligations to do so purnuant to the Atomic Energy Act, such a finding would preclude the Board from issuing a license for a 104 facility.
Calvert Cliffs and supra, pages 2-5 The Duke Power case (CCH Atom. Energy L. Rep. 53576),
relied upon by Applicant and Dow Chemical Company, is not in-consistent with intervenors' position.
In any analysis of Duke Power, it is important to consider all of the opinions since Circuit Judge Tamm's opinion alone did not produce the necessary five-four
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maj ority. All of the various opinions demonstrate that Duke Power uns decided upon its facts and was not a general license to the AEC permitting it to determine whenever it wished whether it would follow the purposes of the Act which recuire that a finding of practical value must be made when sufficient facts exist to support such a finding.
Thus Judge Tamm said (CCH at p. 8227):
"In evaluating the action of the Commission with respect to the question of whether section 103 or section 104(b) of the Act is controlling in-these cases, cur review must be limited to a finding of whether the Commission, in proceecina uncer section lO4(b), actea -
reasona'oly anc wnether the facts before the Commission support its finoina.' (Emphasis addec.)
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In this apinion Judge Tamm was not alone since the concurring opinions also limited Duke Power to its facts. ,
Thus the concurrirs opinion of Judges Leventhal, Wright and Robinson pointed out:
" Commission counsel advised that this [a practical value finding] could be done during, say, 1970, at any rate nell in advance of the issuance of licenses to qperate the facilities involved in the
- construction permits under revieu." (CCH at p. 8239)
And in commenting upon uhat facts are necessary to make a determination of practical value, this opinion held:
"Moreover, and more important, the determina-tion.of ' practical value' does not depend
- upon or require a computation that nuclear poner vill continue in the future as in the recent past to account for the bulk of 4anual It is enough-increments to power capacity.
if the technology and fundamental economic considerations make it clear that there is a role for light-water nuclear facilities that is not lacking in commercial significance.
(CCH at p. 8240)
Finally, Chief Judge Bacelon, concurring in part and dissenting in part, held:
"Is there any reason why a practical value finding should await evidence that nuclear olants are subject to something less than
reasonable business risks?' (CCH at p. 8246)
In light of this analysis, it is unreasonable to argue that the AEC has been justified in failing thus far to make a
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finding of practical value and to support the. argument by citation to AEC practice.
There can be no question that the Midland Plants are scheduled to be built for the commercial generation of electricity. Moreover, a good portion of AIplicant's case as well as the Staff's Safety Evaluation Report, in order to allay the fears of the public concerning nuclear power, is bottened upon the fact that a sufficient amount of research and development has already taken place so that the public need no longer concern itself with " safe nuclear power."
We do not believe that anything raised by the Applicant and Dou Chemical Company in opposition to our
"- motion justifies a denial'of the motion. Indeed, we would close this portion of our brief with another quote from one of the concurring opinions in Duke Power:
"The agency [AEC] has served as an aggressive and effective salesman for nuclear power, hastening its commercial development. But when nuclear facilities reach the point of practical value, the Commission acquires new regulatory duties under the statute. The tension betueen its roles of promoter and
. potential regulator of nuclear facilities may account for its often irreconcilable statements on their commercial prospects.
We may hope that the agency's duties or its statements will be harmonized before another of these cases comes to court." (CCH at p. 8247)
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The AEC's reluctance to make a finding of practical value and this Board's proliferation of that reluctance will perhaps lead to the Midland case being the vehicle by which .
the Court of Appeals for the District of Columbia can imple- .
4 ment its admonition to the AEC. /
~ We note in Applicant's brief the suggestion that our 3/ motion No. 1 is moot because of new legislation. We would only add that the new legislation's application to the Midland and other proceedings is bein6 E lven careful analysis. Moreover, if the application of new r
legislation eliminates any necc.sity for a finding of practical value here, we are at once faced in this hearing uith the question of whether the AEC's substantive regula-tions and standards formulated for research and development reactors are sufficient for application to commercial reactors, s
Motion No. 2 Intervenors in their motion No. 2 argue that a construction permit may not issue until after the full and complete design of the Proposed Plants has been submitted for review.5/ Since the question of review not only by the AEC but also by the process of a public hearing cannot take place t-until the design is fully developed, it follows therefore that a hearing may not go forward until the full design is completed, since otherwise the hearing cannot concern itself with an
- analysis of the totality of the design.6/
2/ Applicant's brief states that our reference to section Our reference to 2035 should have been to section 2235 section 2035 was not inadvertent but deliberate since it is that section which sets up the authority for the AEC to appoint a Director of Regulation and "other executive management positions (not to exceed six in number) as the Commission may determine to be necessary to the discharge of its responsibilities," and therefore controls the duties of the Director. 42 USCA 6 2035(d). Moreover, our reference to section 1.25 of the Commission's Rules of Practice, which is the manner and method by which the Director of Regulation was established, was also deliberate. See lo CFR Part 1, section 1.25; 26 F.R.-6871.
6/ Indeed, without the full and completed design, it would be impossible for the Board to make one of the findings required to be mad'e (finding by(the 1(d) regulations ii)) that " . . . theandproposed the Noticefacilities of Hearing can be constructed and operated at the proposed location l without undue risk to the health and safety of the public."
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Applicant and Dow Chemical Company make two points in opposition to our motion. The first is )
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that the AEC's regulations permit an incomplete hearing l at the construction stage level and these regulations are not at odds with AEC responsibilities under the Atomic Energy Act; and second, that the decision of the Supreme Court in Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, et al., 367 U.S. 396 (1960) (" Power Reactor case") forecloses ~
the raising of motion No. 2 as a matter of law.
Applicant's brief and Dow Chemical Company's brief serve but one master -- history. That is, they argue it is permissible for the AEC to hold hearings with respect to construction permits prior to the completion of final design because "that's the way it has always been done." History, however, may also dictate that a course of conduct has been impermissible in light of statutory prescription, and our review of the law as well as the regulations indicate that, in fact, this is the case.
(a) The Act and AEC Regulations.
Section 185 of the Atomic Energy Act (42 USC 6 2235) sets out the general criteria applicable to the issuance of construction permits. Thus:
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"All applicants for licenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission struction permit.7' be initially granted a con-The Commission has implemented this section of the Act, in part, by establishing regulations governing the contents of applications.
Thus 50 34 of the AEC's regulations (10 CFR S 50 34) provides in several subsection,s specifically what must be contained in the application. It is clear from a reading of 50 34 that the AEC regulations contemplate a description of the total facility. Although it is true that 50.34 speaks in terms of a " preliminary design," this cannot mean that the s-design of each and every safety consideration must not have already been designed and passed upon prior to the issuance of a construction permit. Any other interpretation would permit the applicant to seek and obtain a license for the construction of a reactor and then to be free to do as it wished subject to a review by the Commission at the operating stage level. This clearly is not the intention of the regula-tions and, as we shall later demonstrate, was clearly not the intention of Congress when in 1957 and 1962 it overruled certain holdings in the Power Reactor case by amending section 189 of the Act (42 USC $ 2239).
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k- Section 50.35 (10 CFR S 50 35), the regulation governing the issuance of construction permits, permits the AEC to issue a license based upon the entering of certain findings therein listed which findings have been incorporated verbatim in the Midland Notice of Hearing. What Applicant and Dow Chemical Company do not inform the Board, as regards 50 35, is that immediately before the language setting forth the findings upon which the issuance of a construction permit shall be based the following appears:
"When an applicant has not supplied initially all of the technical information required to complete the application and support the issuance of a construction permit which approves all proposed design features . .. "
Thus the findings in 50 35 are only permitted to be made in those instances when the Applicant has failed to comply with 50 34 and, as we shall demonstrate, is not faced with an opposing intervention.1!
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7/ Additionally, we would call the Board's attention to the note at the end of 50 35 which reads:
"When an applicant has supplied initially all of the technical information required to complete the application, including the final design of the facility, the findings required above will be appropriately modified to reflect that fact."
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The AEC's regulation therefore contain a distinction between t the findings required to be made when the final design has not been completed and the findings required to be made when an applicant who wishes a construction permit has done its homework and has completed the final design prior to hearing l upon its application for a construction permit. We submit that if 50 34 and 50 35 are interpreted to permit issuance of a construction permit based upon the findings of the Notice of s,, Hearing, then it can only be in the context of an uncontested proceeding when there is no opposing intervention.
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Any ambiguity in this regard must be resolved against the AEC for its failure to have revised its regulations subsequent to Congressional disapproval of the result in the Power Reactor case.
(b) The History, Scope and Meaning of Section 169 of the Act.
s Section 189 of the Atomic Energy Act (42 USC $ 2239)
. presently provides that applications for construction permits must be the subject of a public hearing. Additionally, present section 189 provides that the Commission may issue without a public hearing an operating license to an applicant who has completed the building of a facility pursuant to a construction permit, unless a person whose interests are affected requests a public hearing. The presence of the mandatory hearing require-ment only at the construction permit level reflects a judgment by Congress that all design and safety considerations must be analyzed in detail at the construction stage; and there is no significant need for a hearing at the operating stage level, at least insofar as the AEC is concerned, unless a member of the public whose interests may be affected requests a public hearing.
At the time of the factual occurrences which were the subject of the Power Reactor decision, this was not the case. Prior to September 2, 19578/ section 189 of the 8/ The operative facts in Power Reactor, insofar as relevant
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s, here, occurred prior to the first amendment of section 189 l
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L Atomic Energy Act provided that no public hearing was necessary at the construction stage level or the operating stage level unless a person whose interests were affected intervened and requested a public hearing. The AEC was not l
obligated, in the absence of intervention, to hold any hearings, and the Atomic Energy Act permitted the AEC to follow a relaxed procedure in the issuance of construction permits which were uncontested. Absent such intervention, the Regulatory Staff was free to follow the construction of the plant and approve periodically the creation of system designs as they were submitted which had not been available for review at the construction stage hearing.
A-In 1957 Congress amended section 189 of the Act and provided that a public hearing was mandatory, whether or not there was an intervention, with respect to the issuance of all licenses. Since a construction permit was denominated a license by virtue of section 185 of the Act, the Commission was powerless to issue a construction permit in the absence of a public hearing. This was the law, notwithstanding a positive ACRS letter, a favorable Staff Evaluation Report, a statement of proposed issuance of license by the Director of Regulation, or Regulatory Staff review subsequent to issuance of a construction pennit and prior to operation. Congress, l
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v by its 1957 amendment, obviously intended that there be an
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additional overview of the Staff's Evaluations of applica-tions for 31 censes.
1 In 1962, Congress once again amended section 189 to its present form providing that while the requirement for public hearings is optional at the operating stage, conditioned upon whether a person who is affected intervenes and requests a public hearing, such a hearing is mandatory at the construc-tion stage regardless of intervention.
The history of section 189 reflects Congressional .
recognition that the critical stage in the AEC's review and licensing proceedings is at the construction level. In -
the Report from the Joint Committee on Atomic Energy, explaining the 1962 amendment, it was stated:
"At the ' Radiation Safety and Regulation' hearings in June 1961 and at the 1962 regulatory hearings, .
there was substantial unanimity of opinion that the mandatory hearing requirement of the Act with respect to power and testing facilities should be relaxed. The second hearing on the ouerating license was regarded, by most witnesses, as unnes-sary and burdensome in the absence of bona fide intervention. Accordingly, this section will eliminate the requirement for a mandatory hearing, except upon the application for a construction permit for a power or testing facility." S. Rep.
1677, 87th Cong., 2d Sess. pp. 7-8 (1962).
It would be unreesonable to acknowledge that while Congress chose to limit the mandatory hearing requirement to one particular stage, as it obviously has, that it likewise did not intend that all critical submissions including the
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final design should not be made by applicant at that stage.
Any other conclusion would mean that the Congress merely provided a shell for a hearing and whether any substance would be given to that hearing would be within the control of applicant., Intervenors submit that Congress never intended this result. Rather, Congress' action in providing for the mandatory hearing at' the construction level was based on the accurate conclusion that it is at this stage that the most critical analysis is necessary and at this stage uhere applicant must bring for review its final design.
(c) Unless Intervenors are permitted the oppor-tunity for a full and complete analysis of the final design, they are deprived of rights inherent in a mandatory hearing.
In an uncontested proceeding, notwithstanding the fact that a public hearing might be called, it may very well be permissible, although intervenors believe undesirable, for the AEC to issue a construction permit after analysis of a preliminary and incomplete design and to permit the applicant to describe the intended research and development regarding systems which will be designed during the construction of the l
plant. In a proceeding where the public interest has not been asserted by way of an intervention, it is obvious that such a procedure night be acceptable since the ultimate burden (by statute and by default) with respect to approval or disapproval s-
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of systems not designed prior to the issuance of a construc-l 9 tion permit lies essentially with the Regulatory Staff. /
In a contested proceeding, however, the timetable
,l employed by the Applicant and Staff for submission of its final design as well as the Board's deference to the Staff's approval of such designs must necessarily change so as to give meaning to th'e hearing and to protect intervenors' rights.
One of the basic reasons for this intervention as well as, we would assume, all other interventions, is that intervenors are unwilling to accept the singular and unilateral review of the Regulatory Staff. Obviously, the Regulatory Staff has issued its blessings prior to the issuance of a Notice of Hearing and, indeed, the AEC regulations contemplate interven-tion only after issuance of the Staff Evaluation Report.
Therefore an intervenor who wants his day in court with respect to the design of a plant is requesting, and a public hearing demands, something more than the Regulatory Staff's evaluation of a system after the issuance of a construction permit.
If the final design is not available for critical scrutiny by intervenors at the construction stage hearing, 2/ It is, of course, AEC practice that the Final Safety Analysis Report and the Staff Final Evaluation precedes any hearing at the operating stage. However, absent intarvention in a hearing for an operating license, the only entity which has reviewed systems not available for review at the construction stage hearing
'" has been the Regulatory Staff. This practice is, of course, what Congress meant to change when it required mandatory public hearings at the construction permit stage.
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how then will intervenors be afforded their full and complete hearing? Presumably, during the construction of the reactor ,
additional public hearings could be held as each system is designed. The AEC's rules, however, do not contemplate this alternative, since once a construction permit is issued no public hearings are called or are available for calling until after the plant has been constructed.
It can be asserted that a construction stage inter-veno? who does not have the opportunity to question the final design is not foreclosed or denied any rights, since he may
. loo intervene at the operating stage hearing. However, as a practical matter, one can readily see that any opposition s-or criticism of the design of a system at the operating stage level will fall on deaf ears, so long as the plant is built according to the design. Indeed, the findings required in an operating license hearing arguably can be interpreted to limit inquiry into the design of the plant as such, restricting the investigation into whether the construction of the facility has been accomplished in conformity with the construction permit, that is, the preliminary design as modified by any final design subsequent to the issuance of construction permit.
See 5 50 57 both prior and subsequent to its amendment on March 30, 1970 and specifically SS 50 57(a)(1) and (2).
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t Moreover, to require an intervenor to withhold questions as to part of the design until the operating stage imposes a condition upon a construction stage intervenor not found in the Act, to-wit: in order for him to secure a full hearing he must intervens at both construction and operating levels.bS!
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Additionally, as we have pointed out, to impose the burden of additional hearings upon a construction stage intervenor depreciates that intervenor's right to a full and complete hearing at the construction stage level. Thus one can readily see that if Applicant's and Dow Chemical Company's s_ suggestions contained in their briefs in support of denial of motion No. 2 are accepted, it will result in a complete elimination of the opportunity for examination into those systems which are designed subsequent to the issuance of a construction permit; and such denials would be in violation of the Administrative Procedure Act, the Atamic Energy Act
($ 189) and the Constitution of the Onited States. Shields v.
Utah Idaho R. Co., 305 U.S. 177, 182 (1938); Morgan v. U.S .,
298 U.S. 468, 476-79 (1935); and Int. Com. Comm. v. Louis. &
Nash. R.R. , 227 U.S. 88, 90-91 (1912) .
10/ We also question a policy which would encourage interventions at the operating hearing in addition to interventions at the construction stage hearing, particularly since at the time of
,%- an operating hearing the AEC and the utility are in practical agreement. -
m (d) The Power Reactor case.
Since in large part Applicant and Dow Chemical rely, almost singularly, upon the Power Reactor case in opposing intervenors' second motion, a critical analysis 11 of that case is necessary.- /
The Power Reactor case dealt with the question of the validity of continuing in effect a construction permit, already issued, with respect to the building of a fast-neutron breeder reactor. Power Reactor's original construc-tion permit, it should be noted, was issued without the benefit of a public hearing. Thus, as the Supreme Court said at page 400:
v "The Commission took the case under advisement and, on August 4, 1956, despite a report of its Advisory Committee on Reactor Safeguards which was at best noncommital about the probable safety of the proposed reactor in operation, issued a provisional construction permit without having held public hearings, as the law at that tDne permitted it to do. This permit was subject to tne rollowing condition:
'The conversion of this permit to a license is subject to submittal by PRDC to the Commission (by mmendment of the application) of the complete, final Hazards Summary Report (portions of which may be submitted and eveluated from time to time). The final Hazards Summary Report must show that the i final design provides reasonable assurance . ..
that the health and safety of the public will 11/ Indeed, the AEC's practice in issuing construction permits g,
based upon a review of only the " preliminary design ' also stems from reliance upon the Power Reactor case.
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- not be endangered by operation of the reactor. . . ' " 12/
The only issue before the Court was set forth at page 398 of Mr. Justice Brennan's opinion: .
" Stated more precisely, the question before us i is whether the Commission, in issuing a permit for the construction of a facility which will utilize nuclear materials, such as the power reactor presently involved, must make the same definitive finding of safety of operation as it admittedly will have to make before the licensee's actual operation of the facility."
The distinctions between the case before this Board and the case before the Supreme Court in Power Reactor are significant. First, the Supreme Court was dealing with a provisional construction permit, whereas the language of 50 35 governing the Midland reactors speaks in terms of v
final construction permits. Second, Power Reactor was issued its provisional construction permit without a public hearing, "as the law at that time permitted," whereas here a public hearing is required and is being held. Third, the Supreme Court was only asked to inquire whether the AEC had statutory authoriza-tion to delay a finding of safe operation until the operating stage hearing at a time when no mandatory public hearings for 12/ The condition of the issuance of the construction permit as noted above in the quotation of language from Power Reactor demonstrates precisely what we are contending here.
That is, after the issuance of a construction permit, the AEC was to evaluate from time to time amendments to the application ' oringing the design from a preliminary to a final stage. Such a procedure is obviously inappropriate where a public hearing is required, since no construction permit can issue until the Atomic Safety and Licensing As Board has made that evaluation.
construction permits were required by section 189 of the Act.1d[ Intervenors here raise the following issues:
(1) Can a public hearing for a construction permit be meaningful when the final design is not before the parties; (2) Can the AEC validly issue a construction permit in a contested proceeding when the final design has not been completed; (3) Is the AEC empowered to tell intervenors they must rely upon the Regulatory Staff evaluation of systems later designed, which evaluation will take place subsequent to the construction stage hearing; and (4) Is the AEC -
enpowered to tell intervenors that if they appear at the oper-ating stage hearing then and only then will they be able to
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secure a full hearing as to construction and design questions.14/ -
These distinctions and the following analysis disclose that the Court in Power Reactor was speaking about a period of AEC development when Congressional emphasis was not upon complete public investigation at the construction stage. Congress, as shown above, has twice changed this 13/ Power Reactor, 367 U.S. at p. 400, and supra, pp.17-20.
14/ We note that the AEC has taken the position that such design questions are foreclosed at the operating level. Practically speaking, they are foreclosed since no ASLB is going to order the dismantling of a constructed facility. See Justice Douglas' dissent in Power Reactor, 367 U.S. at p. 417
-27 ,
s-since the Power Reactor decision. ! Thus the so-called
. "two step procedure" approved in Power Reactor was distinguished by Congress by the 1957 mnendment to section 189 and expressly
?
overrued in its 1962 amendment to section 189 Congressional emphasis changed because at the time the so-called two step procedure approved by Power Reactor was in effect, the nuclear industry was in its growing stages and there was every likelihood to believe that giving the applicant more time to complete a final design (even the period of construction) would have a salutary effect.
Therefore, the Supreme Court bottomed its decision, in part, s_ upon its determination that:
". . . nuclear reactors are fast. developing fast-changing. What is up to date now may not, probably will not, be as acceptable tomorrow. Problems which seem insuperable now may be solved tomorrow, perhaps in the very process of construction itself . . .
12/ Indeed, the shift in Congressional emphasis toward public hearings at the construction stage was motivated by the Power Reactor case. We would refer the Board to the 1962 JCAE hearings and particularly the following remarks of one of the witnesses, Mr. Cavers, who was commenting upon the need for a hearim, at the operating stage in view of the fact that a mar atory public hearing was required at the construction stage:
"Nevertheless,. without some public proceeding at this stage, the AEC would be handling these cases by executive process just as they were handled before the PRDC [ Power Reactor] case compelled the procedural problem to be restudied." Hearing
\# before Subcommittee of JCAE on Regulatory Problems, H.R. 12336 and S. 3491, 87th Cong., 2d Sess. p. 40 (1962).
u Particularly is this respect due when the
. administrative practice at stake ' involves a contemporaneous construction of a statute
, by the men charged with the responsibility of setting its machinery in motion, of making the parts work ef ficiently and smoothly while they are yet unt/ied and new." 367 U.S. at
- p. 408.
At today's stage of development of the nuclear industry, at least insofar as light water reactors are concerned, we are not required to interpret a statute generously and in light of a " technology yet untried and i
new."
Moreover, the Applicant and Dow Chemical Company
_ have taken great pains to impress upon intervenors as well as other members of the public that the Midland Plants are like any other light water reactors; and accordingly there is no need for concern.
An application of Power Reactor here, when what is at issue is not a provisional construction permit but a final construction permit, would not only destroy the intent and meaning of the Atomic Energy Act and its regulation i
tut it would also deprive intervenors of the benefit of the passage by Congress of a mandate for public hearings at the construction stage, an amendment to the Atomic Energy Act t
passed after the fact insofar as Power Reactor is concerned.
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(e) Conclusion.
By virtue of its amendments to section 189, Congress adjudged that it is more significant, and therefore mandatory, to hold a public hearing at the construction stage level. Congress' amendment in 1957 distinguishes the Power Reactor case; and its amendment in 1962 was made expressly in light of the re.sult reached in Power Reactor.16/ -
Since Congress found it important subsequent to the Power Reactor case to require public hearings at the construction stage, it follows that in order for such a hearing to have substance and in order for the participants in the public hearings to have an opportunity to analyze the safety of the design of the power plant, intervenors must be afforded an opportunity to question the final design; and this cannot be done in a contested proceeding 11[unless the final design has already been developed. To hold otherwise would not only destroy the efficacy of a public hearing at the construction stage but would say to any intervenor who chooses to intervene at the construction stage levalthat in order to achieve a full hearing, he must either rely upon the l
Regulatory Staff or opt for a public hearing at the operating stage level.
16/ See remarks of Mr. Cavers at 196'2 JCAE Hearings, supra, p. 28.
1Z/ We do not believe that the Board must decide whether in an uncontested proceeding a construction permit may be issued prior to the final design. When no intervenor is present there is, of course, no indepe'ndent party challenging Regulatory Staff review.
\_
We see no requirement in the Atomic Energy Act which conditions intervenors' inquiry in a public hearing at the construction stage upon their presence in a public
' hearing at the operating stage or upon ceding their rights to public inquiry to the Regulr. tory Staff.
Motions Nos. 3(b) and (c)
Intervenors' motions 3(b) and (c) assert the proposition that the AEC has jurisdiction over matters other than radiological matters, the National Environmental Policy Act notwithstanding.
The issue was raised in the Palisades case and Applicant herein has taken the opportunity to submit its Palisades brief in opposition to our motions. Since we believe the matters have been fully briefed in Intervenors' brief in Palisades, we are likewise submitting that brief in support of our motions 3(b) and (c). This brief is att, ached hereto as Appendix A.
Motions Nos. 3(d) and 7(f)
Intervenors' motions 3(d) and 7(f) call into question the practice of the AEC to license nuclear power reactors by a process of balancing risks against benefits.
It is obvious that theoretically a balancing of risks is inherent in every judgment question and indeed in s_- every act taken by a civilized society. Generally speaking,
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a balancing of factors test is certainly not unknown in our jurisprudence, and it has been used throughout our history to differentiate between reasonable and unreasonable ricks.
We submit, however, that a balancing of ricks or a balance of factors test is more appropriately applied in a situation uhen both the risks and benefits are economically oriented and that such a benefit-risk theory is not appropriate when the risk to be wei6hed turns out to be the life of an individual.
We do not make this motion out of hysterical fear; rather, we press this legal point because we believe that Congress, in recognizing the dangers of nuclear energy, s- provided in the Atomic Energy Act that the AEC, albeit empowered to promote and regulate atomic energy, was to do so in the context of protecting the health, safety and welfare of the public, thereby assuring that positive steps would be taken to eltninate any risk to the public.
We are, therefore, gravely concerned about the illegality of the position asserted by the AEC and adopted by Applicant and Dow Chemical herein. We find the briefs i
of Applicant and Dow Chemical of no moment since, as has been pointed out in other parts of this brief, the citation l
to an AEC statement in support of an AEC practice is not in our opinion persuasive. To make this point more clear, L-
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we would like to quote from portions of Applicant's brief in opposition to' our motion 3(d).
At page'7-3 Applicant quotes from the 1965 ICRP Publication 9 as follows:
"This assumption implies that there is no wholly safe dose of radiation."
At page 7-4 Applicant quotes from a 1959 report of the Ad Hoc Committee of the NCRP:
. . . it follows that even the smallest dose would involve some risk. This means that the exposure should be kept as low as feasible and that no level of radiation is warranted unless the benefits balance or '
outweigh the assumed risk."
At page 7-5 Applicant quotes from a 1958 NCRP publication and states:
"Even if the injury should prove to be proportional to the amount :of radiation the individual receives, to the best of our present knowledge the new permissible levels are thought not to constitute an unacceptable risk."
Finally; at page 7-7 Applicant quotes from a recommendation by former President Eisenhower under date of May 13, 1960 that:
"There should not be any man-made radiation l
exposure without the expectation of benefit resulting from such exposure."
The first question that comes to mind is what support is there for an interpretation of the. Atomic Energy ss ,
Act which emphasizes the benefits of nuclear energy as a controlling factor to determine what risks are acceptable?
The quotations cited from Applicant's brief demonstrate that the AEC has overzealously guarded its obligation to promote nuclear energy without making appropriate safeguards for the public. It is no answer to suggest that the nuclear industry which has been growing under the protective aegis of the AEC is safe enough, since we are at a point in time where the AEC is unwilling to examine the fundamental principles it used in initially interpreting the Atomic Energy Act.
The AEC did not ask itself initially the question of what is to be the scope of a nuclear industry assuming
- a paramount obligation positively to protect the health and safety of the public. Rather, it created and fostered a nuclear industry and then begain to think of what risks inherent in that industry would be acceptable in the AEC's judgment. We do not believe, therefore, that the AEC,
[
despite .'s long-standing practice, can support a legal test which permits the licensing of nuclear plants upon a showing that "there is reasonable assurance that no undue risk" will result to the public.
This legal test is not one but two steps removed l
from the AEC's obligation pursuant to sections 1, 2 and 3 of the Act (42 USC SS 2011, 2012 and 2013) which require the
! AEC "to protect the health and safety of the public." We
! s-
s-find nothing in the Atomic Energy Act which permits the AEC to protect only part of the public and impose on another part of the public some of the risks, assumed or real, which are created by nuclear power plants. Not only has the AEC's contrived legal test fallen short of its positive duty to protect, it even falls short of requiring a finding of "no undue risk." The AEC has attempted to discharge its positive responsibilities by nothing more than " reasonable assurance that there will not be any undue risk," a negative test.
Applicant and Dow, in opposition to these mocions, once again rely upon the Power Reactor case. Dow suggests that Power Reactor held that the Cannission's test of s " reasonable assurance of no undue risk" was a valid exercise of the Cc= mission's responsibility under the Atomic Energy Act.
Nothing could be further from the truth.
While.it is true that the opinion of Mr. Justice Brennan viewed the AEC's implementation of the Atomic Energy Act generously and favorably, the issue before the Supreme Court, as we have pointed out elsewhere herein, was whether, under the law then existing, a provisional construction license could be issued without the same definitive finding or r.nrety or operation no munt be done at the operating ctage level. The validity of the AEU's formitlettion or w
"its reasonable assurance of no undue risk" test was not at issue in Power Reactor; and no matter how one reads dicta, it cannot and should not serve as precedent to foreclose this Board from objectively and independently formulating its decision.
We should further like to point out that inaction of Congress in eliminating the AEC's benefit-risk theory is more a function of Congressional apathy and AEC public relations than it is a statement of Congressional satisfac-tion. We would further call the Board's attention to the following fram the recent Report by the Joint Committee on Atomic Energy (S. Rep. No. 91-1247, 91st Cong., 2d sess.,
at pp. 17-18):
"The committee firmly believes that the time has come to abolish the Federal Radiation Council and to substitute for the present text of subsection 274 h. of the Atomic Energy Act new, detailed requirements in regard to the need for a continuing, comprehensive l review cf radiation the bases therefor." protection standards and Applicant and Dow Chemical Company should not be l
content to support statements by the FRC'or NCRP when Congress
! has now demonstrated that the activities of those agencies demand reexamination. We believe that chese recent cannents by the Joint Ccmmittee on Atomic Energy are a reaction to v
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l s_ the AEC's zeal in promoting atomic energy while failing positively to provide adequately, as the Atomic Energy Act mandates, for the protection of the health, safety and welfare of the public.
Motions Nos. 3(e) and (f)
Intervenors' motions 3(e) and (f) call into question the Midland Notice of Hearing as well as the composition of the Atomic Safety and Licensing Board. These motions assert that the Board is biased, as a' matter of law, and is insuffi-ciently technically qualified to preside at these hearings.
The opposing memoranda of Applicant and Dow Chemical Company do not meet the issue which is presented by th2se s- motions. Applicant and Dow Chemical Company argue in essence that the AEC's fostering of atomic energy is paramount even to the point of appointing members who view interventions and public hearings with skepticism.
The fact remains, however, that the technical members of this Board are not sufficiently versed in all of the sciences which are releated to all of the issues which will be before this Board. There is no suggestion, at this point in the record, that Drs. Goodman and Hall are not technically qualified to consider issues regarding nuclear safety; intervenors, however, do strenuously press the point that Drs. Goodman and Hall have an insufficient environmental background to assess the issues which will arise under the
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' National Environmental Policy Act and the Atomic Energy Act (see discussion relating to motions 3(b) and (c) supra).
Under section 191 of the Act (prior t'o its recent amendment), the AEC was obligated to appoint Board members who were " technically qualified." Obviously this means qualified in light of the issues to be decided. Any other reading of former section 191 would deprive it of significance.
Accordingly, the appointment of the Midland Atomic Safety and Licensing Board without taking into consideration issues other than nuclear safety results in this Board having been appointed in violation of the Atomic Energy Act.
We believe that the recent change in section 191 of the Atomic Energy Act (42 USC $ 2241) is merely a Con-v gr ssional clarification of how theCommission should have interpreted the former section 191.
( Thus now:
I
". . . the Commission is authorized to estab-lish one or more atomic safety and licensing boards, each comprised of three members, one of whom shall be qualified in the conduct of administrative proceedings and two of whom shall have such technical or other qualifications as the Commission deems appropriate to the issues to be decided."
We would offer, in light of the recent amendment of Section 191 as well as the AEC's third revised Appendix D, a practical suggestion, to-wit: that the Board take intervenors' motions 3(e) and (f) under advisement until .
after the pretrial 1scovery is completed. If.at that L
time, the Board determines, as intervenors suggest, that
this proceeding must concern itself with issues broader than nuclear safety or radiological protection, then the Board should petition the AEC to reappoint an Atomic Safety and Licensing Board qualified to consider all of the issues.
Motion Fos. 7(a)-(d)
Intervenors' motion No. 7 attacks the validity of the Standards For Protection Against Radiation, 10 CFR
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Part 20. Dow Chemical Company's only answer is its reliance upon the Calvert Cliffs memorandum decision, which we have dealt with in the opening portions of this brief, supra pages 2-5 Applicant in opposition to intervenors' motion No. 7 has submitted its Brief in Palisades in opposition to a similar motion made before the Palisades Board and we are submitting on behalf of our motion Intervenors' Brief filed in the Palisades case arguing the illegality of Part 20 standards. This brief is attached hereto as Appendix B.
Motion No. 7(e)
Intervenors' motion 7(e) contests the Standards For Protection Against Radiation because such Standards are based upon an unwarranted assumption that there is a " safe dose" of radiation. Applicant's adnission that there is no scientific support for such an assumption without more compels a finding in favor of intervenors' motion. See Applicant's references to ICRP Publication dated September, v
1 1965 (App. Br. p. 7-3); to Ad Hoc Report of NCRP dated May 6, )
i 1959 (App. Br. p. 7-4); and to NCRP statement dated 1958 (App. Br. p. 7-5), all cited with approved by Applicant.
Motion No. 7(f)
Intervenors' motion 7(f) contesting the validity of the benefit-risk determination as a basis for Standards For Protection Against Radiation has been briefed in connection with intervenors' motion 3(d).
Motion No. 7(g)
Intervenors' motion 7(g) is directed to the fact that the AEC, notwithstanding its domination of the nuclear field, is obligated by Congress pursuant to cection 274(g) s, of the Act (42 USC $ 2021(g)) "to cooperate with the states in the formulation of standards for protection against hazards of radiation to assure that state and Commission programs for protection against hazards of radiation will be coordinated and compatible."
It is admitted that the AEC's Part 20 standards have not been reviewed by the various state radiological agencies to assure " coordination and compatibility." We l
l believe that this ground alone, notwithstanding the various compacts cited to be in existence by Applicant, requires a finding that the standards are illegal because they are contrary to the guidelines of 274(g).
a Motion No. 8 Intervenors' motion No. 8 calls into question whether the Applicant has met the requirements of the Atomic Energy Act with respect to the siting of the Proposed Midland Plants. It is intervenors' position that the siting of the Proposed Midland Plants as planned will violate 10 CFR Part 20 as well as TID-14844.
Applicant and Dow Chemical Company have responded to this motion that since it involves a question of fact, it should not be raised at this time.
The genesis of this motion was a review of the Applicant's PSAR and Summary of Application as those s-documents relate to siting. It is our belief that, as a matter of law, Applicant's proposed evidentiary submissions are inadequate to satisfy Part 100 and TID-14844. However, since the PSAR is not as yet in evidence, intervenors request the Boa'rd to stay a ruling on this motion until such time as it is once again pressed by intervenors if the PSAR is received into evidence. It is our position that at s that point, as a matter of law, the construction permit must be denied because of a failure to meet applicable siting requirements.
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II DOW CHEMICAL COMPANY'S MOTION TO STRIKE PORTIONS OF INTERVENORS' PETITION TO INTERVENE Intervenors believe that the substantive portions of our brief in support of our motions (Part I of this memorandum) are in and of themselves sufficient answer to Dow Chemical's motion to strike'.
We find Dow Chemical's motion to strike certain portions of our petition more amusing than discomforting. v' We note that Dow's counsel stated on the record that our petition was more specific and detailed than any other and note also that Dow's counsel was unable to state more specifically what Dow Chemical's contentions were. As a s-matter of fact, on Jar.uary 7,1971, intervenors filed a motion to strike Dow Chemical's petition to intervene upon the grounds that it fails to satisfy the AEC's requirements
, governing petitions to intervene.
l In addition to its lack of substantive significance, Dow's motion to strike should be denied since intervenors, after discovery, may very well limit or broaden their petition.
Consequently it will be better at that time to analyze our petition to discern what issues are involved.
Moreover, we call attention to the fact that Dow Chemical Company posed no objection to our petition at the hearing and accordingly Dow's motion to strike is untimely.
L l
42-
w w--------& r e aw w w -- ,-w e----- - - - , , -.- - y r - , w y- = -
s, Finally, we would have the following specific responses to Dow's memorandum of law in support of its motion:
Part 1 We believe that the Board has the authority to consider the issues which we raised in paragraphs 24, 72 and
! 74 of our petition and would refer the Board to the discussion in support of our. motion No. 2. Additionally, we would point out that even if the Board holds against us on motion No. 2, the aforesaid three paragraphs of our petition also raise the question as to whether the Applicant has met the requirements of 10 CFR 9 50 35(a). ,
Part 2 Dow Chemical Campany argues that our paragraphs 27, s.,
42 through 47 and 50 of our petition must be stricken because they raise issues dealing with the validity of the Standards For Protection Against Radiation, 10 CFR Part 20.
Dow Chemical Company relies entirely upon an erroneous interpretation of Calvert Cliffs. We would refer the Board therefore to our discussion herein at pages 2-5 Part 3 Dow Chemical asserts that our paragraph 30 must be stricken because it is not specific. Since Dow Chemical did not raise this question at the time of the ruling on our
- petition to intervene and because the Board has already per-i mitted us to intervene with paragraph 30 included in our N- petition, intervenors would state that paragraph 30 is an appropriate part of any petition or pleading.
s
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Certainly the AEC cannot foreclose inquiries into an area discovered during pretrial investigation or indeed during cross-examination. Any denial of that right would be tantamount to a denial of a public hearing.
Paragraph 30 was inserted in the petition as a stop-gap protection since at that time petitioners had not had sufficient opportunity to analyze the PSAR and had not
. vet been afforded-pretrial discovery.
Petitioners intend to amend their petition subse-quent to discovery to eltninate those systems or component-parts, if any, which will not be the subject of inquiry by intervenors during the hearing. ,
w Part 4 That part of Dow's motion asserting that portions of our petition dealing with the National Environmental Policy Act are therefore beyond the Board's jurisdication is untimely. This Board has expressly refrained from requiring the parties to brief these issues until a later date and accordingly intervenors shall withhold comment on the so-called NEPA issues. These issues are as set forth in para-graphs 53 through 71 of our petition.
l We do not agree with Dow Chemical Company that our paragraphs 77 and 78 raise environmental issues, as such, under the Atomic Energy Act, NEPA notwithstanding, t
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and believe that Dow Chemical Company's motion to strike these two paragraphs is without merit.
Finally, to the extent that the last portion of Dow Chemical Company's memorandum in support of its motion needs any answer, we would refer the Board to our discussion in support of our motions 3(b) and (c).
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III CONCLUSION For the above reasons, intervenors respectfully request that the Board enter orders granting our motions consistent with our Request for Relief filed with the Board on December 1, 1970.
Respectfully submitted, ,.
Yj(JAN t 1
/-k * - i Myr5n'MgCherry
- Attorney for Named Interv ors 111 West Monroe Street Chicago, Illinois 60603 l
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a L
CERTIFICATION I-certify that a copy of "Certain Intervenors' Memorandum in Support of their December 1, 1970 Motions and in Opposition to Briefs filed by Applicant and Dow Chemical Company on December 15, 1970" was mailed, postage prepaid, to each member of the Board, all counsel of record and the Secretary of the Atomic Energy Commission on Monday, January 11, 1971. ~
\b W ,
kW on M. Cherry i
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