ML19331A751
| ML19331A751 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/16/1973 |
| From: | Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8007210757 | |
| Download: ML19331A751 (31) | |
Text
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UNITED STATES OF' AMERICA
,,y, ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF
)
)
Docket Nos. 50-329 CONSUMERS POWER COMPANY
)
and 50-330
)
(Midland Plant, Units 1 and 2)
)
REPLY OF APPLICANT, CONSUMERS POWER COMPANY, TO THE EXCEPTIONS FILED BY THE MAPLETON INTERVENORS TO THE INITIAL DECISION (DECEMBER 14, 1972)
OF THE ATOMIC SAFETY AND LICENSING BOARD On December 14, 1972, the Atcmic Safety and Licensing Board (Licensing Board) issued its Initial Decision in this proceeding. ~~
Thereafter, on January 3,1973, and, purportedly in compliance with 10 CFR 2.762, the Mapleton Intervenors filed a -document entitled "Excepti' ns of Mapleton Intervenors to Initial De, cision'.,
o of the Atomic Safety and Licensing Board".
Those exceptions should be considered in the light of the following finding of the Licensing Board (Initial Decision, Para. 9) :
. Mapleton Intervenors' participation in the radiological hearing was relatively limited but they fully participated in the environmental hearing.
Unfo rtunately, their proposed findings f all f ar short. of the specification and detail required by the Regulations, and do not serve the purpose for whi ch they were required.10/
10/
The Board would like to note that the fail-ure to propose proper findings and conclusions
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has greatly complicated the task of the Board and has made it virtually impossible in some instances to know whether particular issues are in fact contested.
As Applicant has noted both Mapleton and Saginaw are in default; as Applicant has also conceded, it is not clear what should be done about the default.
p ub151 q
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The Board might, we suppose, strike the inter-ventien and treat the proceeding as uncontested.
This would not make sense in the' circumstances.
The opposing Intervenors by their participation strongly influenced the conduct.of the proceed-ing and their work should not be ignored.
On the other hand, we are troubled by the notion of opposing Intervenors that they can avoid the burden of proposed findings and at the same time reserve the right to attack the Board's decision once made.
We have concluded that the best course would be the following:
We will treat as contested issues of fact those as to which intervenors introduced affirmative evidence or engaged in substantial cross examination.
With respect to conclusions of law, we will attempt to deal with those questions which we understand to be raised by the proposed conclusions in the,
light of earlier contentions by the intervenors.
We leave open the question of the effect of the failure to file adequate Proposed Findings and Conclusions for consideration when and if there are exceptions to our decision."l/
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Thus, the Mapleton (and Saginaw) Intervenors violatqd
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10 CFR 2.754 (a) and (c) -2/
by failing to file proposed findings of fact and conclusions of law in the form required and as directed by the Licensing Board.
They were therefore in default i
under 10 CFR 2.754 (a) ; and the Board not only expressly so deter-mined and noted that default, but also emphasized that it " greatly complicated the task cf the Board and has made it virtually impossible to know whether particular issues are in fact contested."
However, although 10 CFR 2. 754 (a) and 2. 718 (e) authorize some 1/
Footnote in original.
2/
See September 27, 1972 " Reply of Applicant to Pleadings Filed by Saginaw and Mapleton Intervenors on September 14 and 15, 1972."
i l
action in response to the default, the nature of that action is not clear.
In the circumstances the Licensing Board under-took to address itself to every issue which, in the absence, of clearly expressed proposed findings of fact and conclusions of law, it could by its own efforts identify as having been raised by the Mapleton Intervenors.
For this purpose, it considered matters concerning which the Intervenors had " intro-duced affirmative evidence or engaged in substantial cross examination.
" or were incorporated in " earlier contentions."
So far as we can ascertain, the Board did in fact isolate and deal with all such issues.
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~~
In adopting this course the Licensing Board expressed its concern at "the notion of opposing Intervenors teat they
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can avoid the burden of proposed findings and at the same.
time reserve the right to attack the Board's decision once made."
Although it decided to attempt to deal with the difficulties caused by the def ault in the manner described, the Board also expressly left "open the question of the effect of the failure to file adequate Proposed Findings and Conclusions for considera-tion when and if there are exceptions to our decision. "
The Mapleton Intervenors simply pretend that this issue is not present here.
Their January 3 filing wholly ignores their earlier default and the Licensing Board's problems resulting from it, and blandly assumes that they come before this tribunal with all of the rights of litigants who have met their obligations below.
However, it is Applicant's view that the consequences of the Intervenors' default is a threshold question which should be addressed
in connection with the specific exceptions which have been enumerated.
Since the Licensing Board was able to identify and consider some of the issues raised by the Intervenors and chose not to " strike the intervention and treat the proceeding as uncontested.
.," we do not urge that this body overrule the Licensing Board in that respect and take such action.
However, we believe the appropriate course would be to treat as not having been raised belcw -- and therefore not to constitute a proper subject of an exception --
any issue which the Licensing Board failed to deal with expressly -^-
or which the Intervenors now claim that the Licensing Board misconstrued.
The whole theory of judicial administration is that issues-of fact and law must be raised with the adjudicatory body possessing original jurisdiction.
With exceptions not relevant here, unless this is done such issues cannot be raised in the appellate forum.
This principle is entirely clear in the context of judicial appeals from both trials in lower courts and admini-3/
strative decisions.~
There is no reason why the same general principle should not apply as between trial and appellate tri-bunals within the same administrative agency.
Indeed, the requirements of precision in proposed findings of f act and conclusions of law imposed by 10 CFR 2.754 are merely a means of assuring that all of the parties' contentions are made known to the trier of fact so that it can deal with them.
-3/
See e.g. McCollough v. Kammerer Corp., 323 U.S.
327, 328 (1945);
Delcadillo v. Carmichael, 332 U.S.
388, 391 (1947) ; United States v.
L.
A. Tucker Truck Lines, 344 U.S.
33, 37 (1952);
First-Citizens B&T Co. v. Camp, 409 F2d 1086, 1089 (4th Cir. 1969).
In this case the Intervenors ' default denied the Licensing Board that_ assurance, and the Board had to divine the Inter-venors' contentions.
It adopted a difficult but wholly rational approach to the problem.
But having forced the Licensing Board to search out and construct their contentions, the Intervenors should be precluded from making the argument to any subsequent reviewing body that the Board failed to consider a contention Intervenors now claim to have made or that that body miscon-strued any such contention.
In other words, the minimum effect of the default should be that Intervenors can allege error only with respect to matters which the Licensing Board clearly isolated as issues and actually treated.
Arguments relating to matters not explicitly dealt with in the Initial Decision or to contentions allegedly his-
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construed should not be considered by this Board.
Even such an approach is generous since the Board was deprived of knowing precisely what Intervenors' position was as to the issues the Board did isolate and treat.
The Intervenors' scatter-gun approach in connection with their Proposed Findings of Fact and Conclusions of Law is repeated in this forum.
Many of their exceptions -- notable examples are 5, 6, 7 and 12 -- are so diffuse, unclear and repetitive that they represent a classic exampic of overlapping contentions which an Appeal Board recently strongly criticized.
In the Matter of Wisconsin Electric Power Company, et al (P o. int Beach Nuclear Plant Unit 2), ALAS-73 (November 10, 1972), pp.
8-9.
-S-In addition, many exceptions, including those referred to above and all or portions of Exceptions 9 and 11, clearly violate the provisions of 10 CFR 2.762(a), which requires that exceptions shall
" identify the part of the initial decision to which objection is made; shall specify precisely the portions of the record relied upon; and shall state the grounds for the exceptions including the citation of authori-ties in support thereof.
Accordingly, it seems obvious that the tactic which "tre ubled" the Licensing Board, i.e., obscuring the contentions made to it, while at the same time attempting "to reserve the right to attack the Board's decision once made.
is now being repeated at this level.
For this reascn and for the
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reasons set forth at the outset of this reply, it might be appropriate simply to ignore the exceptions referred to above, as well as others which can fairly be similarly described.
Nevertheless, to the extent possible we attempt below to identi-fy and discuss the issues raised by the exceptions.
EXCEPTION 1 "1.
The Atomic Safety and Licensine Board (herein-after called Board) has failed to consider the ' standard features of the plant' notwithstandinc the fact that this is the first.
commercial nuclear power plant to be propose d for construction in a populated area.
(Initial Decision 511)._"
On the principle suggested above, ';his Exception need not be considered.
Mapleton's Proposed Findings of Fact and
Conclusions of Law contained no allegation "that this is the first commercial nuclear power plant to be proposed for construc-tion in a populated area.
" or that, even if such allegation were correct, any particular legal consequence resulted therefrom.
Accordingly, the Licensing Board obviously did not expressly deal with such allegation, nor could it have.
In any event, the allegation of fact -- if that it is --
is incorrect.
The evidence below discloses that the population distribution at the Midland site is comparable to two larger reactor complexes, Indian Point and Zion, waich received con-struction permits.
See Applicant's Ex.13.
The Mapleton Intervenors' statement that the Licensing Board " failed to consider 'the standard features of the plant'
" is also incorrect.
This is what the Board said (Para. 11) :
. The proposed reactors are substantially identical to a number of reactors previously licensed.
The Board has reviewed the various aspects of the proposal, e.g.
coolant systems, leak detection systems, seismic design criteri a instrumentation, radiation monitoring, cc.Lrol room, flooding, and finds that Applican; has submitted sufficient information and tne Staff has conducted an adequate review of those aspects of the Plant.
We do not believe it would be helpful, nor is it required that we do so, to comment in any detail on the standard features of the Plant, (except where an issue is contested).
Instead we will devote our attention to those aspects of the proposal which are new or unusual, to contested issues, and to those specific matters as.to which we are required to make findings."
(Emphasis supplied; footnote omitted)
Thus, the Board in no way indicated that it had failed to " consider" the " standard features of the plant."
Instead it determined not to " comment in any detail.
." on those features except as specified.
Finally, it is clear that in the language quoted abovo the Board was merely paraphrasing the functions and responsi-bilities which had been conferred upon it by regulation.
At the time the hearing belcw was concluded section VI(d) of Appendix A to 10 CFR read as follows:
"In contested proceedings, the board will determine controverted matters as well as decide whether the findings required by the Act and the Cccmission's regulations should be made.
Thus, in such proceedings, the board will determine the matters in contro-versy and may be called upon to make technical judgments of its own on those matters.
As to matters which are not in controversy, boards are neither required nor expected to duplicate the review already performed by-the regulatory staff and the ACRS and 'they are authorized to rely upon the testimony of the regulatory staff and the applicant, and the conclusions of the ACRS, which are not controverted by' &ny party.
Thus, the board need not evaluate those matters already evaluated by the staff which are not.in controversy."
Appendix A has since been revised.
However, substantia 11y similar' language is now contained in section V(f) (1).
See 37 FR 15141, July 28, 1972.
EXCEPTION 2 "2.
The Board found that the ' residential population within the [ low population] zone is well within acceptable limits.'
(Initial Decision $16).
This finding is made by the Board without any reference to the criteria applied by the Board to determine what limits are acceptable nor with any reference to the iustifi-cation for the development and application of these criteria."
Again, it should be noted that Mapleton's Proposed Findings j
of Fact and Conclusions of Law raised no question concerning the
" residential population within the low population zone" or the criteria which might be applicable to limits thereon.
In any event, this exception is based upon a total miscon-ception of the law and the f acts.
The AEC Reactor Site Criteria
d] fine the low population zone as "the area immediately surrounding the exclusion area which contains residents, the total number and density of which are such that there is a reasonable probability that appropriate protective measures could be taken on their behalf in the event of a serious accident No precise density or total population is fixed "because the situation may vary from case to case."
(10 CFR 100.3(b)).-4/The Initial Decision (P aras. 16,
31-33) makes it perfectly clear that meeting the requirements of such definition (i.e. the ability to take such protective measures,
including evacuation) are precisely the " criteria" to which the Board addressed itself.
Moreover, neither at the hearing below nor elsewhere has anyone, including the Mapleton Intervenors, raised any question concerning the adequacy or' protective measures,
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including evacuation, of a residential population of only "approxi-mately 38."
In view of this small figure, a different issue was emphasized at the hearing and considered in detail in the Initial Decision.
This relates to the ability to evacuate the approxi-mately 2145 members of "the transient industrial or business population, primarily employees of Dow and Dow-Corning.
(Pa ra. 16).
The Mapleton Intervenors do not challenge the Board's conclusion respecting the satisfactory nature of the evacuation plans for the transient population.
4/
In deriving the low population zone under the AEC Reactor Site Criteria an applicant is to determine that the calculated radi-
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ation dose to an individual remaining at its outer boundary during the course of the hypothetical fission product release will be within defined limits using extremely conservative as-sumptions.
10 CFR 100.ll(a) (2).
Both the Applicant and the Staff introduced evidence so demonstrating.
PSAR, Applicant's Ex.
1-B, pp. 14-64; SSE, p. 65 and Errata dated June 21, 1971; Staff Ex. 3.
EXCEPTION 3 "3.
The Board found that data as to the site meteorciccy was incc=plete (Initial Decision '; 2 3 ).
Tnis fincinc is succor:ec cy One tes t1=cny ~of Macletcn 's witnesses.
(Tr. pp. 3313-8359).
Macie:cn intervenors taka exception to :ne 3 card's conclusion : nan'a c nstruc-tion perm 1: ::y issue prior to the concienica cf :ne mencoric:1021 data and analysis recurred cy the draf:.
t;ni lai Cecision '33).
The Scard's conclusion that a constructica permit may issue prior to the cc=pletion of the en-site reteorology program is authorized by 10 CFR 50.35 (a) (2) and (4), which provide that certain 5/
informatica may be developed during plant construction.~
Of course the AEC requires that data as to site metecrology be included in the PSAR for a construction permit.
Consequently the Applicant here did investigate site meteorolcgy for the Midland Plant and presented a su==ary of its investigation as part of its PS'AR.
(PSAR, Applicant's
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Ex.
1-A, Appendix 2A).
However, typically such data for the site is not ccmpl'ete at the construction permit stage, and in the.
absence of wholly complete information, the AEC will make conser-vative assumptions as a basis for evaluating the adequacy of the site and of the reactor design.
In other words, in the absence cf on-site meteorological measurements AEC will assume poor diffusion characteristics and low wind speed, provided that in-formation furnished in the PSAR demonstrates the probability that when on-site meteorological data has been collected, the actcal site 5/
- See, e.g.,
Boston Edison Ccepany (Pilgrim Nuclear Power Station),
Initial Decisica (August 26, 1968), Finding of Fact Number 9.
3 CCH Atomic Energy Law Reporter, pp. 17,515-2, 17,515-7.
In addition, 10 CFR 50. 34 (b) (1) contemplates that the final safety analysis report at the operating license stage will include "All current information, such as the results of environmental and meteorological monitoring programs, which has been develcped since issuance of the construction permit, relating to site evalu-ation factors identified in Part 100 of this chapter."
(Emphasis supplied. )
diffusion characteristics will be more favorable than the given assumptions.
The assumptions to be made for this aurpose are set e
forth in Safety Guide No. 4.
That document provides (1) calcu-lational methods; and (2) assumptions to be made in absence of on-site catecrological information.
Accordinc.iv, the Initial Decision does not simpiv, rest en the assumption that "incceplete" neteorological data will be completed at a later date.
Rather the Scard's conclusion rests on the censervative assumptions used by the Staff to estinate on-site meteorolcgical conditions.
(Initial Decisien, Paras. 21-
- 23).,The conservatism of the Staff's assu=ptiens was ccnfi-r=ed bv the Staff's consultant, an employee of the ;;ational Oceancgraphic-and Atmospheric Administration, and, to sc=e degree, even by Mapleton Intervenors (P ara. 22).
Thus, the record ccatains a conservative estimate of what the on-site neteorology will be, taking into account the general meteorological conditions in the area.
Based en such estimate the Scard has concluded that:
the assumptions are sufficiently conservative to justify a reasonable expectation that the site is satisfactory."
(P ara. 22)
EXCEPTION 4 "4.
Exceotion is taken to the Board's failure to consider the validity of the Interim Acceotance Criteria which are new beinc liticated in the national ECCS hearino (Docket No. RM-50-11 (Initial Decision 'i41).
The Board notes that Acolicant will be
' bound to comply with any chances in criteria which nav be adcoted as a result of the national hearinc.'
(Initial Decision r42).
Until such time as the national hearinc has been concleted and cnances in criteria have been aoplied to the orcocsed clant herein.
no conclusion can be made as to uhether or not such chances *:111 be feasible and sufficient ror orotection c: environmental health
24-and safety in the vicinity of the plant.
Therefore, no construction license shculd issue until such time as the national hearing has
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been completed."
The Licensing Board's disposition of the "ECCS Issue" was clearly correct in the circumstances.
(Initial Decision, Paras. 39-41).
In this connection it is significant to emphasize that none of the Intervenors contested "the compliance of the proposed reactor with the Interim Criteria.
." (Para. 40).
Nor does this excep-tion; for it relates only to "the Board's failure to consider the validity of the Interim Acceptance Criteria.
As the Board pointed out (Para. 42), its disposition of the matter was wholly consistent with the direction contained in the Commission's Notice of Rule Making in the ECCS proceeding to the effect that that pro-ceeding would "not affect the orderly resolution" of pending licensing proceedings (37 F.R.
287, 288, January 8, 1972), as well as with the Appeal Board's decision to the same effect in the Point Beach proceeding.
(Para. 41).
In the latter proceeding the Appeal Board upheld a Licensing Board's refusal to consider a challenge to the Interim Criteria on a number of grounds, including the desir-ability of avoiding duplication with the rule making proceeding, the fact that the intervenors in the proceeding were also partici-pants in the ECCS rule making proceeding., End the fact that any changes in the criteria would be applied to the reactor there under 6/
consideration.-
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Wisconsin Electric Power Company, et al. (Point Beach Nuclear Plant, Unit 2, ALAB-78 (November 10, 1972), pp. 19-21.
See also Vermont Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-57 (June 20, 1972); Boston Edison Company (Pilgrim Nuclear Power Station), ALAB-83 (December 4, 1972), pp. 19-21.
All of the Intervenors in this proceeding are participants in the ECCS rule making proceeding.
See Consolidated Request to Participate, etc. filed on behalf of the Consolidated National Intervenors on December 30, 1971 and the Hearing Board's Order of January 24, 1972 in Docket No. RM-50-1.
In connection with the last point the Licensing Board in this proceeding also emphasized (Para. 42) the obligation and commitment of the Applicant to meet "any applicable ECCS regulation forth-coming.
" from the rule making proceeding and the schedule of construction pursuant to which "no major components involved in the ECCS analysis are needed at the site prior to the spring of 1974."
Thus no environmental or radiological health and safety censidera-tions have been adversely affected by the Initial Decisien.
Accordingly, the Initial Decision was clearly correct in its disposition of the "ECCS Issue."
EXCEPTION 5 "5.
Exception is taken to the Board's interpretation of the Atomic Energy Act of 1954 as required pursuant to the National Environmental Policy Act of 1969.
The Board finds that the judgment has been made that ' atomic enerav_must be used for production of electricity and there is nothing in the National Environmental Policy Act which overrides that judcment',
(Initial Decision 573).
This finding of the Board fails to take into consideration the requirement of the National Environmental Policy Act of 1969 (42 U.S.C.
Section 4321 et seq.) that all polic.es and regulations adopted pursuant to the Atomic Energy Act of_1454 (42 U.S.C.
Section 2011 et sec.) must 'to the fullest extent possible' be interpreted and administered in accordance with O.e policies set forth in the National Environmental Policy Act.
(Macleton's Proposed Conclusions tl and 2)."
In this exception, the Intervenors focus upon the last sentence of Paragraph 73 of the Initial Decision and allege, on the basis of this sentence, that the Licensing Board failed to take into considera-tion the requirements of the National Environmental Policy Act (42 U.S.C.
4321, et seq.; "NEPA") that the Atomic Energy Act of 1954 be l
interpreted and administered in accordance with the policies set l
L forth in NEPA.
The Intervenors' allegation is obviously without merit when the quoted sentence is read in the context of Paragraph 73, which reads:
l l
L.
- "73.
The major environmental ef fects from the nuclear plant are from releases of radioactivity in normal operation and from the possibility of accidents.
The permissible releases of radioactivity in-normal operation are now governed by Part 20 of i
the AEC regulations.
The expected releases from this plant do not e.Mceed Part 20 limits.
- However, under the regulations, we must take into account the environmental impact of radiation releases even within the standards.
There are no known effects of radiation in the amounts contemplated to be' re-leased from this plant in normal operati,on, although,'
it is assume / that there are genetic effects and that there may be cumulative ef fects of a combination of this radiation with other radiation.
Weighed by a reasonable scale, these potential costs cannot tip the balance against nuclear power here.
The major argument of intervenors is that nou enough is known about the long-term effects of small doses and that the plant should not be licensed until such effects are known.
This really is an argument that no nuclear
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plants should be constructed until we know all that there is to know about low level radiation effects.
Such an argument is untenable -in light of the Atomic Energy Act.
The judgment has been made there that atomic energy must be used for production of electri-city and there is nothing in the National Environmental
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Policy Act which overrides that judgment._"
In Paragraph 73, which deals with the environmental effects of low level releases of radioactivity in normal operations of the plant, the Board performed precisely the type of balancing necessary to administer the Atomic Energy Act of 1954 in accordance with the policies set forth in NEPA.
After pointing out that such releases will meet the AEC regulatory requirements, the Board emphasized that, in addition, it still "must take into account the environmental impact of radiation releases even within the standards. "
It went on to find that there are "no known effects" of such releases.
Then, assuming that there may be some unknown adverse effects, it concluded that "these potential costs cannot tip the balance against nuclear power here."
The sentence quoted by the Intervenors arose in the Board's discussion of the Intervenors' argument that no nuclear plants
should be constructed until we know all there is to know about low level radiation effects.
In pointing out that this argument is untenable in light of. the Atomic Energy Act, the Board was merely acknowledging that a principal purpose of the Act is to " encourage widespread participation in the develcpment and utilization of atomic energy for peaceful purposes to the manimum entent cen-sistent with the common defense and security and with the health 7/
and saf ety of the public"-
and that in the issuance of licenses under the Act the Commission is to find that the activity "will provide adequate protection to the health and safety of the 8/
public."~
Obviously when such policies, one of the principal objectives of which was to encourage the use of nuclear energy 9/
for the production of electricity,~ were enacled by Congress,
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it was recognized that there was not known all there is to know including low level radiaticE.
about the health and safety risks, effects.
Nevc rtheless, it is clear that Congress did not intend to prohibit implementation of its mandate and policies until such knowledge was perfect.
To the contrary, " consistent with
.the health and safety of the public," it encouraged "the utiliza-tion of atomic energy for peaceful purposes. "
And, as the Board has concluded, neither does NEPA embody prohibition against such utilization.
It simply requires precisely the type of cost-benefit balancing which the Board properly performed and clearly described.
7,/
Section 3d; 42 U.S.C. 2013(d) 8/
Section 182a; 42 U.S.C.
2232 (a) 9,/
- See, e.g., H.Rept.No. 2181, 83rd Cong. 2d Sess. p. 2 (1954)
. i EXCEPTION 6 "6. ~Exceotion is taken to the Board's fin'dina that the
'recuirements of Section 102 (2) (C) and (D) of the Mational Environ: antal Policy Act and Accendix B of 10 CFR 50 have been comoliec tith : n this creceedinc ' (Initial Decision "81).
More specificn.'_ly, exceation is taken to all findincs en Environmental Issues (Initial Decision "'i43-79) as not being in fulfillment of those duties recuired by the Board and thq Atomic Enercv Ccmmission in its clannina and decision-makin?L crocess in connection with the crocosed Midland Plant, Unitg; 1 and 2.
These duties are set forth in Maoleton's crocose4 conclusions of law 942 throuch 4.
To-wit:"
[In view of the length of Mapleton's proposed conclusions of law 112 through 4, which the exception quotes in full, they are not repeated hereih.}
Exception 6 is a glaring example of the difficulties associ-l ated with attempting to deal with a broad-brush exception which, in one fell swoop, objects to 3]7 paragraphs of_ findings (P ara-graphs 43-79 of the Initial Decision) and apparently argues that the Board has failed to meet both its obligations ' under NEPA and under Appendix D of 10 CFR 50 without citing even one specific example of such a f ailure by the Board and without citing a single portion of the record or any authority relied upon by the Inter-venors.
The Applicant knows of no meaningful way to respond to such a barrage of generalities.
The Licensing Board has painstakingly dealt with all of the pertinent environmental issues in 37 findings consuming 30 pages of the Initial Decision after a prolonged proceeding in which environmental issues constituted a substantial portion of the hearings before the Board.
i The Applicant cannot assume the burden of proving once more, in this Reply,-that all environmental issues have been properly dealt with and we are certain that the Appeal Board would not wish to receive and be burdened with the review of the voluminous documentation which would be required for such 10/
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an enormous task.
-Accordingly, Exception 6 should be dismissed summarily.
EXCEPTION 7 "7.
Exceotion is taken to the Board's conclusien that the
'acercoriate action to be taken' under Accendix D, 10 CFR 50 is to authorize issuance of the construction oermit.
(Initial Decision V81.(2)).
The Initial Decision is devoid of anv findinc which indicates that the crocosed construction-will have a 1cnc-term social benefit that outweichs lonc-te rm environmental cost as determined by the analvtical crocedure recuired under the National Environmental Policy Act and the Atomic Enerav Act as intercreted oursuhnt to the National Environmental Policv Act.
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The Initial Decision admits and assumes that there are lonc-term cenetic ef fects and cumulative ef fects that can be exoected as a result of the release of radioactivity in the ' normal' ooeration and from the 'cossibility of accidents' of the Midland P lant, Units 1 and 2.
(Initial Decision H73).
To the extent that it micht be assumed the Board cerformed a balancinc of lonc-term envi ronmental costs acainst lonc-term benefits (Initial Decision 9973 and 74). no criteria other than a ' reasonable scale' was used for the evaluation of low level radiation effects.
No justification exists within the Initial Decision of the Board for the develcoment of the ' reasonable scale' crite ri a, nor is there any definition of that criteria, nor is there anv iustifi-cation for the acolication of this criteria to the crocosed Midland Plant.
By contrast, the testimony of Maoleton's witnesses 10/
We do, however, point out that on August 15, 1972, there was filed on behalf of the Applicant comprehensive Proposed Finding of Fact and Conclusions of Law, of which over 100 pages dealt with environmental matters.
This document contains further detailed support for the Licensing Board's comprehensive findings.
-1g_
(Tr. 8248-8291, 8360-8487) indicates that knowledge must b8 developed on the effect of low-level radiation to cetermine the impact of this procosed clant upon the environmental health and welfare of tne area surrounding the proposed site."
This exception appears to include two separate contenticas.
First, it states that the Initial Decision lacks "any finding which indicates that the propcsed construction will have a lcng-term social benefit that outweighs long-term environmental cost.
The allegation is wholly incorrect.
The icng-term benefits are clearly identified and discussed.
These are the production of electricity (P aras. 46-49) and the elimination of pollution from Dow's fossil fuel steam plant and other sources (Paras. 46-49, 71, 75).
The need to balance or weigh these against the long-term environmental costs is expressly recognized in paragraphs '43, 44 and 45; and it is to this ~ task that paragraphs 43 through 79 of the Initial Decision are primarily directed.
Paragraph 54 summarizes the "disbenefits claimed by Intervenors These are further identified and considered in detail in the Initial Decision.
See Paras. 51 (terrestrial ecology); 52 (bird and. animal life, as well as flora) ; 56 (process steam contamination) ; 55-61 (environmental impact of radioactivity); 62, 78 (aquatic environment) ; 64, 67 (synergism) ; 67, 74 (accidents); and 68 (decommissioning).
And in paragraph 70 the Licensing Board expressly concludes that "the benefits outweigh the costs."
Second, the exception refers to releases of radioactivity both from the " possibility of accidents" and from " normal operation."
So far as the former is concerned, the likelihood of such accidents
. was, of course, a major aspect of the proceeding, and the exception cites nothing to contradict -- indeed takes no issue with -- the findings contained in. paragraph 74 that "the possibility of such an accident is extremely remote
." and "vanishingly small Nor does the exception challenge the conclusion that " [f } or pur-poses of a cost-benefit analysis.
." the pcssibility of such an accident at a particular reactor "must be taken as insubstanti4l."
To the extent that Exception 7 refers to radioactive releases resulting from normal operation, it appears to be directed at low level radiation effects.
This is also the subject of Excep-tion 5, which we have already discussed.
In Exception 7, however,__
the Intervenors seize upon a phrase which appears in the following -
sentence in paragraph 73:
" Weighed by a reasonable scale, the potential costs [the possible unknown effects of low level radia-tion] cannot tip the balance of nuclear power here."
The 'Interven6rs argue that there is no justification for "the ' reasonable scale' criteria, nor is there any definition of that criteria.
The contention is without merit.
The phrase was clearly used in paragraph 73 in connection with the description by the Licensing Board of the matters it was considering in the discharge of its responsibilities under the Atomic Energy Act and NEPA.
First, the Board found that the low level radiation discharges do not exceed the limits imposed by the governing AEC regulation.
This conclusion was, of course, fully supported both by the
. Applicant's evidence (Applicant's Exhibit 38M) and that of the Staff (FES, Staff.Ex. 6, pp. V-2 2 - V-2 3).
However, recog-nizing its NEPA obligations, the Licensing Board stated that "we must take into account the environmental impact of radiation releases even within the [AEC radiolcgical] st andards. "
It then went on to find there "are nc known effects.
." of such releases.
Finally, assuming that there may be some unknown adverse effects, it balanced "these potential costs.
against the need for nuclear power.
This is precisely what NEPA required of the Licensing 3 card.
In the content, the term
" reasonable scale" was cppropriately used, clear and meaningful.
EXCEPTION 8 "8.
Exception is taken to the Board's failure to censidar the propriety of the uses to ce made of the electricity which may be cenerated by the orocosed clant.
(Initial Decision 948).
This failure is in violation of the National Environmental Policy Act to consider the imcact of this operation in terms of its ef fect upon the allocation of all natural resources and the uses to which those resources are desianated.
Scecifically, no construction permit may issue until such time as an-analysis of the alternatives is performed which includes total abandonment of the project, use of uranium resources for other ourcoses, ceneration of electrical power through other means, reduction of fossil fuel contaminants, and reduction of pollution emanating from the Dow operations in the Midland area."
1 l
I This is another exception which deals with a variety of sub-jects.
The first two sentences appear to be directed at the first t
three sentences of paragraph 48 of the Initial Decision in which l
the Board stated in effect that the record supports no finding other than the postulated demand for electricity "is made up of normal industrial and residential use and, it is, in our view, beyond our 1
\\
T -
province to inquire into whether customary uses being made of electricity in our society are ' prope r ' or ' improper'. "
The Board concluded that its function was so limited " absent some evidence that Applicant is creating abnormal demand.
This was a wholly apprcpriate position for the Ecard to take.
The evidence which established the need was overwhelming.
That evidence is summarized in paragraph 47, which notes that it wa?
"not seriously challenged.
" by the Intervenors; and we need not repeat it here.
The position taken by the Licensing Board is consistent with__
the " rule of reason.
" which is implicit in NEPA; the "only alternatives required for discussion are those reasonably avail-able.
. ;" and "[s]o long as the officials and agencies have _
~
'taken the hard look' at environmental consequences mandated by
~
Congress, the court does not seek to impose unreasonable extremes or to interject itself within the area of discretion of the execu-tive as to the action to be taken."
National Rescurces Defense Council v. Morton, 458 F2d 980, 3 ERC 1558, 1561, 1562, 1564 (D.C.
Cir. 1972; footnotes omitted).
See also EDF v. Corps of Engineers,
__ F2d
, 4 ERC 1721, 1725 (8th Cir. November 28, 1972).
In the absence of any evidence of a locally abnormal situa-tion or demand, the " rule of reason" permitted, if it did not require, the Licensing Board to limit its consideration of matters relating to the use of electrical energy in the way it did.
In this connection, we note that in its consideration of environmental matters, the Staff deliberately refrained from censidering the demand for energy "from the standpoint of what the relevant demand should or shculd not be upon consideration cf the desirability or utility of the uses of the energy produced by the plant" (FES, Staff Ex. 6,
- p. XII-12).
Nor have licensing boards in other cases explored this 11/
1ssue.
Tha balance of Exception 8 appears to allege that an analysis of " specific alternatives" thereafter mentioned shculd be performed prior to the issuance of a construction permit.
For example, it
-appears to suggest that greater consideration should have been given to the "use of uranium resources for other purposes."
The -sp ecific-other purposes are not detailed. It might be djfficult to (.o so.
Except for weapons, uranium has few cr no uses other_than as fuel -
for electrical generating plants.
( ASER Applicant 's Ex. 38 F-le-p.
5.2-21).
In addition, the Staff introduced evidence in the course of the hearing to the effect that uranium is not a rare element; its availability being more a matter of economics than a matter of depletion.
(FES Staff Ex. 6, p. XII-5.)
Proven uranium reserves at a cost of production of $8 per pound will expire before 1985 (Tr. 6590), but additional proven reserves are available at
$10 a pound or $15 per pound (Tr. 6589).
The Staff witness stated that there is still much exploration to be conducted for uranium and that uranium is available from foreign sources if the domestic supply should diminish (Tr. 7920).
The testimony revealed that 11/
See e.g. initial decisions in Toledo Edison Company, et al (Davis-Besse Nuclear Power Station), Docket No. 50-346, May 19, 1972; Cincinnati Gas & Electric Company, et al (Wm. H.
Zimmer Nuclear Power Station), backet No. 50-358, October 19, 1972; Arkansas Power & Light Company (Arkansas Nuclear Onc, Unit 2),
December 1, 1972.
uranium reserve projections are developed on a more meaningful basis that includes cost of production and cumulative future requirements than are tb;e reserve projections for coal, oil and gas (Tr. 6587-94).
Exception 8 also mentions without specific reference, " reduc-tion of fossil fuel contaminants, and reduction of pollution emana ing from the Dow operations in thu Midland area."
These matters were considered in detail by the Licensing Board.
See the diccussion in paragraphs 71 through 76.
The latter paragraph ;cncludes "that there is no preferable alternative
." to the preposed nuclear plants.
These conclusions are fully supported by the evidence.
See e.g.
Applicant's Supplemental Environmental Report ( ASER), Applicant's Ex. 38F-1, pp.
5.2-1, et seq., FES, Staff Ex. 6, pp. XI XI-9.
So f ar as the " generation of electrical' fuel through other means" -- also referred to in Exception 8 -- is concerned, the matt'er is also adequately discussed in paragraphs 70 through 76 of the
'~..
Initial Decision which cite some of the evidence in support of the ultimate conclusion (Para. 75) "that nuclear power is clearly preferable to available alternatives."
Finally, the exception implies that no consideration was given to the " total abandonment of the project Obviously, that is exactly what the consideration of the need for the project and what its costs and benefits would be was all about.
EXCEPTION 9 "9.
Exception is taken to the finding of the Board daat synergism does not represent an environmental threat in this matter.
Testimony of Mapleton's witnesses (Tr. 8248-8291, 8360-8487, 8487-8517) indicates that insufficient analysis h as been made of this problem.
Further exception on the subject of syner-gism is taken to the Board's failure to cive any evidenciary weicht to the testimony submittec by Dr. Charles W.
Huver and the Board's refusal to hear additional evidence from Mapleten's scientific experts on this subiect."
l The testimony of three highly qualified witnesses presented by the Applicant (Tr. 8795-8909) and of one witne=s presented by the AIC regulatory staf f (Tr. 7466-7569) was, in substance,
that there would be no synergistic effect.
(See e.g. Tr. 7564, 8895).
Moreover, with respect to the Mapleton testimony, to which the transcript references are made in 3xception 9, the Licensing Board stated (Para. 66):
" Viewed in the light most favorable to Intervenors, and without censidering the countervailing evidence of Applicant and the Staff, the evidence fails to establish that, at the levels of concentration in-volved here, there will be any interaction which would tend to increrse radiatica effects from the Plant, or the chemical effects frca Dcw.
And ehen one considers the testimony of Applicant and Staff witnesses, the evidence is overwhelming against a finding of ' synergism'."
This finding is unassailable.
Exception 9 also complains of the Licensing Board's-
" failure to give any evidenciary [ sic] weight to the testimony submitted by Dr. Charles W. Huver.
" and of its " refusal to hear additional evidence from Mapleton's scientific experts on this subject [apparently synergism]."
In effect these are allegations that the Licensing Board's authority under 10 CFR 2.718 to conduct "a fair and impartial hearing
" in-cluding the power to "take appropriate action to avoid delay.
and to "[r]ule on offers of proof, and receive evidence.
was abused, somewhere, somehcw.
The f ailure to identify the precise circunstances and rulings involved constitute another clear violation of 10 CFR 2. 762 (a), make it impossible to be sure of the nature of the complaints and should preclude the
-consideration of these exceptions by the Appeal Board.
So far as Dr. Huver is concerned we do note that he was not one of the witnesses referred to in the trans-script references in Exception 9. The evidence contained in an affidavit signed by him and dated September 14, 19 71, was rc,4ected as a result of a Licensing Ecard crder dated March 10, 1972, together with that contained in three other Mapleten affidavits, because the Scard ccncluded that the contentions which they purported to suppcrt were "not suffi-cient to raise a substantial challenge to Part 20 of the AEC regulations within the meaning of the Calvert Cliffs opinicn.
Mcwever, as it noted in paragraph 66,.
the Board did hear three live Mapleton witnesses en the "synergis=" issue, but they never offered Dr. Huver as a witness.,
- m C r o. *. 7 0 ".. _10 vv "10.
Exception is taken to the findincs of the Ecard en the subject of foccinc and icine (Initial Decision St69, 72).
The Board Indicates that further study of the effects or the coolinc pond are necessary.
Until such study has been completed no construe lon permit may issua in this matter."
As the Licensing Board stated (Para. 69), the " evidence even of Mapleton's own witness.
" does not support the contention that there would be substantial fogging "in the area around the cooling pond.
The effect en Mapleton seems likely to be negligible and even in the area close to the pond, the effects seem likely to be insubstantial.
The evidence thorouvhlv succ. orted this cenclusion.
- See, e.g.,
Applicant's Ex. 38-P, The Environmental Effects of the Midland Plant Cooling Pond - Summary Report, dated April 20, 1972.
A Staff witness, Dr. Carson, agreed that this Summary Report is the first systematic study of steam fog from a cooling pond that attempted to relate data to atmospheric conditions for the purpose of pradiction of fog fermation (Tr. 7441-42).
The Summary Report approaches the problem in a variety of ways, and fully supports the Licensing Board's conclusion that the effect of fogging will be likely to be insubstantial.
While Dr. Carson disagreed with many factors that went into the report, he stated that, on the whole, the use of those factors resulted in overprediction of fogging (Tr. 7446-55, 7461-62).
Exception 10 seizes en the Licensing Board reference.in paragraph 69 to a need "for further study."
However, this phrase was used in a context which makes clear its belief that the " study" should be part of. the surveillance program which the Applicant under,
~
took to conduct, not a study needed prior to issuance.of a construc-tion permit.
Thus, in paragraph 78 the Licensing Board noted that the Staff's concurrence in the issuance of the construction permit was subject to certain conditions,to which the Applicant has agreed and which. are set out in paragraph 7 of the Final Environmental Statement (FES; Staff Ex. 6).
The Board states that these include the " conduct of ecological studies and development of surveillance
.;" and paragraph 7d of the summary of the FES does prograns refer to the development of "a surveillance and monitoring pro-
. which will document the impact of the plant operations gram.
upon the ecology of the site and environs."
In paragraph 69 the Board is clearly doing no more than suggesting that this program include surveillance of fogging and icing effects.
. Mcwever, in paragraph 77, where the Board discussed the evidence certainin~s to e.cssible alternatives such as dry and wet coolin3~ tcwers, it ex ressiv. ccncluded:
"the prcpesed eccling e
system is preferable to available alternatives."
Acccrdingly, in context'it is clear that the sue.2estion in r.arae.rs.ch 69 was nc:
intended to and did not modify this ccnclusien.
.r v.C r e m..e C ". 3 -L "11.
Excention is taken frc= the Board's refus.al to consider any evidence offered bv Mapleton Intervenors en the hazards of Electro-Macnetic Pulse (EMP)."
This obscure exception is a classic example of the con-fusion which can be created by failure to specif.v the ncture of an exception and,its basis.
As best we can fathc=, this exception cav. be referrin~3 to a subject which was first mentioned in thit...oceeding on July 7, 1971.
A Mr. Demetriou, then acting as counsel for the Mapleten Intervenors stated that the.v nic.ht cossibly be offering.some testi-o mony on the "effect of a lack of electromagnetic ccapatibility on the environment should the plant be built." (Tr. p. 26S5).
Although the Board at that tine felt the issue was outside the scope of the croceedin~ (Tr. 2653), the Mapleton Intervenors were 3
given the ocecrtunitv. "to c. repare in writing with the names of the witnesses exactly what it is v.ou aro Ose to prove and offer that to e
e the Scard for its consideration." (Tr. 2690).
I =ediately there-after, on July 8, 1971, Mr. Ginster, on behalf of the Mapleton
4 Intervenors, submitted a document entitled " Offer of Proof of More Specific Factual Contentions Referred to Within Statement of Legal anf/or Factual Contentions Heretofore Filed in the Above-Entitled Matter and/or of Prcof of Matters in Rebuttal of Evidence Received from the Applicant or Staff and/or in Rebuttal of Parts of Applicant's PSAR as Amended." (Tr. 2938)
- Ecuever, that decurent centained no information whatscever concerning "electromagneti: pulse."
It is impossible to determine whether the Intervonors are referring to the foregoing pertion of the proceeding or to any subsequent portion thereof. --12/
The Intervenors do not identify the specific evidence which was allegedly refused to be considered by the Board, they do not describe its probative value nor even its relevance to the issues in this proceeding; and most importantly from the standpoint of appellate review, they do not identify any ruling of the Board complained of nor even the portion of the record relevant to their complaint.
Exception 11 should be summarily rejected as a clear violation of 10 CFR 2.762(a).
12/
For example, by letter of December 22, 1971, Mr. Like, counsel for Mapleton Intervenors served on the Board and the parties, among other items, an affidavit of.Carlos E.
Vogel, Jr., dated December 13, 1971, which referred to
" electromagnetic pulso."
Exception 11 in no way indicates whether this affidavit is the alleged evidence which the Board refused to consider or whether any action with respect thereto was requested by the Intervenors, ruled on by the Board or objected thereto by Intervenors.
- E v.C_v 0 *
- C".. ',z'
..A "12.
Excection is taken frcr the Beard's failure to adopt Mapleton's proposed ccgelu ucns cd law 1-6."
Mapleton's " conclusions of law 1-3.
." were, of ccurse, written'before the Initial Decisien was issued.
They ren'for four full pages.
When they are cc paref with the Initial Decisien, it seems obvious that the Licensing Board either did not take issue with or even agreed with sc=e of them.
For example, pro-posed conclusion of law 1 is merely a cuotation of portions of the declaration of policy contained in section 101(a) of NEPA (4 2 U.S.C. 4331).
To accuse the Licensing Board of "failing to adopt" this " conclusion of law" is nonsense.
Similarly, proposed conclusion of law 2 through 5 contain numerous generalities con-cerning the interpretation of UEFA.
If these are compared with the Initial Decision, it could be inferred that the Licensing Board agrees with many of them.
Moreover, proposed conclusion 6 is merely an accusation that the Atomic Energy Commission " failed to perform the duties set forth in conclusions of law numbers 2-5. "
However, it fails to specify what Licensing Board action or lack of action 1
constituted the failure; and, since, it was written before the Initial Decision was issued, it cbviously fails to pinpoint what-errors of law that document is alleged to contain.
In short, the reference in Exception 12 to earlier filed proposed conclusions does not merely constitute a. technical violation of 10 CFR 2.762;
s.
it wholly fails to tell this Appeal Board the nature of Mapleton's quarrel with the Initial Decision.
Nor should alleged failures to adopt proposed conclusions of law 7 and 8 be considered here.
The " nuisance" and " vested legal rights" arguments referred to in conclusion 7 are merely stated.
We are given no hint of the factual or detailed legal bases for those contentions.
They are not made in a form capable of response.
Proposed conclusion of law 8 is a paraphrase of the last sentence of Exception 9, and should be rejected for the reasons set forth in our discussion of that 'e'xception.
CONCLUSION For the reasons stated above, the Applicant.submite that the exceptions of Mapleton Intervenors should be denied.
Respectfully submitted, f/ L&
,r Harold F.
Reis Dated:
January 16, 1973 Newman, Reis & Axelrad 1100 Connecticut Avenue, N.W.
Washington, D.C.
20036 Attorney for Applicant
CII,.,,,D S i e...:..:
. C, c.. _..,..
v.s ATOMIC ENERGY CC:01ISSICM In the Matter of
)
)-
CONSU:'ERS PCWER CC:GA'iY
)
Docket Nos. 50-329 and 50-330
)
(Midla-d O' -, Units 1 and 2)
)
C"..s..r r _- c_.. r n. r.
_.. e..,
v.,
I hereby certify that ccpies of the attached " Reply of Applicant, Const ers Pcwer Ccmpany, to the Exceptions Filed by the Mapleton Intervancrs to the Initial Decisien /Cecember 14, 1972) cf the Atomic Safety and Licensing Board", dated January 16, 1973, have been served en the folicwing in persca cr by depcsit in tha Unitad States mail, first class, this 16th day of January, 1973.
Alan S. Rosenthal, Esq., Chairman David E. Kartalia, Esq S. Atomic Energy Co$missica Atomic Safety and Licensing U.
Appeal Board Washington, D. C.
20545 U. S. Atonic Energy Cormission Washington, D.
C.
20545 Milton R. Wessel, Esq.
Kaye, Scholer, Fierman, Hays Dr. John H. Buck, Member and Handler Atomic Safety and Licensing 425 Park-Avenue Appeal Board New York, New York 10022 U.
S. Atomic Energy Commission
~~
Washingten, D.
C.
20545~
James N. O'Connor, Esq.
~
The Dow Chemical Ccc_oan.v.
i William C. Parler, Esq., Member 2030 Dow Center Atomic Safety and Licensing Midland, Michigan 48640 Appeal Board U. S. Atomic Energy Commission Myron M.
Chorry, Esc. (2)
Washington, D.
C.
20545 One IBM Pla::a i
Chicago, Illinois 60611 William J. Ginster, Esq.
I Suite 4, Merrill Building Saginau, Michigan 48602 Irving Like, Esq.
Reilly, Like and Schneider Mr. Frank W. Karas (20) 200 West Main Chief, Public Proceedings Branch Babylon, New York 11702 Office of the Secretary of the Commission Hon. William H. Ward U. S. Atomic Energy Commission Assistant Attorney General Washington, D.
C.
20545 State of Kansas Topeka, Kansas 66612 James A. Kendall, Esq.
135 N. Saginaw Road Howard J. Vogel, Esq.
Midland, Michigan 48640 Knittle & Vogel 814 Flour Exchange Building Minneapolis, Minnesota 55415 A
'?Vf-hs)' f
(,[i s.
i Harold F.
Reis
,