ML19331A771

Response to Prehearing Conference Chairman 710501 Request. Identifies Three Factual Issues W/Offer of Proof Challenging 10CFR50 Validity Under Calvert Cliffs Doctrine,Transcript 1069

ML19331A771
Person / Time
Site:	Midland
Issue date:	05/17/1971
From:	Roisman A BERLIN, ROISMAN, KESSLER & CASHDAN, ENVIRONMENTAL DEFENSE FUND
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007230793
Download: ML19331A771 (12)

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BEFORE THE UNITED STATES OF AMERICA  !

ATOMIC ENERGY COMMISSION I

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In the Matter of ) 50 / -J- 7/,

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CONSUMERS POWER COMPANY Construction Permit Applications,

) Docket Nos. 50-329

) 50-330 Midland, Michigan Nuclear )

i Reactors, Units Nos. 1 and 2 )

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OFFER OF PROOF WITH RESPECT TO VALIDITY OF 10 CFR PART 50, APPENDIX 0 BY INTERVENOR, ENVIRONMENTAL DEFENSE FUND This offer of proof is made pursuant to the suggestion of the Chairman at the pre-hearing conference on May 1, 1971.

((Tr. 994)

In the course of that- conference the Chairman identi-fied'the type of proof which should be offered in order to make a chall Je to a Commission Regulation under the doctrine set forth in the Calvert Cliffs Memorandum (Tr. 1069): -1/

If you came in with a showing t' hat there are par-ticular things that you -feel the AEC has not properly taken into account in the promulgation l' of Part 20 and that they are a specific problem in this hearing, we will go into the question of whether or not interrogatories of the kind that you have suggested or other inquiries might be appropriate.

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t 1/ The statement was made with reference to a challenge to 10 CPR Part 20 but is of general applicability.

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The offer of proof relates to an environmental contention which we respectfully submit is still in issue in this pro-ceeding. The contention is that portions of Appendix D of 10 CFR Part 50 can not La legally applied to this proceeding.

We understand that the Board is willing to permit us to offer proof which if accepted could allow us to pursue further discovery and to provide a record for review of this contention by the Appeal Board if this Board should decide to certify the question.

The offer of proof applies to three factual matters which underlie the application of portions of Appendix D to this proceeding. Those factual matters formed the primary basis for the application to this proceeding of that portion of Appendix D which prohibits consideration of environmental issues at any 2/

proceeding noticed for hearing before-March 4, 1971. - The 2/ Also at issue in this proceeding is the validity of those portions - of Paragraphs ll(a) and 11 (b) which limit the Board's power to fully explore all environmental issues in cases to which the March 4 date does not apply. Resolution of that issue has been properly deferred until the March 4 challenge is resolved in or~ der to avoid unnecessary delay.

Unless we prevail on the March 4 challenge, there w311 be no argument on Paragraphs 11(a) and ll(b) . However the factual issue listed in 3. below is essentially the only factual issue raised in the challenge to Paragraphs 11(a) and 11(b) since the justification for those paragraphs depends upon proving that non-AEC imposed standards ~and regulations will provide adequate environmental protection.

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q factual justifications for that decision are set forth in the AEC's rationale for the adoption of Appendix D and are as follows:

1. There is an urgent need for electric power which the Midland r.uclear power plant can meet.

2. Excluding environmental issues from this proceeding will provide an orderly transition in the conduct of the proceeding and will avoid unreasonable delay in the construction and operation of the Midland plant.

3. The possible environmental issues which will be un-resolved as a result of the failure to consider these issues in the proceeding are not substantial and do not outweigh the need for electric power which the Midland plant will meet.

No Intervenor in this proceeding nor any other person has raised before the AEC any challenge to these factual con-siderations and this proceeding is the first time at which 3/

proof is being offered with respect to these issues. If a factual record is not developed here then it will never be

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developed. .

The Chairman has sugg'ested that to permit the challenge to Appendix D which intervenors.have suggested is to in effect ignore the March 4 date because of the need to take evidence l

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-3/ The legal challenges now pending in the U.S. Court of Appeals for the District of Columbia Circuit do not raise these factual issues, particularly as applied to the Mid-land plant. Earlier filing with the AEC uith respect to l Apper. dix D only raised facLual matters related to the Cal-i vert Cliffs lluclear' Power Plant and none of those filings focused on the factual basis for the March 4 date since that was proposed for the first tima in the December 4 version of Appendix D.

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on environmental matters. (Tr. 998) First, the challenge by intervonors in this proceeding is to Appendix D as applied to this case and is not in any way intended to be a gen'eral challenge to Appendix D. Second, the evidence to be adduced may be similar in some respects but not identical to a post-March 4 proceeding because here the bdrden of proof is on the Intervenors to demonstrate that there is no rational basis for the regulation to be applied to this case (i.e. it is arbitrary and capricious) and in a post-March 4 proceeding the burden of proof on these issues would be on the applicant.

See 3G Fed. Reg. 8379 (May 5, 1971), Proposed Rules of Practice for AEC Contested Proceedings (Section VI, Appendix A of 10 CFR Part 2, paragraph (h) (4) ) . Third, the apparent anomaly created by the challenge is a result of the AEC utilizing a factual basis for its postponement of compliance with NEPA and of the application of the Calvert Cliffs' principles to this case.

What the anomolous situation proves is that the AEC was factually in error when it determined that excludin,g environmental issues from this proceeding would provide an orderly transition.

That anomaly should bolster intervenor's challenge, not pre-clude it.

Attached to this document is a list of. factual matters which EDF seeks to pr'ove and the evi ance which it will adduce.

If the offer of proof is accepted and if the Board rules that the_ proof submitted entitles EDF to utilize discovery procedures to bring forth additional evidence then there will of course be

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additional factual conclusions for which EDF will seek evidence

, by discovery and offer such evidence in the record.

Finally, we are not unmindful of the fact that this offer of proof will evoke from some of the parties a charge that this will delay the proceedings. To date the delay, -

if any, associated with raising environmental issues has been caused by the unwillingness of the applicant, Dow Chemical and the Staff to deal with the merits of the environmental issues and to insist instead upon utilizing procedural argument, including application of the March 4 date to this p.oceeding, to defeat the case of the environmental intervenors. -4/ Delay is inherent in those procedural objections because such objections leave the underlying issues unresolved and encourage new and

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more vigorous attacks from the intervenors who feel particularly wronged when they are denied the opportunity to present their case on its merits.

4/ If environmental issues had been allowed in the proceeding from the outset there is no reason why the present schedule for hearings, or an ear:.y one, could not have been followed.

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.In two recent decisions the United States Court of Appeals for the District of Columbia Circuit emphasized the importance of agency action being taken only after a full articulation of the agency basis for its decision because such an articulation will, inter alia, serve to assure the public that a full and fair consideration has been given to its position and thus reduce the number of court appeals. EDF v.

Ruckelshaus, F 2d (January 7,1971) (Slip Op. 23-24) and Greater Boston Television Corp. v. FCC, F2d (November 13, 1970) (Slip Op.19-20) . EDF seeks an opportunity to be heard on the merits in this case. If it can not be heard on the merits of the underlying environmental issues it should at least be allowed to be heard on the merits of the issue, the resolution of which precludes consideration of environ-mental issues. Thus, we respectfully request that the offer of proof be accepted and that discovery be permitted with respect to three factual issues listed above.

Respectfully submitted, BERLIN, ROISMAN AND KESSLER 1910 N Street, N.W.

Washington, D.C. 20036

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By Anthony Z. Roisman Counsel for Envi'ronmental Defense Fund, Inc.

May 17, 1971 6

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O Nrrai urtnrrr Evidence to be Presented by EDF on the Invalidity of Factual Conclusions Underlying Portions of 10 CFR Part 50, Appendix D

1. Any alleged need for power in the area served by Consumers Power Company and the Michigan Power Pool is insufficient to create a need for power to warrant excluding environmental -

issues from this proceeding.

a. Letter of FPC to AEC dated September 23, 1970 and attached to Draft Environmental Statement.

b. Applicant's answers to interrogatories 173, 175 and 179.

2. There is insufficient evidence to demonstrate that the relia-bility of pressurized water reactors in Nuclear Power Plants is sufficiently high to provide firm base load power to meet any power need or that the construction schedules for nuclear power plants provide sufficient assurance that the plants will be available when needed,

a. AEC records on the actual outages of pressurized water reactors particularly Indian Point No. 1.

b. Letter of FPC to AEC, supra.

c. AEC records on the original completion date for nuclear reactors, the number of extensions of time requested and the actual completion dates.

d. 10 CFR Part 50, Appendix D, indicating that all environmental issues not raised in this proceeding

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O be raised at the operating license hearing even though construction of the plant may preclude a practical solution to an environmental problem.

3. Imposition of the March 4, 1971, date to this proceeding creates confusion and delay and is not conducive to an orderly transition or to avoidance of unreasonable delay.

a. The record in this proceeding.

4. Delay in AEC licensing proceedings is primarily a product of the manner in which issues are raised, the conduct of the parties, the number of intervenors, the preparation of the staff and the applicant and is not materially affected by the number of issues raised in a proceeding where a full range of safety issues is to be. raised.

a. The AEC record of events i.n this proceeding. e

b. AEC record of events in Consumers Power Company

) Palisades)..

c. AEC record of events in Long Island Lighting Company

, (Shoreham) .

d. AEC record of' events in Consolidated Edican (Indian Point No. 2).

5. The basis for ignoring the March 4 date in the Vermont Yankee proceeding (50-271), i.e. that the notice ~of hearing was published before the contemplated heari,ng, is equally applicable here.

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a. Notice of operating license hearing in Vermont Yankee (50-271)

b. AEC records indicating the time interval from the notice of hearing to commencement and conclusion

'of hearing in contested cases.

c. Statement by the AEC in its Brief filed in the case of Calvert Cliffs Coordinating Committee v. AEC (CA D.C., No. 24,871) page 48 and also filed in this proceeding with respect to reason for the Vermont Yankee notice ,

d. Comments of !!yron Karman, Counsel for the AEC Regula-tory Staff, on May 13, 1971 in hearing on Conaolidated Edicon Company (Indian Point No. 2)(50-247) indicating evidentiar; states of the reference in c. above.

e. Record in this case of time interval from notice of hearing to present date, affidavits of counsel respecting contemplated completion date of the hearings and statement of Chairman Murphy with respect to contemplated date for conclusion of hearings in this proceeding.

6. Present evidence in this record of the environmental impact of the Midland plant precludes a conclusion that the plant's operation will not have a significant adverse effect on the environment.

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a. Draft Environmental Statement with all attachments. .

b. Comments of EDF with respect to inadequacy of Appli-cant's Envirc f. ental Report.

c. Comments of EDF with respect to inadequacy of Draft Environmental Statement.

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r BEFORE Tile UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION

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In.the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329 Construction Permit Applications, ) 50-330 Midland, Michigan Nuclear )

Reactors, Units Nos. 1 and 2 )

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Offer of Proof with Respect to Validity of 10 CFR Part 50, Appendix D by Intervenor, Environmental Defense Fund and Attachment thereto, dated May 17, 1971, have been served on the following by deposit in the United States mail, this 17th day of May, 1971:

Arthur W. Murphy, Esq., Chairman Robert Lowenstein, Esq. j Atomic Safety and Licensing Board Lowenstein and Newman Columbia University School of Law 1100 Connecticut Avenue, N.W.

Box 38 Washingt7n, D.C. 20036 425 West 116th Street New York, New York 10027 Richard G. Smith, Esq.

Smith and Brooker, P.C.

Dr. David B. Itall 703 Washington Avenue Los Alamos Scientific Laboratory Bay City, Michigan 48706 P.O. Box 1663 Los Alamos, New Mexico 87544 Harold P. Graves, Esq.

Vice President and General HDr. Clark Goodman Counsel Professor of Physics Consumers Power Company University of Ilouston 212 West Michigan Avenue 3801 Cullen Boulevard Jackson, Michigan 49201 ilouston, Texas 77004

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William J. Ginster, Esq. James A. Kendall, Esq.

Suite 4 135 N. Saginaw Road Morrill Building Midland, Michigan 48640 Saginaw, Michigan 48602 Mr. Stanley T.-Robinson, Jr.

Myron M. Cherry, Esq. Chief, Public Proceedings 111 West Monroe Street Branch Chicago, Illinois 60603 office of the Secretary of the Commission Milton R. Wesscl, Esq. U.S. Atomic Energy Commission Kay,-Scholer, Fierman, Washington, D.C. 20545 Hays and Handler -

425 Park Avenue Thomas F. Engelhardt, Esq.

New York, New York 10022 David E. Kartalia, Esq.

Regulatory Staff Counsel U.S. Atomic Energy Commission Washington, D.C. 20545 itAC ) s' (Anthony,Z. N V: % d & t (-

Counsp1' for R hp ispan Env[ironmental Defense F d, Inc.

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