ML19331A796
| ML19331A796 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/15/1972 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER |
| To: | Murphy A Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19331A792 | List: |
| References | |
| NUDOCS 8007230825 | |
| Download: ML19331A796 (10) | |
Text
,
g V
t,J M i GU...1R me. & unt, EAc. 50-M.T,93 0 d
k),
DIY1 TON 31. CIIEltitY Y,
NUITE 1905
'l 300 NOitTat IJEAlfiguitN NTitt:ET C&gICAuo. ILLINDIN 00603 r
t-
'l.
!\\lt. U h/2 >
'lj us.m. san
$ \\
- e. -
+
, n., f
(,,J
E ^
f April 15, 1972
'A tM Yl 3, 9
Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Board Columbia University School of Law 435 West 116th Street, Box 38 New York, New York 10097 Re:
Consumers Power Company (Midland Plant Units 1 and 2) - Docket Nos. 50-399, 50-330
Dear Chairman Murphy:
We feel compelled to react rather vigorously to your order of March 27, 1972.
This response would have been filed earlier but for the fact that I am, have been and continue to i,e in I?cthenda, Maryland, representing the Consolidated National Intervenors in the ECCS hearings, and matters sent to my office in Chicago are delayed in reaching me.
We are filing today a motion consistent with this a ttested letter.
The facts herein set into context the panoply of the background of issues which realistically this Board must consider.
First of all, the so-called Saginaw Intervenors are represented only by myself, and without my full and complete participation my clients will be denied adequate representation.
Since adeauate representation is a prerequisite to a full and complete hearing, it is neither unreasonable nor a stretch of the imagination to assert that a failura to resolve the issues presented oy this motion in a fair way could result in a denial of due process.
The background for this motion is essentially as follows:
1.
When my clients intervened in this case, we asserted that NEPA was being disregarded and violated.
The AEC, steadfast in its unreC.istic refusal to accommodate its licensing procedures to a modern age, took a' contrary position; and Consumers Power contriouted to that backward view by supporting the position of the AEC in the hearing.
That position by the AEC and Consumers (and contributed to in some measure by Dow Chemical) resulted in delays in consideration of environmental issues on any serious casis from November 1970 to the fall of 1971.
Theree.fter the 8conso FGSg
.:(
- Germission promulgated environmental regulations and it was not until Maren 1972 that the final detailed environmcr al statement came out.
From the beginning, and certainly since the fall of 1971, ne urged the Board to enter orders permitting the intervenors a realistic inout to the analysis by the AEC and its various sub-contractors with respect to the draft detailed statement.
Both Consumers and the Regulatory Staff opposed our involvement and oncoced any discovery to assist us in formulating our position, on the grounds that the Regulatory Staff had to be free to orepare its NEPA statement and should not be interfered with by so-called
" informal discovery. "
The rationale for our claim to early involve-was that it would eliminate later delays in exchanging informa-ment tion and permit the intervenors to have early inout to the process.
When the draft detailed statement came out, we analyzed it as best we could with respect to the information available to us and filed in good faith a rather involved statement of environ-montal contentions.
If prior to that time we had been permitted crtrance into the formative stages of the draf t detailed statement,
- o wonid have been in a position to file detailed interrogatories n Long with our draf t statement.
Faced with the alternative of not being in a position to file detailed interrogatories because of the failure of the Board to permit our early involvement, we regretably chose to suggest to the Board an alternative to its then cresent procedure, which was the filing of interrogatories and recuests for discovery after environmental contentions were finalized.
We would point out that had any one of our earlier sug-gestions concerning environmental matters been adonted, we would have been further alon.; by now, This is not a claim that hindsight entitles us to any special consideration, but rather a recognition of the onckground of the environmental issues in this proceeding.
Specifically, the Regulatory Staff, Consumers and Dow Cnemical have fought vigorously every rational suggestion we have made for early involvement in analysis of the environmental issues.
Since tnoce positions have realistically crevented our orecara-tion, our request for an extension ~of time must be analyzed in that light.
P.
The Board knows, or should know, that much attention is being fccused on the Midland environmental hearing.
There are substantial positions both pro and con, and perhans outside of the Indian Point or Shoreham case, it is the only ASLB case which at nne moment appears to have raiced all of the issues which affect y
the entire nuclear industry.
What this means is that if handled 1
properly, the Midland proceeding could provide a ce11 weather for 9
a
. r u m t ut,l or, of nome of the vexin'; problems olaguing the acco=odo-ticts between alleged need for power and environmental orotection.
Since a setback. to Consumers for as much as five or six months cannot seriously affect the ultimate scheduling of a power o3 ant if a permit and subsequent operating license are issued, there can ne no serious claim of orejudice.
In any event, because of the enormity of the issues in Midland and the very probable chance that if Tiven serious attention (without the ever-nresent and erally unconorted accusations of delay hurled at intervenors), gen-the Midland case may be able to solve or at least hcIn in solving a great many o'
~
'scues today, including but not limited to cues-tions of me
.an citing questions of alternatives to power, mal purpose nuc, lear nower plants, cuestions of high questions o.
level radioactive waste disposal and questions of safety.
3.
This Board is no doubt aware that the ECCS hearings in Bethesda did not come about as a result of the Commission's own motion to hold hearings.
Rather, I and other environmental lawyers went to the Commission, convinced them that the ECCS issue was generic and that rather than 'having that issue raised in several licensine hearings (encumbered by procedural decisions which never n e em to c;e t - t'o the heart of the matter), the Commission ought to consolidate all of the hearings nationally.
Whether or not the national hearin,qs are in fact a consoli!ation is a debatable issue.
liowever, one thing is quite clear.
I and others have cerformed a nuolic service in making sure_that the ECCS issue is fully debated 1: n forum which has the broadest possible aoolication and the leant possibility of duplicating efforts in various ASLB cases.
As the Chair noted in one of its earlier rulings, an ASLB cannot ignore the fact that the ECCS hearings are going on and there is no dou'nt in my mind that no licenae or nermit could today issue until tne ECCS issue has been resolved by the Commission or the cou rts.
There is also no question but that thus far the ECCS hearings have severely discredited the Interim Accentance Criteria and Policy Statement issued in June 1971.
As of the writing of this letter, the record discloses that every nationally known exoert on i
ECCS has testified that no technical support is available to succort tne Interim Accentance Criteria and that new procedures have to be levised which may involve the derating of the current generation of power plants.
This is a fair summary of the testimony of George 9rocuctt, head of the Aerojet Safety Program (the crime contractor to the AEC Regulatory Staff), of Dr. Morris Rosen, formerly head of the Division' of Reactor Standards Branch which oversaw the ECOS incue and now a technical advisor to Dr. Peter Morris, of
.Roccet Colmar, senior nuclear engineer at the Regulatory Staff and, according to Dr. Rosen's testimony, of Dr. Herbert Isbin, a1xell-known ECCS expert on the Advisory Committee on Reactor Safeguards.
. The r"co M of proceed!nn.s In the ECCS hearings has de.cn-u t ra :,ed that the iteculatory Staff review leading up to the Ir.terim Criterin was unscientific, unprofessional and ignored so much of the ancic information that it is charitable, to say the least, to call it an croitrary evaluation.
There is no doubt in my mind, and sr.ould oe no doubt in any objective observer's mind, that the Interim Acceptance Criteria are finished and something new will have to be done.
It is important and necessary that I maintain my repre-cer.tation on behalf of the Consolidated National Intervenors in the ECCC hearings.
A' though Mr. Roisman and Mr. Arnold are also co-counsel in that hea ri ng, the facts are that Mr. Roisman is engaged in the As Low As Practicable hearings and has not narticinated in the MCCC hearings except in the very early planning stages, and Mr.
Arnold, who has particinated in the hearings earlier, has not done so in the last five weeks, which cakes it impracticable for him to assume the duties I am now discharging.
Moreover, Mr. Arnold's schedule would not permit him to take over the case now and brief nJmse]C to the extent necessary to provide adequate representation.
Tr.o importance, therefore, of my continuing representation of tne Consolidated National Intervenors (in the sense of having a Icuyer knowledgeaole of the facts participate and not merely me) has implications important to the entire industry.
Since the Consolidated national Intervenors have performed a public service in bringing safety issues to light, a lack of strength and stability in our position would do a disservice to the objective of the ECCS hearings, that is. a full and complete public hearing of all sides of the safety issue.
Accordingly, I am unable to relieve myself of my duties in the ECCS hearings, and if one considers the oublic interest as the interest of the nuclear community in solv!.ng safety nroblems and maintaining credibility before the general public, my continuing carticipation in the ECCS hearings will serve that puroose as well as the purpose of my clients, k.
I have been representing the Saginaw Intervenors since the petition to intervene and there is no other lawyer who Mnows the case and the Intervenors' position as I do.
I cannot be availcble in the next weeks to prepare for a nrehearing on May 17 and, accordin3 to the schedule set'down by the Commission for the ECCS hearings, I cannot be available for the May 17 hearing.
My clients and I have made attempts to get another lawyer to reoresent them who is knowledgeable in the area, and who would take the case in the same fashion as I have done.
Thus far our attempts have ocen unsuccessful.
. if f unre coming to this case without the na 9 ro:ni 3
t hri t. I h6vo set forth here and claiming that I have other rork which prevents me from meeting the Board's schedule here, I could see cuen a motion being denied upon the grounds that lawyers should not take on too much work; but that is not the situation here.
The situation here is-that the Commission has stressed an obvious importance in resolving the ECCS hearings, that no 2icensing hearings realistically can ignore the ECCS hearings and nothing really important will be~done administrative 1y until the ECCS hearings are completed.
Moreover, it is the Commission in ene scheduling of the FCCS hearings.>{and not some other agency or other court) which prevents my participation in the Midland hearing.
Accordin.d y, I make this motion before this Board with the assertion that my duties.in a proceeding set by the Commission prevent me from participating in Midland on the dates seneduled.
The very heart and thrust of the nuclear industry is now neing reexamined in Bethasda and I am sure at the Commission.
This Board may not in good conscience fail to recognise that factor in cohsideration of this motion.
5.
Moreover, a fair characterization of the intervenors' carticipation in this case has been that they have pursued their positions with reasonable. diligence and with reoconable good faith; en witn respect to the environmental issues and the assertion of ECC3 problems, the facts now demonstrate that their assertions were correct.
The analysis of the public interest, of course, includes a value judgment.of whose public interest one talks about.
What I am trying to set forth in this letter is that it does not serve ' the nurnoce of the nuclear industry or the Commission to push the Mid-land hearing to a conclusion without adequate recognition of the fact that the chief counsel for intervenors in that proceeding has noen engaged for more than four months in hearings 'efore the Ccm-o mission on a very significant issue.
Moreover, the ECCS hearings must take orecedence, not because this Board's deliberatiens in Midland are any less important, but because this Board's delibera-tions in Midland are subject to the Commission 's decision in ECCS.
What my clients are requesting.in the attached motion' is as follows:
A.
A withdrawal of the date of May 17 as t'he date for the beginning of environmental hearings in Midland.
We cannot now offer an' alternative date.
We know that the Board members are more
. riva ; hiili-li. the son:uier thnn they are In the fal],
r,u t tha t ma ter nhould not have overwhelmi.ng weight since that is an adminis*,rative proulem which can be rerolved in many ways.
We wculd suggest then that the Board contact the Commission and get its vicus on when
- no ECCO hearings will end and withhold the scheduling of-the beginning of the. Midland hearing until such a guesstimate proves to oc sound.
j B.
During the interim, steps should be taken to 6ain decisions from the Commission with respect to the myriad of environ-mental and procedural issues, including cost benefit and risk bene-fit issues, which are presently in abeyance.
It does not do the oaolic interest any good for hearings to go forward without having the Commission rule on the matters outstanding.
If the issues raised cy the environmental matters in the Midland hearing were clear cut, one could, justify proceeding forward uith a board deci-sion only.
However, and again respectfully, we would coint out that the area we are involved in is fluid, changing and novel, and it renul.res policy decisions to-be made, decisions which by defini-tion cannot ne nade by an ASLB.
C.-
The next few weeks or months can he scent in doing somethbu that I have urged since the very first time I went into an ASL3 case.
That is, to ore-trial this case to such a point that when the hearing oegins we will have stipulations of facts, agreement or the legal issues (that ic, the statement of the issues rather than their resolution) and have all documents marked and received in evidence in aivance.
Thus, this Board has an opportunity to chart the future role of ASLB hearings oy bringing modern trial techninues to bear now and demonstrate to the Commission and the nuclear industry that a centested intervention can be handled effi-t niently an i need not be characterised by inefficiency and wrangling.
Effort spent now can only redound to everyone's benefit, since actual nearin.; time will be shorter and the hearings will be more specifically focused.
Even though I will continue to be engaged in the ECCS hearings in Bethesda, I would be in a position to carticipate in une pretrial techniaues suggested here and would make every effort tn :;et other intervenor lawyers also to assist.
Therefore, the being made by the enclosed motion is one which realistically renuest recognises my daily participation in the ECCC hearings while at the same time does not request a halt in the Midland case, but rather a reali.;nment of priorities in the public interest.
D.
The Board's order recuires us to file interrogatories by this date.
We have not done so and cannot do so and ask for
. i.m J i n. in, or theit dat,c arid request tha t tne non 11'ng o' irterrg-Lt.rior ou developed doring the nrehearing techniques we suggest in this letter.
It may be that after an orderly exchange of documents and an honest effort by all counsel to sit down and crecare a pre-trial order, interrogatories may be unnecessary.
E.
We also ask for a lifting of the Anril 30 deadline to provide'uritten evidence.
This is a particularly harsh burden in light of the fact that adequate preoaration for the intervenors over the long months we have participated in this case has been thwarted by the failure to let us in the process early.
In effect, si. ice June P3, 1971, the date of the calvert c15efs decision, the Regulatory Staff and the applicant have han access to substantial amounts of information to prepare their environmental case.
We asked during all those months to be permitted environmental dis-covery but were denied the ooportunity.
The realization is that the co11cetive efforts of the utility and the AEC have taken nine months to prepare their position on the environmental issues and yet we are acked to duplicate that effort in less than a month without having t,hc information available.
We cannot see the fairness in an.~h a proce, dure.
And it is no answer to state that intervenors have had the same period of time since that fails to recognize the realities of an industry where just about everyone knowledgeable is afraid to testify or offer assistance against the industry.
F.
We think that during the period of pretrial nrecara-tion matters raised by the Board's ruling of March 07,- 197P ' begin-nin;; on page 4 and continuing through page 19 can be briefed and certified to the Cctmission for an orderly disnosition of the issues before the hearing starts.
Accordingly, we ask to be relieved of
- ne ooligation to file on April 15, 1979 a revised statement of con-tentions or a casis for certain contentions as set forth at oaves 5 ani 6 of the Board's order.
We would point out again the unfair-ness in the Board's Order in that we were asked to file matters on Anril 15 without the benefit of information, but the Requistorv 9ta ff han until April 95 to make filings when it has had informa-tion availaole to it.
Our comments are likewise the same with
/-
respect to the filirgs due on April 15 as set forth on nages 7, 10 cnd 12 of.the Order.
Thin request may at f!rst blush seem to be unreasonable, but in our judgment an1 in light of the history of this proceeding.
the.Callure of the Commission in its-procedural decicions (decisions
<:hich nave influenced this Board) to recognize the realities of contested litigation and the limited nature of intervenors' time and money, wo believe our request sound-and fair.
Thus interven-tions should not'be discouraged oy unreasonable rulings: rather, ii seems that Boards should take pains to force utilities and a6cncies to open up their files early.
~
.. i believe thit the dilemma nosed for the nuclonr ir !nntry t,... t riy 1:
.p u nai t.ely :< t forth in the rernart:s of tue TW:re: rer or :1.g 1.s m s.r:<.':
- .nuo in i t:: Ma rch 3 0, ](T/P Order.
We believe that.ne Li, r::t.ir.nr we have made in this letter pose a fair resolution to the dilemma and a recognition that the Commission cannot continue witn businens as unual in light of the disclosures made at the ECCS hearings.
The time for the urgent analysis is today, when the economic stake is small compared to what it will oe five, six or ten years from today if utilities, vendors and the Commission are not encouraged and forced to make their reevaluations now.1 We would ask the Board to treat the metters raised in this letter carefully and seriously and_ hold a decision on the matter until further discussion at the prehearing conference on April Po.
Because I am in Bethesda and do not have a notary public available to me today, and because I wish to file this motion and latter today, I make the following statement as an alternative to being sworn oefore a notary with respect to the facts stated in tnis letter:
1, Myron M. Cherry, counsel for the Saginaw, et al.
Intervenors, state, under penalty of perjury,that the facts set forth in this letter are true and correct to the best of my know-ledge.
Resectfully.[1 3
9i e
buIl
/
J1J S
Myrod M. Cherc/
,/
MMC:ca
/
cc:
Board Members Secretary, USAEC All Counsel of Record 1Attached to tnis letter is a summary of the Rosen-Colmar testimony at the ECOS nearin,qs given on Acril 19 and 13,197P, which shews the seriousness _of the disclosures made in the ECCS hearings.
I would call tne attention of the Board and the narties (particularly Dov Chemical, who has no nuclear stake in this hearing) to the statement made ny Dr. Rosen that the Regulatory Staff does not have " knowledge sufficiently adequate to make licensing decisions for the anoroxi-mately 100 reactors operating or under construct. ion. "
N)CKET tlVMBER rR00. & UT!L. EAC. 60MrD N
O 8'
'DG":ETED 9
2.
n4EC I-Summary of Testimony of Morris Rosen f
Al'id O l3/2
- 10 and Robert Colmar at AM Rulemaking s u o m.mmvr Hearing on ECCS h*g*88 yf (Aoril 12 and 13, 1979) b%
% i' Dr. Morris Rosen is Technical Advisor to the Director, Division of Reactor Licensing, USAEC.
From 1968 to January 2972, he was the Chief of the Systems Performance Branch.
The oranch served as the focal point for ECCS performance evalua-tions for the AEC Regulatory Staff.
Rooert J. Colmar is a senior nuclear engineer in the Division of Reactor Licensing, USAEC.
Testimony of Dr. Rosen and Mr. Colmar:
The Regulatory Staff has not cerformed a system-atic study of the emergency cooling equiement Staff Task Force review of ECCS was "gulatory used in nuclear power plants.
The Re suoerficial."
The Regulatory Staff does not have in-house a sufficient number of comoetent oeoole to do the job required in evaluating the comonter comnuta-tlonc relied upon by reactor manufacturers to prove the effectiveness of their emergency sys-l tems.
The Regulatory Staff must rely uoon the comruter code experts at Aerojet Nuclear Comoany (A!C) to cerform these evaluations.
- Hoeever, AEC Regulatory Staff has disregarded the juds-ments of its expert advisors:
"In view of the ACRS opinions and the testimony presented so far at this hearing, it is hvth disturbing and discouraging to continue to see the advice of what I believe can be considered a significant portion of, more likely, a majority of the knowledgeable people available to the regulator staff, still being basically dis-rega rded.y'
P".
W lu t>.uln l.ory Sta f f doen not, hnve n "n tanda rd cnle u la f,lonal model with concist ent inputs and concictent assumptions" for evaluating emergency cooling systems.
Accordingly, the Regulatory Staff does not have " knowledge sufficiently ade-quate to make licensing decisions for the accro-ximately 100 reactors operating or under construc-tion."
Present AEC methods for analyzing emergency cooling systems "are bt3ed on numerous unrealistic models, suffer from a nutiber of restrictive assumo-tions, and lack applicable experimental verifica-tion.
Under these conditions.
the effective-necs of the emergency core cooling systems.
cannot be established."
" Leading experts" on ECC systems - such as George Brockett (Manager, Nuclear Safety Develooment Branch, ANC) and Herbert Isbin ( Advisory Committee on Reactor Safeguards, USAEC) - feel lowering be desirable under reactor power levels may"Dr Isbin in particular, present circumstances.
the ACRS in general, has come out quite strongly in my opinion against the interim colicy statement
[AEC Interim Policy Statement on ECCS, June 29, 19711."
i "I think clearly the necessary data is not avail-able" to supoort the Regulatory Staff's oosition on the probability of a loss-of-coolant accident (the circumstance necessitating emergency cooling systems].
e
,.