ML19331B252
| ML19331B252 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/02/1973 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | |
| References | |
| NUDOCS 8007280846 | |
| Download: ML19331B252 (44) | |
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ATOMIC EflERGY C0t' MISSION UtlITED STATES OF AMERICA li BEFORE THE ATOMIC SAFETY Af!D LICE:!SI!G APPEAL BOARD In the Matter of f
C0tiSUMERS POWER COMPAflY
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Docket tios. 50-329 i
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50-330 l
(Midland Plant, Units 1 and 2)
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AEC REGULATORY STAFF'S BRIEF I:1 OPPOSITI0ft TO EXCEPTI0f!S OF SAGIllAW IflTERVEi;0RS I.
Introduction
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l' Pursuant to section 2.762(c) of the Ccmmission's Ru' les of Practice,10 CFR Part 2, the AEC regulatory staff (staff) submits this brief in opposition to the exceptions of Saginaw fluclear Study Group et al.
(intervenors) to j
the Initial Decision of the Atomic Safety and Licensing Board (ASLB),
t dated December 14,1972.E In part II of this brief we address the ex-ceptions seriatim and state the reasons why we believe er.ch of them should be denied.
In a number of instances we have concluded that an exception is adequately answered by one of our previous filings or by the applicant's y " Exceptions of Intervenors Saginaw Valley fluclear Study Group, Sierra Club, United Automobile Workers of America, West Michigan Environ-mental Action Council, Citizens Committee for Environmental Protection of Michig'an and University of Michigan Environmental Coc ety to d
Initial Decision of the Atcmic Safety and Licensing Boarc Issued Under Date of December 14, 1972 Authorizing the Director of Regulation to Issue Construction Pennits for Midland Plant, Units 1 and 2," dated January 15,1973 (hereinafter "Except ns"); " Motion and Supolement to Saginaw Valley, et al., Intervenor's Statement of Exceptions to the Initial Decision Filed on January 15, 1973," dated January 18, 1973.
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reply to the intervenor's exceptions,U and have accordingly dealt with such exceptions sumarily, giving appropriate references to the material on which we rely.
1.
THE ASLB EXERCISED ITS DISCRETION SOUNDLY IN DISALLO INTERR0GATORIES TO THE STAFF AND THE ACRS, AND ITS RULINGS IN TH REGARD SHOULD THEREFORE BE AFFIRMED.
(Exception II.A.)
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Exception II.A. challenges the ASLB's rulings disallowing a number.of 1
intervenors' interrogatories addressed to the staff and the ACRS.
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On March 12, 1971, the intervenors served a total of 337 interrogatories (some containing 'several parts) addressed to the Comission and the Advisory Committee on Reactor Safeguards (ACRS).E The interrogatories were filed pursuant to an ASLB order setting a filing date of January 7, 1971, which was later extended to March 22,1971.0 Since the Comis-sion's Rules of Practice as amended in December 1970 provided for the service of interrogatories on the Commission,E the staff did not object to the utilization of this fonn of~ discovery by the intervenors.
And since the intervenors never sought nor obtained approval for any specific number or type of interrogatories, the staff interposed no objection at 2] "Brief of Applicant, Consumers Power Company, in Opposition to Exceptions Filed by the Saginaw Valley Intervenors to the Initial Decision of the Atomic Safety and Licensing Board," dated January
" Applicant's Brief")
29, 1973. (hereinafter 3/ "First Set of Interrogatories of Certain Intervenors Directed to the Atomic Energy Comission and the Advisory Comittee on React > Safe-guards," dated March 22, 1971.
_4] " Pre-Hearing Conference Order," dated November 24,1970; Tr. 600, 606-07.
. 5] 10 CFR 5 2.720(h)(f f) [35 F.R.19500; December 23, 1970]
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all until the interrogatories were in hand.
However, after an opportunity i
I to examine what the intervenors had filed by way of interroga-j tories, we entered both a general objection on grounds of burdensomeness and a series of specific objections to individual interrogatories on various other grounds.0/
In a series of rulings the ASLB directed the staff to answer certain of the interrogatories and sustained the staff's objections to the balance of theset.1! The interrogatories which the staff was not directed to answer l
were disallowed principally on grounds of'burdensomeness.E As I
i the ASLB stated in ruling upon the interrogatories:
t The key to the problem posed by the interrogatories is that -
they are designed, in the main, not to elicit the underlying facts but to probe the staff's reason for their conclusion that the proposed reactor qualifies for a construction per-mit.
The vice of the interrogatories is epitomized by No. 292 which would require the staff to " describe each fact, calcula-tion and assumption" on the basis of which it concludes that fourteen separate systems "will be adequate to perform their intended functions." The interrogatory then goes on to re-quire that the AEC make a detailed comparison of this to previously licensed reactors.
In sum, what the intervenors seek in these interrogatories amounts to a written rational-ization by the staff of each decision on safety which has been made in this and many other proceedings.
To properly answer these interrogatories would, the. Board is satisfied, 6_/ " Objections of AEC Regulatory Staff to 'First Set of Interrogatories of Certain Intervenors Directed to the Atomic Enerqy Commission and the Advisory Committee on Reactor Safeguards,'" dated April 26, 1971.
7/ See ASLB telegrams of May 13, May 27 and June 1,1971, and " Rulings on Interrogatories Addressed to the AEC Staff," dated June 1,1971.
8] See June 1,1971 Rulings, n.7, supra, pp. 2-5.
See also the ASLB Chairman's statement at Tr.1879:
"I would remind you, Mr. Cherry, that one of the reasons that your interrogatories were denied was that they were, in total, burdensome."
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I require the staff to reexamine, rethink, and reconstruct at i
least two years of discussion, conferences, etc. on many 4
diverse aspects of these complicated systems.
It is perhaps j
not an exaggeration to say that complete answers to these j
interrogatories would require the staff to prepare a justi-fication, intelligible to laymen, of the whole history of the. development of pressurized water reactors, without, in the Board's view making a significant contribution to i
safety.9] (emphasis in original)
I Clearly, the ASLB had broad discretionary authority pursuant to section 2.718 of the Commission's Rules of Practice to confine discovery within
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reasonable bounds.
In the absence of some demonstrated abuse of discre-tion affecting the substantial rights of the intervenors, the ASLB's rulingsontheseinterrogatoriesshouldnotbedisturbed.E In this case, taking into account the number and type of interrogatories in-volved, as well as the absence of any substantial showing of prejudice,b it is apparent that the ASLB exercised its discretion soundly and that its rulings on interrogatories to the staff and the ACRS should be affinned.
The ASLB's rulings on environmental interrogatories should be affinned for similar reasons. Many of the intervenors' environmental interrogatories were simply resubmissions of interrogatories previously disallowed.
They 9/ Rulings, n. 7, supra, pp. 2-3.
10/ Cf. Bell v. Swift & Co., 283 F.2d 407, 409 (5th Cir.,1960)
[61sallowance of interrogatories upheld even though the court thought "the trial judge erred."]
lif The intervenors' showing of prejudice is a bald assertion that "[t]hese interrogatories were absolutely necessary and essential to the preparation of Intervenors' case and to an understanding by Intervenors... of the basis upon which to make contentions regarding the issues to be contested and the issues in the proceeding."
(Ex-ceptions, p. 6)
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were denied becaese the intervenors failed to show why the ASLB's earlier rulings no longer applied.$ Another interrogatory, attached to the intervenors statement of environmental contentions, called upon the staff to list "by category... all documents... which... you reasonably I
agree is within the right of environmental inquiry." The ASLB properly
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denied this vague, argumentative interrogatory as "obviously defective."13/
In any case, the intervenors subsequent conduct amounted to a waiver of whatever objections they might have had with respect to the scope of discovery allowed on environmental matters.
By order dated. March 27, j
1972, the ASLB allowed the intervenors one final opportunity for such discovery.E No requests pursuant to this order were ever made by
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intervenors.
2.
THE ASLB'S RULINGS ON INTERR0GATORIES DID NOT FORECLOSE PRESSURE VESSEL FAILURE AS AN ISSUE IN THE PROCEEDING.
(Exception II.B.)
In Exception II.B. the intervenors assert that the ASLB's rulings on their interrogatories 92 and 210E both foreclosed pressure vessel M a0rder With Respect to Various Motions Filed in This Proceeding "
dated December 22, 1972, p. 16 13/ " Order With Respect to Environmental Issues," dated March 27, 1972,
- p. 3.
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I_d_. at pp. 2-3.
15/ "First Set of Interrogatories o' Certain Intervenors Director to Consumers Power Company," dated rfarch 22, 1972.
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,j failure as an issue in this proceeding and prevented them from obtaining 1
information with which to make a showing of special circumstances warranting inquiry into that issue. E In asserting that the ASLB foreclosed pressure vessel failure by its 1
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rulings on interrogatories 92 and 210, the intervenors read far more j
into these rulings than the facts allow. Neither of these interroga-tories called for an evaluation of the credibility of pressure vessel l
failure.
Interrogatory 92 called upon the applicant to
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Describe in detail the basis for your belief, specify_ing each j
fact, calculation and assumption thereof, of the adequacy of the volume of water in the borated water storage tanks to provide cor;tinued cooling to both proposed Midland Units in.
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,j the event of a simultaneous LOCA and a pressure vessel frac-ture.
j If anything, this interrogatory assumes pressure vessel failure and in-i quires as to some of the consequences thereof.
1 Interrogatory 210 also appears to call for an analysis of the conse-t quences of an assumed pressure vessel failure:
i State if in your analysis of a LOCA and each other accident I
which would result in three percent of the fuel melting, I
if you considered the possibility of a steam explosion that
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could rupture the primary containment vessel.
Describe in detail each fact, calculation and assumption upon which you base your answer.
If you have not done such an analysis, then state why not.
l 16/ See Memorandum and Order of the Commission dated October 26, 1972,
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in Consolidated Edison Cocoany of New York (Indian Point Unit No. 2),
Docket No. 50-247, p. 4, n.5.
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. If the applicant had ade an analysis of such an event and could answer the first sentence in the affimative, he apparently would hue been required by the second sentence to describe his analysis; other-wise, the second sentence is meaningless.b Thus, neither of these interrogatories raised the question whether inquiry into pressure vessel integrity should be permitted.
Nor did the ASLB decide that question.
In disallowing these interrogatories, the
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ASLB clearly assumed that the consequences of pressure vessel failure would be unacceptable and held only that it would not require the applicant to undertake an analysis that could, in the ASLB's view,-
only come to that conclusion.
In the ASLB's language, the interrogatories were disallowed because they " call [ed] for analysis of the consequences of an accident which if found to be a credible accident would require denial of the construction permit."E Far from foreclosing inquiry into pressure vessel failure, these rulings practically invited the intervenors to come back with some basis for such an inquiry.
This they never did.
Intervenors now suggest that the ASLB's rulings denied them infomation that would have enabled them JJ7/
If the applicant had made no such analysis, he presumably could have responded to the third sentence by stating that the postula-ted event was considered incredible.
18/ " Rulings With Respect to Objections to Interrogatories Addressed to Various Parties by Saginaw Intervenors," dated May 13, 1971.
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to make such a showing.
(Exceptions, p. 10-11) However, as shown above, l
the interregatories actually called for information on the results, not the possible causes, of a hypothetical pressure vessel failure.
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INTERVENORS HAVE MISCONCEIVED THE STATUTORY ROLE OF THE ASLB AND MISCONSTRUED THE INITIAL DECISI0fl AS IT DESCRIBES THE ASLB'S REVIEW IN THIS PROCEEDING.
(Exception II.C.)
l In Exception II.C., intervenors argue that the Atomic Energy Act of 1954, as amended (Act), requires the ASLB to make an independent de novo review 1
l as to uncontested safety matters and that the ASLB in this' proceeding improperly relied upon the application, safety evaluation, and AC85
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l letter in reaching conclusions with respect to such matters.
First, there is nothing in the language of the Act or its legislative history that indicates that Congress intended that ASLB's should duplicate the safety evaluations conducted by the applicant, staff, and l
l ACRS.
The Commission's regulations applicable to this proceeding pro-l vided that "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 ACRS and they are authorized to rely upon the testimony of the regulatory staff and the applicant, and the con-
.clusions of the ACRS, which are not controverted by any party."
10 CFR Part 2, App. A, i V.(d);.33 F.R. 8S87.
The premise for intervenors' l.
argument in this exception - that the ASLB must conduct an independent
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de novo safety review of uncontested safety matters - is in error.
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Second, contrary to intervenors' inferences, the ASLB did apply its independent technical expertise to uncontested safety matters, as the portion of the Initial Decision cited by intervenors indicates.
While the ASLB did not choose to comment in detail on all safety matters in its Initial Decision, the ASLB did discuss those aspects of the application that were new or unusual, those that were contested, and those for which
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specific findings were required to ae made.
Such an_ approach, as indicated above, is consistent with applicable law.
In addition, intervenors cannot be heard to complain with respect to conclusions of the Initial Decision regarding uncontested issues.
If.
intervenors had any real concerns on these matters, they had only to raise these concerns as contested issues during the hearing and thereby obtain a more detailed discussion in the Initial Decision.
Finally, there can be no prejudice to intervenors from reliance on ACRS conclusions with respect to uncontested safety matters for, while such reliance would have been entirely proper as indicated above, the ASLB placed no such reliance on the ACRS letter.3E/
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E.g., Tr. 1884.
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4.
THE ASLB PROPERLY EXERCISED ITS DISCRETI0:1 TO C0ilFIflE IilTERVEfl0RS' CROSS-EXAtIIliATI0fl WITHIll THE BOUtlDS OF REAS0:1 Att0 !1ATERIALITY.
l (Exception II.D.)
I Exception II.D. relates to statements made by the Chairman of the ASLB at Tr.1893 and Tr. 2102 to the general effect that intervenors would be required to make some affirmative showing to justify further cross-4 l
examination concerning assumptions used in the staff's evaluation of the Midland Plant under 10 CFR Part 100.
The intervenors argue that this action abridged their "right" of cross-examination pursuant to the i
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Administrative Procedure Act and the Comission's Rules of Practice.
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(Exceptions, pp.17-18) l I
The ASLB's statements were made in reference to a line of cross-examination l
concerning the 50% halogen release assumption (from TID 14844) used in thestaffanalysis.E The general purpose of this cross-examination was to show that the basis for the TID 14844 halogen release assumption is largely techr.ical judgment; that the confidence limits associated with that judgment are such that a larger release could be assumed; and that if such larger release were assumed in the staff analysis, the staff's calculated thyroid dose might exceed Part 100 guidelines.b First of all, the intervenors' argument appears to be based on the false
. premise that their right to cross-examination was absolute. Under section 2_0/ See Tr. 1866-81.
2_lf E.g., Tr. 1908-11.
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7(c) of the Administrative Procedure Act, 5 USC 556(d), and section 2.743 i
(a) of the Commission's Rules of Practice, a party is entitled to conduct a
only "such cross-examination as may be required for a full and true dis-closure of the facts." The intent of this language was stated in the j
House Committee report underlying the Administrative Procedure Act as t
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The provision on its face does not confer a right of so-called " unlimited" cross-examination.
Presiding officers will have to make the necessary initial determination whether the cross-examination is pressed to unreasonable lengths by a party or whether it is required for the
" full and true disclosure of the facts" stated in the___
provision. Nor is it the intention to eliminate the authority of agencies to confer sound discretion upon presiding officers in the matter of its extent. The test is - as the section states - whether it is required "for a full and true disclosure of the facts."
In many rule-making proceedings where the subject matter and evidence are broadly economic or statistical in character and the parties or witnesses numerous, the direct or re-buttal evidence may be of such a nature that cross-examination adds nothing substantial to the record and unnecessarily prolongs the hearings.2_2]
Thus, in an appropriate case, an ASLB may, pursuant to its general powers under 10 CFR 2.718 and in accordance with the Administrative Procedure Act and 10 CFR 2.743(a), terminate cross-examination that promises little of substance and threatens unnecessary delay in the proceeding. And if an ASLB may 22/ Administrative Procedure Act - Legislative History, S. Doc. No.
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248, 79th Cong., 2d Sess., at p. 271.
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terminate such cross-examination altogether, it follows that an ASLB can j
also require some affirmative showing as a condition to the continuation 4
j of cross-examination objectionable on these grounds.
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In this case the ASLB properly applied this principle.
The judgmental and non-mechanistic nature of the TID 14844 assumption was already established in the record.2_3/ Further cross-examination was not needed to establish this point, which the ASLB was prepared to officially. notice inanyevent.E Nor was there any need for cross-examination to demon-strate the effect that a higher assumed halogen release would have on the staff's thyroid dose calculation.2_5/ Thus, the intervenors' cross examination was not calculated to add substantial new information'to the record.
Second, even if it is assumed that the ASLB did not have such discretion to regulate the scope of cross-examination or did not exercise such discretion properly in this instance, the proposed line of cross-examina-tion was properly excluded as immaterial.
Surely, the Commission mt.st be presumed to have been aware of the nature of the TID 14844 halogen re-lease assumption when 10 CFR Part 100 was promulgated.
Indeed, Part 100 notes that this document "contains a procedural method and a sample f_3/
Tr. 1866-68.
24/ Tr. 1914.
25/ Tr. 1893.
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ij calculation that result in distances roughly reflecting current siting practices 'of the Commission," and that these calculations "may be used as a point of departure for ' consideration of particular site require-ments."E Tnerefore, while TID 14844 is not itself a Ccemission rule, l
it is nevertheless clear that the use of the 50% halogen release assump-tion represents an approach which is fully consistent with the intent of Part 100.
l Finally, we would note that the theory of this line~of cross-examina'. ion was flatly inconsistent with intervenors' current theory (Exception.III.D.) '
that Part 100 evaluations must be made in accordance with TID 14844.E i
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THE INTERVENORS' ARGUMENT THAT THE ASLB IMPOSED THE BURDEN OF PROOF l
UPON THEM IS BASED ON STATEMENTS TAKEN OUT OF CONTEXT.
(Exception II.E.)
i In Exception II.E., intervenors argue that the ASLB imposed the burden of proof upon them rather than upon the applicant as required by 10 CFR 2.732.
In part, this exception is based on the statements relied upon by the intervenors in their Exception II.D.
Since we have already addressed ourselves to those statements in response to Exception II.D., we shall 26/ 10 CFR Part 100, " NOTE."
27/ Exceptions, p. 53-11.
I only note here that the statements involved pertained to the scope of cross-examination that would be allowed and had nothing whatever to do with the location of the burden of proof.
The only additional references in this exception are to the ASLB's Order 5
of " March 3,197[1]," and to a statement by one technical member of the ASLB at Tr.1048.
Neither of these citations supports intervenors' l
argument.
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l As regards the March 3,1971, Order it is plain that statements therein were made only in the context of giving fair notice that the ASLB intended l
to exercise its authority so as to confine the evidentiary hearing within manageable and reasonable bounds.E No specific rulings in this regard were made by the March 3 order; rather, the ASLB simply furnished such guidance as it could at that time, with the full intention of making its specific detenninations on an ad hoc basis with consideration of all pertinent factors, including the needs of the intervenors.E/ Further, the ASLB in this order specifically accepted intervenors' contention that they were entitled to make their case through cross-examination.b e
28/ " Order," dated March 3,1971, pp. 3-8.
@f Id. at p. 7.
30/ Id. at p. 2.
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Thus, the March 3,1971 order in no way suggests that the ASLB placed
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the burden of proof on the wrong party,
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The intervenors have also exaggerated the significance of one technical member's remarks at Tr. 1047-48.
In context, the technical member's
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remarks were in the nature of an affirmation of his intent to discharge his responsibilities, coupled with a demand that intervenors, as pre-l sumably responsible parties to the proceeding, render such assistance to I
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INTERVEfiORS HAVE NOT MADE A SHOWING SUFFICIENT TO WARRAIiT RE0PENING THE RECORD FOR CONSIDERATION OF NEW MATTERS.
(Exception II.F.)
Exception II.F. is in substance a motion to reopen the record.
It re-lates to eight matters, not previously identified in this proceeding, which the staff had under consideration during 1972 prior to the issuaace of the Initial Decision.
The intervenors argue that these matters go to the validity of the Initial Decision because the staff has, to this extent, " amended its position" as set forth in its Safety Evaluation, dated November 12,1970,E and Supplemental Safety Evaluation, dated January 14,1972.E By way of background, this proceeding involves an application filed in January 1969 and initially approved by the staff in November 1970.E 3_]f Tr.1674.
32/ Staff exhibit no. 8.
3_3/ For a chronological account of the staff's review, commencing with the 3
filing of the application, see the staff's Safety Evaluation, n.31 supra, at pp. 88-92.
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l-A hearing on radiological health and safety matters commenced on June 21, 1971, and ended on July 23, 1971, after seventeen hearing days. Although the record on radiological matters was not finally " closed" until June 28, 1972,E it had been open only for limited purposes since the completion t
of the 1971 hearings.E The matters raised in Exception II.F. all arose long after the ce=pletion l
of the radiological hearings.
Indeed, most of them arose after the record f
was formally closed.
Seven of the intervenors' eight new matters are raised on the basis of
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staff letters to the applicant during the period from late June to mid-December 1972.
Intervenors' item 1 is a letter dated June 29,1972, re-questing verification of valve wall thicknesses.
Items 2 and 4, letters dated respectively Septerher 15, 1972, and October 24, 1972, relate to routine inspections by the Directorate of Regulatory Operations.
Item 3 is a letter dated September 29, 1972, which directs the applicant's atten-tion to the Quad Cities flooding occurrence and requests an appropriate design review.
Item 5, a letter dated November 20, 1972, requests a " fuel densification" analysis.
Item 6 is a Directorate of Regulatory Operations y See " Post Hearing Order," dated June 28, 1972, establishing a schedule for the filing of proposed findings of fact and conclusions of law.
The order also provided for certain limited additions to the record, none of which related to radiological matters.
35/ See " Order" dated August 26,1971; " Order" dated March 10, 1972.
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" bulletin," dated December 1,1972,E which requests the applicant to l
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whether any valve operators of a potentially defective make and model are scheduled for installation in the Midland Plant.
Item 7 is a letter dated December 15, 1972, requesting an analysis and other informa-tion needed to determine the consequences of a postulated break, outside containment, of a pipe containing high energy fluid.
The intervenors' eighth item is claimed to have arisen "in the summer of 1972, prior to the conclusion of the hearing."
(Exceptions, p. 25)
This item relates to the consequences of a postulated break in a _ core flooding tank line -- a matter which the staff has in fact had under consideration -
since some time in the spring of 1972.
In our view, the Appeal Board should be guided by what the Supreme Court recently quoted with approval in United States v. I.C.C., 396 U.S. 401, 420 (1970), from its earlier holding in I.C.C. v. Jersey City, 322 U.S.
503, 514 (1944):
Administrative consideration of evidence - Darticularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it -
always creates a gap between the time the record is closed and the time the administrative decision is promulgated.
This is essentially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful.
If upon the coming down of the order, litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or 36/
Intervenors give December 1,1972, as the date of this item. Our 6
own records indicate that the bulletin was forwarded to the appli-cant on December 6,1972.
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i some new fact discovered, there would be little hope that the I
administrative process could ever be consumated in an order I
I that would not be subject to reopening.
It has been almost a rule of necessity that rehearings were not matters of right, I
but were pleas to discretion. And likewise it has been con-8 sidered that the discretion to be invoked was that of the body making the order, and not that of a reviewing tody.
Here the application of this principle is particularly appropriate since a refusal to reopen the record clearly would not mean that the issues raised by intervenors would escape scrutiny.
Indeed, the Ccanission's i
. regulations contemplate that at the construction permit stage some safety issues will ordinarily be deferred for later consideration.h Under the most optimistic assumptions, operation of these reactors is still years j
hence.
During the long construction period, the staff will continue its review of these matters and take such actions as are approp.iate. E The i
entire project will be subjected to another intensive safety review by the staff at the operating license stage.
Furthermore, pursuant to the Act and the Commission's regulations, there will be a further opportunity for a hearing on these facilities in connection with any proposed issu-ance of operating licenses.
In any case, the intervenors have not even attempted to demonstrate that these new matters could have affected the result reached in the Initial Decision.E This appears to reflect misplaced reliance on the Appeal
~IJ// See 10 CFR s 50 35(a) 38/
It is worth emphasizing that a power reactor remains subject to AEC regulatory review and surveillance from the earliest stages of its involvement in the licensing process to the end of its useful life as an operating facility.
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In fact, these are all matters which can be dealt with satisfactorily during the construction period.
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Board's Meacrandum and Order in Wisconsin Electric Pcuer Cc :any, et al.
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(Point Beach Nuclear Plant, Unit 2), ALA5-25 (Cecencer 15,1972). ALA3-55 i
i involved an operating license and is therefore dietinguishable frc: the-instant case. -Intervenors' burden here is to de.onstrate that their new I
=atters are "of substance" in this construction per=it proceeding.
This they have not done.
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Finally, we would note our view that the intervenors have not satisfactorily _
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explained their failure to raise these catters earlier in the preceeding.
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For example, intervenors' counsel has long been aware of the fuel densifica-tion and accumulator line break catters.5El Additionally, all of the ite s t
of correspondence referred to in Exceptien II.F. were on file in the 4
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Commission's Public Docu=ent Roos, where intervenors' counsel in fact
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l 10/ A!.AS-35 recorcs tnat intervenors' counsel first raised the fuel densification issue in the Point Beach 2 proceeding en August 15, j
1972. Surely counsel should not e neard to imply that he appre-ciated the litigational potential of this issue in Midland only after consulting a cember of the staff en Cececcer 13, 1972.
(Ex-I ceptions, p. 27, n.6) Likewise untirely is the accuculator line j
break matter, which these intervenors (as constituents of the Ccnsolidated National Intervenors) raised in the ECCS rulemakinc l
proceeding on March 22, 1972, with their counsel in this proceed-ing present and participating.
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l found them during his unexplained " spot check" of January 2,1972.
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Intervenors make much of the staff's alleged " breach of obligation" '. ' ' '
to forward copies of these items to intervenors' counsel.
They assert that but for the staff's failure in this regard these mat-ters would have been raised on a timely basis.
(Exceptions,p.28)
But cf. " Affidavit of Myron M. Cherry in Support of Motion to Re-call and Revoke Initial Decision on Grounds of Bias," pp. 3-4 (other activities of counsel prevented him from acting until January 7,1973, on information he acquired in summer of 1972);
" Motion and Supplement to Saginaw Valley et al., Intervenors' Statement of Exceptions to Initial Decision Filed on January 15, i
1973," pp. 3-4 (other activities of counsel during spring and summer of 1972 prevented him from reading mail received in April 1972). We are aware of neither a Com..ission rule nor any order in this proceeding which required the staff to communicate such matters to intervenors' counsel.
Nevertheless, at some fairly l
early point in the proceeding we did in fact establish a practice whereby the intervenors were furnishet with copies of letters to the applicant originating in the former Division of Reactor Licensing (DRL).
Such copies were furnished not by staff counsel but by DRL administrative personnel acting in the ordinary course of business. During the spring of 1972, as the result of an error, this practice was discontinued.
j i
, 1 l
7.
THE INTERVEil0RS HAVE IGOE :10 SUBSTAtlTIAL SHOWIllG WHY THE APPLICATI0tl SHOULD BE RESUBMITTED TO THE ACRS.
(Exception II.G.).
l l
Exception II.G. asserts that by reason of the safety-related items referred to in Exception II.F., the application in this proceeding l
must be resubmitted to the ACRS for review.
I l
Much of what we have already said in response to Exception II.F. applies as well to this exception.
Accordingly, we simply note here that counsel's opinion or characterization of any of these technical matters I
is not sufficient basis for requiring either a reopened hearing or further ACRS review.
8 THE ACRS LETTER WAS ACCORDED THE PROPER LEGAL STATUS BY THE ASLB.
(Exceptions II.H. and II.I.)
After having argued (Exception II.C.) that the ASLB cannot rely on the ACRS letter, intervenors next argue that the ACRS letter must be relied upon (Exception II.I.), although its receipt into evidence for a much more limited purpose was improper (Exception II.H.).
Intervenors make no effort to explain this inconsistency.
The evidentiary question raised by intervenors in Exception II.H. has already been addressed by the Appeal Board.
In Wisconsin Electric
l s
i
, t 7.
THE INTERVEfl0RS HAVE MADE NO SUBSTANTIAL SHOWIflG WHY THE APPLICATION l
SHOULD BE RESUBMITTED TO THE ACRS.
(Exception II.G.).
Exception II.G. asserts that by reason of the safety-related items referred to in Exception II.F., the application in this proceeding must be resubmitted to the ACRS for review.
I Much of what we have already said in response to Exception II.F. applies as well to this exception.
Accordingly, we simply note here that counsel's opinion or characterization of any of th'ese technical matters is not sufficient basis for requiring either a reopened hearing or
~
further ACRS review.
8.
THE ACRS LETTER WAS ACCORDED THE PROPER LEGAL STATUS BY THE ASLB.
(Exceptions II.H. and II.I.)
After having argued (Exception II.C.) that the ASLB cannot rely on the ACRS letter, intervenors next argue that the ACRS letter must be relied upon (Exception II.I.), although its receipt into evidence for a much more limited purpose was improper (Exception II.H.).
Intervenors make I
no effort to explain this inconsistency.
l l
The evidentiary question raised by intervenors in Exception II.H. has already been addressed by the Appeal Board.
In Wisconsin Electric l
l l
' i b
]
Power Company, et al. (Point Beach Unit 2), ALAB-78 (1972) the Appeal Board denied a similar exception, pointing out that the letter there as here was not admitted fr~ the tru i of any of its conclusions and that I
the fact that the letter identified certain problem areas which in turn i
j were addressed by applicants and staff did not indicate that the letter was admitted for its truth.
In addition, since the fact of ACRS review i
is evident from the staff's safety evaluation, intervenors cannot by j
simple references to ASLB. statements regarding the fact of ACRS revfew even establish that the ACRS letter was relied upon~to establish this j
fact.
i As to Exception II.I., suffice it to say that ACRS letters which have i
not been received into evidence for the truth of their conclusions cannot be used as evidence establishing safety problems impeaching the ultimate safety conclusion reached by the ASLB based upon the evidence t
j in the record.
In any event, the matters discussed in the ACRS letters l
i in this proceeding have been otherwise addressed in the record in a satisfactory manner.$
t 9.
THE ASLB CORRECTLY DECLINED TO ENTERTAIN A CHALLENGE TO THE COMMIS-SION'S INTERIM CRITERIA.
(ExceptionII.J.)
We agree with the applicant (Applicant's Brief, p. 34) and the intervenors l
l g See Wisconsin Electric Power Company, et al. (Point Beach Unit 2),
ALAB-78 (1972); Safety Evaluation, Tr. 1674, at pp. 81-82 and text referenced therein.
i l
~
m (Exceptions, p. 44) that denial of this exception is required by previous decisions of the Appeal Board.
See also"AEC Regulatory Staff's Brief in Opposition to Exceptions of Maoleton Intervenors," dated January 22, 1973, at pp. 9-10.
- 10. THE ASLB'S FI!! DINGS IN REGARD TO CURRENTLY UNRESOLVED SAFETY QUES-TIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.
(Exception II.K.)
Exception II.K. should be denied for reasons stated by the applicant.
(Applicant's Brief, p. 36.)
~
- 11. THE ASLB CORRECTLY DECLINED TO PERMIT INQUIRY INTO CCMfARATIVE SPRAY REMOVAL TECHNOLOGY AND CORRECTLY APPLIED THE COP 11ISSION'S
_.~
REGULATIONS IN FINDIllG THAT THE WESTINGHOUSE REPORTS ON SPRAY-REMOVAL TECHNOLOGY WERE PROPRIETARY.
(Exception II.L.)
Exception II.L. should also be denied for the reasons stated by the applicant.
(Applicant's Brief, pp. 36-38.)
- 12. THE INITIAL DECISION MAKES CLEAR ITS FACTUAL BASIS, SUFFICIENTLY INFORMS THE INTERVEN0RS OF THE DISPOSITION OF THEIR CONTENTIONS, AND IS THEREFORE ADEQUATE.
(Exception II.M.)
Exception II.M. challenges nineteen different ASLB findings and conclu-sions on grounds of alleged failure to provide reasons and bases.
At the outset we would note that this exception is being made by parties who declined to furnish the ASLB with " conventional [ proposed] findings of fact" and took it upon themselves to " await the decision, if any,
s
,i 24 -
4 by the [ASLB] and review it for its support and legality."E This t
conduct not only amounted to a violation of an ASLB order but deprived i
the ASLB of a definitive statement of the intervenors' contentions.E 4
i l
Had the intervenors filed proper proposed findings, including exact 1
citations to the record as-required by 10 CFR 5 2.754(c), the Initial Decision undoubtedly would have been issued in a much different form, j
perhaps obviating the objections in Exception II.M.
j j
Be that as it may, the Initial Decision nevertheless makes clear its factual basis and sufficiently informs the intervenors of th disposition of their contentions (to the extent such contentions were ascertainable).-
I j
As such, the Initial Decision is adequate. E The ASLB was not re-4 quired to set forth its reasons and bases in evidentiary detail.
Nor i
j was the ASLB required under the circumstances to spell out clearly implicit bases of its Initial Decision, such as acceptance of the appli-l cant's and staff's testimony where no contradictory evidence was offered byintervenors.E l
l g "Saginaw Valley et al. Intervenors' Proposed Findings of Fact and i
Conclusions of Law," dated September 15, 1972, p. 3.
l 44/ Initial Occision, para. 9.
45/ Memorandum and Order, Boston Edison Company (Pilgrim Nuclear Power Station), ALAB-33 (Decemoer 4,1973; Memorandum and Order, Trustees l
l l
of Columbia University in the City of New York, ALAB-62 (July 28, j
1972).
i 46/ These intervenors, we note, produced only one witness, who testified only on evacuation plans.
i I
=
13.
IflTERVEt:0RS' CONTEilTIONS IN REGARD TO WITHHELD STAFF DOCUMEtiTS HAVE ALREADY BEEN RESOLVED SY THE APPEAL E0ARD, AtID THEIR CONTEilTIONS Ill REGARD TO DCCUMEilTS ALLEGEDLY WITHHELD BY THE ACRS AND DOW ARE IM-PROPERLY PRESENTED.
(ExceptionII.fl.)
Exception II.fl. relates to documents withheld by the staff, and to docu-ments allegedly withheld by The Cow Chemical Company and the ACRS, To the extent this exception relates to staff and ACRS documents it should be denied for the reasons already stated by the Appeal Board in ALA3-33,$2/
To the extent this exception relates to documents allegedly withheld by the ACRS and Dow, it should be denied for failure to specify the ruling or rulings, if any, to which the exception is directed.S8/
i 14.
THE ASLB CQRRECTLY DECLINED TO EtlTERTAlti A CHALLEilGE TO THE VALIDITY 0F THE COMMISSION'S IllTERIM CRITERIA.
(Exception III.A.)
I Exception III.A. is clearly foreclosed by previous decisions of the Appeal Board.SE/
i 47/ Memorandum, Consumers Power Company (Midland Plant, Units 1 and 2),
September 3, 1971.
48/ 10 CFR H 2.762(a).
49/ Memorandum, Consolidated Edison Co. (Indian Point #2), ALAB-46 (March 10, 1972); Memoranoum and Order, Boston Edison Comoany (Pilgrim Nuclear Power Station), ALAB-83 (Decemoer 4, 1972);
Memorandum and Order, Vermont Yankee fluclear Power Corcoration i
(Vermont Yankee Nuclear Power Station), ALAB-57 (June 20,1972);
i Decision, Wisconsin Electric Power Company, et al.
(PointBeach Nuclear Plant, Unit 2), ALAB-78 (Novemoer 10,1972).
i m
y
- 1 15.
INTERVENORS' CONTENTIONS IN REGARD TO ALLEGED NONCONFORMANCE WITH THE COMMISSION'S INTERIM CRITERIA ARE IN FACT CHALLENGES TO THE 4
INTERIM CRITERIA, AND EVEN IF THEY ARE NOT CHALLENGES TO THE i
INTERIM CRITERIA, THEY ARE FORECLOSED BY REASON OF WAIVER, ABANDONMENT OR UNTIMELINESS.
(Exception III.B.)
l In Exception III.B. the intervenors present certain contentions regarding alleged nonconformance with the Commission's Interim Criteria.
We agree with the intervenors (Exception, pp. 53-4, -5, -6) that under I
ALAB-46 these contentions must be treated and disposed of as challenges to the Interim Criteria. E
~
However, even when these contentions are considered as r' elating to non-
~
conformance with the Interim Criteria, Exception III.B. should be denied.
Intervenors have either expressly waived their rights to litigate the Midland plant's conformance with the Interim Criteria,b or have abandoned their contentions in this area by failure to object to, or l
seek reconsideration of, the ASLB's Post Hearing Order of June 28, 1972, which, among other things, declared that no such issue had been raised in the proceeding. E Moreover, even if there was no express waiver or abandonment, these particular contentions were not presented to the ASLB in a timely manner and therefor? should not be entertained by the Appeal
- Board, i
& See n.49 supra.
5_1/ Tr. 5297.
g Post Hearing Order, pp. 2-3.
i I
m i
_ l For the foregoing reasons, Exception III.B. should be denied.
- 16. THE ASLS GAVE PROPER CONSIDERATION TO POSTULATED RADIOLOGICAL ACCIDENTS IN ITS INITIAL DECISION.
(ExceptionIII.C.)
i In Exception III.C. intervenors assert that the Initial Decision was in error for failing to contain an analysis of pressure vessel failure, l
core-meltdown from failure of unspecified engineered safety features, a simultaneous "MHA" in both reactors at Midland, and a "MiiA together with the largest credible accident at the Dow Chemical or Dow Corning facilities.
~
At the outset we would point out that the exception consists only of l
assertions by counsel for intervenors without a single citation to the l
record.
Second, the Commission's "Memorandun and Order" in Consolidated Edison Company of New York (Indian Point Unit No. 2) (October 26, 1972) requires a showing of special circumstances before pressure vessel failure need be considered - a showing that has not been made in this proceeding.
As to failure of safety features, the record establishes that there is reasonable assurance that any engineered safety features required to function will indeed function in the event of postulated credible accidents, and intervenors have cited to no contrary evidence. As to simultaneous "MHA's" (by which we assume intervenors to be referring to postulated accidents chosen for 10 CFR Part 100 evaluation purposes),
the Commission's site criteria in 10 CFR Part 100 provide that simultaneous
m i
1 I
accidents need not be considered unless it appears that an accident in i
j one facility would initiate an accident in the other.
10 CFR 1 100.11 (b)(1); Wisconsin Electric Power Company, et al. (Point Beach Unit 2),
ALAB-31 (1971).
The record in this proceeding does not support.such a l
connection between the two accidents. The same reasoning would apply i
to simultaneous accidents at Midland and the Dow facilities.
I 1
- 17. THE ASLB'S FINDING Afl0 CONCLUSIONS REGARDING 10 CFR PART 100, -
~~
EMERGENCY PLANNING, SYNERGISM AND QUALITY ASSURANCE ARE SOUND AND SUPPORTED BY SUBSTANTIAL EVIDENCE.
(Exceptions III.D., E.
andF.)
Exceptions III.D., E. and F. should be denied for the reasons stated by the applicant.
(Applicant'sBrief,pp.44-49)
(ExceptionIV.A.)
In Exception IV.A. the intervenors take the ASLB to task for alleged failure to make an independent analysis of environmental issues.
We are in substantial agreement with the applicant's analysis of this exception.
(Applicant's Brief, pp. 50-54)
In addition to what has al-ready been said by the applicant, we would note that the hearing transcript l
above reflects considerable initiative and independent analysis by the ASLB with respect to environmental matters. E 53/ See, e.g., Dr. Goodman's extensive interroga*: ion of staff witnesses 3
on May 31, 1972.
(Tr. 7368-7542,.7556-72).
i
~%
i i
l 5
19.
IllTERVEiiORS HAVE MADE N0 SHOUIt!G THAT THE ASLB'S COST-BENEFIT i
DETERMINATION FAILS TO COMPLY UITH tlEPA AND APPENDIX D OF 10 CFR i
PART 50.
(Exception IV.B.)
f Exception IV.B. relates to th ASL3's conclusion, expressed in paragraph 45 l
of the Initial Decision, that it was not possible to "make a calculation l
of the costs and benefits and decide [the final cost-benefit balance] on l
1 the basis of arithmetic."
l The intervenors' argument in this exception appears to be based on the mje premise that the flational Environmental Policy Act of_1969 (NEPA) and the Commission's regulations in Appendix D of 10 CFR Part 50 required _
the ASLB to arrive at an arithmetical cost-benefit determination. ~ This
~
position is clearly untenable for the reasons already given by the i
applicant.
(Applicant's Brief, pp. 54-56)
Indeed, in a footnote to this exception intervenors concede the invalidity of their argument.
(Exceptions, pp. 61-62, n.18)
In In any event, the intervenors offer no factual basis for concluding that the ASLB erred in its judgment that full quantification of costs-benefits was not possible.
In support of this exception the intervenors offer not i
a single citation to the evidentiary record. Nor do they even point to r
any specific cost or benefit which they believe the ASLB could have l
quantified but did not.
l I
4 20.
THE ASLB GAVE SUCli COiSIDEPATIOfl AS 'dAS APPROPRIATE TO THE IflTERRELATIO:iSHIP CF THE PF,0 POSED FACILITIES A10 THE D0'd CHEMICAL COMPAflY COMPLEX.
(Exception IV. C.)
We are in substantial agreement with the applicant's analysis of Exception IV. C.
(Applicant's Brief, pp, 56-58).
21.
THE ASLB'S REFUSAL TO GRAtlT THE IflTERVEil0RS A!1 If!DEFIflITE ADJ0UR:1-MENT OF THE ENVIROlMEllTAL HEARI?tG 'AAS fiEITHER A DElIAL OF DUE PROCESS fl0R Afl ABUSE OF DISCRETI0fl Ifl THE CIRCUMSTA!!CES OF THI-S CASE.
(Exception IV. D.)
Exception IV. D. relates to the refusal of the ASLB to grant an in-definite adjournment of the environmental hearing which had been requested by intervenors on the grounds that their counsel had a -
conflicting commitment to participate in the ECCS rulemaking pro-ceeding, Docket flo. RM-50-1.
In the absence of agreement among the parties and the ASLB as to an appropriate time for the environmental hearing, it was the ASLB's responsibility to fix a time with "due regard... for the convenience and necessity of the parties or their representatives, as well as [ASLB]
members. "$ fio single party was entitled to have controlling weight given to his particular interests.
Rather, the ASLB was required to take into consideration and balance the convenience and necessity of 54/ Supplementary flotice of Hearing on Apolication for Construction Pennits (36 F.R. 23169, December 4,1971).
s j
, all parties.
This is in fact what the ASLB did in this proceeding when the date for the environmental hearing was established.5/
i In the circumstances of this case, the ASLB was well within the ambit of sound discretion in scheduling the environmental hearing for J
May 17, 1972.
First, unnecessary delay was inherently prejudicial to the proponents of the proposed facilities.
Second, all parties except the intervenors were in a position to participate in a hearing com-mencing on May 17.NI Third, the intervenors offe~rsd no alternative date and demanded nothing less than an indefinite adjournment.5_7/
Fourth, the intervenors had known for months that environmental matters were being considered by the staff on a schedule which contemplated the issuance of the Final Environmental Statement in the spring of 1972.5_8/ Fifth, and finally, the intervenors had long been on notice that their attorney's participation in other proceedings would not be allowed to interfere with the timely completion of this proceeding.SI 55,/
Tr. 5252-53.
56/ The Mapleton Intervenors, whose interest and position in the proceeding were generally similar to the Saginaw Intervenors',
were among the parties who fully participated in the environmental hearing.
5_7/ Tr. 5253.
7 5_8/ Letter dated December 3,1971 from staff counsel to the ASLB.
59/ Order dated January 6,1972.
v
.s
?
l.
f 22.
THE IrlITIAL DECISI0il, WHEN CONSIDERED IN ITS ENTIRETY, DEMON-STRATES THAT THE ASLB PROPERLY WEIGHED THE BENEFITS AND COSTS OF THE PROPOSED FACILITIES AND DID ?!0T APPLY A PRESUMPTION IN FAVOR OF PRODUCTION OF ELECTRICITY.
(Exception IV. E.)
We are in substantial agreement with the applicant's analysis of this exception.
(Applicant's Brief, pp. 59-62).
23.
THE ASLB SATISFIED NEPA BY CAREFULLY ANALYZING THE COSTS AND BENEFITS OF THE APPLICANT'S PROPOSED FACILITIES.
(Exception IV. F.)
In Exception IV. F. the intervenors assert that in the context of this licensing proceeding involving only two proposed reactors, the ASLB was required to perform a cost-benefit analysis of "each [ Commission]
regulation which has environmental significance, including but not'
~
limited to regulations contained in Part 20, Part 50 and Part 100, and the Interim Acceptance Criteria of June,1971."
(Exceptions, p. 80,
- n. 26)
This exception is frivolous.
Intervenors do not and cannot provide legal authority for such a far-reaching interpretation of NEPA. What NEPA does require is an analysis of the costs and benefits of the applicant's proposed facilities.
Such an analysis was perfomed by the ASLB in this proceeding.
In its analysis the ASLB specifically took into account the costs associated with both normal and potential accidental releases of radioactivity to the environment.!0/ The ASLB concluded, M/
E.G., Initial Decision, Paras. 61, 67.
^%
_ for the purposes of its cost-benefit analysis, that these costs are minimal.51/ These conclusions are fully supported by the record.!2/
24.
The ASLB GAVE PROPER CONSIDERATION TO THE ALTERNATIVE OF NOT CONSTR'JCTING THE PLANT.
(Exception IV. G.)
In Exception IV. G. intervenors argue that the initial decision was in error in failing to consider the alternative of not constructing the Midland plant at all.
While we agree that abandonment as an alternative must be c6nsidered,
~
we believe that i't has been given proper consideration by the ASLB
~,-
First, abandonment was considered in the context of weighing the
' projected risks and benefits of the proposed Midland facilities with a view to probable abandonment should the balance be unfavorable..
(E.g., Initial Decision-at 36-39).
Second, abandonment was considered in the context of comparing the risks and benefits of the proposed Midland facilities and several alternatives, considering abandonment of Midland and construction of alternative facilities (E.g., Initial Decision at 53-57).
Intervenors at this point also raise an issue concerning curtailment of certain end uses of the electric power to be produced which will be discussed infra.
p]/ Ibid.
62/ See, e.o.
Final Environmental Statement, pp. V-30, VI-l to VT 6; T,7554-66.
L i
25.
THE INITIAL DECISION "AKES CLEAR ITS FACTUAL BASIS, SUFFICIENTLY INFORMS THE INTERVENORS OF THE DISPOSITION OF THEIR CONTENTIONS, l
AND IS THEREFORE ADEQUATE.
(Exception IV.H.)
Exception IV H., which challenges some thirty-eight different ASLB findings and conclusions on grounds of alleged failure to provide reasons and bases, is similar to Exception II.M. and should be denied for the same reasons.
(See par. 12 suora.)
- 26. THE FINAL ENVIRONMENTAL STATEMENT CONFORMS WITH THE REQUIREMENTS OF NEPA.
(Exception IV.I.)
In Exception IV.I. intervenors argue that certain alleged contrary
~
scientific facts and opinions have not been discussed in the final -
environmental statement, that the statement therefore fails to conform to the requirements of NEPA, and that the Initial Decision was defective in failing to remedy this deficiency. The exception includes a list of the alleged contrary scientific facts and opinions on the subject of ECCS effectiveness, pressure vessel failure, adequacy of valves, fuel densification, " unresolved safety issues" in every ACRS letter ever written, reliability of nuclear facilities in general, ge. etic effects of radiation, and adverse effects associated i
n with Dow C:.snical products encouraged by production of electricity and steam by the Midland Plant.
Greene County Plannina Board v. FPC, 3 ERC 1595 (2d. Cir.1972), cited
I, l
I by intervenors, states nothing regarding any requirement that contrary l
scientific fact or opinion be discussed in envircnmental statements, t
i and EDFv. Coros of Enaineers, as cited by intervenors, does not exist.
i Committee for Nuclear Resoonsibility v. Seabora. 3 ERC 1126 (D.C. Cir.
1971) did hold that the decision maker in that case was required to i
be informed of responsible opposing scientific' views.
The court i
stressed that only responsible opposing views need be referenced and i
stated that there was some discretion on the part of the agency in determining which opposing views to include.
~
1 Exception IV describes the alleged responsible opposing scientific views in only the most vague and general terms - for the most part the precise nature of the alleged view and how it should be regarded I
as " opposing" conclusions reached in the final environmental statement I
?
and Initial Decision are left to speculation.
This is not surprising, since we have only intervenors' counsel's assertions that such responsible opposing scientific views exist. This is not a proceeding such as that in Committee for Nuclear Resoonsibility v. Seabora where
}.
the decision making process is an infomal one. Here the Comission's j
regulations contemplate that a party who believes that the environ-f mental statement is deficient or in error will present proof in support of his position.
The case cited above does not stand for the i
proposition that every statement of counsel in a fomal adjudicatory l
{
proceeding must be regarded as responsible opposing scientific opinion.
1 I
i
i
~
It is interestir.g to note in this respect that although the court in Committee for Nuclear Resocnsibility v. Seabora had the statement f
before it, it expressly did not rule that the statement was inadequate, but held only that plaintiffs should have an opportunity to make their submissions on the point discussed on the opinion.
i i
In any event the detailed statement in this proceeding and the hearing record cover a wide range of subjects including accidents involving environ-
~
mental effects, environmental effects of routine releases of nuclear materials, and re' liability of nuclear facilities.
The hearing record itself and the comments on the draft environmental statement which are included in the final statement cover hundreds of pages, and necessarily include any responsible opposing scientific opinion expressed through these mediums.
Thus the final environmental state-ment (and Initial Decision) comply fully with any requirement that may be derived from Committee for Nuclear Responsibility v. Seabora.
27.
THE ASLB WAS NOT REQUIRED TO PERFORM A COST-BENEFIT ANALYSIS OF 10 CFR PART 100 AND APPENDIX E OF 10 CFR PART 50.
(ExceptionIV.J.)
Exception IV. J. asserts that the ASLB was required to perfonn a cost-benefit analysis of 10 CFR Part 100 and Appendix E of 10 CFR Part 50.
As such, it appears to duplicate pro tanto Exception IV. F.
In any case, these two exceptions are similar and should be denied for the
s t
- j i
same reasons. (See para. 23 supra.)
- 28. THE RECORD FULLY SUPPORTS THE ASLB'S FINDIf1G THAT THE RISK OF A CLASS 9 ACCIDENT IS INSUBSTANTIAL.
(Exception V.A.)
{
We concur in the applicant's analysis of Exception V.A.
(Applicant's I
Brief, pp. 66-68)
Il
- 29. THE ASLB GAVE ADEQUATE CONSIDERATION TO ISSUES RELATED TO NEED FOR POWER.
(Exceptions V.B., V.C., V.D., and V.E.)
In Exceptions V.B., C., D., and E. intervenors argue-that the Initial Decision was in error in failing to consider whether applicTnt is artifically creating demand by advertising techniques, whether the.
~.'
4
-j demand for electricity should be curbed by some conservation of energy 9
program so as to entirely eliminate the need for the plant, and en-1 j
vironmental effects of end uses of the electricity to be generated.
i The report cited by intervenors, " Effects of Calvert Cliffs and Other 3
l Court Decisions Upon Nuclear Power in the United States," prepared by the Library of Congress, hardly serves as any legal precedent. While the cases cited by intervenors do generally stand for the proposition i
that a broad range of public interest factors must be considered in decisionmaking, none of the cases deal with the questions of advertising, i
. selective curtailment of end uses, and environmental effects of end uses.
1 Indeed, the Court in Udall v. FPC, 387 U.S. 478 (1967), discussed the issues relevant to FPC approval of the High Mountain Sheep dam in tems i
-l
'I
m i
of " future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife."
Id.. at 450. The approach in the Initial Decision in this case is entirely consistent with this mandate taken in its broadest terms.
Furthermore, the essence of NRDC v. Morton, 458 F.2d 980 (D.C. Cir.1972) is that there is a " rule of reason" to be applied to NEPA's mandate.
In this proceeding the ASLB concluded that the record supports no finding other than that the demand for electricity "is made up of normal in-dustrial and residential use," and that the record presents no evid'ence
~
on intervenors' advertising contention (Initial Decision at p. 38). The ASLB further found that the applicant's and staff's projections of power needs were not seriously challenged by intervenors (Initial Decision at I
p.37).
Under these circumstances, the ASLB's decision to give no addi-tional consideration to intervenors' contentions regarding advertising, selective curtailment of end uses, and environmental effects of end uses, i
was a reasonable one.
Also in Exceptions V.B., C., D., and E. intervenors argue that inadequate consideration was given to the question of interconnections that might l
reduce the need for the plant. However, the Initial Decision states that "outside sources are unavailable," Initial Decision at p. 53, and the l
l
q i
ij l
4 I
record contains a thorough discussion of this matter (E.g., Tr. pp. 8070-1 l
8071,8076-78). Thus intervenors' argument on this point is unfounded.
I
~
- 30. THE LIMITATIONS IMPOSED IN THIS PROCEEDING Oil INQUIRY INTO THE
" URANIUM FUEL CYCLE" WERE REASONABLE AND THEREFORE CONSISTENT i
WITH NEPA.
(Exception V.F.)
l Exception V.F. is foreclosed by ALAB-60, the Appeal Board's Memorandum I
i and Order dated July 19, 1972, in this proceeding.
QUALITY STANDARDS.
(Exception V.G.)
j In Exception V.G. intervenors argue that the ASLB was in error in failing - _ _-
l to conduct a cost-benefit analysis of applicable State water quality standards.
i Since the record is clear that an independent analysis of the costs and t
j benefits of the proposed facility including water quality costs, was t
conducted, intervenors' argument in Exception V.G. must be that the j
water quality standards themselves should have been subject to collateral attack by the ASLB.
Intervenors offer no explanation how an individual i
licensing proceeding could contribute anything resembling a complete i
i record on the costs and benefits of a generally applicable standard or what useful purpose this would serve in light of the independent nature of the water quality impact evaluation.
The cases cited by intervenors only stand for the proposition that water quality impact of the facility
- j ?
j must be independently evaluated, not that the standards themselves should i
be collaterally attacked.
Furthermore, the ASLB's approach in this respect l
is consistent with the Comission's recent regulations implementing
}
Section 511 of the P.JPCA as amended by P.L.92-500, 80 Stat. 816 (1972)
I
( 38 F.R. 2679, January 29, 1973).
j
- 32. THE ASLB'S FINDINGS IN REGARD TO DECC :MISSIONING AtlD FOGGING ARE FULLY SUPPORTED IN THE RECORD.
(Exceptions V.H. and V.I.)
?
Exceptions V.H. and V.I. respectively challenge the ASLB's findings on decommissioning and fogging.
The ASLB's findings on these matters are in fact fully supported by-a substantial evidentiary record.of which the intervenors make no mention.
l As regards decommissioning, we are in agreement with the applicant's views.
(Applicant's Brief, p. 72). Our position on the adequacy of the record to support the ASLB's findings in regard to fogging is set forth in the AEC Regulatory Staff's Brief in Opposition to Exceptions of Mapleton Intervenors, at pp.17-18.
- 33. THE ASLB GAVE SUCH CONSIDERATION AS WAS APPROPRIATE TO MATTE PLANT RELIABILITY, SUBSIDIES AND URANIUM RESOURCES.
(Exceptions V.J. and V.K.)
We agree with the applicant's analysis of Exceptions V.I. and V.K.
(Applicant's Brief, pp. 73-74)
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, 34. SECTION 50.35 0F 10 CFR PART 50 IS FULLY CONSISTENT WITH NEPA.
(Exception V.L.)
We agree with the applicant's analysis of Exception V.L.
(Applicant's Brief, pp. 74-76)
- 35. SECTION 2.764 0F THE COMMISSION'S RULES OF PRACTICE IS IN N0 WAY INCONSISTENT WITH NEPA OR THE ADMINISTRATIVE PROCEDURE ACT.
(Exception VI.A.)
We concur in the applicant's analysis of Exception VI.A.
(Applicant's Brief, pp. 76-77) 36.
INTERVENORS' ACCUSATIONS OF IMPROPRIETARY ON THE PART OF THE ASLB AND ITS CHAIRMAN ARE ENTIRELY WITHOUT MERIT.
(Exceptions VI.B.,
VI.C., and VI.D)
We generally concur in the applicant's comments on Exceptions VI.B.,
VI.C., and VI.D.
(Applicant's Brief, pp. 77-80) 37.
THERE HAS BEEN NO DENIAL OF DUE PROCESS BECAUSE OF THE COMMISSION'S
" CONFLICTING PROMOTIONAL AND REGULATORY RESPONSIBILITIES."
(Excep-tion VI.E.)
In Exception VI.E., intervenors assert that the combination of develop-mental and regulatory responsibilities in one agency is impermissible and' unconstitutional.
The exception also lists various imagined aspects of the Commission's regulatory process that intervenors dislike.
The entire exception is devoid of any supporting citations to the record
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or legal precedent - except a reference to Bayside Tinker v. Board, j
3 ERC 1078 (Cal. Ct. App.19'/1) which dealt with delegation to private parties, a matter not in issue here.
Furthermore, intervenors' general j
argument on this point has already received Commission consideration.
In f
Long Island Lighting Company (Shoreham Nuclear Power Station Unit No.1),
Docket No. 50-322 (Comission, October 28,1970), the Comission stated that it was unaware of any support for the movant's charge that the AEC cannot " constitutionally and validly discharge simultaneously the con-1 l
tradictory missions of development and regulations."
Id. at 12.
l Intervenors' argument on this point is without legal merit.
If inter-l Venors desire a change in the Comission's basic enabling statute,.then this is a matter for Congress to decide.
38.
INTERVEN0nS' ASSERTION THAT THE ASLB RELIED ON LIMITED APPEARANCE STATEMENTS IS PATENTLY FRIV0LOUS.
(Exception VI.F.)
i We concur in the applicant's analysis of Exception VI.F.
(Applicant's l
l Brief, p. 81) l,
- 39. THE COMMISSION'S REGULATIONS IN 10 CFR 55 50.11 AND 50.12 ARE VALID AS APPLIED TO THIS PROCEEDING.
(Exception VI.G.)
i In Exception VI.G. intervenors argue that the Comission's regulations 5
permitting fabrication of components of the facility before issuance of a construction permit are illegal because NEPA requires preparation of a final environmental statement before comitments of resources, because the i
9
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_ J items procured may not represent up to date technology, and because-adequate inspection cannot be carried out by the Commission.
Intervenors cite no cases in support of their argument that NEPA re-quires completion of a final environmental statement prior to any commitment of resources in cases such as this and the decision in Coalition for Safe Nuclear Power v. AEC, 3 ERC 2016 (D.C. Cir.1972)
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indicates to the contrary.
In Coalition the Court acknowledged that each additional increment of financial resources may tilt the balance away from the side of environmental concerns, but did not re. quire that e
the construction.of the plant be halted pending completion of the en-vironmental statement.
l Furthermore, intervenors do not explain how any alleged illegality in i
i 10 CFR HH 50.10 and 50.12 could affect the validity of the final en-i vironmental statement or Initial Decision.
For example, there is no
[
explanation how, if at all, any alleged commitments of resources affected the conclusions by the staff in the final environmental statement and the conclusions of the ASLB in its Initial Decision regarding cost-1 benefit analysis.E There is no necessity for the Appeal Board to 9
It does not appear that any comitments of resources by applicant prior to issuance of a construction permit had any significant effect on the staff's conclusions in its cost-benefit analysis.
Tr. 7759-7760.
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e I
1 I
j -
decide tne abstract question raised by intervenors in this proceeding.
Intervenors' arguments regarding up-to-date technology and inspection are not supported by the record.
40.
THE 'IfiTERVEil0RS' ARGUMENTS AS TO FURTHER CONDITI0ilING OF THE CON-i STRUCTI0tl PERMITS AND CONTINUIf1G REVIEW BY THE ASLB ARE EilTIRELY l
WITHOUT MERIT.
(Exception VII.A.)
l We agree with what the applicant has stated with respect to Excepti_on VII.A.
(Applicant's Brief, pp. 82-83) We would add, however, that implementation of the intervenors' proposal for continuing ASLB review is precludt :> v section 2.717(a) of the Comission's Rules of Practice.b III.
Conclusion For the foregoing reasons, each of the intervenors' exceptions should be denied.
I i
Respectfully submitted,
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David E. Kartalia Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland this 2nd day of February,1973.
64/ For a statement of ua purpose of section 2.717(a), see 31 F.R.
12775, September 30, 1966.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330 (Midland Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "AEC Regulatory Staff's Brief in Opposition to Exceptions of Saginaw Intervenors" in the captioned matter have been served on the following by deoosit in the United States mail, first class or airmail, this 2nd day of February,1973:
Arthur W. Murphy, Esq., Chairman Harold P. Graves, Esq.
Atomic Safety and Licensing Board Vice President and GeneralfCounsel Columbia University School of Law Consumers Power Company Box 38 212 West Michigan Avenue
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435 West 116th Street Jackson, Michigan 49201 New York, New York 10027 William J. Ginster. Esq.
Dr. David B. Hall Suite 4 Los Alamos Scientific Laboratory Merrill Building P.O. Box 1663 Saginaw, Michigan 48602 Los Alamos, New Mexico 87544 Myron M. Cherry, Esq.
Dr. Clark Goodman Jenner and Block l
Professor of Physics 1 IBM Plaza l
University of Houston Chicago, Illinois 60603 3801 Cullen Boulevard Houston, Texas 77004 Milton R. Wessel, Esq.
Kay, Scholer,. Fierman, Hays Irving Like, Esq.
and Handler Reilly, Like and Schneider 425 Park Avenue 200 West Main Street New York, New York 10022 Babylon, New York 11702 James A. Kendall, Esq.
l Richard G. Smith, Esq.
135 N. Saginaw Road l
Smith and Brooker, P.C.
Midland, Michigan 48640 703 Washington Avenue Bay City, Michigan 48706 James N. O' Conner The Dow Chemical Company 2030 Dow Center Midland, Michigan 48640 i
David Comey, Esq.
Dr. Lawrence R. Quarles 109 North Dearborn Street Dean, School of Engineering and Suite 1001 Applied Science Chicago, Illinois 60602 University of Virginia Charlottesville, Virginia 22901 Mrs. Mary Sinclair 5711 Summerset Street Howard J. Vogel, Esq.
Midland, Michigan 48640 Knittle and Vogel 814 Flour Exchange Building Hcnorable Vern Miller 310 Fourth Avenue South Attorney General Minneapolis, Minnesota 55415 Topeka, Kansas 66601 Harold Reis, Esq.
Honorable William H. Ward Newman, Reis and Axelrad Assistant Attorney General 1100 Connecticut Avenue, N.W.-
Topeka, Kai.sas 6E601 Washington, D. C.
20036 Atomic Safety and Licensing
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Board Panel U.S. Atomic Energy Commission Washington, D.C. 20545 Atomic Safety and Licensing Appeal Board U. S. Atomic Energy Commission Washington, D.C.
20545 Mr. Frank W. Karas Chief, Public Proceedings Staff Office of the Secretary of the Commission U.S. Aton.ic Energy Conmission Washington, D.C.
20545 Alan S. Rosenthal, Chairman U.S. Atomic Safety and Licensing Appeal Board U. S. Atomic Energy Commission Washington, D. C.
20545 Dr. John H. Buck
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Atomic Safety and Licensing f'/
6L[s Appeal Board Dhfid E. Kartalia U. S. Atomic Energy Commission Counsel for AEC Regulatory Staff Washington, D.C.
20545
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