ML19338C169

Discusses Review of Recent Court of Appeals Decision Striking Down AEC Invalid Implementation of Nepa.Finds No Support for Notion That Record of Proceedings Be Closed 710723

ML19338C169
Person / Time
Site:	Midland
Issue date:	08/10/1971
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Murphy A US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8008050621
Download: ML19338C169 (12)

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Arthur W. Murphy, Esq., Chairman r Atomic Safety and Licensing Board Columbia University School of Law t AUG131971

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Dear Mr. Chairman:

M lb i We have now reviewed the recent Court of Appeals deci-sion striking down the AEC's invalid implementatior. of the National Enviornmental Policy Act (NEPA), Calvert Cliffs' Coordinatinc Cenn. et al. v. United States Atcric Energy Cotnissicn et al., no. 24,339 and 24,o71 (D.C. Cir.

J uly 23,13 fi) (nereafter referred to as "Calvert-NEPA" case). In addition, we have reviewed Dow Chemical's sug-gestions for further scheduling filed with the Board on July 21, 1971 and similar suggestions of Applicant and Staff which appear at pages 4640 through 4678 of the trans-cript of proceedings on Friday, July 23, 1971.

We have not, however, had the benefit of considering written submissions as to scheduling which are to be filed later by the Staff (Tr. 4653).

Generally, we do not see any support for the notion that the record of the preceedings be closed as of Friday, July 23, 1971. The hearing has not been concluded and that simple fact should suffice to end any discussion about closing of the record or having interim findings of any kind. More-over, since 10 C.F.R. 52,754 permits a party to file proposed findings twenty days after the record is closed, the imposi-tion of interim findings will eliminate the right a party now has, that is, to wait until all the evidence has been received before he is forced to take a position on the evidence.

Additionally, now that all environmental issues must be considered not only by the Board but also prior thereto by the Staff in its safety evaluation, it makes no senso to pro-ceed with decision making until the Staff has taken a position with respect to the siting of the proposed units. Certainly no one should foreclose the real possibility that, upon a re-view of all available environmental submissions and an inde-

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the siting of the proposed Units, or at least require further information before it can even take a position. See e.c.,

Department of Commerce NEPA comments on proposed units in-troduced as Mapleton Intervenors' Exhibit.

Accordingly, the most prudent course to follow is to determine the effect of Calvert-NEPA case upon already re-ceived evidence, the secpe of its impact upon future sub-missions and then set down a specific schedule. For example it does no good to set a date for Intervenors' witnesses or evidence on so-called synergistic matters until the Board has determined the secpe of the synergistic matters to be considered and the Staff has taken a position thereto in its evaluation and the detailed envdT%nmental statement required under NEPA.

Of course, due consideration should be given to the fact that a hearing cannot, for example, conflict with a discovery procedure (e.c., depositions or document review) or else both purposes will be dealt a disservice.

Additionally, and probably of first priority, the Board should address itself to the legal effect (as opposed to the factual effect) of the Calvert-NEPA case. Thus, does the decision require a new or supplemental notice of hear-ing? Does the decision require a new Safety Evaluation?

Does Applicant have to amend its PSAR7 What documents must now be recirculated by the AEC in connection with the NEPA statement? etc.

For example, the failure of Applicant and Staff to have considered fully environmental matters obviously means that applicant has not made out a prima facie case; accord-ingly, to require intervenors n2w to procuce evidence on the assumption that applicant and the staff will be able to make out a prima facie case is the kind of presumption which 1 cads to an erosion of intervenors' rights in connection with burden of proof.

Below we set forth in more detail our suggestions as to the most orderly, efficient and fair way to proueed.

4 LEGAL EFFECT OF CALVERT,-NEPA CASE Although we are sure that attempts will be made by the Regulatory Staff, the Applicant and Dow Chemical to divide the hearing into environmental and non-environmental issues, i we do not believa. that such a procedure makes judicial sense l

, or is permitted by the Calvert-MEPA case.

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Accordingly,'and perhaps recognizing tha. possibility, ~

the Court of Appeals said at pages 7-8 of its opinion:

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"The sort of consideration of environmental values which NEPA compels is clarified in Section 102(2) (A) and (B). In general, all agencies nust use a ' systematic, interdisci-plinary approach' to environmental planning and evaluation 'in decision making which may have an impact on man's environment.'...

' Environmental amenities' will often be in conflict with ' economic and technical consid-erations.' To ' consider' the former 'along with' the latter must involve a balancing proce s s . In some instances environmental costs may outweigh economic and technical bene-fits and in other instances they may not.

But NEPA maintains a rather fine tone and

' systematic' balancing analysis in each in-stance.

"To ensure that the balancing analysis is carried out and given full effect, [NEPA)... requires that responsible officials of all agencies pre-pare a ' detailed statement' covering the impact of particular actions on the environment, the environmental costs wich might be avoided, and alternative measures which might alter the cost-benefit equation."

The Court of Appeals in the remainder of its decision criticized the Atomic Energy Commission for not adhering to the inter-disciplinary approach required by NEPA. To suggest now after the obviously forceful mandate of the C urt of Appeals that the Safety and Licensing Board hearings may somehow proceed as usual with the additional overview that environmental considerations be tacked on at the end is to belie the very first obligation of the Commission and the Regulatory Staff; that is to evaluate the technical and economic factors alone with environmental factors. Accord-ingly, we see no savings in carving out certain issues in the hearing and more importantly we see no judicial pre-cedent which would permit such a carving out.

As the Court of Appeals states at pages 10-11 of its opinion:

" Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section (Section 102 of UEPA) of its fundamental importance" (Emphasis added'

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Since the not' e of hearing was issued p suant to a rule restricting environmental considerations, a rule now held invalid, there is scce question as to whether a new or suppl % rental notice of hearing must be lasued in connection i with this proceeding. Thus , persons who may have intervene d if the Commission's Midland notice of hearing had permitted them to raise environmental questions may have been deterred by the fact of the Commission's public statements. This is not to suggest, hcwever, that a new notice of hearing could not also take into account the .some four thousand pages of testimeny which has been thus far elicited; but to the extent that such testimony must be subjected to environmental cross-examination, it appears that NEPA requires it to be done.

This will not create any additicnal burden since it is ebvious that the intervenors and the Jther parties are en-titled to another crack at all witne*,ses whose testimony in radiological-safety areas has envirtnmental overtones.

INTERVENORS' SUGGESTIONS Intervenors have the fol'.owing suggestions:

1. The Regulatory Staff should be required to make the cost-benefi; evaluation pursuant to NEPA to deter-mine if it stil.'. supports the issuance of a con-struction permit. Only after a positive decision by the Staff is there any need for a hearing. The Board should not presume that the Regulatory Staff will opt for a construction permit by continuing the hearing upon issues which will become moot if the Regulatory Staff withdraws its approval.

If the Regulatory Staff's revised evaluation is in favor of the site, then:

2. The regulatory staff should be required to submit to the Board and other parties a list of those areas of radiological-safety matters which it believes requires a r?-evaluation under NEPA.

After those areas have been identified, the Ap-plicant and the other parties should comment and then the Board should rule which areas of radio-logical and safety areas must be reopened sub-sequent to a staff evaluation to submit further evider.ce in the hearing. Examples of such areas that come to mind immediately are the siting testimony of the staff and the Applicant, the iodine release testimony and the meteorlogical data.

3. The Regulatory Stafr' should submit to the Board as soon as is practicable a statement as to all of the environmental issues which it believes chould be raised.. Thereafter, the Applicant and

• other parties shobld comment to determine whether the Regulatory Staff's initial analysis has been i broad enouch and the Board should order the issues to be concidered. Thereafter, the Board should take the initiative and order a free and open dis-

re-covery of the Applicant, the Pegulatory Staff and Dow Chemical with respect to all of these

. issues.

Some of the issues which come to mind immediately are whether the plant is needed at all in terms of generation of electricity, whether the Appli-cant should be required to buy electricity rather than build and whether or not Dow Chemical can solve its pollution'and steam problems in a way which does not require the building of an addi-tional power plant.

Of course, if Dow Chemical or the Applicant assert the issue that a nuclear power plant is essential to the growth of Midland, Michigan, this Board would also have to consider whether under all the facts and circumstances industry should be told to expand elsewhere rather than in Midland, Michigan.

! Obviously, in connection with this issua relative costs of producing energy and steam are important.

Finally, the NEPA statement has to seriously con-sider not only abandoning the nuclear project but substituting in its stead an alternative type of energy production facility, such as, for example, a gas fired fossil plant.

4 Intervenors believe that it is impossible to final-ise discovery on enrironmental issues and nuclear safety issues which have environmental overtones until a reasonable period of time after the Regu-latory Staff has completed its detailed NEPA state-ment, the Applicant has reviewed and perhaps amended its submission in the PSAR, the Regulatory Staff has revised its Safety Evaluation and the dockets have been submitted once again to the ACRS (to the extent that environmental retrofitting may require a new safety analysis). Intervenors are, however, willing to sketch out fundamental areas in which voluntary discovery by the parties can begin now.

This good faith effort, however, does not disturb .

our beliefs that any reconvening or the hearing must await a reasonable period of time after discovery has been completed and the Regulatory Staff com-pletes its statutory obligations, and that discovery cannot be completed until the NEPA statement has been prepared.

Thus, although an Intervenor, as a party, has all rights to discovery and participation, which are accorded him by Rules of Practice, Intervenors' discovery can not replace, but is only in addition to, the statutory obligation of the Regulatory Staff to proceed with an environmental review initially.

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I, If, for exa ,le, the Regulatory Staff view results in opposition by the Atomic Energy Commission to the site, there may be, realistically, no hearing

• as to which Intervener will participate. On the other hand, prier Regulatcry Staff review is also im-portant to call to tbc cttentien of the Board and Interveners the existence of environmental issues which either of them may not have independently discovered. Therefore, although we encourage th-parties to participate in voluntary discovery with respect to the matters to be listed later, we do not think the Board should construe Intervenors' good faith in pursuing informal discovery now as an admission against their rights as to discovery of relevant information or to the raising of any ques-tions after the Commission has executed its statu .

tory obligation and subjected the propcsed Midland Units to a thorough environmental review.

The catecaries listed below obviously will be more general than could be provided at a time when the Applicant and the Regulatory Staff have completed the NEPA statement and other environmental sub-missions have been made including but not limited to comments by agencies pursuant to NEPA. Objec-tions by a party as to the breadness of the cate-gory of docurents called for will obviously be an indication of that party's willingness to pro-ceed informally. Accordingly in the event the hegulatory Staff, Dow or the Applicant object s to producing these documents informally, then Inter-venors will await their later right to file a more specific and nore formal motion. Intervenors intend to file Interrogatories but do not believe that they are in a position to do so until a sub -

stantial amount of documentary information has been produced and the NEPA statement has been pre-pared.

Accordingly and without limitation or waiver of any right as to the scope of infornation which shall be produced, the Interregatories 1.hich shall be served or the depositions which may te taken, Intervenors .

request the parties to cooperate in informal discovery by answering earlier filed Interrogatories now rele-vant and by producing the following documents.'

8 The documents listed belew are required to be pro-duced by. each party to thic pr0ceeding who has such documents in its possession or in its control, whether such production is duplicative or not. The

! word "docunent" as used in tnis letter should be in-terpreted in the came manner as that word wAs defined in the lant of each set of Intervenorc' Interroga-tories earlier addressed to each of the parties.

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h l A. All par' 03 should review interror ^ories pres vioucly filed and not answered and .o the extent that such unanswered Interrogatories are now pro-ner, they should be answered; B. All docunents which fairly fall within or have re-ference to Sections 101(b) and 102 of the National Environmental Policy Act or the Atomic Energy Com-mistion's Draft Guide to the Preparation of Environ-men.a1 Reports issued in February, 1971; C. All documents dealing with currently available or to be available within the next five years anti-pollution equipnent capable of being installed in conventional power plants, i.e., any power plant other than a nuclear power plant; D. All documents dealing with the need over the next ten years for electricity in Applicant's fran-chiaed territory. This category also calls for all documents dealing with the basis for any ruch need, including but not limited to, amounts of noncy rpont to premote use of electricity and/or to create a need; E. All docurents dealing with tbc availability of alternatives to any need for electricity including, but not linited to the opportunity to Applicant to purchase all or part of said needed electricity from utilities which have a peak period different from Applicant or have er will have electricity available for sale. This category also calls for any documents dealing with costs of intercennection with utilities from whcn electricity could be pur-chased in the event an interconnection with Appli-cant were acccmplished; F. All docunentz dealing with the determination to site the preposed Midlend Units including docu-ments dealing with alternative sites and alternative types of power plants, including all costs and projected completion dates; G. All documents deal'ng with short and Icng range suppl $es of coal, ail and gas in the possession and control of or purchascable by Applicant over the next ten years for use in :onventional power plants; H. All documents dealing with short and long range supplies of uranium in the possession or control of or purchaseable by Applicant for use in nuclear power plants. This category fairly calls for in-formation dealing with the fast breeder program

• to the extent that the fast breeder in to be relied I upon for the prcduction of uranium (or nuclear fuel) to be used in nuclear power plants; D**]0 *]D030lh ooM oMU2UAlnLo-

i I. Al) decuments dealing with the proaccted con-struction of power plants, of any kind, for the Ceneration of electricity by any utility from i whom Applicant would purchase, or is capable of purchasing by reason of interconnection, elec-tricity over the next ten years; J. All documents dealing with arrangements with utilities or others, to whom or from whom Appli-cant cells or purchases electricity or is, under certain conditions obligated by contract to sell or purchtse electricity. This category fairly calls for ccpies of all contracts, setting forth Applicant's interconnection agreements as w ell as, for example, agreements with municipalities; K. All docus.cnts dealing with analyses of the bal-ancing and rationalization, both long and short term, of natural resources which are or can be f used in any kind of power plant; L. All documents dealing witt Dow's present facil-ities for the production of process steam and electricity in Midland, insofar as they reflect analyses, studies or determinations dealing with the retrofitting of such facilities with anti-pollutien equipnent, including the specifics 3 and costs thereof; M. All documents dea)ing with Dow's need for pro-cosa steam and electricity, assuming first that it shuts down its current Midland electricity and steam facilities and then that it does not, specifying all alternatives, including costs and projected ccepletion dates available to it, (whether such alternatives include the availability of gas or other natural resources to use as a power supply) including but not limited to .%e ability of Dow to expand elsewhere the.n Midlans Michigan. This category fairly calls for documer..s, studies and economic statistics dealing with the growth or in-hibition of growth _of Midland, Michigan to the extent that Dow's desire for process steam effects a decision to expand in Midland, Michigan rather than, for example,' in. Freeport, Texas; and documents dealing with the relative cost of electricity and process steam in each geographic area of possible Dow expansion; N. .Alldocumentsdeakingwithchemicalexplosions at Dow'a Midland complex and elsewhere, whcther at a Dow facility or not, within the past 20 years.

This categor,v fair:y calls for the source of each

, such explosian, the charactor of the explosion, i the chemicals or other explosives involved, the damages incurred and the physical characteristics of the explosion uuch as the direction of the b1nst and the geocraphical area offceted by the blast;

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O. All docu:Jats dealing witn the type nd character of the expansion Dcw intends to nake in Midland, includjnq the products wnich vill be prcduced in and the pollution which will be generated by such espanded plants; P. All docu.,ents dealing with or showing the reli-ability, in terms of maintenance and forced outage, of each nuclear power plant in the United States and for each fossil fuel plant in the United States. There is no time limitation with respect to nuclear power plants, but with respect to fossil fuel plants, documents reflecting in-formation earlier than 1955 are not called for; Q. All documents dealing with the Applicant's plans for tuo next ten years for power production by any means, that is, whether by nuclear power er more conventional means, such as fossil fuel facilities; R. All documents dealing with releases by Dow Chemical in normal and abnormal circumstances of any chem-ical, solid or substance, to the atmosphere or to the river and streams over the last ten years.

This category calls for a specific description 7f each such chemical, solid or substance, whether re-leased normally er abnormally, how such chemical was released, what steps were taken to prevent any such future release and whether auch steps h&'.4 '

been successful. This catecory of documents sis 3 fairly calls for the concentration of such releases and the ofrects it has haa upon rivers and streams  ;

and the atmosphere; S. All documents dealing with the interaction, syner-

, gistically or otherwise, of chemicals with radiation; T. All documents dealing with each analysis, in connee-tion with the proposed Midland Units, for each section of the fiational Environmental Policy Act required to be so analyzed, including but not limited to review or analysis pursuant to Section 102(2)(D) of the National Environmental Policy Act;

• U. All documents dealing with thermal or other effects of any kind which are created, aided or abetted by the proposed cooling towers and cooling pond; V. All documents, analyses and studies dealing with the effects, if any, as a result of Applicant's proposed use of water from the Tittaba 'ssee River, upon users of water from the Tittabawassee River, other than Applicant and for any purpose, whether industrial or not;

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W. All documents earlier called by cach of the Intervenors' Interrogatories which were not preluced upon the grounds that production war not relevant because the Interrogatories or documents related to environmental matters; X. A.1 documents dealing with storage, transporta-

' ion and disposal of radioactive waste products and spent fuel used or created by operation of the proposed Midland Units. This category fair-ly calls for information dealing with the entire question of radioactive waste disposal including what provisions will be made for off-site storage.

We are aware that the Cor. mission has taken the position that its jurisdiction does not include this subject as appropriate in a licensing hear-ing. However, we believe that this issue, in any event, is a proper one under NEPA and accord-ingly must be considered as a result of the Calvert-NEPA decision.

Y. All documents showing the status of procure-ment and manufacture of each component or system to be used or installed at the proposed Midland Units. This category fairly calls for all information dealing ::ith how far anyone has gone in building av commiting to build a facil-ity not yet authorised cy law in order to deter-mine whether NEPA or this Board's authority is being infringed upon by the expenditure of funds and effor ts.

The above list of documents is not intended'to be complete, but is made as part of a good faith attempt to begin the process of discovery at a time when the re-quirements of the Calvert-NEPA case have not yet been fully explored.

5. Intervenors finally suggest that after a sub-stantial amount of the work required by this letter has been accomplished, the Board order

.a prehearing conference at a time and date con-venient to the parties to discuss all future

. phases of these hearings, and attempt to resolve legal issue; insofar as possible in advance.

Intervenors are willing to dfscuss the contents of this letter as well as other informal or formal discovery proceedinge in order to expedite proceedings; but by this letter, Intervenors do not intend to waive any right or legal position, including the position that the hear-ings on these dockets, having been commenced pursuant to an illegal notice of hearing and illegal regulations (e.g. 1007R, Part 50, Appendix D and 10 CFR, Fort 2, f.ppcndix A) are invalid from their inception.

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Since Intervenors believe that it is neither locally permissible, nor judicially prudent to reconvene a hear-ing on any issue until the matters raised by this letter have been resolved, we are making no comment specifically upon the proposed schedules )mitted by Applicant. More-over, since those schedules weve made prior to any con-sideration of the Calvert-NEPA case, it does not appear sensible to comment upon tnen until such time as they have been revised.

CERTIFICATION Intervenors have reviewed the recent submission of the Regulatory Staff under date of August 6,1971 dealing with certification. We urge the Board to certify questions las Intervenors framed them: The framing of certified ques-tions by the other parties have so-narrowed the issue that with such other parties' questions, it will be unlikely that the Appeals Board could issue a decision which would be of use to this proceeding. Thus, we once again call attention to the fact that Intervenors intend to make comparative analyses of the emergency core cooling system and in that context compare the B & W ECCS with like sys-tems of Westinghouse, General Electric and Combustion Engineering.

MOTION FOR SUBPOENAS Accordingly and in order to pese the issue more direct-ly, Interveno"s herewith move the Board, pursuant to the Rules of Practi:c, for an Order issuing Subpoenas to West-inghouse Electric Corporation, General Electric Corporation and Combustion Engineering requiring each of them to pro-duce, for use in connection with these dockets, all docu-monts and reports, including patent applications and patent filings,whether claimed proprietary or not, dealing with each of their emergency core cooling systems, includ-ing but not limited to documents wnich make comparative analyses of any ECCS system with another.

If the Board rules favorably upon this motion, we shall prepare and serve the Subpoenas.

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Finally, by this letter, we urge other parties to the proceedings, includin5 all Intervenors, to prepare and submit to the Board a statement of their views, with-out prejudice, regarding the matters raised in this letter.

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By this method, when Commission rules and reguletions have been pror,iulgated, this Board and the parties will have already taker. significant rteps towani analyzing .

the legality of such rules and reculations.

Respectfully,

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) Ifsl[H Myron M. Cherry Attorney for Sagi aw Val-ley, goal. Intervenors l'MC/dw cc: ASLB Members Secretary, AEC All Counsel of Record l

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