ML19344A201

Statement of Issues Urging ASLB to Reread Calvert Cliffs Decision & Thereby Rescind 710826 Order Directing Intervenors to State Issues & Complete Discovery by 710930. Questions ASLB Compliance W/Nepa Requirements

ML19344A201
Person / Time
Site:	Midland
Issue date:	09/30/1971
From:	Roisman A BERLIN, ROISMAN, KESSLER & CASHDAN, ENVIRONMENTAL DEFENSE FUND
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008060541
Download: ML19344A201 (5)

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BEFORE T!!E p'

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) Docket Nos. 50-329 CONSUMERS PCfdER COMPANY- ) 50-330 (Midland Units 1 and 2) -)

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STATEMENT OF ISSUES BY 'lHE ENVIRONMENTAL DEFENSE FUND, INC.

The Environmental Defense Fund, Inc. has intervened in this proceeding for certain limited purposes. First, EDF entered these

a. proceedings in order to assert the public right.to have this proceeding conducted in compliance with the National Environmental Policy Act. . With the Court decision in Calvert. Cliffs Coordinating Committee, et al. v. U. S. Atomic Energy dommission_ (CA D.C. ,

No. 24,871), decided July 23, lS71, that goal was achieved al-

s though it remains for this Boarck to enforce that ' decision to the

. t fullest extent. Where full compliance with NEPA does not occur i

EDF will consider presenting further briefs and arguments to this Board and will of course reserve the right to challenge this i Board's decision in the appropriate appellate tribunal.

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F ...4, l 4 7OneEsuch' example!of a'sub'stantial departure from?the c1*egr c

! re'quirements=of NEPAiand Appendix D is the requirement in/this Board'fs Order'of-August 26,f1971Lthat all'intervenors must statei

!' 'their' position asito environmental. issues'on or before September

' 30 .and that': all odiscovery 'must be L completed -by -that date . This V .

? procedure: totally ignores the fact that.. Applicant has the' burden

! .ofIproof'in this case'and therefore until Applicant statesLits- l f -- position':inIdetail and the factual bases for'that pos.ction have

~ been explored'no'sta'tement?of contrary issues can be formulated.

Inifact: at this stageLit :would be a legally sufficient statement

-of issues to oppose. issuance-of the construction permit because ithe Applicant has' not met the. requirements of Appendix D, . i.e. it'

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l! has-not prepared la proper. Environmental Report. -

. Equally-important-~in-the development of issues by the .

Intervenors is the- Staff analysis . The Staff is an advocate of~ .

the public and' as such -has the burden to fully. explore these -

-environmental issues (and to.tak'e positicna on them.

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--have;the f:ight ~toirely _upon the Staff resources to develop issues.

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'andf.factsyjust9as Applicants. rely upon the AEC's general testing I

' ; and analysis; of. the particular plant: to : support - their position and?

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itoLhelp themssupport-their application.- 'I'tervenors-are' n entitled

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ttolthe-benefit ofLthe Staff ~ analysis-priorito taking a.: formal' position 7on;all! issues and prior.to' completion of_all' discovery.

.The Staff analysis ~itself may suggest lines of further inquiry'and- ,

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3 Nor is their any equity in'the B'oard's position. Intervenors (except for Dow) have been urging the Staff and t a. Applicant and this. Board since December, 1970, to comply with the National Environmental Policy Act, to ailow discovery on environmental issdes and to ignore the illegal restraints imposed by the December 4, Appendix'D. Our pleas were summarily rejected and now that our views have been proven correct this Board with the urging of the Applicant and Dow seeks to make up for lost time at our expense.

There-is absolutely no justifiedtion for such a procedure and in our' view little chance that these procedures will withstand judicial scrutiny. Eventually the imposition of the September 30 deadline will be the cause of even greater delay in the resolution of this proceeding. ,

Finally, we note that under.5 b.S.C. 556 (d) (Administrative .

Procedure.Act) which governs the conduct of this proceeding,

.Intervenors are. guaranteed the opportunity for full presentation-of their case. The present Order of this Board is in no way in compliance'with-that provision. We respectfully urge this Board, to re-rcad'the Calvert Cliffs decision, to examine the new-Appendix D and to consider the'rcquirements of 5 U.S.C. 556(d) and then to rescind that portion

of the-August 26th Order which orders Intervenors to state the issues they will raise and to complete discovery by' September 20, 1971. What we urge is an

': . orderly.and" fair hearing, u

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r The second reason EDF entered this proceeding was to ensure

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that if environmental l issues were allowed to be raised, the analysis:of-these issues by the Applicant and the Staff would be as thorough as required by NEPA. In furtherance of this. purpose EDF filed comments on the Applicants Environmental Report on L February 6, 1971, - and on the AEC's Draf t Environmental Statement on June 4,,1971. Both comments stressed the total inadequacy of the environmental. analysis and urged the Applicant. and the Staff to use.the time then available to make a more thorough analysis.

To date no such analysis _has occurred.

At the: request of the Board we are' filing with this Statement of' Issues several additional inguiries designed to indicate to the Applicant and-the Staff the additional depth of analysi's.which

'is required by NEPA by Appendix D and by the Interim Guidelines on Preparation of Environmental Reports. Our list of inquiries and statement of the inadequacies of the current environmental.

review are not intended to be exhgustive with respect to any area

- discussed or with respect- to the selection of the areas of -concern.

.As indicated we consider:that any attempt by this Board to foreclose  !

discovery prior- to a reasonable time after submission of a 1

' legally sufficient Detailed Environmental Statement or to foreclose any parties right to raise an issue with resp,e'ct to environ-mental matters;until a'reasonablertime after completion of that l

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- di'scovery is contrary to-Appendix D, to NEPA and tolthe

- Administrative' Procedure:Act.

Respectfully submitted, BERLIN,z.ROISMAN and KESSLER.

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Anthony Z.

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Roisman/'.(

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Counsel for Envircjnme/ntal: Defense Fund, Inc..

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September 30, 1971

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