ML19344A248
| ML19344A248 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/13/1972 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8008070623 | |
| Download: ML19344A248 (14) | |
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I, ,,', " UNITED STATES OF AMERICA v/ Ti L. -r ATOMIC ENERGY COMMISSION BEFORE T!!E ATOMIC SAFETY AND LICENSING BOARD IN Tile MATTER OF )
) Docket Nos. 50-329 CONSUMERS POWER COMPANY ). 50-330
)
(Midland Plant, Units 1 and 2) }-
=SAGINAW VALLEY-ET AL. INTERVENORS '
PROPOSED FINDINGS OF' FACT -{ j AND CONCLUSIONS OF LAW . l t
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F Environmental-Matters At the last conference among counsel, the Board , ni t n. p t.< mbe r . 15,'1972-as the -date on which the Sacjinaw - ValIoy eL aL. Intervenors should submit their Proposed j , I Findings'and-Fact ~and Conclusions of Law. Counsel for the Sag inaw Valley et al . Intervenors . was not at the l'as t Pre-
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f . hearing - Conference but was . informed of its substance and requ irements' af ter - the f act. Neither counsel for Saginaw - L: Valley et al. -Intervenors nor Saginaw Valley et al. Inter- .
- i. venorri.' par ticipa ted 'in' the environmental phase of this hearing. The reasons,: therefore, have. been stated earlier
'in our cubmissions. Thus, we believe'it basically and intrinsically
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unf air for the Atomic Energy Commission . (for it is the Coimniunion, since this Board is merely an agent of the Com-ission) to schedule hearings on the Midland reactocsat a time when Saginaw Valley et al. Intervenors ' attorney was pursuing work on behalf of segments of the public interest at the National ECCS Hearings. We also believe that the ucheduling is all the more so unreasonable in view of the fact that the Midland hearing raised ECCS issues prior to the adoption of the Interim Acceptance Criteria and issue .
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was_ joined, therefore,.more than six months ahead of the Commission 's regulations. In this context, for the Commis- - sion to permit the Midland hearing to go on unabated without - permitting Saginaw Valley et al. Intervenors the benefit l o1 ( onom 1, while at the same time not permitting I:CCS . insuon to_bc rained at'the Midland hearing on the grounds they are being raised.at the National Hearings, results in a very. anomalous position. Thus, the Commission encouraged Saginaw Valley et al. Intervenors (and their counsel) to go to the Nat.ional llearings and_ receive their rights with respect to those issues,_while at-the same time penalizing Saginaw Vajiey et al. Intervenors (and their counsc1) for having so_- participated and, thus, not being available for the
- environmental phascof this proceeding.
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. . s Since, in our. judgment, Saginaw Valley et al.
Intervenors were unreasonably and unlawfully prohibited from participating.in the environmental phase of the pro-
- cceding', 1/ they have no conventional findings of fact to set Lorth. Instead, Saginaw Vallcy et al. 'Intervenors refer. to their Statement of Environmental Contentions as to each of which Saginaw Valley et al. Intervenors believes the Board must make findings.
Our understanding of the evidence placed in-the record by Applicant and the Regulatory.Staf f lead us to believe that conclusions favoring Applicant and the -
-Itegula tory Staf f on environmental matters cannot be per-missibly drawn. Therefore, we shall await the decision, if 'any , by the Atomic Safety and Licensing Board and review it for its support and legality. See e.g. Tr. 821.
4 In the-event that -such a decision does not comport with our view uf the. applicable law, we intend to submit, on a f . timely basis, exceptions to such initial decision, and seek nuch f urther appellate review as may be required. Wo believe that the exclusion by 'the Board of environmental matters which it did not hear is sufficient in and - of itself ' to ' condemn any conclusion which holds that the National Environmental . Policy Act has been satis-factorilyc analyzed. 3/ An not.ed. hofore, Saginaw Valleyc et al. Intervenorn tried
'without nuccesn torretain an attorney other than their
'presen t counscl.
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II Radiological Health and Safety Matters We have reviewed the Applicant's Proposed Findings of Fact and Conclusions of Law, and we believe Applicant's submission is voluminous and serves as a starting point to l lay the basis for the claim we make in this section of our l Proposed Findings of Fact and Conclusions of Law. Appli-cant would have the Board, an entity set up by the Atomic _ Energy Commission pursuant to the authority of the Atomic l Energy Act, accept the fact that the regulatory agency , l and utility industry have decided that the Midland Plant . should be built and that is that. We are more convinced ! now than we were two years - ago that the real difficulty with analyzing a nuclear' reactor lies in the overwhelming f f commitment that is made befora no one really has an oppor-tunity to make an analysis. Perhaps this is all the law
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requires, although we think otherwisc. Perhaps also the Atomic Energy Commission's promotional and regulatory functions do not create a bias, if you will, an intrinsic and inherent bias against those who challenge nuclear safety; but we think not. The begin this section by alluding to various comments by the Board = members .which we believe support our While ponition of such inherent . bias against Intervonors. !
l we are not Jrepared to state that the bias we urge is l pornonal or peculiar to the Intervenors in this case, we ( are prepared to say,'as we have said before, that noard members ! have a long and successful relationship with the development of nuclear power; an inherent (almost genetic) feeling that l a_ loss of coolant. accident will never happen; and that any l . safety or environmental problem raised during the course of l licensing hearings can be resolved at some point before it ! is too late. I i Witness, for example, the role of the Advisory Committcc on Reactor Safeguards (a Committee.of which Dr. l L llall was a memb5r) . That Committee consistently salves ~, its conscience by alluding to unresolved safety problems, i l but nonetheless makes recommendations in favor of construc-tion and operation of' nuclear power plants. They do so in i ! the continual context and knowledge that problems noted several years ago continue to be unresolved. Did Dr. IIall i come to this hearing with an open mind about alteratives to nuclear power? We think not. See, for example, Dr. Hall's _ pronouncement that it. was the Intervenors who had to convince him of the-lack of safety rather than what the law requires that the Applicant and Regulatory Staff prove objectively
~the merit of their ' assertions. See Tr. 1019-48. See also Tr. 1923,-162, 380-81.
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Did ' Dr. Goodman come to this hearing with an open mind about the alternatives to nuclear power? We think not, and we respec t.f u lly ' observe some of the comments made by Dr. Goodman and partic larly his opening remarks at the hearing- congratulating the people of Midland upon the acqui-sition of their soon to be built dual purpose power plant. See, e.g., Tr. 1233, 1289, 1347, 1456, 1922, and 2697. Even Chairman Murphy was susceptible to what we
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regard as the " occupational hazard" in the nuclear industry.
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Thus, Chairman Murphy, at numerous times, required that Jntervenurs disprove long-standing assumptions before they - would be permitted to cross-examine and interrogate in such ~ ;- areas. See, e.g., Tr. 1880 and 2099. See also Tr. 2958 and 3048. Although we have through the months found the Board's position and rulings understandable in light of the lloard members ' historical relationship with nucicar power and the industry itself, we find them nonetheless unaccept-able. Given, for example, a continuation of the collective l positions of Drs. Hall-and Goodman, we believe that ECCS technology-would be in even a faE worse state than it is now
- and that the laboratory scientists who finally had the courage to - speak up _would still be silenced. The so-called " experts" would
k i be deciding everything, among themselves, without the ki.nd 1 . ; of healthy criticisms that can only come from outside sources.
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We have not, there fore, chosen to scarch the record and respond to this proceeding by submitting citations of matters-which we believe were p;oved or disproved. Such a task,. aside from the fact that rulings prohibited us from pursuing our position, would necessarily detract from the fact that whatever occurred below, it was not and cannot be regarded _as an exposition of.the relevant issues. We are quick to add that perhaps the blame is to be shared equally, , although we believe it is the Commission's' Ecsponsibility to provide a basis for adequate hearing, if it wishes to hold hearings. What has happened is that the Atomic Energy Commission,- so - disturbed with its obligation to hold hearings on decisions already made and incapable of reversal, and so fearful of I cmerging as a proponent against public hearings, has reacted i l ' irrationally at every turn; and its agent, including the l Hoard members here, have unfortunately not taken issue with such irrationality. We do not -make these statements in personal disrespect of the Board members. We do maintain thc bclief, however, that the responsibility of Board
-members toward assuring a check upon Regulatory Staff and industry decisions must go beyond that which was demonstrated below..
-Unfortunately, everyone,has,been disserved by the H
1acklofLindependence. :Thus, Dow Chemical has been disserved.
~i It blindly relies:upon Consumers Power which in turn blindly, relics uponL Babcock and Wilcox which .in turn is -b'lindly regulated
by the Regulatory Staff, an arm of the agency understaf fed in talent and manpower and unwilling or -unable to lis ten to the advice of its hired experts; Consumers Power has been disserved. Thus, without independent examination, it made its commitment to nuclear power several years ago so much-so that economics prevent reexamination; and last but not least the many Intervenors and "little people" who tcok abuse for exercising their statutory rights have been , disacrved. These people were then condemned for not having had the expertise to raise and resolve problems which still perplex the " experts." -
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.Each of these occurrences has resulted from the l q fact that industry members were not self-critical, and did not s
ask what other alternatives there are to construct a nuclear s power plant at a time when significant safety items are unresolved, an'd we do not- know what we will do with the
" bloody mesu" when the natural life of the plant has expired.
We set forth below significant areas of legal concern which compel us to conclude that no positive conclu-sions can be drawn in favor of Applicant and the Regulatory l l S taf f on this record regarding such issues. We set forth these areas not as an exhaustive list but as a sufficiently
; responsible list.. And,'as set forth in our environmental findings, we intend to pursue our legal remedies in the event .that it is :necessary in respect .to any initial decision w hich may be rendered by the Board.
A. The Board tirst agreed that the emergency plann of the Applicant were insufficient and, indeed, woefully inadequate._ The Applicant then filed a lot of papers and that was the end of that. In fact, the Board never received even tne Regulatory Staff's view on the emergency plans. Why? Because no one thinks the accident will ever happen. B. The Board was unimpressed with the quality -- assurance and quality control methods of the Appli-cant and literally agreed that the Applicant's pro-
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cedures would not comply with the relevant regulations. Indeed, it was determined at the hearing that- QA and .' QC were nonexistent during the fabrication of the pressure vessel and that the Compliance Division had l noteveninspectedthepressurevesseluntil4 twas more than 90% completed. Yet no significant changes were ordered. , C. . - The Advisory Committee on Reactor Safeguards Letter was'admftted into evidence over objection to , show that the ACRS issued a favorable recommendation I
. regarding the Midland. Units. The Board allowed as how the ACRS Letter was "not evidence." Yet as '!
j we read Applicant's Proposed Findings-of Fact and Conclusions of Law,' great pains are taken to point out that the. ACRS approved the Units and that the' 1
. Applicant ~ist busily engaged in1 attempting to resolve-items whichLwere noted as unresolved in the' Letter. But no -
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, ,.. s s more wau.done. Why? We suppose it is because no-one knows the answers to many of the unresolved safety matters.
D. Emergency Core Cooling System effectiveness was an issue in this proceeding long before the Com-mission's Interim Acceptance Criteria of June, 1971. All of a sudden, Intervenors around.the Jountry were sent to Washington with lesser rights e.nd the assur- - ance that the ECCS hearings would last_ just long I enough to license every plant whose application was . on fiic with the Regulatory Staff as of Jdne, 1971. - We must commend the Board and particularly Chairman g Murphy for his honest attempt to resolve the proce-dural issues and denial of substantive rights inherent in depriving Intervenors here the right to raise ECCS 1 issues, while no'ne.theless applying the existing ECCS ' regulation. However, AEC " policy" barred -even the Chairman ',s efforts. ,
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E. Surely' t'his R'trd and particularly.Drs. Hall
-and Goodman are aware om the Reactor Operating Experi-(" ROE") published by the Atomic Energy 1 ence Reports j
. Commission. - Did either o! the scientific members of the Board inquire of the Applicant or' the Regulatory.
Staff whether the industry and, particularly, the
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' Applicant, has taken cognizance of these experiences or asked what steps Applicant intends to take to assure no reoccurrence of silly and sometimes near disastrous. accidents?
F. The design .of the Units ' and some of its 4 more sophisticated safety systems are as yet incomplete. When will Intervenors get an opportunity to determine whether the final design meets acceptable safety standards - at the operating stage where_they will be accused of delaying the completed facility.and it _ is too late to . offer a substitute system or' design? - 3 Such a result makes no sense but again, we suppose, ' in the Commission's view, it. is progress .- ~ G. -In one of the very early orders of this Board (May 17, 1971)certain interrogatories.to Ap- i i plicant and the Regulatory Staff-dbal'ing' with reactor ~ l 1 pressure v.essel' failure' and integrity,were disallowed l ' upon the grounds that. reactor pressure vessel failure, ~ if a credible' accident, would require denial of a construction' permit. We~ assume that the Board had - decided by administirative fiat' that reactor pres.sure , vessel failure was incredible. Where is1 the evidence I for:suchLa conclusion? Has dda Board read the . ACRS .~ 1 2 reports dated August 17, 1972 on Zion Units 1'and 2
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-and-Porked River Unit 1 which raise again the issue of reactor pressure vessel failure and allow as how research has to be done to determine whether such an ' accident is credible? Has the Board read the i
Regulatory Staf f's Brief 'in Indian Point Unit 2 where it allows, in argument to the Appeal Board, 4 that reactor pressure vessel- integrity is indeed . - 1-an issue.in licensing proceedings and is required to be' analyzed pursuant to the definition'of a Loss of f - l~ Coolant Accident as set' forth in Appendix A to Part- 507 Is the Board now prepared to suspend the issuance of a' construction permit until such time as the question i of credibility of reactor pressure vessel f ailure is
- resolved? . ,
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.' CONCLUSION We trust the-Board members will'not tAke' umbrage at the tone of ,this submission'. The remarks'made'herein-are evidence of: the ' frustration that one group of -Inter-venors has ;experiened before ~one administriyive agency.
The f'ault lies with the Commission, thel. industry and their . prom 2Lianal perspective. I m -
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Of course, some issues are more important than otherc and, unfortunately, the hearing failed to deal with tho . three most significant issues : that is, ECCS effective-ness , reactor pressure vessel f ailure, . and the unalterable commitment to an industry about which we do not know enough. We _ would ask the Board to deny the issuance of a r4 construction permit on the grounds that the Applicant has not demons trated that the public health and safety will be, _ protected and that an insufficient and inadequate environ-mental analysis has been made. __. . Respectfully submitted, l
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Att ley for Saginaw' Valley et al. Interveno s Myron~ M. Cherry 109 North Dearborn Suito 1005 Chicago, Illinois 60602 312/641-5575 . 6 el3 - e
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exuu. & unt, ts. ',io 4.0/, F50 CERTIFICATION I certify that copies of the foregoing Proposed Findings of Fact and Conclusions of Law of Saginaw Valley et al. Intervonors were mailed to the Members of the Atomic Safety and Licensing Board, the Secretary of the Atomic l:nergy Commission, and all counsel of record on September 15, 1972. . l
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