ML19344A250

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Petition for Leave to Intervene on Behalf of Environ Defense Fund Re Hearings on CP Application.Cp Should Not Be Granted Until Requirements of NEPA Are Met
ML19344A250
Person / Time
Site: Midland
Issue date: 11/12/1970
From: Roisman A, Roisman Z
BERLIN, ROISMAN, KESSLER & CASHDAN, ENVIRONMENTAL DEFENSE FUND
To:
References
NUDOCS 8008070625
Download: ML19344A250 (7)
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PRi... & UTIL. FE.56Mi

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67 NOV ig1970* T3

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ATOMIC ENERGY COMMISSION cn

! In t.hc Matter of ) '

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CONSUf'ERS POUCR COM"ANY - ) Do F et Nos. 50-329 l Conutruction Permit Applications, ) 50-330 Midland, Michigan Nuclear )

Reactors, Units-Nos. 1 and 2 )

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PETITION FOR LEAVE TO INTERENE

! This Petition for Leave to Intervene is filed on behalf of the Environmental Defense Fund, Inc. (hereinaf ter "EDF") .

Interest of Petitioner l

l EDF is a nonprofit, tax-exempt membership corporation organized under the laws of the State of New York. EDF is made up i

of scientists and other citizens dedicated to the protection of man's environment, employing legal action where necessary. EDF has,

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through. litigation, sought to protect the environment,from various forms-of pollution'.. Its Scientists Advisory Committee, with more r I

than 200 members, including some of the world's foremost environmental i

scientists, assures that positions taken are thoroughly supported by-scientific evidence. In its activities, EDF does not concern l

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f l: - L 2 it.n01f ' witli-tho pecuniary interests of 'individualni rather, it 

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                  - scoks:to annuro the preservation or restoration of environmental r                   qualit'yEon behalf'of the general public.                                          It's concern with environmental protection throughout the nation is well known and-it
                  . h'as been recognized as having'standingsto challenge the use'of DDT l                   -(Environmental Defence Furid , - Inc. v. ..Ha cdin,                                             F.              2d                                                      ,

(CA D.C., 1970) , 'and Environmental Defense Fund, Inc. , v. Finch,

F. 2d .(CA D.C., 1970)) to challenge dumping of nerve gas in the~ ocean (Environmental Defense Fund, Inc v. Resor, F.
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l 2d (CA.D.C., 1970)) to challenge.the construction of the t Cross-Florida Darge Canal (the Environmental Defense' Fund, Inc. v.-Corps of-Engineers of:the U.S. Army (now pending in the District ~ Court-for the District'of Columbia)). I t' clearly is an interested party with respe~ct to environmental considerations of. nuclear power plants. 

                                                                       . Interest           Affected The- Conmission has acknowledged in its proposed . regulations
                  " relating to':tha National Environmental Policy Act (35 Fed. Reg.-8594,.

JuneT3,- 1970) that the: issuance.of a construction permit or an-

operating license'for-a' nuclear, power-plant constitutes-major federal
                   -action which may.signific'antly affeet the quality of the-environment.

t ( . The AEC also. acknowledges.that-these actions can not be.taken' until 

                  /theJdetailedtenviornmental statement required by;NEPA has been prepared.                 -
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       .Part of the mission of EDF is to guarantee that whenever major federal actions which'may affect the environment are proposed a full exploration of the impact of the project on the environment and alternatives to it is conducted.         Only when the necessary facts are known is it possible' to make the judgment required in considering isshanceofaconstructionpermitfornuclearpowerplants.

I Content 3 ons This construction permit applicetion cannot be grant'ed until the requirements of the National Environmental Policy Act (NEPA) have been met. Several aspects of the AEC's procedure and methods of implementation of these procedures applicable to granting construction permits are in direct conflict with NEPA. Proceeding to hold hearings on the proposed construction permit without resolution of many of these conflicts will needlessly delay the ultimate decision on the construction permit. The purpose ~~of these hearings is to determine whether to issue e construction permit for the plant. The applicant contends that a prompt decision is necessary in order to meet public power needs. However, if this proceeding results in the attempted issuance of an 

         " outlaw" permit which attempted issuance occurs without compliance with NEPA, a court injunction will be obtained which will prevent
         .the permit from being-issued and will significantly delay construction

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1(f70 hol d 0:9 t!idt - t:rNA require:; the U.S. Army Corps of Enginecra to fully consMc t a11 er.vis onmenta1 factors beforo granting :a
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d3:eogo..mid fi)1 permit) . Wilderness ' Society v. Hicke.1, 'F. Supp. (D.C., April 23, 1.970, order of court granting preliminary injuncticn against defendant 'for f ailure to comply. with NEPA) ; Sictra. Club v. Laird, _i F. Supp. (Aria., June 23, 3970, o):ded_ of' Cour t- grcnting preliminary inienction against defendant f or f ailu?;e to coatply -witit tr":PA) . An:/ hearing for issuance of a conntrueM en pernit which is not preceded by preparation of the detai3cd environmental statement based upon thorough environacntal l sturU cs , al1 as required by NEPA, is in violation of NEPA . The l 1- .henrings should he a forum ~for'all sides to discuss the impact of the environmental statement on the proposed construction permit. The underlying purpose of NEPA i.1 to guarantce all citizens !- ' thr.t' no re jor . fode).al action which will significantly af fect the i-environment is taken until a thorough study h'as been undertaken'which 

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determines the probable impact of the proposed action on the environment, any. unavoidable . p'robable adverse environtaantal ef fects , dcrolopment and description of-alternatives :o the proposed action 

              -which vill irconce adverso anvironmental effe:ts, the relationship
              '. bet.*:cen shere terrs.uses of man's environent and maintenance .and
              ' enhanc temni. ~ of Elonif term productivit y, irreversible'and irretrievabic;
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                                                                              ~5 couet.i t r.truin or re: ow ces an a resul t of the proponed acticm .ind cennideration of the views of other -federal and state agencien.
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To dato'thc response of.the AEC to this mandate has been deplorable. , The detailed.environnental statements-filed with respect to the proposed issuance of construction permits or operating licenses _are merely summaries of summaries received.from other agencies and from the' applicant. In-every case the environmental statements reflect the' f act _.that fgure studies will be conducted to determine the environmental itapact of radioactive releases, cooling water dischargo, and the like. Conclusions, without underlying data or reasoning, are.given in rejecting other alternatives to the plant design, 

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location, operation, use, -etc. The Applicant's Environmental Statement filed by Consumers Powcr Company'on July.24, 1970, is a classic example of'these self-serving unsupported conclusions which the Co:mnission merely r. ,: summarizes'in its so-called detailed statement. The Commission has no't yet released its detailed environmental report with respect to the Midland's plant, but an examination of the proposed Appendix D to Part 50 (35 Fed. Reg. 8594, June 3,1970) and of reports filed with respect:tv other plants (see-for instance the Detailed Environ-montal' Report. filed with respect to the proposed Shoreham Nuclear Power Plant)-~ demonstrate that the. Commission considers its job to be nothing more than providing-a synthesis'cf the Applicants un- 

                  ' supported conclusions. -Clearly no attempt is~made by'the Commission
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                                                -         g n ., _         s to' conduct, o.c request other federal agencies to conduct, tho
           -necosucry studien to determine hard' facts upon which conclusions are I.mned.

The studies which must be conducted need not be carried on by the AF.C itself. Their obligation is to see t. hat some federal agency, I with the' requisite expertise, prepares the studies. The applicant 

           ' and intervenors may if they wish prepare the:.r own studies but there must be at least one independent, fede:: ally sponsored study.

The ::esults of those studies, of each' relevant-environmental factor. particularly examination.of alternative proposals, may result in a conclusion that the location, design, or. existence of the proposed nuclear power plant must be different than that suggested by the applicant.- If such =a possibility did r.ot exist, there would be ! little purpose, other than window dressing,'in preparing environmental reports._ It is, therefore,- premature f'or the Board to conduct' l 

              ' hearings on the'present'y            l proposed' location, design and existence E                     ~

of this nuclear' power plant. '- In addition, even if the.AEC had prepared and submitted sufficiently'in advance-a proper detailed environmental report with 8. the studies required, these hearings would necessarily.have to include a' discussion of the report and an opportunity for'the applicant and-Lthe ,1 pablic.to express'their views on the proposed modifications in design,. location _and. existence of the plant. The notice of hearing fin this matteridocs not even.suggest that enviranmental-factors 

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will'be discussed; A. construction permit cannot be validly issued' g .g 

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                                    ,    7 without discussion of.all relevant environmental factors. It is l       the worst kindiof administrative chaos to attempt to resolve the design, location, etc.for a nuclear' power.pla,t at one' hearing l       when factors which'are relevant to that decision and which will
      ' ultimately affect it are not discussed.
For instance, the Water Quality Improvement Act of 1970' sets
a state's water quality standard as a minimum standard to be applied i

~ by the AEC in issuing construction permits. The detailed environmental statement may indicate that the specific . location of the proposed plant requires even higher water qualit3 s't'ardards which can only L be met by a change in plant design. These design changes will

. affect the safety analysis of the plant. Increased costs as a l

l . result of.the. design changes may warrant a relocation of the plant to an area where less stringent water quality standards are required. In short the issuance of a construction permit involves the kind of polycentric problem which can only be resolved when all relevant 

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. factors are discussed in one hearing. Under present AEC procedure as exemplified in this proceeding, hearings for' construction permits are undertaken even through the thorough environmentalistudies and' detailed, environmental statement 

      . required by NEPA have not been submitnad and even though the hearing _

Ldoes not propose to thoroughly-investigato eavironmental factors. No construction permit can.be validly' issued until these.NEPA requirements'are fulfilled.. d 4 p w e 

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                                                      -8 For the reasons stated above thn Environmental Defense 'ibbd requests that it be permitted to intervone ir. this proceeding to challenge the iscitance of construction permits to the applicant.

Respect:.ully' submitted, BERLIN, ROISMAN AND KESSLER 1910~N Street, N. W. Washing on. D. C. 20036 By / ' b /d b / <v4 , f/ Anthony Z. Rolsman Counsel for/ . Environ nent'a :L Defense Fund, Inc. 162 Old Town Road East Setauke:, New York 11733 SWORN TO before me, sc.et[v /j. M ' 

                                                                                               , a notary public l ' //                      -il.

in and for the District of Columbi6, this /A " day of November, 1970. VAb$//$. Y tary Public, D.C. , My Commission Expires: M /J,. /97/ 7 No_vember 12, 1970 , 

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