ML19345B876

Appeal from ASLB 801027 Order.Order Stands Moot Re Jurisdiction.Too Many Factors Have Not Been Reported Re Drainage & Groundwater Pressure.Certificate of Svc Encl

ML19345B876
Person / Time
Site:	Midland
Issue date:	11/19/1980
From:	Marshall W MAPLETON INTERVENORS
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8012020649
Download: ML19345B876 (17)

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/%- ' . . , . . . , , . 7, I have seen most of the world and have been in its high-est mountains. I have walked the valleys of all the conti-nents and seen thhir wonders. Now and then I have come across a sanctuary equal to our best. But when a full ac-counting is made there is no continent on carth equal in natural wonders and glories to what we have here.

We must learn to love it and cherish it. We must put our arer.s around it and protect it as we would a fragile but precious child. Technology can destroy it. But it can also save it. Only we the people, not technology, have

" values." Love, respect, admiration, tenderness-these must be uur attitude toward this biosphere if it is not to meet the technological Armaggedon.

-Justice William O. Douglas The New York Times July 1,1973, t 4, p.13 .

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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION APPEAL to the Atomic' Safety and Licensing Appeal Board, in compliance with 10, C.F.R. 2 714 a, from Order of Atomic Safety and Licensing Board:

That the question of jurisdiction over both the 4

subject and subject matter is appealed from in t-

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general, and some parts in particular. gg 94 g

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. Docket Numbers: 50-329 OM N 50-330 OM 50-329 OL f\4 r"0v

.c-. s e 22 csieun & SWC8 5 &iSS cittsrY E 50-329 OL BSC

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Cvl 9 In the Matter of C'ONSUMERS POWER COMPANY, Midland Plants, Units # 1 and # 2 On Order resulting from September 10, 1980 pre-hearing, ,

dealing with proceeding involving Order modifying construction permits, No. CPR-81 and No. CPR-82, dated December 6, 1979

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Your Petitioner takes exception to the foregoing Order, and states that the Order stands moot as to the- "

_ question.of jurisdiction. ,

Since January, 31, 1979, jurisdiction of the Clean  !

Water Act over discharges of solid wastes in wetlands is l contained in 404 of the Clean Water Act:

The Administrator of the Environmental Protection Agency, not the Secretary of the Army, has the authority ,

i to determine whether disposition of solid wastes requires i a N.P.D.E.S. permit or a Section 404 permit: fill material as discharge.

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In a case of disagreement, the Administrator and the Secretary of the Administrator have the ultimate authority to determine whether a discharge of solid waste in waters of the United States requires an N.P.D.E.S.

permit or a Section 404 permit. Such a permit must be secured 404 (B) (1) which are prepared by the Environmental Protection Agency.

APPEAL from denial of letter presented to the Atomic Hearing Board, denied on tho' grounds of being both " untimely" and " vague" Petitioner represents, upon appeal, that a question of jurisdiction was raised before the Board, and is reflected in the official record; that, further, a conflict of administrative laws is evident as to juris-diction over " fill materials", where the construction'of

- the sinking generator building is in a flood district and upon the surface of land situated over underground water courses constantly flowing.

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1. The Tittabawassee River is a navigable

_ stream, within the meaning of the law.

Ruled by Douglas: a nagivable stream do'es not have to be navigable at all times to *

/be considered and held a navigable stream.

Moreover, that the silt and erosion of fill material into the Tittabawassee River has not been denied.

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2. That fill dirt does pose a threat by running into the natural water courses, and there-1 after into the Tittabawassee River.

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't 3 That consolidation under Part 2, Rules of Practice, subport. D - 2.402 was approved by the Board on the hearing at Midland, Michigan.

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'NOW COMES WENDELL H. MARSHAII,, denied the admissions of a letter on the basis of being "both untimely and vague", and takes exception to these finds, and takes appeal therefroms ,

Claiming there is a conflict of laws as to ,

Jurisdiction, since the Consumers Power Company refuses ,

to make the borings requested by the N.R.C., stating that

_ the cost would entail expenditures of one million dollars

-- since over this amount is spent every day on this construction, it would lead one to conclude that Consumers g, Power Company engineers know that the construction is over underwater caverns.

With regard to jurisdiction, it is the position '

of the appellant that modification should include '

inclusion of consideration of the Number One law enforcement officer of the United States of America, Attorney General Civiletti: -

To Clifford Alexander, September 5, 1979:

"Ni> ting the administrator's role under Section 10D, the dual role of the E.P.A. and the Corps under Section 404, and that a jurisdictional' decision by the Corps would necessarily affect parts of the program administered by -

_ E.P.A., not the Corps, had authority to determine the  ;

jurisdictional waters of rho ' Unit'ed States' which appears  ;

i in the general provisions of the Act. Section 502(7) and e

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' & ~~ .m the term ' fill' appears only in Section 404 and related .

parts of Section 208. In each case, the interpretation of the term clearly impacts other programs under the Act; in fact, in the instant situation and interpretation by the Corps could considerably even affect the applicability ,

,:::. - of the Resource Conservation and Recovery Act, which is also an 'E.P.A. statute'. R.C.R.A. excludes from ' solid waste' those industrial discharges which are point sources subject to permits under Section 402 of the Fed'eral Water -

Pollution Control'Act."

The Atomic Safety and Licensing Board, Charles Bechoefer, Chairman, on October 27th, 1980 - prehearing conference order ruling on contentions and on consolidation of proceedings, October 24, 1980, in re the order modifying Construction Permits No. CPR-81 and No. CPR-82, dated

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December 6, 1979 OM proceedings, and Operating Licence OL

- proceedings, involving issues related to those under consideration in the OM proceeding.

m This appeal is taken from failure to admit the letter of Wendell H. Marshall, representative of the Mapleton Intervenors, which was to be considered in the form of a petition in the OL proceedings, that the only proposed contention for the OM proceedings was the first paragraph of his letter of August 27, 1980.

At the same time, before the Board, Mr. Marshall, Petitioner, did raise questions as.to jurisdiction, and stated that a signed contract in the form of a compact was in existence by and between the People of the United'*

States of America and the People of Canada, signed and executed by President Nixon and President Trudeau of Canada.

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Requested on the basis of timeless factors of 10 C.F.R. 2 714 (a).

On May 27, 1980, the Consumers Power Company filed a motion to consolidate the ON proceedings with three issues relating to soil conditions and plant fill materials raised in the OL proceedings gs - by memorandum and order dated June 27, 1980.

Appeal taken 2 714 raising questions raised upon hearing in RE 2 718 taken appeal from the Order,of the Atomic Safety and Licensing Board, dated at Bethesda, Maryland, this 24th day of October, 1980.

Signed by Charles Bechthoefer, Chairman, speaking for the Panel.

The most recent regulatory ruling to my letter was that it was " vague and untimely". Exception is

_ taken.

Regulations of August 7, 1975, revealed many questions as to the scope of the Act; one of the most-frequently raised questions was whether employees are considered part of the "public water system" (see Section 1401(4)). .

E.P.A.'s response, as formulated in Appendix A

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to the . November la,1975 draft of the final regulations,

.was that such water supplies are covered even where they do not serve the general puablic (see Appendix A, Statutes, at page 3 -

Pre-hearing c,onference order ruling on contentions and on consolidation of proceedings October 24, 1980; on September 10, 1980, page 9 B 2:

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f "The applicant would reject the last sentence of Ms. Warren's contention 2 A on the basis that it relates to natural soils (silt) rather than fill soils, and I claim that the modi $1 cation order relates only to fill soils."

Petitioner takes exception to failure to admit August 27, 1980 letter, re-stating that a compact by and between Canada and the United States of America, as signed by Richard M. Nixon and President Pierre Trudeau of Canada

_ amounts to a writ of prohibition under the circumstances, barring construction or licensing of a nuclear power plant unless an absolute guarantee can be given that the common waters of the two nations are not endangered.

Petitioner raised the questions of jurisdiction in the record as to the soils settlement and compacted fill materials.

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Environmental Protection Agency March 20, 1979 Clean A ir Ac t , Section 122 (c) ,( 2)

The N.R.C. requirement under the Atomic Energy Act i=

This mandate for cooperation is subject to ths limitation that it be consistent with the provisions -

of the Clean Air Act, Section 122 (c) (2). .

Mor'eover, in' Congress' view, providing only a Section 404 exemption for those discharges was not enough, since E.P.A. would still be able to step in and require a Section 402 permit.

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With respect to the claim that your Petitioner-Appellant is " untimely" in his presentation, I stand chagrined.

I was born in Midland County, Michigan, of poor but honest parents, and walked over a mile to school .

for five years without ever being absent or tardy. I still possess a medal awarded by the School District for this outstanding record; and I claim that this record of school attendance has established a standard of g punctuality and tideliness which I have sustained throughout my life.

As far as " vagueness" is concerned, I cannot pretend

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to the standards of attorneys and others skilled in word usage,_ inasmuch . as I_have_never taken any- of the following courses (as recommended by law schools) from any accredited college of law:

Business law Civil procedure Constitutional law

, Contracts Criminal law Equity Evidence Legal writing and research Professional responsibility Property Taxation ,

Torts Trial advocacy De'that as it may, I feel that I am able to express myself in layman's language, and I beg the Appeal Board's indulgence for my lack of formal legal education; I am as precise in my presentations as I can possibly be, within .

my limitations. ,

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_ W9 I wish the Nuclear Regulatory Commission and the Docketing Service to permit me to take advantage, under the law, of copies to be furnished to the participants under the new section, absolutely free gratis and for nothing, which, I understand, will include franked mail service to the certified list and all interested agencies, and, in particular, Mr. William D. Paton, Counsel for the N.R.C. staff, and James E. Brunner of the Consumers Power Company, 212 West Michigan Avenue, Jackson, Michigan.

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Dated this 12th day of November, A.D. 1980, at Wendell H. Marshall, President

. Mapleton Intervenors Petitioner - Appellant t

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?~ 0 X =="1 TO: United States Nuclear Regulatory Cocatission Washington, D.C. 20555 ATTN: Robert L. Tedesco Assistant Director for Licensing Division of Licensing FROM: Mapleton Intervenors Wendell H. Marshall, President 50-329/330 OL RE: Docket Nos.

50-329/330 OM

SUBJECT:

Request for Details of Stress Anclysis for Underground Piping EXHIBIT # 1

. ,2 - The continued settling of the buildings, and the most recent report by the N.R.C. - Mechanical Engineering Branch, in conjunction with their Energy Technology Engineering Center, on the serious overstress of underground piping before service, as reported by Mr. Robert L. Tedesco m_

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in his letters of October 20, 1980, to the Consumers Power Company, indicate that this problem has not been solved.

This is further evidence that not all of th,e engineering considerations applicable to the building of a nuclear plant in a natural flood plain at the junction of three ,

rivers with attendant dewatering engineering problems have been considered - one might say, they have been grossly overlooked - with respect to plant site selection '

and the attendant hydraulic conditions.

Th'e, dewatering soil compaction problem at the Midland nuclear plant site is one where all the facts and parameters have not been considered in the assessment of the true problem. In this area, problem solving on a piecemeal basis is not conducive to a safely engineored plant.

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-- 11 The location of the nuclear plant at the junction of three rivers indicates that the plant is settling upon a hardpan in a flood plain. The hardpan is the natural drainage route of surface water, supplemented by an artesian flow, depending upon the water tables both above and below the various water tables of each individual

'aardpan layer.

During heavy rainfall, the natural drainage flow from the high ground must flow along natural drainage ditches.

In addition, the ground water build-up due to the wet

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season can, and does, affect the water tables. It is a known fact that, in the Midland area, there are many artesian water flows from naturally occuring flo,ws and from abandoned wells that have not been plugged.

. I would also assume that the many core samples taken over the plant site area were not plugged, and would offer a natural addi+.ional relief of the accumulated ground water pressure, permitting water to penetrate the plant construction site, in addition to the normal surface water runoff.

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While not germane, I do believe that much technical information and findings have not been recorded, and would have been overlooked by the succeeding engineers not familiar with the original surveys. The lack of continuity of engineering precludes the acceptance cf a total individual responsibility, in the face of known personal problems in 5e engineering staff at the Midland site. This implication involves.the Dow Chemical Company, the Consumers power Company, and Bechtel Construction Company personnel.

4 In summary, there are just too many factors that have not been reported in the areas of natural watercourse

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drainage, penetration of hardpan ir areas susceptible to

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varying hydraulic groundwater presst es, naturally occurring artesian wells as related to seasonal rainfall, and ten ,

fifty , and hundred-year floods.

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12 It is further noted that many engineering water problems were encountered by the Dow Chernical Company and their contractors.in construction adjacent to the nuclear site, south of the river. The question resolves:

<5 - Has all of the history of this area been evaluated in

. terms of the whole, or has a system of piecemeal engineering been used to solve immediate problems?

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Wendell H. Marshall, President Mapleton Interrenors Route # 10 Midland, Michigan 48640 e

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CERTIFICATION OF MAILING LIST I, WENDELL H. MARSHALL, hereby do certify that the foregoing document has been transmitted by metered mail from the United States Post Office located in the community of Freeland, Michigan (ZIP Code 48623) to all of the parties whose names and addresses appear on the

1. 1. ' following list. I further state that these documents were sent by conventional First Class Mail, with the exception of the original and two copies sent to the Secretary of the Nuclear. Regulatory Commission, Atomic Safety and Licensing Appeal Panel, Washington, D.C.

20555, in conformance with Section 2 708 of the Commission's regulations (10 CFR @ 2 708) and (10 CFR g 2 712); and that these documents have been sent via Return Proof of Service Mail.

Dated this nine+ 'N day of November, 1980, at Midland, Michigan.

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DCC g Wendell H. Marshall

gy Petitioner - Appellant

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- President, Mapleton Intervenors Route # 10 ggh Midland, Michigan 48640

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Mr. J. W. Cook' Vice President Consumers Pcwer Company 1945 West Parnall Road Jackson, Michigan 49201 cc: Michael I. Miller, Esq.

Isham, Lincoln & Beale Suite 4200 \

1 First National Plaza 4

• Chicago, Illinois 60603 Judd L. Bacon. Esq.

Managing Attorney -

Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 Mr. Paul A. Perry, Secretary Consumers Power Ccmpany 212 West Michigan Avenue Jackson, Michigan 49201 Myron M. Cherry, Esq.

1 IBM Plaza Chicago, Illinois 60611 Ms. Mary Sinclair 5711 Sumerset Drive Midland, Michigan 48640 9 Frank J. Xelley, Esq.

Attorney General State of Michigan Environmental Protection Division i

720 Law Building Lansing, Michigan 485r13 i

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Mr. J. W. Ccek W . 1980 cc: Mr. Steve Gadiar l 2120 Carter Avenue.

St. Paul, Minnesota 551C8.

Mr. Ocn van Farewe, Chief Division of Radioicgical Health Department of Public Health P. O. Bcx 33035

• Lansing, Michigan 18909 - ,

I William J. Scanien, Esq.

2034 Pauline Sculevard Ann Arb0r, Michigan 48103 U. S. Nuclear Regulitary Commission Resident Inspectors Office 1

Reute 7 Midland, Michigan 48640 }

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-I- August 27, 1980 cc: Cearendce, flaval Surface Ucarons Center ATTN: P. C. Huang G 402 Ehite Oak Silver Spring, Maryland 20910

!:r. t.. J. Auge , !!anager facility Design Engineering Energy Technology Engineering Center P. C. Sox 1449 91304 Canega, Park, California i'r. k'illiant 1.aithc3d U. S. Cceps of Engineers

?.'C E E D - T 7th Flcor 477 Michigan Avenue Detroit ,141chigan 48226 "5. Earbara Stamicis 5795 N. River freeland, Michigan 4S623 Fr. Michact A. Rece 2015 Seventh Street 48706 Fay City ,14ichigan Ms. Sandia 0. Reist 1301 Feurth Street 48706 Gay City, Michigan M7. Sharen K. !!arren eJ6 lii!! crest P.idland, Michigan 48640 P P 'o D *b^%

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M F f19 6 1980 cc: Mr. William A. Thibedeau 3245 Weigl Road Saginaw, Michigan 48503 Mr. Terry R. Miller 3229 Glendora Crive Bay City, Michigan 487C6 e

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