ML20033A924
| ML20033A924 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/21/1981 |
| From: | Marshall W MAPLETON INTERVENORS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8111300166 | |
| Download: ML20033A924 (15) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Washington, D.C.
THE ATOMIC SAFETY AND LICENSING BOARD Administrative Judges:
'81 NOV 23 M1:33 Charles Bechhoefer, Chairman g
Dr. Fredrick P.
Cowan Admin. Judge Ralph S. Decker
$ fyh[,#,'h Jerry Harbour ERANCH In the Matter of
)
Docket Nos. 50-329 OL
)
50-330 OL CONSUMERS POWER COMPANY
)
50-329,OM' '
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50-330iOM~
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Midland Plant, Units 1 & 2
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Ok 3 t; 0 V 3 7 19 9 g.To G - % 2 g lj g x u 3
Dear Administrative Judges:
he Enclosed kindly find Mapleton intervenors, r
findings of facts and conclusions of law challenging the pur-ported construction permit from its inception to its consum-mation in the above captioned case.
Now comes the Mapleton intervenors through their s
president,-Wendell H. Marshall, pro pria persona, and con-firming the opening statement of the Mapleton intervenors at the beginning of the Soils Hearing before the A.S.L.B. Board Chairman Charles Bechheoffer, Administrative Law Jud:s, re-recites " Jurisdiction" of 402 and 404 of the Clean Water Act on Discharge of Solid Waste in Wetlands, which is dated January 31, 1979 of " General Council" opinion page AS-1.
Recites "Administra, tor of E.P.A."
Not secretary of Army has authority to determine whether discharge of solid waste requires N.P.D.E.S. permit or sect.lon 404 permit - Fill Material as discharge.
Discussion In full adherance of the Clean Water Act's (C.W.A.) goal of restoring and maintaining the chemical, physical and biologi-cal regularity of the nation's waters, section 301 forbids the discharge of any pollutants by any person except as in compliance with sections 301, 302, 306, 307, 318, and 402 and 404 cf section 402 (a) (1) provides, "Except as provided in sections '318 and 404 of this act.
The Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant or combinations of pollutants.
Notwithstanding section 301 (a) upon condition that such dis-3 charge will meet... all applicable requirements of sections 5
f 301, 302, 306, 307, 308 and 403 of this act."
/ {-
8111300166 811121 PDR ADOCK 05000329 H
-- M
The listed sections include the critoria for do-termining appropriate permit terms and conditions.
Section 404 allows the " Secretary of the Army, acting through the Corps _of Engineers, to issue permits for the discharge of
" dredged or fill material" through application of the 404 (b) (1) Guidelines, which are prepared by E.p.A. in consulta-tion with the corps.
By following the requirements of section 4 04 (c)
E.P.A. may prevent the discharge of dredged or " fill material" in certain sites.
The C.W.A. does not define " fill material."
The legislative history does not explain inclusion of " fill" in section 404 or discuss what the term means.
The most recent regulatory definition appears in the corps regulation at 33 C.F.R.-323.2 (M) 42 Fed. Reg. 37145, July 9, 1977 that section states, the term " fill material" means any material used for the primary purpose of placing an aquatic area with dry land or of changing the bottom elevation of a water body.
~
The regulations are silent as to whether E.P.A. or the corps _
should decide whether the primary purpose of a discharge of waste which replaces an aquatic area with dry land or changes the bottom elevation of a water body, such decision necessarily determines whether the 402 or the 404 permit program require-ments will apply to the discharge in question.
It is clear from statutory scheme that any discharge of a pollutant as defined in section 502 (12) not subject to section 404 is subject to section 402 - it is also clear from section 402(a) that a particular discharge must have either a 402 or a 404 permit, but not both.
The close connection between sections 402 and 404 is also shown by language in sections 404(f) and 404 (r).
The exemptions added by the 1977 amendments.
Each of these pro-visions states that certain discharges of dredged and fill material are not subject to regulation under either section 404 or 402.
This suggests that, in Congress' view, providing only section'404 exemption for those discharges was not enough, since E.P.A. would still be able to step in an6 require a section 402 perr[t.
l The previous definition defined fill material as "any pollutant used to create fill in the traditional sense of replacing an aquatic crea with dry land or of changing the bottom elevation of a water body for any purpose.
33 C.F.R.
- 209, 120 (d) (6), July 25, 1975 40 Fed. Reg. 31325.
This definition was incorporated by reference in E.P.R. 's 404 (b) (1) guidelines, 40 E.T.R.
230.2(b) September 5, 1975.
Where determinations that effect the applicability of an E.P.A. statute are not clearly committed by Congress i
to another Agency, E.P.A. should make these determinations.
- a
Corps regulation, this is only a fortuity.
E.P.A.
has proposed two sets of regulations.
The consolidated permit regulations and the section 404 (b) (1) guidelines, each of which contain the same definition of fill material.
If the final regulation retain these provisions, these will be two agencies with the same definitions making a nullity of any argument that the corps has a unique proprietary interest in the definition.
If E.P.A. adopts a different definition, it will supersede the one at issue here.
The history of the Act.does not lend much support to this argument.
H.R. 11986 authorized the Secretary of the Army to continue to issue per-mits for dredged and fill material.
After consultation with E.P.A. S.2770, as Amended allowed the Secretary to recommend discharge sites for dredged material alone, subject to E.P.A.'s approval.
The Conference committee allowed the corps to issue permits for dredged and fill material using E.P.A. Guidelines and subject to E.P.A. Veto.
In explaining the Conference com-mittee version, Senator Muskie stated, Section 501(a) states, "The Administrator is authorized to prescribe such regulations as are necessary to carry out the functions under the act."
101 (d) "The Administrator is responsible for admini-stering the C.W.A.,
except as explicity provided otherwise.
Since the primary purpose decision is effectively a decision to which the program applies, and since the latter decision has not explicitly been assigned to the Corps, it follows that it is che administrator's perrogative to make it.
A recent opinion of the U.S. Attorney General con-cerning the administrator's authority to determine jurisdiction under section 404 supports our inter-pretation (Attorney General Civiletti to Clifford Alexander, Sept. 1979 noting the Administrator's role under Section 101(d), the dual role of E.P.A.
and the Corps under section 404) and that a jurisdictional decision by the corps would necessarily effect parts of the program administered by E.P.A.
The Attorney General concluded "that E.P.A.,
not the Corps, had the authority to determine the jurisdic-tional reach of the waters of the United States."
While that opinion involved a term, " waters of the United States" which appears in a General provision of the Act (section 502(7) and the term " fill" appears only in section 404 (and related parts of section 208).
In eacn case the interpretation of the term clearly impacts other programs under the act.
In fact, in the instant situation an interpretation by the corps could conceiveably even ef fect the applicability of the Resource Conservation and Recovery Act, which is also an E.P.A. sta-f tute.
R.C.R.A. excludes from " solid waste" those industrial 1
e j
which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act."
E.P.A. also approves and oversees State 404 pro-grams, approves B.M.P.s which may serve in lieu of permits.
Section 208 (b) (4) (B) has the power to veto discharge sites and shores enforcement authority.
Section 501(A) states, "The Administrator is authorized to p>
.cribe such regulations as are necessary to carry out his fc
- ions under the act," and did not believe there could be any justification for permiting the Secretary of the Army to make the determination as to the environmental implications of either the " site" to be selected
~
or the specific spoil to be disposed of in the site (1972 Legislative History 177).
Thus Congress retained a separate program for dredged and " fill" material for administrative reasons but made it clear that such administrative interests did not override _the Administrator's responsibility for environmental concerns.
While Congress clearly did not anti-cipate +5e specific question addressed by this opinion, these general views concerning 404 program are consistent with my conclusion that the Administrator may properly determine the primary purpose. test.
I The Transcript Recites:
1.
The corps of Engineers Survey maps prepared under the auspices of the Detroit, Michigan office of the U.S. Army Corp of Engineers showing the " site" of the Midland Nuclear Plant situated in a flood plain as attested to by the 82nd Congress of the U.S.A. Witness gegeological earth mechanic Kane, expert witness for N.R.C. properly sworn under oath swore that the permit to construct nuclear plant at this site was issued by j
the Army Corp of Engineers and not the E.P.A.
Also - as to the Aquatic fill.
Dr. Peck as well as Kane discussed this briefly.
The departure from the P.S.A.R. to the F.S.A.R. was to present a moot legal question as to, void or voidable con-struction permit at the licensing stage.
i The transcript recites as relates to safety related f
Generator Building sinking more.to date than was expected for l
the entire life of the structure and still settling downward.
I D. Hood, a N.R.C. Project Engineer, stated if not for the cost he would recommend demolition of the Safety related Generator Building and rebuild it from scratch.
The Vice President Howell for Consumers Power stated under oath that "the top priority of Consumers Power Company was to be at any cost public health and safety.
The Mapleton Intervenors in the transcript charged the board was without authorization to make a determination over the soils subject or subject matter l
for the Consumers and/or the N.R.C. that they, the Board, to entertain both the soils jurisdiction below the surface of applicants described parcel was an " Abuse of discretion" not voidable but rather " void" from its very inception and plead 4
that the board was without jurisdiction over the Soils either the subject or subject matter and that statutory authority had j J
been exceeded by the Army Corp. of Engineers.
See Riverside Irrigation Dist. vs. Stipo C.A.No. 80 2142 Sept.
2,
- 1981, Oliver Seth, Chief Judge.
See Freimanis v. Sealand Service, 1
Inc. C.A.5 No. 80-3441 Sept. 4, 1981, Thomas Gibbs, Circuit Judge, see O' Leary v. Mayer's Landfill Inc. E.D.PA No. 80-3849 June 9 an'a Aug. 27, 1981, Louis H.
Pollak, District Judge.
See F.S.A.R. cr.d study Meltzer v.
Zoller D.C.N.J.
No. C79-3176 Aug. 17, 1981, Lawrence A. Whipple, Senior Dis-trict Judge.
Likewise, the refusal of a subpoena Duces Steakan August 25, 1981 Federal Registrar Vol. 46 No. 165 - p. 42968.
See Coalition for Fair Utility Rates, Inc. v. Baker C.A.10 No. 81-1334, Aug.
7, 1981 per curiam.
See American Paper Institute v. U.S. Environmental Protection Agency C.A.4 No 79-1511.
July 28, 1981, Sam J.
Irvin, III, Circuit Judge.
James Dickson Phillips, Circuit. Judge.
Filed a concurring and dissenting opinion.
See Environmental Defense Fund, Inc.
- v. Hiqiinson C.A.D.C. No 80-1123, May 14, 1981, George E.
MacKinnsia, Circuit Judge.
See Moore v. Burger C.A.D.C. No 80-2414, May 22, 1981, per curiam; Harry L.
Edwards, Circuit Judge filed a concurring opinion.
See Hardison v. Alexander d.A.D.C. No 79-2485, May 26, 1981, Malcolm Richard Wilkey, Circuit Judge, David L. Bazelon, Senior Circuit Judge.
Filed a concurring opinion.
We the Mapleton Intervenors charge the Consumers Power Company is constructing a nuclear power plant - 1 & 2-without proper authority from Congress and we feel this would result in a violation of due process for recourse from future impacts against the health that might result and include death of the citizenery of Mapleton and/or deaths among the general public.
It's a safety related matter.
See August 4,
- 1981, Federal Register Vol. 46 No. 149, p. 39583.
Also see August 5, 2981 Federal Register Vol. 46 No. 150 p. 39854.
The Mapleton Intervenors charge the construction cf the Consumers Nuclear Power Plant under a permit issued by the Army Corp of Engineers in a flood plain which was mapped as a flood plain and per-mitted the construction over a parcel of land having a void 4,200 feet below was negligence unauthorized and a violation of due process as to the general public health and safety.
See Conset Corp. v. Community Services Administration C.A.D.S.
No 79-1174 June 5, 1981, Harry T.
Edwards, Circuit Judge.
The Mapleton Intervenors claim "a protected liberty interest" under the U.S. Constitution.
Failure to obtain the E.P.A. permit may give rise to a private cause of action for failure and the action may'be brought to force " specific performance."
See People of Illinois v. Celotex Corp. C.D.
i
Ill.
No. 80-1225, June 19, 1981, Robert D. Morgan, Chief Judge.
See Flood Control Act - Immunity.
33 U.S.C.,
703c Britt U.U.S.
(M.D.Ala.), No. 80-171-N, May 29, 1981, Myron H.
Thompson, District Judge.
Jurisdiction Equal Rights to Equal Protection privileges and immunities under the laws -
Lomei V. Finley, N.D.
Ill, No. 81C 1715, June 30, 1981, Milton I.
Shadur, District Judre.
The Mapleton intervenors never consented to failure of Consumers Power Company and/or N.R.C. to obtain a construc-tion permit from the E.P.A. as set forth by delegation of U.S.
Congress.
The Mapleton intervenors have never waived any rights of any kind or nature whatsoever, nor gave consent to waive congressional mandate to E.P.A. to issue Consumers Construction Permit.
We were r_ot even consulted as to the assump_ tion of risk.
See Michigan Law - adequate warning - Government breached its duty violating our guaranteed constitutional rights.
See Hasler v.
U.S.
(E.D. Mich) No. 78-70130, July 15, 1981, Horace W.
Gilmore, District Judge.
See Equal Protection -
State Residency Hawaii Boating Association C.A. 9 No. 79-4836, July 20, 1981, John F. Kilkenny, Senior Court Judge.
Court denies jurisdiction to enforce the issuance of a subpoena duces tecum.
See F.T.C. v. Jim Waler Corp. (C.A.5)
No. 80-1597, July 6, 1981; Alvin B.
Rubin, Circuit Judge.
The fact that Mapleton intervenors claims violations of their constitutional rights both state and federal - during a hearing for " Order of Temporary Modification of a Violation Before Issuance of a License".
See 189(a) of The Atomic Energy Act.
See Sholly v. U.S. Nuclear Regulatory Commission (C.A.D.C.) No. 80-1691, March 4, 1981 per curiam; Edward A.
Tamm, George E. MacKinnon.
See Oil, Chemical and Atomic Workers Intern Union, Local No. 4-16000 v. Ethyl Corp. C.A.5 No. 79-3471, May 11, 1981, Irving L. Goldberg, Senior Circuit Judge.
For the Corps of Engineers to issue a construction permit in l
a flood plain'Mapleton in tervenors claim this to be and con-stitute " Abuse of Process" which is a tort.
See Sherrod v.
i Piedmont Aviation, Inc. (ED. Tenn.) No Cir. 2 79-213, Dec.
3, l
1980, C. G.
Neese, District Judge.
We the Mapleton intervenors take exception to the issuance of the construction permit to Consumers in a flood plain despite their claim of having met its environmental impact statement under its obligation to conform with N.E.P.A. Clean Water Act.
See (C.A.D.C.) No. 79-l 2432, April 21, 1981; Halington Wood, Jr.,' Circuit Judge for the Court of Appeals for the seventh Circuit, sitting by l
designation.
I l
t I
l Denied subpoena - where rate payers are asked to pay for obligations.
See Florida Power & _L_ight Co. v. Westinghouse Electric Corporation (ED Va.) No. 75-1677-R, June 25, 1981; Robert R. Merhige, Jr., District Judge.
See Transcript -
Witness Kane 3577 Docket No. 50 3290-L OM 50-330 OL & OM, August 7, 1981 - Site removal aquatic land removal.
Kane assumed that the Army Corps of Engineers issued or a permit would be required from then and he assumed that was followed.
"I think they did, yes."
Failure to force President Selby of Consumers Power to present before the board subpoenaed contract construction we feel was a violation of the Sunshine Act.
See Common Cause v. Nuclear Regulatory Commission (D.C.D.C.)
No. 80-2347, July 2, 1981; Edward M.
Curran, Senior District Judge.
See Transcript - Darl Hood.
See Dr. Hendron, Transcript Docket No. 50-329-OL & OM, 50-330-OL & OM, August 11, 1981, page 3975 - transcript pages through 3979.
See Kane transcript page 4123.
Require more rip rap protection on the slope to prevent erosion.
N.R.C. would want to address this aspect.
When the P.M.F. level is finally resolved.
See page 4125 Kane.
See Marshall, page 4127.
See Kane 4128 and 4129.
See Kane page 4131.
Transcript page 2442, August 7, 1981, Dr. Ralph B.
Peck.
Bechtel Consultant and not to Consumers Power Company 1979 year January - August 1979.
See Dr. Peck top of page 3445 regarding grouting - See Peck bottom of transcript page 3446 - also page 3447 line 12 through twenty five.
See transcript Dr. Peck 3448 complete 3449 transcript.
See Kane transcript page 3555, also 3556 lines 17 and 18.
See line 20.
See Zamiran lines 14 through 18.
See Kane on fill 3558, lines 15 through 17 See Kane 3550 transcript lines 14 to 18.
Kane 3560 lines 2 through 4.
See line 5 and Kane line 9 through 11.
See Kane 3562 lines 7 through 10 transcript.
See Marshall transcript 3567 lines 2 through 9.
See transcript all of pages 3568 and 3569, page 3570 and 3571.
See page 3585 August 8, 1981.
See Nuclear Power Safety Analysis Report, June 29, 1981, September 8, 1981, Federal Register Vol. 46, No. 127, p.
34595.
Darl Hood transcript page 4462 lines 18 through 25, pages 4463 and 4464 lines 7 and 8.
" Hood yes I l
would like them to demolish it and go with another option."
See " Nuclear Power Plant Construction Permits" adopted final rule on review procedures for licensing board decisions, as amended September 23, 1981 - September 30, 1981 Federal Register Vol. 46 No. 189, p.
47764.
It has been said,
" Judicial intervention on fundamental issues are most clearly j
l justified (only) when there is no other remedy for a situation j
that threatens the national fabric."
N.Y. Times, Nov. 15, 1981, at 41.
When the political change is blocked, to which we should add, however, the central caveat that the Court must always consider is.whether it possesses a constitutional warrant.
The question is not whether the Court can do everything, but whether it can do something, and do that in the proper sphere.
l See Freund, The Supreme Court of the United States (Cleveland l
and New York:
The World Publishing Co., 1961).
The Supreme l
' l
Court, the living voice of the constitution and as such, both arbiter and educator acting " Collective conscience of a sovereign people.
See Lewis, N.Y. Times, June 17, 1962 at 38.
Do we desire constitutional questions to be deter-mined by political assemblies and partisan divisions?
Asked Charles Evans Hughes (see The Supreme Court of the United States, 236 New York:
Columbia University Press, 1928), the Congress entrusted the granting of construction of a nuclear plant permit adjacent to a navigable stream to the exclusive authority of j
the E.P.A.
and failed to grant dual authorization to the Army Corps of Engineerc at Midland, Michigan.
See aspects of the 1967 Mallory decision entitled Mallory v._ United States, 354 U.S.
449.
Also see The Omnibus Crime Control'Act of 1968 - 31.7 Wall 506 (1868).
The Consumers Powe Company as relates to the rate payers finances reflects, " George Reedy, Press Secretary for President Lyndon Johnson guaged the matter rather perceptively, when he said that he, 'liked what the Court was doing, but could l
not avoid the apprehension that it was taking an awful lot of money out of the bank and would do well to put a little of it back from time to time.'"
This Court might well ponder the shrewd insight of that message.
It must also be remembered that Congress can, by a simple majority, undo or alter some Court decisions.
Article III, Section 2 reads, "the Supreme Court shall have jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."
These may be " wine in words" as Justice Holmes and E. M. Foster were fond of saying.
The words of Article III are crystal clear.
See Abraham, Line drawing between judicial restraint and judicial activism:
the Supreme Court of the United States in 'the political process in McDowell (Ed), Taking The Constitution Seriously, pp. 89-98 (Dubuque Iowa:
Kendall/
Hunt Publishing Co.,
1981).
And in conclusion:
out of hand law making on the issue by the executive branch through over zealous administra-tors.
At this point we address ourselves to the fine point -
the line between law-finding and law-making.
See Berger, Government By Judiciary (Cambridge:
Harvard University Press, l
1977), Choper Judicial Review and the National Political Pro-cess (Chicago:
University of Chicago Press, 1980).
- Ely, Democracy and Distrust:
A Theory of Judicial Review (Cambridge:
Harvard University Press, 1980); Gavin, Judicial Review and the Reasonable Doubt Test (New York:
Kennikat Press, 1980).
Article III, See Cary v. Curtis 3 Harv. 236 11 L.Ed.
576 (1845) - Judicial power of the Court is dependent for its modes of excercise limited entirely upon the action of Congress, who possesses the sole power of creating the tribunals (inferior to the Supreme Court) and limiting and withholding jurisdiction from them in the exact degree and character which to Congress may seem proper for the public good.
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6 o
~
In 1810 in Durousceau v.
U.S., Chief Justice Marshall emphasized that the Court is bound even by implied exceptions to appelant jurisdiction, so that, in effect it can exercise it only where exprer Qy granted by Congress.
10 U.S. Cranch 307.313 (1810).
C agiro points out that judging is "an integral part of the mainst_ sam of political authority rather... than a separate entity."
Tae Shapiro, Courts:
A Comparative press 1981.
The critics forcet that judiciary's very task is to protect civil liberties, be<
.e the statements in the Bill of Rights are only rights in thevry, they need all the help they can get if they are to survive in fact.
Emphasizing our nationo_ constitutional ideals, "We are also told that Judges are preoccupied with individual cases, and thus do not think about whether the cases before them represent a typical situation from which Erecedent for later cases might be properly derived, or are extremes and thus to be confined to tneir facts."
Enclosed and attached hereto is Docket No. 50-329 and 50-330 under date of Octobe'r 22, 1981 United States Nuclear.
Regulatory Commission over the signature of Elinor G. Allensam, Chief Licensing Branch No.
4, Division of Licensing.
Enclosures:
- Maps, For this purpose a cover letter and two maps herewith annexed.
Figure 2-1-2 under the title and designation of Towns and Cities within 10 Miles of Midland Plant Units 1 and 2, Con-sumers Power Company which purports to be evacuation maps.
No where does it indicate how long it will take in the interest of public health and safety for the first time in seventy five years to completely shut down, safety first in mind, without loss of life.
The largest chemical complex of its kind in the entire world - which is separated from the Consumere Power Company Nuclear Plants 1 & 2 by Just a navigable stream known and de-scribed as the Tittabawassee River, estimated to employ from 4,400 to 5,500 people at all times.
Three shifts, twenty-four hours per day, seven days per week, 365 days per year.
To subject these people who as chemical workers are harnassed to their jobs much like a canal horse until relieved works mental anguish upon them subjecting them to the constant fear of nuclear prot-lems in addition to the problems of safety they work under and in connection within the chemical industry.
i "It is mandatory that the regulatory commission enforce and uphold their own regulations" and it is a clear violation to under N.R.C.
regulations to site a nuclear plant in a densely populated area certified by the Afmy Corps of Engineers as being situated in a flood plan and without the advantageous endorsement of Congress who delegated in the in-stant case the undevided authoriiation to issue a construction permit to the E.P.A.,
not -the U.S. Army Corps of Engineers.
We, the Mapleton intervenors ask in this petition that the A~.S.L.B. not grant an operating license to Consumers Power Company of any kind or nci..ure whatsoever.
Administra-l tive agencies as well as Courts have long been criticized for l
l predominant reliance on a case by case approach instead.of rule-making, although rule-making is also criticized when it produces disliked results.. We must also remember that 'most-legislative action does not commence until-after a ' series of' constituent interest group complaints.
Yet it is equally the case that agencies charged with enforcing legislation do not continuously monitor many matters under their jurisdiction _-
to argue that Judges are not prepared by training and exceri-ence to supervise administrative agencies, or of being adequately.
informed about" disputes and in their relation with experts.
See Howard, Adjudication Considered As A Process of Conflict Resolution:
A VariLtion of the Separation of Powers, 18 J.
HPub.
L.
339, 350 (1969).
See Jones speculative augmentation 1
in Federal Air Pollution Policy-Making.
See Carter, When s
Courts Should Make Policy:
An Institutional Approach.. In Gardner (Ed) Public Law and Public Policy, 145 New York:.
i Prae ger. (19,77).
Familiarity with the language in which n I
policy problem is articulated and understanding about cause and effect beliefs that define the existence of a problem in I
the-first place.-
The' public's belief that authority and competence match the problem.
Then it is true a decision i
must be in line with community social and political values; moreover producing more soul-searching by judges in decisions 3
and constraints imposed by Courts.
They must look to_the law.
i See Dixon, The New Substantive Due Process'and Democratic Ethic 1977 B.Y.U.L. Rev. 43.73N.134.
See the abuse of discretion doctrine.
See Baum, Lower Court Response to Supreme Court reconsidering a pictuib.
3 Just. sys J.
208, 216 Spring, 1978.
See Baun, supra N.
52.
It follows like the night follows the day and has been said.
" Lawyers simultaneously play a large role in judicial selection and are' members of the political elite."
i
]
Not withstanding this fact the Mapleton intervenors through their Presdient, Wendell H. Marshall in pro-pria i
personna, in compliance with the foregoing respectfully.
petition for a redress of grievance and respectfully request l
that A.S.L.B. Board deny, set aside and comply with the N.R.C.
regulations prevailing against the unlawful encroachment of l-the public rights and public health and safety by absolutely.
unconditionally disallowing a license to issue to Consumers l~
Power Company to degrade the atmosphere of Midland, Michigan and surrounding area by authorizing the licensing of a crippled Unsafe Nuclear Plants Nos. 1& 2, contrary to the existing written N.R.C. regulations and contrary to both State and U.S.
Government laws.
To date the nuclear industry's arguments have I
been so readily accepted that the Midland Nuclear Plant's de-fects must be open(v exposed to the satire and contempt of the citizenry who has been reluctant as captives, forced as rate-payers to contribute to the foregoing dispute - the broader public concern for their greater public health and I
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safety to date have met with non-compliance with accountable views of important segmer's of the public and expressed public opinion demanding accountu ility for their actions in the con-struction of a dant.erous it.3trumentality in the form of a sinking fund of the rate payers money in the' form of a safety related sinking generator building which has to date started its downward trend more than it should sink in fourty years.
All of this constructed in direct violation of the N.R.C.'s own rules and regulations as to site location and I do not have to remind this board that the N.R.C.
is held bound by its own regulations.
Once again the Mapleton intervenors dispute these potentially divergent strains as above recited and request the A.S.L.B. Board to unconditionally deny the licensing of the Midland Nuclear Plants of Consumers Power Company Nos. 1 and 2:
1)
Non-conforming permit 2)
Dangercus to public health and safety related buildings 3)
Applicants site and the entire parcel of land is unfit for the purpose and is a non conforming site for such a use and without question is a contribu-ting factor to pose a threat to public health and safety.
Furthermore there is no insurance company that will carry the risk or the assumption of risk to endemnity against loss of life or to subjergate the loss of the Dow Chemical Company and those. insurance companies carrying the risk as to the real property less and personal property loss.
Last but not least the possible life of 5,500 employees.
We do not wish to pay "tco much for our whistle."
Kindly look down from your lofty perch and see this the natives nee it - a nuisance, both public and pri-j as we, vate and a threat to the domestic tranquility of our every-j day lives.
The foregoing is respectfully submitted for your deliberations and from the law and facts.
W'. wish you t:e find
'for us and grant judgement in our favor by denying a license to Consumers Power Company for operation at any level of these nuclear plants that once again, we can restore to Mapleton and Michigan domestic tranquility, which is our right under the Michigan constitution as well as the U.S.
constitution.
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'e We the Mapleton intervenors wish to record at this time that Michigan is still a sovereign-state and accordingly ask this board to take " judicial notice" that his excellency the Governor _of Michigan "by executive order" presently in full force and effect, has stopped the transportation of nuclear waste materials across the highways and byways of the sovereign states of Michigan.
Moreover the Senators have held meetings in our state fc: a moratorium against the licensing of nuclear plants in Michigan.
Accordingly take judicial notice that the Attorney General Frank Kelley has represented the people of the State of Michigan before the Courts and also as an intervenor has presented the facts that Michigan on the basis of need does not need this needless millstone and/or albatrose around our i
neck.
It does not have a use; that is to.say it is useless and represents Consumers Power Company's " white elephant" and/or their wild spending folley which can be equated with what they say about enebriated sailors.
At this time, I wish the board to take judicial notice that United States Senator from Michigan Don Riegle serves on the committee on commerce, science, and transpor-tation.
Morecever, that he has presently co-sponsored a bill given to state participation in the decision-making process concerr.ing radioactiva materials which provides for formal process of state participation and concurrence regarding the management and storage of radioactive materials.
l, I wish to request my presentation addressed to the l-United States of America. Nuclear Regulatory Commission.
i A.S.L.B.,
Washington, D.C. filed and dated the 16th day of January,1981 at Midland, Michigan be incorporated by refer-ence under separate cover into and. annexed to this brief.
I l
" Environment jurisdication" expense borne by-whom,,
See U.S. v. Price D.C. N.J. No. 80-4104, Sept. 23, 1981; Stanley S. Bratman, District Judge.
Mapleton, and Freeland, Michigan represented by Barbara Stamiris.
Both villages water supply comes from water wells located downstream from l
the applicant's Nuclear Plants. constructed in a flood plain over " bad fill material" and also poor quality fill as i
sworn under oath by N.R.C.'s citizen Kane to make up the Cooling Pond Dikes, which according to Kane seeps into the i
Tittabawassee River.
I l
( l L
CONCLUSION i
Based on the foregoing presentation of evidence, I am of the considered opinion that it is just, wise, necessary, and correct for the Atomic Safety and Licensing Board of the Nuclear Regulatory Commission to deny operating licenses to the Consumers Power Company (Midland Plant, Units 1 and 2); and I hereby humbly petition and request the Atomic Safety and Licensing Board to do so.
Dated this 21st day of November, 1981 A.D.,
at i
i Midland, Michigan m
/
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']046 fl bf Wendell H. Marshal]l President, Mapleton Intervenors Route #10 Midland, Michigan 48640
- 6/[
N' h Hen' dell H. Marshall i
In Pro Pria Persona Addendum:
Presentation For Pre-hearing Conference dated January 16, 1981.
Mapleton's Exhibit 2 (consisting of letter to Mr. Harvey j
Nelson & 3 maps) e 9 r
~_.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ni;ugg, Washington, D.C.
' 1NO:
THE ATOMIC SAFETY AND LICENSING BOARD
'81 NOV 23 A11:33 (A L.
i 50-329-OL kfy In the Matter of
)
Docket Nos.
50-33DJ. oms
)
50-329:W CH CONSUMERS POWER COMPANY
)
50-330 OM
)
)
Midland Plant, Units 1 & 2
)
Certificate of Service I, Wendell H. Marshall,- attorney pro se for the Mapleton intervenors, hereby certify that a copy of Mapleton intervenors proposed Findings of Fact and Conclusions of Law was served upon-all persons shown in the attached service list by deposit in The United States Mail, first class, at Freeland, Michigan this 21st day of November, 1981.
)u Wendell H. Marshall i
J Subscribed and sworn to before me, a Notary Public, this 21st day of November, 1981.
LD3 LL A
i.
Susan Kay Hunt
- f. M...,'.
Notary Public f '. ' ( y' Midland County, Michigan My Commission expires June 2, 1982
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SERVICE LIST CC' KEIED tritiRC Frank J.
Kelley, Esq.
' Steve Galdl 81, NSH@ A11:33 Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota-rg '5108 5
Carole Steinberg, Esq.
. c: SMES,id[
~
Assistant Attorney General Atomic Safety & LiWEnsing Environmental Protection Div.
Appeal Pnl.
720 Law Building U.S. Nuclear Regulatory Comm.
Lansing, Michigan 48913 Washington, D.C.
20555 Mr. Wendell H. Marshall Mr. C.
R. Stephens RFD 10 Chief, Docketing & Services Midland, Michigan 48640 U.S. Nuclear Regulatory Comm.
Office of the Secretary Cha.ples Bechhoefer, Esq.
Washington, D.C.
20555 Atomic Safety & Licensing Bd. Pnl.
Ms. Mary Sinclair U.S. Nuclear Regulatory Comm.
5711 Summerset Street Washington, D.C.
20555 Midland, MI 48640 Dr. Frederick P. Cowan William D.
Paton, Esq.
6152 N. Verde Trail Counsel for the NRC Staff Apt. B-125 U.S. Nuclear RecUlstory Comm.
Boca Raton, Florida 33433 Washingt:n, D.C 0555 Admin. Judge Ralph S. Decker Atomic Safety & Lleensing Route No.
4, Box 190D Bd. Panel Cambridge, Maryland 21613 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Carroll E. Mahaney Babcock & Wilcox Barbara Stamiris P.O. Box 1260 5795 North River Road Lynchburg, Virginia 24505 Route 3 Freeland, Michigan 48623 James E.
Brunner, Esq.
Consumers Power Company Jerry Harbour 212 West Michigan Aver.ue Atomic Safety and Licensing Jackson, Michigan 49201 Board Panel U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555
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'h..[ri-M Addendum
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f' NUCLEAR REGULATORY COMMISSION
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007 2 2 1981 Docket hos. 50-329
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50-330 h.
/9 000 Pry 3 Mr. Harvey Nelson C
NOV0 3 i
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- g-1 Regional Director, Region 3 LN
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U.S. Fish and Wildlife Service M ', 1 ' : :n.:' 8-f 2
Federal Building N - - L.,,::'
Fort Snelling 9f Twin Cities, Minnesota 55111 j[g g
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Dear Mr. Nelson:
The Consumers Power Company, Jackson, Michigan, has applied to the U.S.
Nuclear Regulatory Commission for an operating license for the Midland Nuclear Generating Station, Units 1 and 2.
We are preparing an environmental impact statement as part of our operating license review. Based on our interpretation of Section 7(c) of the Endangered Spyc1_ gt Amendhof 1978 (PLJ5-632) JgS.Cm 51536(c), and tfie~f act that crnstruction of the Midrand7TaTirbegan prior 15~Rovemb6r 10,1978, initiation of a Section 7(c) information requirement is not required. However, to assure a thorough environmental review, we request that your office' provide NRC with information concerning proposed or listed plant and/or animal soecies~
that may be present in the vicinity of the Midland plant site or along thA asTociated transmission corridors.
We a:.eticipate that a draft environmental impact statement, which will assess only impacts of operation of the Midland plant and associated transmission systems, will be available for public comment during February,1982.
l l
The Midland site is in Midland County, Michigan, within the southern part of p
Midland city limits. Accroximately 1,235_ acres _are nc osed by the site _
1 Maps showirg D t si_te location an associa nsmission l
b6undary.
_i
=
lines are enclosed.
7 l
If your office does.-net-trave-coppiof-the 'idhnd4nv.iranmental Report-l OpeFEiiig Liceise Stage and the 1977 Final Environmental Statement-Construction l
Permit Stige, we will arrange to forward them to you.
O
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c Sincerely, l
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'h k* W Elinor G. Adensam, Chief Licensing Branch No. 4 l\\
Division of Licensing
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TRANSMISSION LINES f 7.
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s a ORIENTATION MAPS MIDLAND PLANT UNITS la 2 CONSUMERS POWER COMPANY
. _.. -. _. - _... _. _..