ML19331A279

Proposed Findings of Fact & Conclusions of Law Re Environ & Radiological Health & Safety Matters.Eccs Effectiveness, Reactor Pressure Vessel Failure & Commitment to Unknown Industry Not Discussed at Hearing.Requests ASLB Deny CPs

ML19331A279
Person / Time
Site:	Midland
Issue date:	09/15/1972
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007160865
Download: ML19331A279 (14)

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• 9 September 15, 1972 {

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\ .,,,, . c. UNITED STATES OF AMERICA

- O' ATOMIC ENERGY COMMISSION f

' QGg'"I'- f i bEFORE TliE ATOMIC SAFETY AND LICENSING BOARD l IN TIIE MATTER OF )

) Docket Nos G 0-32 D CONSUMERS POWER COMPANY )

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(Midland Plant, Units 1 and 2) )

F SAGINAW VALLEY ET AL. INTERVENORS PROPOSED FINDINGS OF FACT - -

AND CONCLUSIONS OF LAW

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I THIS DOCUMRT CONTAINS Environmental Matters POOR QUAdTY PAGES At the last conference among counsel, the Board f.e t r.e pt mix r 15, 1972 as the date on which the Saginaw Valluy et al. Intervenors should submit their Proposed ,

Findings and Fact and Conclusions of Law. Counsel for the Saginaw Valley et al . Intervenors was not - at the l'as t Pre-11 earing Conference but was informed of its substance and requirements af ter the f a.:t. Neither counsel for Saginaw V.111cy et al. Intervenors nor Saginaw Valley et al. Inter-venorn participated in the environmental phase of this hearing. The reasons, therefore, have been stated earlier in our submissions. Thus, we believe it basically and intrinsically 800716026I G

x unf air for the Atomic Energy Commission (for it is the commiucion, since this Board is merely an agent of the Com-ission) to schedule hearings on the Midland reactcas at 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 scheduling 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

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Commission's regulation s . In this context, for the Commis-

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sion to permit the Midland hearing to go on unabated without .

permitting Saginaw Valley et al. Intervenors the benefit of counne1, while at the same time not permitting I'CCS issuen to be ruined 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 !!carings and receive their rights with respect to those issues, while at the same time penalizing Saginaw Vol ley et al. Intervenors (and their counscl) for having so participated and, thus, not being available for the environmental phaseof this proceeding.

. . ... l 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 forth. Instead, Saginaw Valley 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.

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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 llegulatory St'af 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.

In the event that such a decision does not comport with our view of the applicable law, we intend to submit, on a f

timely basis, exceptions to such initial decision, and seek l

nuch further appellate review as may be required.

We 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-f actorily analyzed.

1/ An not.<<! before,'Saginaw Valley et al. Intervenorn tried without nuccess to retain an attorncy other than their presen t counsel.

II Radiological Health and Safety Matters We have reviewed thc 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 lay the basis for the claim we make in this section of our Appli-Proposed Findings of Fact and Conclusions of Law.

cant would have the Board, an entity set up by the Atomic ,

Energy Commission pursuant to the authority of the Atomic Energy Act, accept the fact that the regulatory agency and utility industry have decided that the Midland Plant -

should be built and that is that, de are more convinced now than we were two years ago that the real dif ficulty with analyzing a nuclear reactor lies in the overwhelming commitmunt that is made before no one really has an oppor-t uni t.y to make an analysis. Perhaps this is all the law I

l requires, although we think otherwise. Perhaps also the Atomic Energy Commission's promotional and regulatory functions do not create a bias, if you will, an intrinsic

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and inherent bias against those who challenge nuclear safety; but we think not.

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We 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.

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.. l we are not prepared to state that the bias we urge is personal or peculiar to the Intervenors in this case, we are prepared to say, as we have said before, that Board members have a long and successful relationship with the development of nuclear power; an inherent (almost genetic) feeling that a loss of coolant accident will never happen; and that any safety or environmental problem raised during the course of licensing hearings can be resolved at some point before it is too late.

Witness, for example, the role of the Advisory

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Committee on Reactor Safeguards (a Committee of whf~h Dr.

ltall was a member) . That Committee consistently salves . '. .'

its conscience by alluding to unre. solved safety problems, but nonetheless makes recommendations in favor of construc~

tion and operation of nuclear power plants. They do so in the continual context and knowledge that problems noted several years ago continue to be unresolved. Did Dr. Hall como to this hearing with an open mind about alteratives to nuclear power? We think not. See, for example, Dr. Hall's i pronouncement that it was the Intervenors who had to convince 1

him of the lack of safety rather than what the law requires that the Applicant and Regulatory Staff prove objectively the merit of their assci:tions. See Tr. 1019-48. See also Tr. 1923, 162, 380-81.

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Did Dr. Goodman come to this hearing with an 4 gn mind about the alternatives to nuclear power? We think not, and we respect f ully observe some of the comments made by Dr. Goodman and particularly 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, c.g., Tr. 1233, 1289, 1347, 1456, 1922, and 2697.

Even Chairman Murphy was susceptible to what we regard as the " occupational hazard" in the nuclear industri .

Thus, Chairman Murphy, at numerous times, required that J ntervenurs disprove long-standing assumptions bef6re they would be permitted to crocs-examine and interrcgate in such '.~~

areas. See, e.g., Tr. 1880 and 2099. See also Tr. 2958 and 3048.

Although we have through the months found the q,

Board's position and rulings understandable in light of the lloard members ' historical relationship with nuclear power and the industry itself, we find them nonetheless unaccept-able. iven, for example, a continuation of the collective positions of Drs. Hall and Goodman, we believe that ECCS technology would be in even a far 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 bi deciding everything, among themselves, without the kind of healthy criticisms that can only come from outside sources.

We have not, therefore, chosen to scarch the record and respond to this proceeding by submitting citations of matters which we believe were proved 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 beluw, it was not and cannot be regarded as an exposition of the relev.at issues. We are q tick to add that perhaps th ' blame is to be shared equally, ,

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although we believe it is the Coramission's responsibility 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 aircady made and incapable of reversal, and so fearful of cmerging as a proponent against public hearings, has reacted irrationally at every turn; and its agent, including the Hoard members here, have unfortunately not taken issue with l

such irrationality. We do not make these statements in personal disrespect of the Board members. We do maintain the belief, 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 lack of independence. Thus, Dow Chemical has been disserved.

It blindly relics upon Consumers Power which in turn blindly.

relics upon Dabcock and Wilcox which in turn is blindly regulated

by the Regulatory Staf f, an arm of the agency unders taf f ed i

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 took abuse for exercising their statutory rights have been , __

disserved. These people were then condemned for not having had the expertise to raise and resolve problems which still ,

perplex the " experts." ~

.Each of these occurrences has resulted from the g fact that industry members were not self-critical, and did not ask what other alternatives there are to construct a nuclear

• . power plant at a time when significant safety items are unresolved, and we do not know what we will do with the "b]oody mess" 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 f avor of Applicant and the Regulatory Staf 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 which may be rendered by the Board.

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A. The Board first agreed that the emergency plann of the Applicant were insufficient and, indeed, woef ully inadequate. The Applicant then filed a lot of papers and that was the end of that. In fact, the Board never received even the 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-

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cant and literally agreed that the Appl'icant's pro-cedurcs would not comply with the relevant regulations.

Indeed, it was determined at the hearing that QA and -

Oc were nonexistent during the fabrication of the pressure vessel and that the Compliance Division had not even inspected the pressure vessel until it was more than 90% completed. Yet no significant changes were ordered.

C. . The Advisory Committee on Reactor Safeguards Letter was admi'tted into evidence over objection to ,

show that the ACRS issued a favorable recommendation

. - regarding the Midland Units. The Board allowed as how the ACRS Letter was "not evidence." Yet as 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-Applicant is busily engaged in ~ attempting to resolve items which were noted as unresolved in the' Letter. -But no

more was done. Why? We suppose i-t 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 country were sent to Washington with lesser rights and the assur- -

ance that the ECCS hearings would last just long enough to license every plant whose application was on file with the Regulatory Staff as of June, 1971. _

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We must comr.cnd the Board and particularly Chairman 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 issues, while no'netheless applying the existing ECCS regulation. However, AEC " policy" barred even the Chairman '.s efforts. l E. Surely' this Board and particularly Drs. Hall and Goodman are aware of the Reactor Operating Experi-(" ROE") published by the Atomic Energy ence Reports l

I . Commission. Did either of the scientific members of the Board inquire of the Applicant or the Regulatory S taff whether the industry _ and, particularly, the i

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Applicant, has taken cognizance of these experiences ,

or asked what steps Applicant intends to take to j i

assure no reoccurrence of silly and sometimes near disastrous accidents?

F. The design of the Units and some of its more scphisticated 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 f acility jpui it-is too late to offer a substitute system or design? _

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-plicant and the Regulatory Staff deal'ing with reactor pressure vessel failure'and integri'.y were disallowe'd upon the grounds that reactor pressure vessel failure, if a credibic~ accident, would require denial of a construction permit. We assume that the Board had decided .by administrative flat that reactor pres.sure ,

vessel failure was incredible. Wher:e is1 the evidence for such a conclusion? Has th'e Board read the ACRS reports dated August 17, 1972 on Zica Units-1'and 2

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and Forked River Unit 1 which raise again the issue of reactor pressure vessel failure and allow as how research has to be done to determ.ine whether such an accident is credible? Has the Board read the Regulatory Staf f's Brief'in Indian Point Unit 2 where it allows, in argument to the Appeal Board, that reactor pressure vessel integrity is indeed . - .

an issue in licensing proceedings and is required to be analyzed pursuant to the definition of a Loss of ~

Coolant Accident as set forth in Appendix .A to' Part 50? '

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Is the Board now prepared to suspend the issuance of a ' construction permit until such time as the question of credibility of reactor pressure vessel failure is resolved? ,

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. CONCLUSION We trust the -Board members w'ill' not thke ' umbrage at the tone of this submission'. 'The remarks'made herein arc evidence of'the frustration that one group of Inter-venors has experiened before 'one administra'tive agency.

The f ault lies with' the Commission, the' industry- and their promotional perspective.

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of course, some issues are more important than others and, unfortunately, the hearing failed to deal with the three most significant issues: that is, ECCS ef fective-ness, react:or pressure vessel f ailure, aLd the unalterable commitment to an industry about which we do not know enough.

We wouic ask the Board to deny the issuance of a construction permit' on the grounds that the Applicant has not demonstrated that the public health and safety will be, ,_

protected and that in insufficient and inadequate environ-mental analysis has been made. - -

Respectfully submitted, f

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@bkhi j W Att iey for Saginaw' Valley et al. Interveno s Myron M. Cherry 109 North Dearborn '

Suite 1005 Chicago, Illinois 60602 -

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CERTIFICATION I certify that copies of the foregoing Proposed Findings of Fact and Conclusions of Law of Saginaw Valley et. al. Inters enors were mailed to the Members of the Atomic Safety and Licensing Board, the Secretary of the Atomic l:nergy constinuion, .and all counsel of record on September 15, 1972. '

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