ML19329F352

Motion for Order Striking Mapleton Intervenors' Contentions

ML19329F352
Person / Time
Site:	Midland
Issue date:	06/19/1971
From:	Lowenstein R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19329F346	List: ML19329F345 ML19329F348 ML19329F352
References
NUDOCS 8006250437
Download: ML19329F352 (11)

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3 7 BEFORE THE UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION IN THE MATTER OF )

) Docket Nos. 50-329 CONSUMERS POWER COMPANY 50-330 (Midland Plant, Units 1 and 2) ) '

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MOTION FOR ORDER STRIKING CONTENTIONS OF THE MAPLETON INTERVENORS Applicant, Consumers Power Company, moves the Board for .

- an Order that the contentions designated below, which have been set forth in the statement dated June 4, 1971, on behalf of the Mapleton Intervenors, be stricken for the reasons specified below.

For the convenience of the Board each " contention" which applicant moves be stricken is quoted below, together with a specification of the reasons why applicant believes the conten-tion ~ should be stricken. '

I. Contention:

"That to permit construction and/or operation of the proposed nuclear reactors at the proposed site in such close proximity to the AESCHLIMAN et al Inter-venors of Mapleton, Michigan and under all other circumstances and conditions prevailing would constitute a clear violation of 10 CFR Part 100."

This contention should be stricken because it fails to specify respects in which construction or operation of the proposed and it fails plant would constitute a violation of 10 CFR Part 100 ;

to apprise the Board or the Applicant of the basis for such contention 8b06250f

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or of the nature of evidence which the intervenor proposes to adduce in support of the contention. By reason of its generality and lack of specificity , the contention violates the instructions of the Board at the conferences on-January 1, and on May 1 and June 7, 1971. (Tr. 544-46, 1218-19) and fails to ccmply J the Commission's regulations set forth in 10 CFR Part 2, Sec.

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2.714 (a) and Appendix A Sec. III(b) (4) and with the Board's published order.

II. Contention:

"That 10 CFR Part 50, Appendix D, as applied to the AESCHLIMAM et al Intervenors is arbitrary and unreason-able, and constitutes a violation of vested legal rights under the Constitutions of the State of Michigan and of the United States of America."

This contention should be stricken because it fails to specify the nature of the legal rights allegedly violated or to specify the ' provisions of the Constitutions of Michigan and of the United States of America allegedly violated or the nature of the evidence which the Mapleton intervenors would propose to adduce in support of such alleged violations. The contention should be stricken also because it is accompanied by no of fer of proof as to the basis for their contention that 10 CFR Part 50, Appendix D, is arbitrary and unreasonable or otherwise invalid.

For the foregoing reasons this contention violates the instructions of the Board at the conferences on January 21 and May 1, and June 7, 1971 (Tr. 344-46, 1218-19), fails to comply with the Commission's regulations set forth in 10 CFR, Part 2, Sec. 2. 714 (a) and Appendix A, Sec. III(b) (4) and with paragraph 2 of the Board's order dated

,. q.i May 18, 1971, and is inconsistent with the Board's orders dated April 27, 1971 and June 1, 1971 concerning the challenges of the other intervenors to Appendix D to 10 CFR Part 50.

III. Contention:

"That 10 CFR Part 20, as presently applicable and/or applied, is arbitrary and unreasonable, and constitutes a violation of vested legal rights under the Constitu-tions of the State of Michigan and of the United States of America."

This contention should be stricken because it fails to specify the nature of the legal rights allegedly violated or to specify the provisions of the Constitutions of Michigan and of the United States of America allegedly violated or the nature of the evidence which the Mapleton intervenors would propose to adduce in support of such alleged violations. The contention should be stricken also because it is accompanied by no offer of proof as to the basis for their contention that 10 CFR Part 20 is arbitrary and unreasonable or otherwise invalid. For the foregoing reasons this contention violates the instructions of the Board at the conferences on January 21 and May 1 and June 7, 1971 (Tr.

544-46, 1218-19), fails to comply with the Commission't t.2gulations set forth in 10 CFR Part 2, Sec. 2. 714 (a) and Appendix A, Sec. III (b) (4) and with paragraph 2 of the Board's order of May 18, 1971, and does not satisfy the criteria of the Commission's Calvert Cliffs decision. .

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a III - A Contention:

- "That permitting applicant to dump any radioactive waste into the proposed cooling pond or emitting such radioactive waste into the atmosphere under all the circumstances and conditions prevailing would constitute a violation of 10 CFR Part 20, . a claimed radiological hazard and danger to the health of AESCHLIMAN et al Intervenors and/or their invitees and/or children."

This contention should be stricken because there is no showin'g that any. radioactive waste will be discharged into the proposed cooling pond; in fact, radioactive waste will not be discharged into the proposed cooling pond. The application for license before this Board does not request authorization for the disposal of radioactive waste into the proposed cooling pond.

4 The contention should be stricken also because it fails to specify respects in which the discharge of radioactive waste J

would constitute a violation of 10 CFR Part 20. Moreover, it fails j to apprise the Board or the Applicant of the basis for such contention or the nature of evidence which the intervenor

. proposes to adduce in support of the contention. By reason'of its generality and lack of specificity, the contention violates the instructions of the Board at the conferences on January 21 and

'May i and June 7, 1971 (Tr. 544-46, 1218-19), and fails to comply with tjhe Commission's regulations set forth in 10 CFR Part 2, l

4 Sec. 2. 714 (a) and Appendix A, Sec. III(b) (4) and with published orders of the Board.

III -B Contention: ,- ;

1 "That permitting applicant to dump any radioactive waste into the proposed cooling pond or emitting such radioactive waste into the atmosphere under all the

circumstances and conditions prevailing without the ~

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consent of the AESCHLIMAN et al Intervenors constitutes a

. claimed violation of the vested legal rights under the l Constitutions of the State of Michigan and the United I l

States of America." l

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This contention should be stricken on the ground that there is no showing that any radioacti ve was t e will be disposed of into the proposed cooling pond; in fact, applicant does not propose to dispose of radioactive waste into the proposed cooling pond.

This contention should be stricken, also because it fails to specify the respects in which the discharge of radioactive waste from the proposed plant would constitute a violation of the Constitutions of the State of Michigan and the United States of America; and it fails to apprise the Board or the Applicant of the basis for such contention or of the nature of evidence which the intervenor proposes to adduce in support of the contention.

Be reason of its generality and lack of specificity, the contention violates the instructions of the Board at the conferences on January 21 and May 1 and June 7, 1971 (Tr. 544-46, 1218-19), and fails to comply with the Commission's regulations set forth in 10 CFR Part 2, Sec. 2. 714 (a) and Appendix A, Sec. III (b) ( 4) and with published orders of the Board.

III - C Contention:

"That permitting applicant to dump waste on land not owned by the Federal or State Govern-ments ' constitutes a violation of 10 ' CFR Part 20."

This contention should be stricken because there is no showing that applicant proposes to dispose of radioactive waste on land not owned- by the Federal or State Governments ; in fact, applicant does not propose to disy-se of radioactive waste on land not cwned by the Federal or Sts.te Governments. This conten--

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A tion should be stricken also because the application for license before this Board does not request authorization for the disposal of radioactive waste on land. The contention should be stricken also because it fails to specify respects in which the alleged activity referred to would constitute a violation of 10 CFR Part 20; and it fails to apprise the Board or the Applicant of the basis for such contention or the nature of the evidence which the intervenor proposes to adduce in support of the contention.

By reason of its generality and lack of specificity, the conten-tion violates the instructions of the Board at the conferences on January 21 and May 1 and June 7, 1971 (Tr.544-46, 1218-19) and fails to comply with the Commission's regulations set forth in 10 CFR Part 20 and with published orders of the Board.

IV. Contention:

"That the failure of the emergency core cooling system for nuclear power plants which have been recently tested in small scale simulated models in Idaho by the Idaho Nuclear Corporation constitutes a grave hazard and danger to the health and safety of AESCHLIMAN et al and/or their property rights, ,

and proceeding in this licensing matter at this time and not holding it in abeyance until emergency core cooling systems have been properly designed, thoroughly researched and developed, and completely tested in full scale models at the Idaho test location and not under simulation, is respectfully contended to be an abuse of discretion and a violation of vested legal rights under the Constitutions of the State of Michigan and of the United States of America."

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This contention should be otricken because it fails to specify respects in which the proposed emergency core cooling system for the Midland plant would not be adequate; and it fails to apprise the Board or the Applicant of the basis for such contention or of the nature of evidence which the intervenor proposes to adduce in support of the contention. By reason of its generality and lack of specificity, the contention violates the instructions of the Board at the conferences on January 21 and May 1 and June 7, 1971 (Tr. 544-46, 1218-19), and fails to comply with the Commission's regulations set forth in 10 CFR Part 2, Sec. 2.714(a) Appendix A, Sec. III(b) (4) and with published orders of the Board.

V. - VI - A Contentions:

"That the operation of the proposed units is likely to impair or destroy the air or constitute a hazard or danger to the health and safety of the AESCHLIMAN et al.

Intervenors and/or their vested property rights in the following particulars:

VI - A

" Likelihood of escape of radioactive gasses, expecially with passage of time."

This contention should be stricken because it fails to specify respects in which the matter referred to would constitute a violation of AEC regulations or an undue risk to public health and . safety; and it f ails to apprise the Board or the Applicant of the basis for such contention or of the nature of evidence '

which the intervenor proposes to adduce in support of the contention. By reason of its generality and lack of specificity, the contention violates the instructions of the Board at the

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(]) s) i conference on January 21'and May 1 and June 7, 1971 (Tr. 544-46, 1218-19), and fails to comply with the Commission's regulations set forth in 10 CFR Part 2, Sec. 2. 714 (a) and Appendix A. Sec. III(b) (4) and with published Board orders.

VI - B Contention:

" Likelihood of radioactive additions to atmospheric fog created and/or aggravated by operation of the proposed cocling pond and cooling tower; it being contended that under the peculiar meteorological conditions at or about the proposed site that water vapor will have a tendency to trap and retain such radioactivity and for want of dispersion with inversion, will concentrate such radioactive gasses."

This contention should be stricken because it fails to specify what peculiar meteorological conditions at or about the proposed site will lead to the consequences referred to; and it fails to apprise the Board or the Applicant of the basis for such contention er nf the nature of evidence which the intervenor proposes to adduce in support of the contention. By reason of its generality and lack of specificity, the contention violates the instructions of the Board at the conference on January 21 and May 1 and June 7, 1971 (Tr. 544-46, 1215-19), and fails to comply with the Commission's regulations set forth in 10 CFR Part 2, Sec. 2. 714 (a) and Appendix A., Sec. III(b) (4) and with published Board orders.

. VI - C to I, inclusive, VII and VIII Contentions:

" Likelihood of dangerous or hazardous vehicular driving conditions by reason of fogging and

• interference with visibility, and also creation of slippery and treacherous driving conditions from icing in winter time caused and/or contributed to by the cooling tower."

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.h _9_ U VI - D.

" Likelihood of creation of noxious or deleterious odors from chemical additives in operation of the proposed cooling pond and/or tower with.possible radioactive gasses or vapors emanating therefrom."

VI - E

" Likelihood of property damage from the foregoing."

VI - F ,

" Likelihood of injurious or detrimental effects on health, physical and/or mental."

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- VI G

" Likelihood of substantial or material interference with use and enjoyment of property."

VI - H "Likelihcod of ' destruction cn: impairment of business."

VI.- L

" Depreciation of property values."

VI - M

" Likelihood of noise and/or noise pollution from operation of proposed cooling tower."

-VII Contention:

"That the location'of the site and/or operation

, of the proposed nuclear power plant leaves

AESCHLIMAN et al. with nofinsurance coverage in the event of a nuclear accident by reason of the nuclear exclusion clause, and.said Intervenors;have suffered deprivation of-their property rights by reason thereof withia . .

tue scope and meaning of the! Constitutions of the State of Michigan and the United States of America."

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10-VIII Contention:

"AESCHLIMAN et al. assert rights protectable by the Michigan ENVIRONMENTAL PROTECTION ACT of 1970, effective October 1, 1970; a-copy of which is attached hereto."

These contentions should be stricken because they refer to matters which are not within the jurisdiction of this Atomic Safety and Licensing Board under the Notice of Hearing dated October.29, 1970, in this proceeding; because they fail to specify the respects in which the matters referred to would constitute grounds for the denial of the application and because they f ail to apprise the Board or the Applicant of the basis for such contentions or of the nature of the evidence which the intervenor proposes to introduce in support of the contentions.

By reason of its generality and lack of specificity, the contention violates the instructions of the Board at the conference on January 21 and May 1 and June 7, 1971 (Tr. 544-46, 1218-19),

and fails to comply with the Commission's regulations set forth in 10 CFR Part 2, Sec. 2.714 (a) and Appendix A. , Sec. III(b) (4) and with published orders of the Board.

CONCLUSION For all of the foregoing reasons, the contentions of the-Mapleton intervenors should be stricken, their leave to intervene s

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11-should be revoked, and their petition should be dismissed.

Respectfully submitted, ,

LOWENSTEIN AND NEWMAN 1100 Connecticut Avenue, N.W.

Washington, D.C. 20036 I .

By A cys w-Robert Lowenstein Attorney for Consumers Power Company, Applicant Of Counsel:

Jerome E. Sharfman Harold P. Graves John K. Restrick Richard G. Smith O

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