ML19331A811

Brief Supporting CPC Position That Wh Marshall,Mapleton Intervenors' 780908 Petition to Intervene Is Barred by Res Judicata.Petition Does Not Meet 10CFR2.714(a)(2) Requirements.Certificate of Svc Encl

ML19331A811
Person / Time
Site:	Midland
Issue date:	10/31/1978
From:	Gibbs M, Mark Miller CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 8007230840
Download: ML19331A811 (1)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION c Before the Atomic Safety And Licensing Board

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In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

)30-330 (Midland Plant, Units 1 and 2) )

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BRIEF OF CONSUMERS POWER COMPANY IN SUPPORT OF ITS POSITION THAT MR. MARSHALL'S PETITION TO INTERVENE IS BARRED BY RES JUDICATA By letter dated September 8, 1978, Mr. Wendell H.

Marshall, on behalf of the Mapleton Intervenors, filed an untimely petition for leave to intervene in the operating license proceedings for the Midland Plant, Units 1 and 2.

Consumers Power Company (" Consumers Power" or " Licensee")

opposed that petition on various grounds, including che fact that "the aspects of the subject matter of the proceeding as  ;

to which petitioner wishes to intervene," required to be i

specified in the intervention petition by 10 C.F.R. 52. 714 (a) (2) ,

had already been resolved at the construction permit pro-l l ceedings. Thus, these aspects of the subject matter could i

not be relitigated at the operating license stage because of the doctrine of res judicata.

l This Atomic Safety and Licensing Board (" Licensing l Board") ordered that Mr. Marshall be given temporary status .

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as an intervenor pending a final deter =ination en the ade-quacy of his intervention petition. In its Order of October 12, c 1978, the Licensing Board agreed with Licensee's analysis of the applicability of res judicata to an NRC operating license preceeding; further= ore, Consumers Power was given the opportunity to file a brief de=cnstrating, by reference to the record of the construction per=it hearings, the fact that the " aspects" set forth in lir. !!arshall's petition had indeed been resolved at the previous stage of the liidland Plant proceedings.

. Accordingly, this brief is submitted in support of that position.

I. APPLICABLE LEGM,STANDA"-G The legal concept which is involved here was examined by the Atc=ic Enerav ~ Cv aission, predecessor of the Nuclear Regulatory Cc==ission (the "NRC" or the "Cc=ission") ,

in Alabama Pcwer Cc=cany (Joseph 11. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974), in which the -

Cc-4 ssicners stated that "an cperating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage." That cpinion went en to point out, in agree =ent with the conclusion of the Atc=ic Safet.y and Licensing Appes' Scard (" Appeal Board"), that:

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'res judicata and collateral estoppel should not be entirely ruled out of our proceedings, but rather applied with a c sensitive regard for any supported assertion of changed circu= stances or

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the possible existence of some special public interest factors in the particu-

. lar case . . . . '

7 AEC at 203, quoting ALAB-lS2, 7 AFC 210, 216.

(footnote omitted)

The applicability of the doctrine of res judicata to operating license proceedings was stressed by the Cc-ission again in Censolidated Edison Co=pany of New York (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7, 8 (1974).

Consumers Power will demonstrate that, in view of the fact that all of Mr. Marshall's " aspects" have previously been resolved at the construction permit stage and that Mr. Ma shall has not asserted any changed circu= stances or special public interest factors which would warrant re-litigating these issues, all " aspects" in the petition are barred by res judicata. Thus, as the petition to intervene does not state any valid aspects as recuired by 5 2.714 (a) (2) ,

leave to intervene in.this proceeding must be denied.

II. RESOLUTION OF THESE ASPECTS AT THE CONSTRUCTICN PERMIT PROCEEDINGS The Licensing Board issued an Initial Decision authorizing construction per=its for the Midland Plant on December 14, 1972. Consu=ers Power Cornany (Midland Plant, Units 1 and 2), LBP-72-34, 5 AEC 214 (1972) (hereinafter references will be to the paragraph nir:ters in this decision) .

The Initial Decision was affirmed by the Appeal Board, -

except as to one issue not pertinent here, 1/ on May 18, 1973. Co_nsu=ers Power Cc=cany (Midland Plant, Units 1 and 2), ALAS-123, 6 AEC 331 (1973).. That decision became the final action of the agency when the Cc-ission declined to review it. The rather cc= plex history of the construction permit proceedings for the Midland Plant will not be set forth here, as it is fully discussed in the. Initial Decision (15 1-9). ~Ecwever, there were two prim g groups who inter-vened against the application for construction permits, known as the Saginaw Intervenors and the Mapleton Inter-vencrs; Mr. Marshall was a =e=ber of the latter group. The Saginaw Intervenors participated chiefly in the radiological hearing while the Mapleton Intervencrs concentrated en the environ = ental hearing.

In order to evaluate Mr. Marshall's current petition to intervene, each of the aspects it presents will be

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quoted in full, followed by citations to the Licensing and Appeal Board decisions in which these issues were resolved.

-1/ That issue, quality assurance, was resolved in ALAB-106, 6 AEC 182 (1973). The only other exception to the Initial Decision not covered in ALAS-123, an atte=pt to dis-qualify the me=bers of the Licensing' Board because of alleged bias, was denied in ALAB-101, 6 AEC 60 (1973). .

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1) Radiological releases from the nuclear plant will interfere with their health and safety and violates their censti-tutional rights; la) the air will be conta=inated with airborne radioactive nuclides, . . .

The first aspect of the subject =atter mentioned in Mr. Marshall's petition, "la" , is phrased in ter=s of the alleged negative effects of the radiological releases to the air caused by the nuclear plant. At the ccnstruction per=it proceedings, this issue was censidered in both the radiological health and safety and the environmental phases of the hearings, and the Licensing Scard found against the proponents of these cententions in both areas.

Tc the extent that those contentions were based en releases of radicactivity within * 'i i ts per=itted by the Cc= mission's regulations, the contentions were treated during the radiological hearings as attacks en the regula-tiens (Initial Decisions, t 55). Such attacks cculd only be censidered by .

the Licensing Scard for the purpose of asrnr- _'

taining whether a sufficient shewing of invalidity had been

=ade to warrant re ferral .:.c the Ccenission; the Licensing Scard found that, for those purposes, the shewing was, in I

all cases, " clearly insufficient" (Initial Decision, t 55).

Furtherrore, the Licensing Scard concluded that the expected releases from the Midland Plant did not exceed these per-

=itted by Cc--ission regulations (Initial Decision, t 73).

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At c'he environmental hearing, the Licensing Board permitted testimony and' cross-examination on the issue of .

radiological releases in connection with the cost-benefit analysis of the Midland Plant. The Licensing Board examined such things as the radioactivity associated with waste-gas (Initial Decision, 1 59), and with solid waste treatment and disposal (Initial Decision, 1 61), and the dose of radio-activity which would be received by an individual continu-ously present at the site boundary for a full year (Initial Decision, 4 60). The Licensing Board concluded that that dose was a small fraction of that specified in 10 C.F.R. Part 20 and was less than the dose specified in the then proposed Appendix I to 10 C.F.R. Part 50 (Initial Decision, 1 60). Furthermore, the Licensing Board found that "the environmental effects of the normal releases of radioactivity ani disposal of solid wastes are minimal" (Initial Decision, 1 61). With respect to the long-term effect of the type of low-level radiation contemplated to be released from the Midland Plant during normal operations, the Licensing Board letermined that those potential costs could not tip the balance against the nuclear plant (Initial Decision, 1 73).

The next area assessed by the Licensing Board in

connection with radiological releases to the air concerned the potential public exposures to radioactivity from postu-i lated accidents in the course of plant operation. The Board 1

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found that, for the purposes of the cost-benefit analysis, the cost associated with the postulated accidents was minimal o because the probability of occurrence of a serious accident was so small (Initial Decision, 11 67, 74)._2/

Finally, of course, the Licensing Board made the required finding that the proposed facility could be con-structed and operated at the proposed location without undue risk to the health and safety of the public (Initial Deci-sion, 1 80 (2) ) .

l As mentioned above, the Initial Decision of the Licensing Board was affirmed (except as to quality assu-rance) by the Appeal Board. Because the Appeal Board con-firmed both the substantive findings of the Licensing Board 1

with respect to the issues of the radiological health and safety and environmental effects of radioactive releases to the air from the operation of the Midland Plant, and the procedures employed by the Licensing Board in exploring those issues, the Appeal Board's statements will not be I

considered in detail. Rather, citations will be provided to those portions of the Appeal Board's decision which deal with the question of the effects of radiological releases to the air. ALAB-123, 6 AEC at 343-44, 344 n. 85, 345-48, 353, 355. All of the exceptions which related to the issue of radiological releases were denied.

-- 2/ The Licensing Board also addressed the question of the effects of radiological releases to the air in assessing the ,

suitability of the Midland Plant site. See the discussion of aspect "7", infra.

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As a si=ple reading of aspect "la" in Mr. Marshall's

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petition reveals, everything contained in that state =ent was resolved by the Licensing Board at the construction permit stage. Furthermore, the petition does not even attempt to allege, much less to suppert, the existence of changed circu= stances or special public interest factors which right warrant re-examining ~the issue.

lb) these nuclides may combine with discharges from Dew Chemical Co=pany to synergestically co=plicate and add greater dangers because of increased toxicity and hazards to down-ward residences.

The next aspect mentioned in Mr. Marshall's petition concerns the concept of synergism. In the words of the Appeal Board, the claimed synergistic interaction of releases of radioactivity with chemicals released frc= the adjacent plant of The Dow Chemical Cc=pany ("Dcw") was one of "the major contested issnes" in the construction per=it proceeding (ALAB-123, 6 AEC at 344). In fact, the Mapleton .

Intervenors presented three witnesses on this subject at the construction permit hearings (ALAB-123, 6 AEC at 344).

The Licensing Beard found no merit in the syner-gism contention, . stating:

Viewed in the light most favorable to Inter-venors, and without considering the counter-vailing evidence of Applicant and the Staff, the evidence fails to establish that, at the levels of concentration involved here, there will be any interaction which would tend to increase radiation effects frem the Plant, *

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against a finding of 'svnergisn'.

Initial Decision, 1 66. (emphasis supplied).

The Appeal' Board, while supporting all of the Licensing Board's findings with regard to synergism (and thus denying the exceptions related to that issue), reviewed I the evidence on the question itself in even greater detail than had the Licensing Board (ALAB-123, 6 AEC at 344-45) .

Specifically, the Appeal Board discussed and quoted frem the Applicant's testi=ony concerning synergis= (ALAB-123, 6 AEC at 345). In addition, the Appeal Board determined that the precedures utilized by the Licensing Board in dealing with the synergism issue at the hearings were proper (ALAB-123, 6.~

AEC at 344-45).

Thus, the issues invrived in "lb" of Mr. Marshall's petition were fully litigated and resolved at the construc-tion permit phase of the Midland Plant proceeding. Again, the petition does not set forth any changed circu= stances or other justification for not applying the doctrine of res judicata to bar consideration of the synergism issue at the operating license hearings.

Ic) discharges (radioactive) to the Tittabawasse River will interfere with health, safety and mental tranquility.

This " aspect of the subject =atter" is sirdlar to "la", except that the instant issue involves radioactite ,

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releases to water rather than to the air. The basic findings of the Licensing Brard referenced in Section "la" above, c concluding that the environmental effects of the normal releases of radioactivity from the nuclear plant are minimal, that the expected radiological releases from the facility do not exceed Commission regulations, and that the chances of a serious accident involving damage to the public are "vanishingly small," include, of course, the effect of radiological releases to water as uell ac to air (Initial Decision, 11 61, 73, 74).

In addition to the findings discussed above which the Licensing Board made with respect to the general ques-tion of radiological releases, specific findings were made concerning radioactive discharges to the Tittabawassee River. The Licensing Board reviewed the liquid waste treat-ment system and concluded that about 120 gallons per day would be the only waste containing radio-nuclides from the Midland Plant that would be released to the Tittabawassee River during normal operation (Initial Decision, 1 58). The -

Licensing Board then set forth Consumers Power's calcula-tions regarding the potential dose to a hypothetical indivi-dual who consumes certain amounts of water and fish from the river (Initial Decision, 1 58). These doses are well within the limits specified in Commission regulations. See Initial Decision, 11 58, 60, 73.

The Appeal Board decision did not specifically discuss the issue of radiological releases to the Tittabawassee S

w River in affirming the Licensing Board's findings with respect-to the general question of radiological releases.-3/ .

As with aspects 'It" and "lb", the question of radiological releases to the river was resolved at the construction permit proceedings. Furthermore, Mr. Marshall's petition does not allege anything which would justify this Licensing Board in refraining from applying the doctrine of res judicata.

2) The possible contamination of Dow Products from nuclear plant steam; as an exa=ple, aspirin is manufactured by a steam process and has great safety and health i= plica-tzcas for the general public and for the Mapleton Intervenors, since we use Dow products.

The next aspect put forth in the intervention petition was also squarely faced by the Licensing Board, for -

the intervenors at the construction permit proceedings raised the issue of "the threat of process steam contami-nation," Initial Decision, 5 54. The Licensing Board's ,

opinion described the system to be used to supply Dew with process steam from the Midland Plant and the mechanisms for

_3,/ Although Mr. Marshall's petition speaks of radio-active discharges to the Tittabawassee River, the issue of thermal releases to the river from the nuclear plant was also ventilated and resolved at the construction permit stage (Initial Decision, !! 62-63, 78 and ALAB-123, 6 AEC at 356-357).

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,3 monitoring both the process steam and Dow products for radioactivity (Initial Decision, 11 56-57). c Consumers Power had, at an early stage, modified its original design so as to supply steam to Dow via a tertiary, rather than a secondary, heat exchanger. This would further insulate the process steam from the possi-bility of introduction of radiation from the primary coolant (Initial Decision, 1 56). The Licensing Board found that the process steam would be monitored for radioactivity with an on-line gross gamma monitoring system and with grab samples for gross beta. If any Dow products came in contact with contaminated process steam, they would be monitored.

Furthermore, if the level of radioactivity in any Dow products exceeded the amount of natural background radio-activity, the products would be decontaminated or disposed of as necessary (Initial Decision, 1 56).

After reviewing these facts, the Licensing Board concluded that:

... the system promises to provide assurance that leakage of radioactivity into the process steam will be an extremely remote possibility; that Applicant has submitted sufficient infor-mation; and Staff has performed an adequate review with respect to process steam monitoring.

The environmental effects of the process will be insubstantial. Initial Decision, 1 57.

Before the Appeal Board, one group of intervenors challenged the adequacy of the Final Environmental Statement

("FES"), and of the Licensing Board's review of that statement,

with respect to its discussion of several areas, including the " adverse effects associated with production of products ,

of Dow Chemical Co.," ALA3-123, 6 AEC at 353. The Appeal Board denied the exception, upholding both the FES and the Licensing Scard's actions (ALA3-123, 6 AEC at 353).

It is apparent that aspect "2" of Mr. Marshall's petition was definitively put to rest at the construction permit stage, and that nothing has been advanced as a justification for re-litigating the question at the oper-ating license proceedings.

3) The danger frc= the transportation of radioactive =aterials over the various roads leading into the City of Midland.

These roads include both Federal, State, City and County.

In its Initial Decisien, the Licensing Board explicitly stated that certain aspects of the environ = ental effects of the fuel cycle, including the transportation of fuel elements, spent fuel ele =ents and packaged icw-level

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waste, were at issue in the construction pernit proceeding (Initial Decision, 1 43). A copy of the Licensing Board's Order of March 10, 1972, which =ade that ruling, is attached as Exhibit "A"; that decision was subsequently affir=ed by the Appeal Board, ALAB-60, 5 AEC 261 (1972). These are the same issues as those raised by aspect "3" of Mr. Marshall's petition.

1 On March 27, 1972, the Licensing Board issued a .

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further Order which set forth which of the intervenors' )

environmental contentions were issues in the proceeding; a o copy is attached as Exhibit "B". At pages 6 and 7, the Licensing Board ruled that one of the Saginaw Intervenors' contentions dealing with transportation accidents was at issue; contention 14 of the Mapleton Intervenors was found to be an issue at page 13. Contention 14, found in Exhibit "C", reads as follows:

14. The hazards and environmental effects of the transportation of spent fuel and nuclear wastes from the Midland Plant to the reproces-sing and ultimate storage sites are real and significent [ sic].

While it is therefore obvious that the " danger from the transportation of radioactive materials" was an issue at the construction permit proceedings, the fact that this issue is not treated in depth in the Licensing Board's opinion needs some explanation. The answer relates to the inadequate proposed findings of fact and conclusions of law filed by both the Saginaw and the Mapleton Intervenors, proposed findings which did not contain the specification and detail required by the regulations and did not serve the l purpose for which they were required (Initial Decision, 5 9).

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As a result, the Licensing Board stated that it was " virtually impossible in some instances to know whether particular issues are in fact contested" (Initial Decision, 1 9, n.

10). The Licensing Board solved that problem by treating as contested issues of fact "those as to which intervenors .

introduced affirmative evidence or engaged in substantial cross examination" (Initial Decision, 1 9).

C As none of the intervenors' proposed findings (Exhibits "D" and "E") related to the transportation issue and the intervenors did not present affir=ative evidence or otherwise participate in this matter, the Licensing Board apparently treated the issue as uncontested and did not dwell on it in the Initial Decision. At Paragraph 61, the Licensing Board does discuss the transportation of radio-active solid waste material and concludes that the environ-mental effects are mini =al.

The relative lack of discussion on the transportation cuestion in the Initial Decision does not mean that it was not treated thoroughly during the construction permit pro-ceedings, however. In order to su==arize the evidence presented on the issue, those portions of Consumers Power's Proposed Findings of Fact and Conclusions of Law which pertain to the transportation of radioactive =aterials are attached as Exhibit "F". It is clear from reading the pro- -

pose ~ findings that this issue was fully explored in the Final Environmental Statement for the Midland Plant (FES, pp. V-35 to V-38, VI-6 to VI-8, and XI-5). 1/ The Final

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The NRC reprinted the Final Environmental Statement (Construction Permit Stage) for the Midland Plant in January 1977 (NUREG-0149). The pagination is identical to that in tb original statement issued in March,1972.

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s Environmental Statement concludes that, during transport under normal conditions, there would be essentially no e effect on the environment and doses to persons involved in transport would be snall. Even under most postulated

, accident conditions, the impact on the environment would be small and the exposure of personnel would not be expected to

, be significant. The probability of more serious accidents was found to be very small.

Another item of information celated to this issue which was referenced in the Applicant's proposed findings is a letter from the AEC Staff to the Licensing Board answering questions a bout the transportation of radioactive materials posed by Board members at the hearings. A copy of this letter is attached as Exhibit "G". In addition, page XII-13 of the FES lists sections of the statement concerning trans-portation accidents among those portions which were changed in response to comments on the draft statement. Significantly, comments pertaining to transportation accidents were received from both the Saginaw and Mapleton Intervenors, as well as -

the Environmental Protection Agency -(Appendix "G", pp. 37, 111-12, and 168, respectively.) This is further evidence that the intervenors had an opportunity to express their views on the transportation question at the construction permit stage. ' If the intervenors did not present affirmative evidence or engage in cross-examination on the issue of transportation of radioactive materials, it was by their own choosing.

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The Appeal Board decision does not directly con-sider the issue of the transportation of radioactive materials -

as none of the exceptions evaluated in that decision relate to that question. However, the Appeal Board does discuss at

, great length the Licensing Board's review of environmental matters in general and the adequacy of the Final En" iron-i mental Statement, both are upheld (ALAB-123, 6 AEC at 334-36, 350-56). This demonstrates the Acpeal Board's approval of the resolution of the transportation question in the Final Environmental Statement and the Initial Decision.

As shown above, issues related to the transporta-tion of radioactive materials were fully ventilated and resolved at the construction permit hearings. Nothing has been brought forth in the intervention petition to preclude the application of res judicata to this aspect of Mr. Marshall's petition.

4) Ice hazard, especially during winter, caused by condensation and icing of the

roads and bridges downwind from the plant and the " cooling pond".

5) The fog hazards to highway driving for the same reason as Item 4 above.

Because aspects "4" and "5" in the intervention petition are closely related, and were treated together by l

both the Licensing and Appeal Boards in the construction permit opinions,-they will be discussed together here.

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J In response to the contention of the Mapleton Intervenors at the construction permit hearings that there ,

would be substantial fogging and icing in the area around the cooling pond (Initial Decision, 1 69), the Licensing Board found:

The evidence even of Mapleton's own witness does not support the contention.

(Tr. 8317, 8322.) The effect on Maple-ton seems likely to be negligible and even in the area close to the pond, the effects seem likely to be insubstantial and the environmental costs minimal.

Initial Decision, 1 69.

The Licensing Board went on to say that there was a need for further study of the effects of cooling ponds (Initial Decision, 1 69). The environmental impacts of the cooling pond were also considered (Initial Decision, 11 72, 77).

The App'eal Board affirmed the findings of the Licensing Board concerning the environmental effects of fogging and icing associated with the cooling pond (ALAB-123, 6 AEC at 354). The Appeal Board determined that there was

" substantial evidence of record" supporting the conclusion -

that effects from fogging and icing seem likely to be l negligible or insubstantial (ALAB-123, 6 AEC at 354). In addition, the Appeal Board held that the Licensing Board's l finding of negligible effect was consistent with its state-ment that the Applicant should include in its surveillance program a study of the duration, intensity and extent of fog i and icing in the surrounding area, as the Final Environmental l

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6) Spent fuel. Since the Federal Govern =ent does not now nor in the foreseeable future have disposable or reprocessing facilities, the spent fuel must be stored at plant site probably in expanded fuel pools which will create sericur danger to de City of Midland and to the people therein and to the persons and residences of the Mapleton Inte~ nors, which includes myself.

Aspect "6", the environmental effects of that part .

of the nuclear fuel cycle related to the storage of spent fuel, stands on a different footing from the other conten-tions presented by the petition of Mr. Marshall. At the time the Licensing Board rendered its Initial Decision regarding the Midland Plant, it was the accepted policy of the Cc:missicn that the environmental effects of the fuel cycle, including the effects of spent fuel storage, were not

considered in licensing proceedings. E/ This practice was followed in the Midland Plant proceedings (Initial Decision, .

1 43), and the decision of the Licensing Board in this regard was affirmed by the Appeal Board (ALAB-60, 5 AEC 261).

Subsequently, the Co= mission adopted a fuel cycle rule which was designed to summarize the impacts Of the nuclear fuel cycle, including spent fuel storage, for use in each licensing proceeding. The environmental effects of the fuel cycle were said by the Commission to be "relatively insignificant," 39 Fed. Reg. 14188-91 (April 22, 1974).

That rule, which was never applied to the Midland Plant proceeding, was invalidated in NRDC v. Nuclear Reculatorv Commission, 547 F.2d 633 (D.C. Cir. 1976).

In the waxe of NRDC, the Cc= mission promulgated an interim amended fuel cycle rule s (42 Fed, Rec. 13803 (March 14, 1977)). During the suspension hearings concerning the Midland Plant, held as a result of NRDC and its companion case, Aeschliman v. Nuclear Regulatory Commission, 547 F.2d 622 (D .C. Cir. 1976), the amended fuel cycle rule was considered in re-striking the cost-benefit balance of the nuclear facility. The Appeal Board, in affirming the decision

'l i This rule did not apply to the effects of the trans- -

portation of radioactive materials and the handling and use of nuclear fuel at the site, which were considered in indivi-dual proceedings (Initial Decision, ! 43).

of the Licensing Board in the suspension proceeding, con-cluded that the impacts reflected in the amended rule did .

not materially alter the balance originally struck for the Midland Plant (ALAB-458, 7 NRC 155, 164 (1978)). As the Appeal Board stated:

Like the Board below, we are bound by and must give effect to the judgments made by

, the Commission in this regard. Absent any change mandated by either the Commission (as a result of the rulemaking proceeding now underway to formulate a permanent rule) or the courts, the environmental effects ,

of the fuel cycle must be taken as insub-stantial.

ALAB-458, 7 NRC at 164 (footnote omitted).

After the Appeal Board rendered its decision, the Supreme Court reversed NRDC and Aeschliman in Vermont Yankee Nuclear Power Corp. v. NRDC, 98 S.Ct. 1197 (1978), and remanded to the Court of Appeals for determination of whether the original fuel cycle rule was arbitrary and capricious. This had no impact on the interim rule, however, which is still in effect. 6/ Thus, since that interim rule has already been applied to the Midland Plant, there is -

nothing concerning the fuel cycle which remains to be con-sidered. As the Appeal Board made clear, Licensing Boards have no choice but to accept that the effects of the fuel cycle are insubstantial.

Because the environmental effects of the storage 6/ The NRC has extended the effectiveness of the interim rule through March 14, 1979. (43 Fed. Reg. 41373 ,

(September 18, 1978)).

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of spent fuel have been considered in the Midland Plant proceeding, aspect "6" of Mr. Marshall's petition to inter-vene does not set forth a proper contention for the oper-ating license stage. Nothing in the petition provides a juctification for not applying the doctrine of res judicata to bar aspect "6" from this proceeding.

7) The plants location within Midland City and Midland County with its large popula-tion areas violates the Nuclear Regulatory Commission siting rules.

Aspect "7" is another example of a contention in Mr. Marshall's petition repeating an issue which was hotly contested, and definitely resolved, at the construction permit proceedings. As the Licensing Board stated early in the Initial Decision:

The aspects of the Plant of primary interest stem from the fact that its dual-purpose nature requires that the reactor be located in close proximity to a large chemical plant, a plant which is heavily populated during work hours.

Initial Decision, t 12. .

The Licensing Board began its analysis of the siting issue by reviewing the physical and geographical j features of the site (Initial Decision, 11 13-14). The i

characteristics of the exclusion area were then considered, and the Licensing Board found that the area met the require-l ments of 10 C.F.R. Part 100 (Initial Decision, t 15). In analyzing the low population zone, the Licensing Board took i-special note of the unusually large transient population due

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7 7 to the proximity of the Dow plar.t. Assuming that there would be an effective evacuation plan, the Licensing Board a found the low population zone satisfactory (Initial Deci-sion, 1 16). With respect to the evacuation plan, the Licensing Board considered the subject separately and at length (Initial Decision, 11 31-33). The conclusions reached by the Licensing Board were that timely evacuation was reasonably assured and that the Applicant's revised evacuation plan conformed to the requirements of Appendix E to 10 C.F.R. Part 50 (Initial Decision, 1 33). Finally, the Licensing Board concluded that the reduced population distance from the reactor to the nearest boundary of the Cit r of Midland was acceptable (Initial Decision, 1 17).

The Licensing Board considered a different aspect of the siting question when it reviewed the adequacy of the meteorological data used in calculating the radiation dose; such data and calculations are required as part of the site evaluation under 10 C.F.R. Part 100 (Initial Decision, 11 i

21-22).

The Initial Decision reflects the Licensing Board's conclusion that the assumptions were sufficiently conserva-tive to justify a reasonable expectation that the site was satisfactory (Initial Decision, 1 22).

The Licensing Board also considered the unique aspects of the Midland Plant site when it reviewed the synergism issue, discussed above under aspect "lb". In addition, the site was considered in the environmental review (Initial Decision, 1 76).

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b The Appeal Board reviewed the question of the suitability of the Midland Plant site at great length (ALAB-123, ,

6 AEC at 341-44, 349-50). The decision of the Licensing Board was affirmed, as the Appeal Board determined that none of the intervenors' exceptions was meritorio.ls (ALAB-123, 6 AEC at 341). Specifically, the Appeal Board held that the Licensing Board was correct in interpreting and applying the requirements of 10 C.F.R. Part 100, and had factored the environmental and safety consequences of the site into the decision (ALAB-123, 6 AEC at'341-344, 351).

Therefore, the issue raised in aspect "7" of the Marshall petition was resolved at the construction pemsit proceedings. Nothing has been alleged in the intervention petition to cause this issue to be re-examined at the oper-ating license hearings. It should be remembered that the quesrien of site suitability is, by definition, a contention to be dealt with at the construction permit phase; only the most extraordinary reasons should justify an inquiry into site suitability at this late date. -

8) The plant releases of radiological nuclides both to the air and water environments will subject us to radiation endangering our health and safety and our well being.

This aspect of Mr. Marshall's intervention petition is a restatement of aspects "la" and "lc", which also

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covered radiological releases to the air and water from the operation of the Midland Plant. Therefore, this contention o will not be discussed separately here. Aspect "B" is barred by res judicata for the same reascns set forth in the response to aspects "la" and "le".

9) The general nuisance that will be created by the operation of the plant will interfere with our h"-an rights, with our dignity and with the rights we have to maintain our health and safety.

The last aspect mentioned in the intervention petition submitted by Mr. Marshall is the = cst vague. To the extent that it is intelligible at all, it appears to be founded upon the cc==cn law concept of nuisance. S at is not, however, a proper subject to be raised in a proceeding in which the issues are determined by the Atc=ic Energy Act -

and the National Environmental Policy Act.

Furthermore, Mr. Marshall has previously filed a suit against Consumers Power in the Michigan courts seeking, ,

inter alia, a declaratory judg=ent that the Midland Plant would constitute a public or private nuisance. The trial court granted defendant's =otion for surnary judg=ent en the nuisance question on the ground that the plaintiff had failed to state a cause of action. S e Court of Appeals of Michigan affirmed, agreeing that Mr. Marshall had not stated facts sufficient to show that the building of the Midland Plant would necessarily or inevitably create either

.~

- 2 5 --

7 a puisance per se or per accidens. Marshall v. Consumers Power Co., 65 Mich. App. 237, 237 N.W.2d 266 (1975). The c Michigan Supreme Court denied leave to appeal. _ Marshall

v. Consumers Power Co., 397 Mich. 822 (1976).

Clearly, Mr. Marshall has had his day in court on the issue of nuisance. The petition merely attempts to raise the same issue, between the same parties, as was litigated in 1975; this calls for the application of the doctrine of res judicata in its purest sense.

CONCLUSION For the reasons set forth above, each of the aspects contained in Mr. Marshall's petition to intervene is barred by the doctrine of res judicata. Thus, the petition does not meet the requirements of 10 C.F.R. S 2.714 (a) (2) and must be denied, Respectfully submitted, l lC .

) 144 bwD1EG-Michael I. Miller '

I e' /'[)

W% b U{ Q Martha E. Gibb3~

l Attorneys for Consumers j Power Company l

! ISHAM, LINCOLN & BEALE I

Suite 4200 l One First National Plaza Chicago, Illinois 60603 (312) 786-7500 -

Dated: October 31, 1978.

l l

. * ,~

lo 91 4 UNITED STATES OF AMr';_i -

!."' CLEAR REGULATORY CO"#.ISSION Before the Atomic Safety and Licensing Board

)

In the Matter Of )

)

CONSUMERS POWER COMPANY Docket Mos.

(Midland Plant, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the attached "BRIEF OF CONSUMERS POWER COMPANY IN SUPPORT OF ITS POSITION THAT MR. MARSHALL'S PETITION TO INTERVENE IS BARRED BY RES JUDICATA" in the above-captioned proceeding have been served upon the following parties by United States Mail, first class postage prepaid, this 31st day of October, 1978:

Ivan W. Smith, Esq. Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street

U.S. Nuclear Regulatory Commission Midland, Michigan 48640 Washington, D.C. 20555 Colleen P. Woodhead, Esq.

Mr. Lester Kornblith, Jr. Counsel for the NRC Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. Frederick P. Cowan Atomic Safety and Licensing 6152 N. Verde Trail Board Panel Apt. B-125 U.S. Nuclear Regulatory Boca Raton, Florida 33433 Commission Washington, D. C. 20555 w e -, ,. -n, , . -

Frank J. Kelley, Esq. Atomic Safety and Licensing Attorney General of the Appeal Panel State of Michigan U.S. Nuclear Regulatory Stewart H. Freeman, Esq. Co=ission Assistant Attorney General Washington, D. C. 20555 Gregcry T. Taylor, Esq. .

Assistant Attorney General fir. C. R. Stephens Environmental Protection Division Chief, Docketing and 720 Law Building Service Section Lansing, Michigan 48913 Office of the Secretary U.S. Nuclear Regulatory Myron M. Cherry, Esq. Comission 1 !aM Plaza Washington, D. C. 20555 Suite 4501 Chicago, Illinois 60611 Norman Hatlie, Esq.

P. O. Box 103 .

Mr. Wendell H. Marshall 3609 Shore Line Drive Reute 2 Mararve, Minnesota 55392 Midland, Michigan 48640 na r ,

t 1 4^t-rh ( b/@s Martha E. Gibbs One of the Attorneys for CONSUMERS POWER COMPANY ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312)786-7500 .

. ,.