ML19326B160
| ML19326B160 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 12/26/1970 |
| From: | Bleicher B COBURN, SMITH, ROHRBACHER & GIBSON, LIVING IN A FINER ENVIRONMENT |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| Shared Package | |
| ML19326B155 | List: |
| References | |
| NUDOCS 8003060957 | |
| Download: ML19326B160 (28) | |
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UNITED STATES OF A'GLICA ATOMIC ENERGY COIctISSION In the Matter of THE TOLEDO EDISON CCMPANY ) ' Decket No. 50-3h6 AND THE CLEVEIAND ELECTRIC )
ILLUMINATING COI!PANY ) SUPPORTIIiG IEt0RANDUM
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(Davis-Besse Nuclear Power )
S tation) )
)
PRELIMINARY STATE!!ENT The movants, Living In a Finer Environment, Irwin I.
Oster, PhD., and William E. Reany, on behalf of the group's members, on their own behalf, and on the behalf of others similarly situated, hereinaf ter for the sake of simplicity referred to collectively as LIFE, have requested leave to intervene in the natter of the apolication filed by The Toledo Edison Cenpany and the Cleveland Electric Illuminating Cenpany for a construction permit to build a pressurized water nuclear reactor known as the Davis-Besso Nuclear Power Station. On December 9,1970, their Petition was denied by the Atomic Safety and Licensing Board sitting in Port Clinton, Ohio, for the stated reason of "not being timely filed and for not having shown good cause for failure to file it on time . " (Hearing Transcript, p. 3h9)
LIFE now noves for reconsideration of this denial on the grounds l I
1 that it was an abuse of discretion and that on reconsideration I
the Board will find that LIFE had good cause for its failure 8 003 060 [f 7
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to file the Petition on time and'also has novel important issues to raise and valuable information to contribute to this hearing.
LIFE wishes to note at the outset that the granting of this motion at the present time will cause neither incon-venience to the parties nor delay in the proceedings. The hearings have been recessed until January 5,1971. At that time the applicant and all parties are to reconvene for the taking of evidence. LIFE is familiar with the matters which have already been taken up in this proceeding and has no desire to duplicate matt,ere already considered or to cause any undue delay. The other parties will in no way be prejudiced by LIFE'S appearance as a party but the public interest in clear presentation of all the issues prior to issuance of the con-struction permit will be seriously prejudiced if it is denied the right to intervene.
In the pages that follow the movants will explain the reasons that they were unable to file their petition within time and will further show why their intervention is vital for
.the present case. If the Board does not grant this motion to Reconsider the Denial of the right to Intervene, however, in the alternative, LIFE moves that the Board reconsider its prior action and certify the question of intervenor status raised herein to the Atomic Energy Comnission.
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II DELAY IN FILING LIFE'S PETITION TO INT %VE:lE UNAVOIDABLY REULTED FROM AN UNAVAILING EFFORT TO PARTICIPATE JOINTLY UITH ANOTHER INTERVENOR AND SUCH DELAY WCRKS NO PREJUDICE UDON A!!Y PARTY At a very early stage in these proceedings, LIFE had in-dicated ,its intention to appear as an intervenor in this matter.
The original notice of Hearing on The Davis-Besse plant applica-tion is dated October 30, 1970. Shortly thereaf ter, on November 1,1970, Victoria Evans, Co-chairman of LIFE, sent a letter to Mr. A. A. Wells, Chairman of The Atomic Safety and licensing Panel (Exhibit A attached hereto) which .1 itter indicated the intention to appear as an intervenor in this matter (See Hearing Transcript, p. 33l.t.) Following this action, the proposed intervention was the subject of several telephone conversations between Evans and Wells (See Exhibit B.) Thus, as early as November 2,1970, (The date on which the letter was received by the AEC) the A.E.C. had notice of LIFE'S intent to intervene.
Subsequent to mailing this letter, however, LIFE learned that several other citizens groups interested in environmental problems also wished to intervene in the hearings.
Motivated by a desire to avoid needless duplication of effort which would be detrimental to individuals and citizens groups of limited resources such as LIFE and time-consuming to the other parties involved, LIFE decided to join the Coalition for Safe Nuclear Power (hereinaf ter referred to as the Coalition) which had begun to be organised in Cleveland, Ohio, during Augus t, 1970. It was hoped that coordination of their activities 1
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. 7 would be the most direct and economical nethod of inter-vention without unfairly neglecting any inportant issues to be raised. Unfortunately, the geographic distance made ccm-munication between the LIFE group in Northwestern Ohio and the Cleveland-based Coalition extremely difficult. There were also differences in the approaches and ultimate gonis of the two groups. LIFE believed and centinues to believe that certain essential points, further elaborated below, should be presented for the Board's consideration. Although, as a member of the Coalition, LIFE attempted to have these points included in the Coalition's Petition to Intervene, the Petition ultimately filed on behalf of the Coalition did not make these points.
Indeed, the Coalition filed its Petition for Leave to Intervene without giving LIFE any opportunity to examine the docunent or to nake suggestions concerning it. With a covering letter dated November Ib,1970, C. Reymond Marvin, attorney at that time for the Coalition, mailed a copy of what he described as the petition which the Coalitien intended to file on November 16, 1970. Believing this petition was the one to be filed and referring to it, LIFE issued a P'ress Release November 16, 1970 stating their filing of a petition to intervene as a part of the Coalition (See Exhibit C.)
Recognizing serious emissiens in this petition, LIFE then prepared a Supplemental Petition which it served upon all parties and filed prior to the Ncvember 23, 1970 pre-hearing
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7 3 date by mailing to the Secretary of the Atomic Energy Con-mission in accordance with 10 CFR 2.701 (a). The official receipts show that the telegraphic announcement of that Supple-mental Petition was received by the AEC on November 18, 1970, and that the Supplemental Petition itself was received on November 23, 1970. Attached hereto are receipts for the aforementioned as Exhibit D.
At the pre-hearing, for the first time, LIFE received a copy of the petition that the Coalition actually filed on November 18, 1970 It was different in several respects from the petition which had oreviously been mailed to them by Attorney Marvin as described in the preceding paragraph.
Another shock preceded this one. At h:55 P.M. on Friday Novenber 20, 1970, LIFE was informed that the attorney whom the Coalition had retained would not be present at the Pre-hearing on November 23, 1970. No one of the Coalition had so inforned LIFE previously and the representatives of LIFE were understandably surprised and distressed at this turn of events.
In other words, Vicki Evans, Co-chairnan of the Living in a Finer Environment group, Dr. Irwin I. Oster, and Willtam E. Reany arrived at the November 23 Pre-hearing completely utsawaru
- ha t a t,a ti ti g t di fferet.t, from the one th.a hn.1 boori aluun had bean filed in the.ir namen but with-out their approval and only recently apprised of the fact that the attorney whom they had understood to be representihg the Coalition would not be present.
3 At the Pre-hearing, Chairman Skallerup asked Vicki Evans whether the Supplemental Petition which had been filed by LIFE was intended as a Petition for Leave to Intervene, separate and distinct fren the one filed by the Coalition. At that juncture, of course, there had been no opportunity to study the petition which the Coalition had actually filed, no chance to consider the problems raised by this total breakdown of commnication between themselves and the Coalition, and no chance to confer with the LIFE membership on what course of action to pursue. In effect, they were stranded--without counsel--members of the Coalition in name only. Under these circumstances, Miss Evans replied in the negative since that had been the understanding up until the tine of the Pre-hearing. (Transcript of Pre-hearing, p. Eh.)
Twice during the course of um Pre hoaring, (Transciipt of Pre-hearing, p. 20), Miss Evans attempted to read a prepared statement exp.laining the problens of coordination which had arlsn within The Coalition and seeking time to consult with counsel. A copy of that statement is attached hereto as Exhibit E. She had personally handed copies of that statement to the Beard but being unfamiliar with procedures at a hearing of this type and without the 6uidance of an attorney, Miss Evans did not knew that she could insist upon inserting her state-ment into the record and thus w&s unable to clarify the an-biguous role of LIFE at that time.
It is important to note that no decision was nade by the Board on November 23, 1970, as to whether the Coalition
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i would be granted intervenor status. Instead the Coalition was given until December 8,1970--the scheduled hearing date--
in which to file an amended petition more specific in nature and accompanied by affidavits from each group presumably represented by the Coalition showing that representation at the hearing by the Coalition was duly authorized. (Tran-script of Pre-hearing, p. 33. ) Apparently the Board did not consider it essential that the issue of who would be permitted to intervene be decided yet.
Following the Pre-hearing, repeated efforts to coordinate with the Cleveland-based Coalition ninety miles away proved futile. LIFE then informed the Coalition through Mrs. Evelyn Stebbins, Co-chairman, that it intended to withdraw from the Coalition and to attempt to obtain intervenor status indepen-dently. On the evening of December 7, the Coalition presented its Amended Petition for Intervention. The next morning, December 8, LIFE presented its own Petition for Leave to Intervene to the Board and that af ternoon the LIFE petition was filed in original and twenty copies with the official AEC recorder for transmittal to the appropriate AEC office.
At the Hearing on December 8, Mr. Baron, Attorney for the Coalition, read the names of those originally part of the Coalition who had decided to withdraw. (Transcript of Pre- -
hearing, p. 103). The present movants were among these so listed.
It was not until Wednesday af ternoon, December 9, that the Board finally decided that the Coalition would be granted )
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intervenor status. Inmediately folleving this decision, the Board took up the petition filed by LIFE, and denied it "for not being timely filed and for not having shown good cause for failure to file it on time."
(Hearing Transcript, p. 3h9.)
LIFE then moved the Board to Certify the natter of its re-quest to intervene to the Connission. (Hearing Transcript p. 365.)
This notion was denied on the following day. (Hearing Tran-script p. 371) and at the close of proceedings on December 10, 1970, the Hearing was recessed until January 5,1971.
III THE BOARD HAS AUTHCRITY TO ORANT THIS HOTIOIi FOR RECONSIDERATION AND TO DO SO WOULD CARRY OUT THE POLICY AliD SPIRIT OF AEC HEARINGS In view of the facts described above, wo contend'that the Board should reconsider its ruling that their petition was filed too late. The Board has authority to accept a late petition. 10 CFR 2.712 (a) states that a late petition for leave to intervene may be granted if the petitioner shows good cause for the delay. In Appendix A to 10 CFR Section 2, it is again stated:
"A Board has general authority to extend the tine for good cause with respect to allt:ing intervention."
Additional evidence that t.he regulations anticipate the noenptanco of cone lato filings is found in Appendix A in the following words:
"Any agreements reached or decisions nade at the conference will be incorcorated pronptly in the formal record of the hearing without crejudice to the rights of subsequent intervenors"
~10 CFR Section 2, II (d) [ emphasis added]
a The reason for this permitted flexibility toward late filing is found in the policy which inspires the entire hearing procedure.
The idea is to encourage responsible participation by knowledgeable and concerned citizens. If, as in the present case, circumstances beyond the control of a potential intervenor have unavoidably caused a de]ay in the filing of a petition, the petition should not be denied if it does .
have merit. This is especially true in the present case where the reason that LIFE did not file independently at 4
the outset was to avoid undue delay and inconvenience for all concerned and to reduce the heavy financial burden which intervention places on any public interest group with limited funds. The fact is that public interest groups can rarely summon sufficient financial resources to pursue a matter such as this one adequately. The facts recited abcve show how handicapping it was to LIFE to appear without counsel, as ordinary citizens unfamiliar with the details of AEC pro-cedures. Yet these citizens are the very ones for whom the oublic hearings are designed. Obviously, in order to give them the real benefit of the policy in favor of participation, and to prevent the hearing from being a meaningless- charade, some
. recognition of their special situation must be a part of the Board's exercise of discretion.
The flexibility authorized by the Regulations is also intended to avoid the possibility that petitions for inter-vention would be granted on a "first cone-first served" basis. This night unfortunately deny the right of intervention
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to persons who may have valuable information and ideas to contribute, and certainly threatens to impair the credibility of these hearings as genuine efforts to benefit the public.
The AEC policy is clearly enunciated in Appendix A to 10 CFR Part 2:
" Boards have considerable discretion as to the manner in which they accommodate their con-duct of the hearing to the local public interest and the desires of local citizens to he heard. Particu-larly in cases where it is evident that there is local concern as to the safety of the proposed plant, boards should so conduct the hearing as to give appropriate opportunity for local citizens to express their views, while at the same time protecting the legal interest of all parties and the public interest in an orderly and efficient licensing process. Boards should give full public recog-nition to the fact that utilization of such opportunity is one of the important reasons why public hearings are held by the Connission and are held in the locality of interest."
10 CFR Part 2, Appendix A, III (b) (8).
As mentioned above, no substantial inconvenience is created by the late filing. Since early November, 1970, the AEC and the applicant have been aware of LIFE's interest in this matter. LIFE reoresentatives have been present at nearly all prior sessions. As we will further explain below, nany concerned people in Northwestern Ohio are counting on LIFE to represent them at these hearings. Furthermore, LIFE does not intend duplication of other intervenors' efforts but merely wishes to present evidence on certain points which are of utmost significance and which have not been adequately brought before this Board.
m, -3 IV DENIAL OF THE PROPOSED INTERVENTION WCULD PREJUDICE THE LEGITIMATE INTER 4 ESTS OF MANY LOCAL CITIZENS The moving parties herein were identified in their Peti-tion to Intervene and this is not the place for extensive review of those credentials. Their personal interest is, of course, considerable. The members of LIFE, Dr. Oster, and Mr. Reany, all reside in the Northwestern Ohio area which will be affected by this power station. They work here and fre-quent recreational areas in the vicinity. There can be no greater personal interest than that of people, such as these, whose health, economic interes t, safety, and very lives may be adversely affected by the proposed Davis-Besse facility.
In addition to these factors of highest personal interest in the proceedings, the movants believe that they have something to offer the hearings in the way of expertise and access to scientific infornation. Dr. Irwin I. Oster, a Professor of Biology and Anatomy at Bowling Green State University, is a 4
geneticist who has specialized in the effects of radiation on biological systems. On the basis of his extensive background in studying the genetic and somatic effects of acute and chronic irradiation he has been called to testify as an expert witness at the Shoreham and Midland Hearings. William E. Reany, a graduate student in Economics at Bowling Green State University, i has studied the economic aspects of the proposed facility on Chio, Northwes tern Ohio, and' Ottawa o a
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Coun ty. Being in close touch with the scientific and academic connunities, these movants had secured the necessary funding and conmitments fron several expert witnesses, consisting of nuclear engineers, radiation geneticists, physicians, and radioecologists to help in the cross examination of the wit-nesses attesting to the safety of the proposed facility.
These included Mr. Richard Webb, Drs. B. Sonnenblick, J.
Gofman, E. Carlson, Wm. Lee, L. Browning, etc., and several others whose heavy schedules did not allow them to make definite commitment at the tine they were contacted' but who hcped to be able to appear.
With these qualifications and contaats, the novants feel that they certainly have what Commissioner James T. Ramey (in his address entitled "The Role of the Poolic in the Development and Regulation of Nuclear Power" delivered at the Conference on Nuclear Power and the Environment, University of Wisconsin, !!adison, Wisconsin, April h,17/0)- has called
. "the requisite interest to intervene in hearings under the AEC 8 s liberal $ ntervenha policy.u Commissioner Ramey further o s... a d :
"Menbers of the public whose interests are affected can intervene in t,hece hearings, and can call witnesses and crocs-examine in order to try to sotiary themceives as to the safety of the pro-posed nlant. Thus, AEC invites public scrutiny, and welcones the study and cocment of independent ex-perts and, of equal importance, the general public.
Here is a place in which trained people er the univercities can play a particularly important role in the public interest."
Peyond all thim, there is the fact tha t the movants reDre-
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sent numerous concerned citisens who live in the affected area and who are relying upon LIFE to reoresent them.
The Bowling Green State University student group, itself has a membershio of 100. In one week during the summer of 1970, they collected over 200 signatures from Ottawa County Residents on petitions requesting preliminary Public Hearings en the whole issue of the Davis-Besse f acility. As a result of neuspaper publicity concerning LIFE's efforts in this field, LIFE has received nunerous letters from local citizens ex-presting support for LIFE's proposed intervention, even acccmpanied by an occasional small donation, demonstrating the degree of ecmmittent and concern felt by these citizens.
In October,1970, Mr. Daniel Romick, Co-chairman of The Erie County Connittee against Thermo-Nuclear Pollution joined with LIFE to plan a possible intervention. In August 1970 his group had obtained alnost 2000 signatures on petitions addressed to the expression of concern for the establishment of safe-guards for the environment threatened by the proposed Davis-Besse plant. These petitions are new in our oossession and -
are available to the Board on request.
Thus, the novants represent a large group of cimilarly con-cerned people and should not be denied the opportunity to parti-cipate as a party in these Hearinen = a p"roly rormal crnond. Since, ,
l Jn fact, no prejudico to any party has resulted from cur late l fil i ng, the public rhould not be painliud by rigid adherence to j 1
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THE PROPOSED The movants NOVEL AND ISSUES Ilf0RTANTINTERVD TION RAISES Coalition will not which has duplicate the effo t The issues already been granted r s ofi the raised are ntervenor Coalition, and signovel, i distinct fromsetho s tatus.
' during these heari ngs.
n ficant enough to raised by tho raising these issuesItdmay be that ourwarrant considerati If so, we original petition could prepare idan not delineate em th points, just as the amended petition cla iclearly enou Coa lition r fying these were pointed outeby th amended its petition tative. The same apolicant and the after flaws right to intervenor amend was regulatory represen -
extended to filed at approximatwhose formal anotherpetition f ely the script, pp. 81, 88 or Leave to Interven same time as e was
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the A E regulatio ns Particularly in view (Hearing Tran-recently as December 5concerning ation of of implement the fact that for full study ,1970 so that NEPA wereas prior to they were Intervene, a the right to our initial Petition not av ilable amend useful purpose in th for Leave to that Petition now The important pointese proceedings. would serve a related in these hearings btontthe issuesprotectics is that s of the public directly to ecaus mee', formal requirem e of minorshould not be ignor e d en ts. and non prejudicial f dence The following are t ailures he points on and which will not b which we aish e presented by the C to present evi-oalition.
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(A)
LIFE contends that the present proceedings violate the National Environmental Policy Act of 1969 (hereinaf ter referred to as NEPA), Public Law 91-190, 91st Congress S.1075.
This contention was raised on pages 13-18 of our Petition for Leave to Intervene filed previously. NEPA was enacted on January 1,1970, and requires that there be included:
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- in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the respon-sible official on--
(1) the environmental impact of the proposed ac tion, (ii) any adverse environmental effects which cannot be avoided should the croposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship bstween local short-term uses of man's environment and the maintenance and enhancenent of long-term productivity, and (v) any irreversible and irretrievable commit-ments of resource which would be involved in the proposed action should it be implemented."
There can be no doubt that the proposed construction of the Davis-Besse Nuclear Power S tation will have significant effects on the environment; yet the requirenents of NEPA have not been met. In several cases, failure to comply with NEPA has led the courts to issue injunctions to prevent the issuance of an " outlaw pernit." Zabel v. Tabb, h30 F. 2d 199 (C. A. 5th, July 16, 1970) held that NEPA requires the U.S.
l Army Corps of Engineers to fully' consider all environnental !
factors before granting a dredge and fill permit. In Wilderness Society v. Hickel_,1 Environmental Reporter 1335 3
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(District Court, D. C., April 23, 1970) the Court granted a preliminary injunction aghinst defendant for failure to comply with NEPA. In Sierra Club v. Laird, F. Supp.
(Aric., June 23,1970) also an order granted preliminary injunc-tion against defendant for failure to comply with NEPA.
NEPA has expanded AEC jurisdiction to include full review of all environmental effects resulting from a construc-tion pernit or license it may issue. The key to this review is the detailed environmental report including discussion of the al terun tives to the proposal submitted. To be meaningful this report must be part of the early stagen of inquiry. If postooned, it will be a hollow gesture since economic and technological activities will already be in process. The report will then have to overccme faits accomolis.
To date, the AEC response to NEPA's clear mandate has been deplorable. The detailed environmental statements filed with resoect to the proposed issuance of construction pernits or operating licenses not been merely summaries of summaries received from other agencies and from the applicant. In every case the environmental statements reflect the fact that future studies will be conducted to deternine the environ-mental impact of radioactive releases, cooling water discharge, and the like. Conclusions, wi thout underlying data or reasoning, are given in rejecting other alternatives to the plant design, l oca ti on, operation, use, etc. ,
The Applicant's Environmental Report filed by the Toledo Edison. Company on August 3,1970, is a classic example of N.
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, the self-serving unsupported conclusions which the Commission merely summarizes in its so-called detailed statement. Moreover, while the Department of Health of the State of OHIO tacitly
" endorses the issuance of a construction permit for the pro-posed Davis-Besse Nuclear Power Station" Dr. E. W. Arnold in his letter of October lb,1970 to Mr. Harold L. Price, Director of Regulation, quickly adds' that the aforesaid endorsement is given "pending full consideration and satis-factory resolution of any testimony offered at the fortheoming public hearing which tends to conflict with the radiation evaluatien and findings of the commission's regulatory staff and of the Advisory Committee on Reactor Safeguards". Dr.
Arnold also points out "We contend, however, that the (Environ-mental) report does not contain sufficient detailed information to permit an independent evaluation of the total environmental 1+
of the proposed facility if the evaluation nust be based solely on the content of the report. The report is particularly lacking in specific qualitative and quantitative data relative to the environmental factors of greatest current public concern--the anticipated levels of radiological and thermal emissions to the environnent under ncrmal operating conditions and under foreseeable accident or emergency condi-tions". These contentions coming from State and/or local agencies "which are authorized to develop and enforce en-vironmental standards" (letter frc= Mr. Price to the under-signed dated Novenhor 6,1970) narvn t.o rc$nfurec t.ha mnvants s -
claims--namely, that the purnose and intent of the NEPA is not .being adhered to in the current proceedings.
A satisfactory detailed report in the present case must include full analysis of the fact that the Water Quality Improvement Act of 1970 sets the State's water quality standard as a minimum standard to be applied by the AEC in issuing constructive permits. It should be noted at this point that these standards have not yet been approved for the State of OHIO by the Departnent of the Interior. The detailed environ-mental statenent may indicate that the specific location of the prooosed alant requires even higher water quality standards which can only be net by a change in plant design.
These design changes will affect the safety analysis of the plant. The plant may be obsolete prior to its completion.
Increased costs as a result of the design changes may warrant a relocation of the plant to an area where less stringent water quality standards are required. The issuance of a construction pernit involves the kind of polycentric problem which can only be resolved when all relevant factors are discussed in one hearing.
Nevertheless, the notice of Hearing for a Construction Permit en the Davis-Besse facility did not even suggest that environmental factors would be discussed. If the AEC had prepared and submitted sufficiently in advance a properly detailed environments report these hearings would necessarily have to include discussion of that report and opportunity for L
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the applicant and the general public to express their views on the alternatives mentioned and on proposed modifications in design, location, and existence of the plan. The detailed Environmental Report prepared by the Atomic Energy Commission on November 20, 1970 and was made available on November 23, i 1970 at the time of the Pre-hearing. Its availability to the public was announced on December h,1970, Federal Regis ter, 18h85.
This report paraphrases the applicants Environmental Report previously mentioned, since it is taken basically from that document. As a result, it suffers from the same aforementioned shortcomings.
W'e contend that the postponement of full compliance with NEPA beyond December 3,1970, and in particular postponement of the effective date for the requirement of hearings en s environmental factors (A,pendix D of Part 50 of Title 10 CFR) is a violation of NEPA and that, therefore, these Davis Besse bearings are illegal.
This issue is presently on 'aopeal in Calvert Cliffs Coordinating Con ~ittee, Inc., National Wildlife Federation and the Sierra Club v. U.S. Atomic Energy Commission and The United States, Case No. 2h,271 in The United States Court of Appeals for the District of Columbia. Filed on December 7, 1970, pursuant to Section 189 (b), 28 U.S.C. Section 23h2 and 5 U.S.C. Section 702, that case reads in relevant part as follows:
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" Petitioners request this Court to hold invalid
' that portion of Appendix D of Part 50 of Title 10, Code of Federal Register . . . which:
- 1. Prohibits the Atomic Energy Commission from imposing conditions on construction permits and operating license for nuclear power plants for the protection of the environment which are more stringent than standards set by state or federal agencies.
- 2. Postpones the effective date of the requirement that hearings for construc-tion permits and operating licenses including a hearing on environmental factors until hearings noticed in the Federal Register en or af ter March h, 1971.
- 3. Refuses to require that nuclear power plants be back-fitted with the most advance available equipment to reduce the adverse environmental impact of these plants.
- h. Postpones full compliance with the National Environmental Policy Act by the Atemic Energy Comission beyond December 3, 1970.
- 5. Refuses to require all owners of nuclear power plants which now have construction permits and for which operating licenses have not been issued to show cause why their construction permits should not be susoended pending a full investigation of the envirormental impact of the nuclear power plant as required by the National Environmental ,
Policy Act.
Petitioners.further request this Court to order l
the respondent to imolement rules and regulations to correct the inadequate and illegal provisions of the rules and regulations under review in this proceeding."
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The decision of the Court of Appeals on the Calvert Cliffs Case' will crucially affect the legitinacy of these hearings t
. on the Davis-Besse f acility. The decisicn may well in-validate these proceedings and any construction permit issuing as a result of then. This 'neans that the present hearings will be just uasted tine, effort, and noney on the part of the applicant and the AEC. Any steps toward con-struction, should the per. nit issue prior to a decision t
from the Court of Appeals, would be subject to sweeping revi-sien once-the full and appropriate environnental hearings.
were then held pursuant to the Court of Appeals decision.
, Movants are inferned and believe that the existence cf the Calvert Cliffs Court of Appeals case has already affected
- proceedings in at least two other pending nuclear power plant f acilities, The Indian Point and Midland facilities.
In view of the interaction among all these cases and the pending Court of Appeals Ccce, the issue of NEPA inple-nentation should really be resolved by the Court cf Appeals
! prior to issuance of any further pernits or licenses under the existing regulations. We fsel that the issue is in any event one of cufficient inpertance to warrant its s
inclusion in the present proceedings.
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. (B)
LIFE contends that the proposed facility will not be operating without undue risk to the health and safety of the public even ih it complies with the criteria presently set forth in 10 CFR Part 20, " Standards for Pro-tection Against Radiation," for the reason that said Stan-dards themselves are inadequate. This point was raised in
- our Petition for Leave to Intervene on page 9, Items 6 and 7, and further discussed in said Petition at pages 10-13.
The present radiological protection standards are not within the Commission's authority, and are not a reasonable exercise of the broad discretion given the AEC by the Atomic Energy Act. That Act, h2 USCA 2201 (p) gave the Commission authority to
'rmake, promulgate, issue, rescend, and amend such rules and regulations as may be necessary to carry out the purposes of this chapter."-
It was anticipated that such rules and regulations would be kept up to date with the latest scientific infornation which the AEC was given full power and ability to obtain. As stated by the AEC itself in its August 8,1969 Memoran-dum In the Matter of Baltimer.e Gas and Electric _ Company (c,Lvert Cliffs Nuclear Power Plant, Units 1 and 2):
"Part 20 is a 'living document . ..
The present criteria in 10 CFR Part 20, however, are outmoded and inadequate, in enntravant. inn of the AEC's responsibilities.
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Specifically the LIFE Petition raised the following objections to the Standards and thus to the proposed facility's operations under these inadequate standards:
- 1. The results of scientific research concerning the dose effect relationshi;$ between radiation and cancer or leukemia induction in man warrant a re-duction in the Federal Radiation Council guidelines for radiation exoosure to the population at large;
- 2. The radiation protection standards prescribed by 10 CFE 20 will permit the Davis-Besse plant to ex-pose the public to dangerous levels of radiation which could cause a 10% increase in birth defects, a 10% increase in cancer and leukemia, and a general increase in many ma,ior disaaren includins enedio-vascular di cense, schizophrenia and other gena.tically re]ated diseases as well as metabolic diseases such as diabetes. In addition to the foregoing, the proposed plant will be permitted to expose the workers in said plant to levels of radiation 10 times and in some cases 50 times the levels permitted for the general public. As a consequence, the medical risks to the werkers will be increased pro-portienately over those risks born by the general public.
- 3. A valid scientific justification for the allowable dose of 0.17 rads of total body exposure to ionizing radiation has never been presented;
- h. The radiation protection standards in 10 CFR 20 adopted by the AEC fail to take into account the possibility of multiple sources of radioactive pollution-l
- 5. The allowable radiation dosage to the popu- I lation permitted by the regulations of the Atomic !
Energy Commission (10 CFR, Part 20) must be re-vised downward to zero concentration, until such time as sufficient scientific data is obtained to permit an infomed judgment on the maximum limits of exposure to low levels for long periods of time advisable for individuals or populations, and until appropriate consideration can be given as to ,
I what is the acceptable total genetic risk, and what portion the nuclear power industry, as one of many sources of ionizing radiation exposure (and other agents in the envirownent which have nutagenic quali-ties including many chemicals), may be pernitted l
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to contribute towards its appropriate share of the permissable dose limits, and so that there may be an appropriate balancing and apportioning of the benefits and the risks within the Lake Erie Area from the various sources of ioninzing radiation; 6 The biological effects of tritiun and other radioactive wastes are serious nuclear contamin-ants to the environment; there is difficulty in the filtering or removing such wastes from the effluents of nuclear plants, and the effect of their discharge on the public health and safety is not yet well documented; The extent to which diluted radioactive isotopes may be concentrated by aquatic organisms, enter into the food chain, and eventually be taken up by men and animals is not well documented in this case; There is insufficient study of the Lake Erie Area to arrive at a conclusion of the critical pathways of the radionuclides, the use of, and dilution in the environment, the critical segments of the population and the exposed population density, the number of nuclear oower plants installed or planned to be installed, and the success in reducing other sources of pooulation exposure.
That the present hearing is the appropriate forum for this issue was determined in the Initial Decision, June 30, 1969 of the Atomic Safety and Licensing Board, In the Matter of Baltimore Gas and Electric Cencany (Calvert Cliffs Nuclear Power Plant, Units 1 and 2) Docket Nos.
50-317 and 50-318. That decision held that it was within the Board's function to inquire into the validity of the standards established by Part 20.
"The Part 20 limitc, of course, play a central role in the question of what constitutes " undue" risk. However, it seens to the Board that there may be cases in which the evidence introduced is such as to draw into questien the validity of those regulaticns themselves. In such a case, the Board might' not be able to rely upon Part 20 as es-tablishing the ou ter Jimits of acceptabla rJ ak."
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Text of Initial Decision, reproduced at paragraph 11, 578.01 of C.C.H.
Atomic Energy Re-porter This decision was further elaborated in an AEC Memorandum dated August 8,1969, which added thqt if a substantial question of that nature were raised, the Board should " certify that question for guidance prior to rendering an initial decision." Thus, if this issue is to be raised at all, it should be raised on the record now, before the initial decision, and LIFE believes that it should be granted the opportunity to do so. Dr. Oster, one of the individual movants, has specialized in studies related to the effects of radiation on biological systems.
We respectfully subnit that his training and knowledge in the area qualifies him to present valuable information on this issue. Furthermore, as discussed above in item IV, LIFE has access to scientists who can also present scien-tific and technigal data on this point.
VI THE BOARD SHOULD RECONSIDER THE DENIAL OF CERTIFICATION PREVIOUSLY REQUESTED l BY LIFE Cn December 10, 1970, the Board denied LIFE's request, voiced t!y Vicki Evans, that the denial of our Petition for
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innvo to Intervene be certified t'o the Commission for its decision on the natter. In the preceding Memorandum we have attempted $o demonstrate why LIFE should be permitted l
l tn i nter rena. If, however, th - Lt $A es _.
Beatrice K. Blefcher , {
Attorney for LIFE COBOURN, SMITH, ROHRBACHER & GIBSON 7th Floor Toledu Trust Building Toledo, Ohio 43604 Telephone: 243-5252 4
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UERTIFICATE OF ':22'ICh i (Supplemental) l I hereby certify that copies of MOTICII I'w IE LCIFIDEPMI0Il (>F DENIAL OF Pi'TITIO:: FOR LEA"E TO INTERVEIT OR DI DE: /.'751!'A"ILT FOR IP:COICIDElWfloli
'0? DEI!IAi, OF CERTIFICATICII f e.ed Decenter 2d,19'f3 in the captioned i matter have been served on the following L:' deposit in the "nited Ctr ten l . mail, firnt class or air mail, this 29th Cay of i;cccmher l'fil: ,.,_ -
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! James P. Cleason, Zsq., Alternate 3300 Fernwood 3oad l Chairman Ecthesda,le.aryland 20034
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