ML20064E216

Brief of Consumers Pwr Co in Support of Its Position That Wh Marshall'S Petition to Intervene Is Barred by Res Judicata.Urges Petition Be Denied.Cert of Svc & Supporting Matl Enclosed

ML20064E216
Person / Time
Site:	Midland
Issue date:	10/31/1978
From:	Gibbs M, Mark Miller CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.)
To:
References
NUDOCS 7811150080
Download: ML20064E216 (91)

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Before the Atomic Safety And Licensing Board ~2m . '. '

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In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 (Midland Plant, Units 1 and 2) ) '

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BRIEF OF CONSUMERS POWER COMPANY IN SUPPORT OF ITS POSITION THAT MR. MARSHALL'S 7 PETITION TO INTERVENE IS BARRED BY RES JUDICATA l

By letter dated September 8, 1978, Mr. Wendell H.

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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")

cpposed that petition on various grounds, including the fact that "the aspects of the subject matter of the proceeding as to which petitioner wishes to intervene," required to be specified in the intervention petition by 10 C.F.R. S2. 714 (a) (2) ,

had already been resolved at the construction permit pro-ceedings. Thus, these aspects of the subject matter could not be relitigated at the operating license stage because of the doctrine of res judicata.

This Atomic Safety and Licensing Board (" Licensing Board") ordered that Mr. Marshall be given temporary status 7811150oro [7

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as an intervenor pending a final determination on the ade-quacy of his intervention petition. In its order of October 12, 1978, the Licensing Board agreed with Licensee's analysis of the applicability of res judicata to an NRC operating license proceeding; furthermore, Consumers Power was given the opportunity to file a brief demonstrating, by reference to the record of the construction permit hearings, the fact that the " aspects" set forth in Mr. Marshall's petition had indeed been resolved at the previous stage of the Midland Plant proceedings.

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

I. APPLICABLE LEGAL STANDARD The legal concept which is involved here was examined by the Atomic Energy Commission, predecessor of the Nuclear Regulatory Commission (the "NRC" or the " Commission"),

in Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974), in which the Commissioners stated that "an operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage." That opinion went on to point out, in agreement with the conclusion of the Atomic Safety and Licensing Appeal Board (" 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 sensitive regard for any supported assertion of changed circumstances or the possible existence of some special public interest factors in the particu-lar case . . . . '

7 AEC at 203, quoting ALAB-182, 7 AEC 210, 216.

(footnote omitted)

The applicability of the doctrine of res judicata to operating license proceedings was stressed by the Commission again in Consolidated Edison Company 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. Marshall has not asserted any changed circumstances 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 required by S 2.714 (a) (2) ,

leave to intervene in this proceeding must be denied.

II. RESOLUTION OF THESE ASPECTS AT THE CONSTRUCTION PERMIT PROCEEDINGS The Licensing Board issued an Initial Decision authorizing construction permits for the Midland Plant on December 14, 1972. Consumers Power Company (Midland Plant, Units 1 and 2), LBP-72-34, 5 AEC 214 (1972) (hereinafter

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, s references will be to the paragraph numbers in this decision).

The Initial Decision was affirmed by-the Appeal Board, except as to one issue not pertinent here, A/ on May 18, 1973. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331 (1973). That decision became the final action of the agency when the Commission. declined to-review it. The rather complex 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 (11 1-9). However, there were two primary groups who inter-vened against the application for construction permits, known as the Saginaw Intervenors and the Mapleton Inter-venors; Mr. Marshall was a member of the latter group. The Saginaw Intervenors participated chiefly in the radiological hearing while the Mapleton Intervenors concentrated on the environmental hearing.

In order to evaluate Mr. Marshall's current petition to intervene, each of the aspects it presents will be quoted in full, followed by citatians to the Licensing and Appeal Board decisions in which those 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 ALAB-123, an attempt to dis-qualify the members 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 consti-tutional rights; la) the air will be contaminated with airborne radioactive nuclides, . . .

The first aspect of the subject matter mentioned in Mr. Marshall's petition, "la", is phrased in terms of the alleged negative effects of the radiological releases to the air _ caused by the nuclear plant. At the construction permit proceedings, this issue was considered in both the radiological health and safety and the environmental phases of the, heak-ings, and the Licensing Board found against the wh

' proponents of these contentions in both areas.

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[ To the extent that those contentions were based on release's of radioactivity within the limits permitted by

.m-v s the Commission!s regulations, the. contentions were treated i

during the radiological hearings as attacks on the regula-tions (Initial Dc6isions, t 55). Such attacks could only be considered by the Licensing Board for the purpose of ascer-1 i

taining whether a sufficient showing of invalidity had been made to warrant referral to the Commission; the Licensing Board found that, for those purposes, the showing was, in

'* all cases, " clearly insufficient" (Initial Decision, 5 55).

Furthermore, the Licensing Board concluded that the expected i releases from the Midland Plant did not exceed those per-mitted byJCcmmission regulations (Initial Decision, V 73).

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At the 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 witn waste-gas (Initial Decision, H 59), and with solid waste treatment and disposal (Initial Decision, 9 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, S 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, 5 60). Furthermore, the Licensing Board found that "the environmental effects of the normal releases of radioactivity and disposal of solid wastes are minimal" (Initial Decision, t 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 determined that those potential costs could not tip the balance against the nuclear plant (Initial Decision, S 73).

The next area assessed by the Licencing Board in connection with radiological releases to the air concerned the potential public exposures to radioactivity from postu-lated accidents in the course of plant operation. The Board m

found that, for the purposes of the cost-be~nefit analysis, the cost associated with the postulated accidents was minimal because the probability of occurrence of a serious accident was so small (Initial Decision, St 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, t 80 (2)) .

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 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 j

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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l As a simple reading of aspect "la" in Mr. Marshall's petition reveals, everytning contained in that statement was resolved by the Licensing Board at the construction permit stage. Furthermore, the petition does not even attempt to allege, much less to support, the existence of changed circumstances or special public interest factors which might warrant re-examining the. issue.

, lb) these nuclides may combine with discharges

{ from Dow Chemical Company to synergestically

] complicate 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 from the

] adjacent plant of The Dow Chemical Company ("Dow") was one of "the major contested issues" in the construction permit proceeding (ALAB-123, 6 AEC at 344). In fact, the Mapleton Intervencrs presented three witnesses on this subject at the construction permit hearings (ALAB-123, 6 AEC at 344).

The Licensing Board found no merit in the syner-

gism contention, stating

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viewed in the light most favorable to Inter-venors, and without considering the counter-valling 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 from the Plant,

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or the chemical effects from Dow. And when one considers the testimony of Applicant and Staff witnesses, the evidence is overwhelming against a finding of ' synergism'.

Initial Decision, 5 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 from the Applicant's testimony concerning synergism (ALAB-123, 6 AEC at 345). In addition, the Appeal Board determined that the procedures 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 involved 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 circumstances or other justification for not applying the doctrine of res judicata to bar consideration of the synergism issue at the operating license hearings.

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

This " aspect of the subject matter" is similar to "la", except that the instant issue involves radioactive

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releases to water rather than to the-air. The basic findings of the Licensing Board referenced in Section "la" above, 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, che effect of radiological releases to water as well as 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 abou? 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, t 58). The Licensing Board then set forth Consumers Power's calcula-tions regarding the potential dose to a hypothetical indivi-i dual who consumes certain amounts of water and fish from the river (Initial Decision, 5 58). These doses are well within e

the limits specified in Commission regulations. See Initial Decision, 15 58, 60, 73.

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

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

As with aspects "la" 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. example, aspirin is manufactured by a steam process and has great safety and health implica-tions 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, 1 54. The Licensing Board's opinion described the system to be used to supply Dow 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 Rivar, the issue of thermal releases to the river from the nuclear plant was also ventilated and resolved at the construction permit stage (Initial Decision, 55 62-63, 78 and ALAB-123, 6 AEC at 356-357).

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monitoring both the process steam and Dow products for radioactivity (Initial Decision, 15 56-57).

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, V 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, '

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with respect to its discussion of several areas, including the " adverse effects associated with production of products of Dow Chemical Co.," ALAB-123, 6 AEC at 353. The Appeal Board denied the exception, upholding both the FES and the Licensing Board's actions (ALAB-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 frem the transportation of radioactive materials over the various roads leading into the City of Midland.

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

In its Initial Decision, the Licensing Board explicitly stated that certain aspects of the environmental effects of the fuel cycle, including the transportation of fuel elements, spent fuel elements and packaged low-level waste, were at issue in the construction permit proceeding (Initial Decision, 1 43). A copy of the Licensing Board's Order of March 10, 1972, which made that ruling, is attached as Exhibit "A"; that decision was subsequently affirmed 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.

On March 27, 1972, the Licensing Board issued a y

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f further Order which set forth which of the intervenors' environmental contentions were issues in the proceeding; a 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 t 4

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-

'ing 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 purpose for which they were required (Initial Decision, t 9).

As a result, the Licensing Board stated that it was " virtually 4

impossible in some instances to know whether particular issues are in fact contested" (Initial Decision, 5 9, n.

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

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

As none of the intervenors' proposed findings (Exhibits "D" and "E") related to the transportation issue and the intervenors did not present affirmative 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 minimal.

The relative lack ef discussion on the transportation question in the Initial Decision does not mean that it was not treated thoroughly during the construction permit pro-ceedings, however. In order to summarize the evidence presented on the issue, those portions of Constmers Power's Proposed Findings of Fact and Conclusions of Law which pert in to the transportation of radioactive materials are attached as Exhibit "F". It is clear from reading the pro-posed 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 the original statement issued in March, 1972.

Environmental Statement concludes that, during transport under normal conditions, there would be essentially no effect on the environment and doses to persons involved in transport would be small. Even under most postulated accident conditions, the impact on the environment would be small and the exposure of personnc1 would not be expected to i be significant. The probability of more serious accidents was found to be very small.

Another item of information related 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 about 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, respec tively. ) 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 Environ-y mental Statement; both are upheld (ALAB-123, 6 AEC at 334-36, 350-56). This demonstrates the Appeal 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 both the Licensing and Appeal Boards in the construction permit opinions, they will be discussed together here.

5 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 Ds 'ision, 5 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, T 69.

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

The Appeal 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 negligible or insubstantial (ALAB-123, 6 AEC at 354). In addition, the Appeal Board held that the Licensing Board's 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 and icing in the surrounding area, as the Final Environmental 1  !

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Statement had recommended and Consumers Power had agreed to do (ALAB-123, 6 AEC at 354; Initial Decision, 1 78).

It is clear from the Initial Decision and the.

Appeal Board decision that the contentions related to possible fogging and icing in connection with the cooling pond were decided at the construction permit phase of the Midland Plant proceedings. Because Mr. Marshall has not alleged any changed circumstances or other public interest factors which would warrant reconsidering this issue at the operating license hearings, this aspect may not be litigated now.

6) Spent fuel. Since the Federal Government 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 serious danger to the City of Midland and to the people therein and to the persons and residences of the Mapleton Intervenors, 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 Commission that the environmental effects of the fuel cycle, including the effects of spent fuel storage, were not

considered in licensing proceedings. E/

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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-T 261).

Subse'quently, the Commission 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 Regulatory i

Commission, 547 F.2d 633 (D.C. Cir. 1976).

In the wake of NRDC, the Commission promulgated an interim amended fuel cycle rule. (42 Fed. Reg. 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

--5/ 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 considere( in indivi-dual proceedings (Initial Decision, t 43).

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of the Licensing Board in the suspension proceeding, con-

- cluded that the impacts reflected in the amended rule did not materially alter the balance originaliy struck for the Midland Plant (ALAB-458, 7 1:RC 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

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, 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. 5/ 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-t

sidered. As the Appeal Board made clear, Licensing Boards I

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, 19785).

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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 justification 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 ; hat the reactor be located in close proximity to a large chemical plant, a plant which is heavily populated during work hours.

Initial Decision, V 12.

The Licensing Board began its analysis of the siting issue by reviewing the physical and geographical features of'the site (Initial Decision, $1 13-14). The characteristics of the exclusion area were then considered, and the Licensing Board found that the area met the require-ments of 10 C.F.R. Part 100 (Initial Decision, S 15). In analyzing the low population zone, the Licensing Board took special note of the unusually large transient population due

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to the proximity of the Dcw plant. Assuming that there would be an effective evacuation plan, the Licensing Board 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, 51 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 City of Midland was acceptable (lnitial Decision, 1 17).

The Licensing Board considereda 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, t5 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, H 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, t 76).

. .g 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 meritorious (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

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Marshall petition was resolved at the construction permit 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 question 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 "le", which also 9

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covered radiological releases to the air and water from the operation of the Midland Plant. Therefore, this contention will not be discussed separately here. Aspect "B" is barred by res judicata for the same reasons set forth in the response to aspects "la" and "1c".

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

The last aspect mentioned in the intervention s

petition submitted by Mr. Marshall is the most vague. To the extent that it is intelligible at all, it appears to be founded upon the common law concept of nuisance. That is not, however, a proper subject to be raised in a proceeding in which the issues are determined by the Atomic 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 judgment that the Midland Plant would constitute a public or private nuisance. The trial court granted defendant's motion for summary judgment on the nuisance question on the ground that the plaintiff had failed to state a cause of action. The 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

a nuisance per se or per accidens. Marshall v. Consumers

.i Power Co., 65 Mich. App. 237, 237 N.W.2d 266 (1975). The 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 r_es judicata in its purest sense.

CONCLUSION 4

For the reasons set forth above, each of the aspects contained in Mr. Marchall'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) c.

and must be denied.

Respectfully submitted, l 1 . ) 44 by (Yl6-Michael I. Miller '

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\ R Martha.E. Gibb5-Attorneys for Consumers Power Company

l. ' ISHAM, LINCOLN & BEALE Suite 4200 One First National Plaza Chicago, Illinois 60603 (312) 786-7500 Dated: October 31, 1978.

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C0:;023S M7ER CC:eMiY ) Docket Itos. 50-329

) E0-330 (Midland Plant, Units 1 and 2) ) -

ORDER MTD REFERRAL TO THE Ap1"N, DOARD The petition to intervene of the State of Kansas and the contentions or various cpposing intervenors raise questions concern-ing the environmental effects of all aspects of the fuel cycle from the mining of uranit:2 to the ultitate storc6e of high level vastes.

Applicent has objected that cost of these issues are not properly to be considered in this adjudicatory proceeding er.d has reques,ted that the Board certiff to the Cornission the question as to what aspects of the fuel cycle are at issue in this adjudicato:/ pro-ceeding. Although there is sharp disagree =ent about the araver to the question, the parties are in substential agrec=ent that it raises major, novel issues of law and policy which ought to be decided by the Cc==ission. It is not clear to the Board whether the appro-priate procedure is by a certification under 10 CFR S 2.718(i) to the Appeal Board, or by entering an order, and referring it to the Appeal Board under 5 2.730(f). Since it seems to the Board that these questions are appropriate for consideration by the Co=nission -

(the parties, including the AEC staff, caree) rather than the Appeal Board, we have prccceded under 5 2.730(f) which see=s core O

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certainly to conterplate co==ission action. In any event uc urCe the Appeal Board to refer the questions to the Cc==issicn under 10

. CFR 5 2.735(d).

Accordingly, it is hereby OP.DIRED:

The envirennental effects of the nining, production and fabrication of nuclear fuel and the handling of spent fuel including chemical reprocessisc and vaste storage are not at issue in this proceeding, except in the following aspects:

(1) the transportation of fuel elements from the fuel fabrication plant to the reactor site; (2) the transportation of spent fuel elements from the site to the fuel reprocessing plant; h (3) the transportation of packaged radioactive material from the site to low-level vaste burial Grounds; (4) radioactive discharges occurring at the site, and any other environ = ental effects directly associated with the handling and use of the nuclear fuel at the site.

Except with respect to items (1) to (h), neither the appli-cant in its draft environmental statement, nor the staff in its draft detailed statement is required to consider the environmental effects of nuclear fuel; and no party to the proceeding shall be per. itted to introduce evidence with respect thereto, .or inquire into such effects by way of interrogatory or otherwise.

For the Ato ic Safety and Licensing Board O .-- > /,' c.. .

,' - 4. k . , ~ i Art.hur W. Murphy, Chairman - ,

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New Yorh, New York, LO I'. arch, 1972

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) Docket Nos. 50-329 f CONSUMERS POWER COMPANY

) 50-330 -

I Midland Plant, Units 1 and 2 )

ORDER Willi RESPECT TO ENVIRONMENTAL ISSUES

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All of the opposing intervenors,have served their statements of contentions with respect to the Applicant's Supplemental Environmental Report (ASER) and the Staff's Draft Detailed Statement, and responses to some of those contentions .

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!ug seem ' ripe, therefore, for the Board (subject to any ,

additional filings which may be responsive to the Final Detailed Statement) to rule on contentions and schedule further proceed-

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- ings with respect thereto.

A. Introduction.

1. The Board intends to begin the oral hearing on environmental questions (and nity remain,ing radiological questions) on May 17, 1972 in Midland. A pre-hearing conference will be held in Washington, D. C. on April 28, 1972. Exact times and places will be announced later.

2. As a general rule, there would seem to be  %

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little purpose to be served by traditional pre-hearing discovery C)

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has filed its Environmental Report, '

at this time. Applicant

~" its Supplemental Environmental Report, and responses to various  !

The Staff has filed its Final questions and contentJon s. \

of various agencies. By and large, Statement with commenin C# - should know, Applicant's " case" opposing intervenors ho"W 8 and the basis of the ;;in f f position. - Opposing intervenors

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have not, with minor Xceptions, paid any attention to the ,

Board's order that a Good faith effor't be made,to nahe discovery requests as the environmental reports weref filed. For the Board

' requests, discovery to begin 14 days to allow, as Saginaw n",

order would be to permit intervenors' after the entry of th3D l intra igence to accomplish what their arguments did not.

in the circus,,.itances, the Board will'not permit the ora...m, a,"---'------~~-

. . . . . . . . . . . , _ _ o_ .u_ _.u__ dl) g,um...

Q O hand, written detailet! Ouestions would undoubtedly be useful in further refining tli,, issues to be contested by intervenors and answers to thesc (lucations may save hearing time. Accordingly, i

intervenors may serve and file detailed, specific questions and requ'ests for document 9 with'in fourteen days following the date of this order. It shon1d be clearly understood that the prep-aration of such reque9g,4 is not to delay the filings provided for elsewhere in this older, and that such requests bear a i heavier burden of showlHg "g d cause" than would have been the case a few months ngo. Notwithstanding that burden, the ,

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_k l parties to whom the requests are made shall exert their best  ! .Y o'r for ts to comply with . reasonable reques ts. r

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j$h "A" to its Statement of Saginnw has also, in Appendix Contentions, requested that Dow, Applicant and the Staff list "by category.....all documents..... which each of you reasonably .

agree is within the right of environmental inquiry." Viewed as an interrogatory this is obviously defective, and must be striken. However, the staff has agreed to make available to Mapleton a list of all documents relied upon /

by the Staff in .

its draf t statement. Such a list should be furnished all parties . ,

as soon as possible and supplemented, when feasible, by a list ,

of any additional documents relied upon in the Final Statement. ,

i A similar list of documents should be prepared and furnished by i

a nnl i c a n t . -

i 1972, Mapleton  !

By a Motion for Discovery dated February 6, .

has requested. " production of all documents consulted or relied t on by the Staff in the preparation of" its Draft Statement. l

- The request is extremely broad, is not accompanied by any show-ing of good cause, and is denied.' Upon receipt of the document

, lists to be supplied by the Staff and Applicant, intervenors may renew requests for specific documents. The other requests for discovery contained in the motion seem to have been answered by the Staff response.

3 As the Board has indicated on other occasions, the nature of the proceeding is such that maximum use should be made of written evidence both in the form of written questions O

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4

and answers and in the form of written direct testimony. By h now, the factual evidence on which opposing intervenors expect to roly is presumably known to them. Accordingly, it is hereby ordereg!that (except as otherwise directed below) on or before '

April 30, 1972, opposing intervonors shall serve and file the i written evidence in support of their contentions, and in addition a written statement, of those aspects of the Applicant's ASER

' l and the.Staf f's Final Statement as to which they intend to cross-i examine. In order to focus the issues as precisely as possible,  !

' i the specification of areas of cross-examination should, where l

i feasible, be in the form of written questions capable of factual ,

answer. -

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4. The Board plans to indicate as soon as possible those l l

mio.o .. 'e which dditiene! intnema H nn is desired by it. [

lk B- Tne Contentions of the Intervenors.

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1. Saginaw Intervenors

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Saginaw Intervenors (Saginaw) have filed a statement ,

of 119 contentions grouped under sixteen headings. We will deal with the contentions by groups except where necessary to ,

refer to specific items.

I. The Inadequacies of Thermal Dissipation During Normal Operation of the plant. The questions raised by these contentions are issues in the g,9 proceeding.

II. Discharge of Chemical Wastes. Discharge of chemical wastes is an issue in this proceeding.

b Applicant has supplied additional information in

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On or before

,t response to Saginaw's contention.

April 15, 1972, Saginaw should file a revised statement of .:ontentions in the light of appli '

t cant's rouponse. At that time, Saginaw should e

' > , ',s indicate whether they propose to offer affirmative [ .

evidence on this subject and, if so, the nature of the' evidence. The date on which the written evidence, if any, on this subject, is to be filed

- will be up eified by later -6rder.

2 '[ ' 111 and IV. Non-radioactive Solid Wastes il

,, [, and Sanitary Wastes. The effect of these wastes

,,7 t on the eenironment would appear to be g minimis T }H' u nd t,ubject to an af firmative showing of sub-

.st ant ai l effect will not be further considered I s in,the proceeding. ,

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\~ V. _ Environmental Effects of the Fuel Cycle.

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! The extent to which certain aspects of the fuel cycic!are at issue in this proceeding has been referred to the Appeal Board, with a request for

% further reforral to the Commission, by an Order l1'7 of the Board dated March 10, 1972. Pending

,' ? s clarification by the Appeal Board or the Commission 3

! onlyLthose aspects of the fuel cycle specified in I

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that 01 der as being open in t'his proceeding will be considered. Accordingly, items 17-23 of items 26 and 27 are not presently and por.

at. issue in this proceeding. ,

With respecc to item 24, the risks and costs, e<.. of the proposed breeder program are not at JaJuo in this proceeding. If Saginaw intends to raise issues with respect /

to fuel supply apart f....i the breeder program it should state its con;. cut J ons specifically, and the basis for its contvativas on or before April 15, 1972.

As to item 25, the costs and risks of decommissioning orc at icant ir. this pr'acaading, oxenpt to the

@ extent that permanent storage of wastes and con- I taminated material away from the site is involved.

The Board v/ould like the views of the staff on the question raised by this contention by April 25, 1972.

As to item 26, transportation accidents to the extent they are not excl,ded u by the Board's . .

Order of March 10, 1972, are at issue. Saginaw should specify its contentions with respect to accidents presently deemed to be within the scope O

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of the suuueu. These specific contentions

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bl culd be f' led on or before April 15, 1972, al orit; se i Lb :s ui.atement as to the affirmative evluvacv, i f Lt./ , on which Saginaw intends to rely.

I As to itcan 27, releases of radioactivity i

curing normal operation are an issue in the

, proceedia'ig in the sense that the effects must

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be con:t .. n ! as part of the risk-benefit analys.u. w ;Anaw's contentioi $ seems to be, in part, a belated attack on 10 CFR Part 20 and to ti..te extent is untimely. It also involves aspects of the fuel cycle not presently at issue ,

in the proceeding.

As to item 28, the issues in this proceeding arn not the same as those in the EdCS proceeding a nel the 11oard rejects the incorporation by reference of contentions in that proceeding.

Accordingly, item 28 is striken. Saginaw may file an amended contention on or before April 15, 1972.

VI. Alleged' Benefits. The contentiois 11: VI nro long on rhetcric and short on AS specificity. The. opening sentenco: "There g30'

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are no benefits to be derived from operation O

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O -> ti c v<on-" i ni="t" 2 si'ir "ad =o t on what I v 1 J a ,./. . J not much more helpful:

vi/., Dow Chrmical should be required to investi;;a te mer.us of generation "not now

-s known to wan." The basic assumption - that NS:]

nuclear plants are inherently more harmful than fossil fuel plants - amounts to an argument that nuclear plants cannot be built as a mattc.r of law. Saginay may brief that questic. *. It chooses.

Ituiu 34 and '35 are based on the argument that thin proceeding must consider ~the social values o" U.e cr.d uses uI the power to De er procucud. J'uch an inquiry is not feasible '

in this proceeding. The question whether economic growth is " good" or " bad" for Midland is not rit.uceptible of factual analysis. To the uxtent tlat Saginaw disagrees with Applicant's claim or benefit, it may make its own quantification for consideration by the Board.

Item 37 does pose factual issues; however, Items 38A and 388 raise antitrust questions which O

e.

's 9

() are not before the Board. '

Yli. / '. * . _ ,; / c. , to the Production of E1cetricity by (Dicicar Power and_to the Pro-duction '__,'nc :. . . city from the Proposed Plant.

Alternat_vv. .o onis plant, including no plant, are issues in this proceeding. Alternatives to the use , ,. . aar energy generally are not 6

gg 9 issucu. itv-o .0-43 and 53 are s broadsido

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nttack on the use of atomic encel;y and do not

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raise u., i : oal issue capabic of resolution in tnis v.s.... ...;. Jn its affirmative case, Saginaw should (1) specify the portion of the demand attribut b:!* to advor'tising by Applicant and O p the bou1J vi that conclusion; state the criteria by which the Board is to distinguish " valid" from

" invalid" deia:tud ; (2) the factuak basis for the ,

alles;ntio.. that detaand can be satisfied from other source::; .nd the factual basis for the assertion that the plant is a subsidy to Dow.

The Applicant and the St. f f should furnish to ilic Board the factual basis for the claimed need for an 18% reserve, and state wh'at considerttion lias been i;iven to purchase of electricity from Canada. -

v

10.

() Item 49 challenges the Icgality of the rate structuro pro aulgated by the Michigan Public Service Commission; that rate structure is not an 1:. :un in this proceeding.

g V111. p;'gy.illance Program. This group . ,

of items does isst raise any factual issues with respect to the grant of the construction ,

/6 permit. The Board will consider them as a

/

(< b request .

..  ;* order Applicant to upgrade its .

surveillance prograti claimed to be inadequate.

The Board uous not have" jurisdiction to order Dow to undertake a monitoring program.

3), 1 . . , . 1. . . r.1 _

i n n , ton n:i,1,.w . Thi.c group of items raituu sho11y legal questions and should be briefod. Saginaw should file its brief on gY y the queution on or before April 25, 1972. Reply briofu may be filed on or before May 10, 1972.

X. The .iieed for Power Generally as Well as

,From the Proposed Plant. ,

The need for power from th proposed plant is, of co,urse, an issue in this

, proceeding. ticeds for electric energy generally YI l4 are relevant to that question, but factual inquiries into what are "useful social stimuli considering the long range nationalization of our national O '

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11.

unorgy policy" are not feasibic. Saginaw may, of course, postulate its own view of socila validit/, and argue the proposition at an appropriate time.

XI. Q:f. i ication of Michigan Wa ter Q C.. '

ken,cu. c. .

. .sion. The contentions in ,

this group are based on an erroneous view of the holding of the Calvert Cliffs.' case.

That caso r' *n. not requil e the s k.1ff and q $' the Boal et f... 2xamine into che,, sufficiency of State v ta quality standards, but to make an independent judgment as to the environmental effec t o r the project including the effect on waiur qu t i .i s y . accordingly, all contentions i i r. ti.w grcap except Item 104 do not pertain to issues in this proceeding. Item 104 seems to rni.so a chnllenge to the compliance of the project wi th Stato standards and that is an issue in this proceedin*. g X1I. Adverse Effeets on Water IJsed for Dou.es tic Pu A' poses .

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The effce ts on domes tic 1

0,0 water are an issue in the proceeding.

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12.

XIII. Floods. The effect of possible floods on this plant is a radiological pA safety issue which was not contested by Saginaw. It is no longer open in this pro-cceding.

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XIV. Areas in Which There is no Discussion by the Applicant and Staff. Thq areas listed are appropriate for discussipn except (d) which ,

does not ..om.ern the environmental ef fect of

\ this pihnt and (e) as to which Saginaw has had adequate opportunity to explore in the hearing to,date. .

% *' . I.... 'cQu..tc Ocst 0:nefit f.n:1/ cia .

The issues raised here are 1cgal issues.

Saginau should file its brief in support of d these contentions on or before April 25, 1972.

pt Answering briefs are due on May 10, 1972.

XVI. Mi::cellaneous. This group (consisting of a ningic itelu) attempts to incorporate by q reference earlier content,iom of Saginaw and another palty. An examination of those docuinents makes clear that incorporation by l reference would put a severe burden on the Hoard and the other parties to ascertain how 1 .- .

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13.

they differ from the 118 specific contentions just discussed, and would be totally inconsistent with the objective of sharpening issues con-templated by our earlier order.

2. Jupleton Intervenors.

~

Hapleton his filed specific contentions with respect to the Staff's Detailed Statement and Applicant's Hoports. Both documents purport to incorporate by reference earlier statements of contention and testim 6ny. Here again, the Board rejects the attuo.pt to incorporate by reference documents not addressed to the record as it now exists. Accord-J ugl y , paragraphs 1, 2 and 3 of Mapleton's Response to the Board Order of December 22, 1971, are striken. If, in light of what has been said above as to the scope of the issues, Mapleton

()

bel ieves #there are issues in the case not raised by its other contentions, they may make additional contentions prior to Apell 15, 1972.

Except as hereaf ter indicated, Items 4-25 of Mapleton's llesponse relate to issues in the proceeding.

Il o w e vi r , the statements are generally vague and conclusionary and are very much in need of addition ~al* specification. Those items which pertain to matters not in issue in this proceeding neu il (the Board has already ruled that the "best available i e ci n is,1 o n y " is not required); 14, to the extent it pertains to iransportation from the reprocessing plant; 18 to the extent it u

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14.

raises issues of the fuel cycle beyond the Board's Order of March 10, 1972; 21 through 25, to the extent they seek to raise questions of radiological hazards foreclosed by previous Board Orders.

g) ,

Mapleton's Comments on the Staff's Draft Statement specifies'four purportedly additional, but in most cases, duplicative contentions. Item (a) raises a question

/

with respect to the fuel cycle not presently at issue in this proceeding. Items (b) und (c) are at issue. Item (d) is

.not intelligible to the board.

3. Environmental Defense Fund.

The Environmental Defense Fund (EDF) has limited 1ts participation to the raising of certain legal issues as to the scope of the environmental' inquiry.

Item (1) of EDF's statement of contentions '

den]s with aspects of the fuel cycle which have been referred to the Commission.

> Item (2) raises a number of questions with respect to the treatment of electrical demand. The Board has, nt 1 cast inferentially, stated its view that an analysis of way8 to reduce demand is not appropriate in this proceeding.

Ilowever, this and other aspects of Item (2) seem appropriate l'or bri efi ng . Accordingly, EDF shall file briefs in support G

s 0 15.

or its contention in Item (2) on or before April 25, 1972, Answerring brie fs shall be filed on or before 5 fay 30, 1972.

O BY ORDER OF Tile ATOS!IC SAFETY AND LICENSING BOARD h

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Afarch Y* 1972 Arthur W. Murphy, Ch51rman W

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'AN 3 1972 UNITED STATES OF AMERICA C P. Co, ATOMIC ENERGY COMMISSION In the Matter of )

CONSUMERS POWER COMPANY Docket Nos. -

9 Midland. Plant, Units 1 and 2 )

MAPLETON INTERVENORS' RESPONSE TO CERTAIN PORTIONS OF BOARD ORDER DATED DECEMBER 22, 1971 On December 26, 1971, the unde'rsigned, counsel to Mapleton Intervenors, received a copy of the Board's order O dated December 22, 1971 requiring opposing intervenors to serve and file, on or before December 31, 1971, their en-j vironmental contentions and discovery requests with respect 7

. ,4 to applicant 's environmental report. (p. 13) Coming as it did, in the midst of the Christmas holiday week, the order does not a,fford a reasonable period of time in which to comply with its directions, including the one regarding environmental contentions, etc.

However, Mapleton Intervenors are willing, without pre-judice, to exercise its best effort and good faith to comply with the Board's direction to the extent that it can in the five day period allowed for such purpose.

D

'2,.

D .

Mapleton Intervenors reaffirms its previously filed

" Statement of Legal and/or Factual Contentions" and, in par-icular, the nvironmental contentions therein, to wit:

g, Paragraphs fV, IV-A, IV-B, IV-C, IV-D, IV-E, IV-F, IV-G, 6 g 7,f f IV-H, IV-I, IV-J and IV-L.

g  ! 2. Mapleton Intervenors reaffirms its " Offer of Proof

'f More Specific Factual Contentions, etc. ", dated July 8,

~

} 1971 and, in particular, the environmental contentions con-r tained therein, to wit: Contentions I, II, and V.

I i 7 Mapleton Intervenors reaffirms as its environmental

/

ontentions the testimony given or served in its behalf by h Dr. Edward S. Epstein, Bruce F. Watson, Dr. Charles W. Huver, 7  %

. Dr. Ernest Eckert, Dr. Orie L. Loucks' and Professor Richard / Z$  % ,j.

Robert Meierotto.

4. The applicant's Supplemental Environmental Report and amendments thereto do not contain an adequate benefit-cost analysis as required by 10 CFR 50, Appendix D, Subsec-tion A.3, and, in particular,. but without limiting the gener-ality of the foregoing:

a) Benefits are not sufficiently quantified and consistently evaluated; b) Generating costs are inadequately assessed; c) Environmental cost computations are not speci-

• Intervenors claim that Contentions III and IV are both radiological and environmental contentions, and intervenors intend to challenge the radiation standards.

3.

h fled in such a manner as to provide a comprehen-sive enumeration of the primary environmental im-pacts and the environmental sectors affected by the project; d) The validity of applicant's methodology for assess-ing environmental cost is not substantiated by sufficient empirical evidence; e) Applicant has failed to adequately (1) evaluate the feasible alternative approaches with available technology; (2) demonstrate its effort to internalize environ-mental costs; h (3) document its process of formulating alterna-tive designs by means of supplementary infor-mation regarding viable alternative subsystem

, modifications it has considered.

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-M/ ' 5. The alleged benefits of the Midland nuclear plant ?

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,n D y f" will not adetuately I compensate for its huge environmental f.

.- ' ' ' costs. .

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6. & V\

The Midland nuclear plant is unnecessary and is not '

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, n.# a safe, economical reliable generator of electric power process steam.

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?. Its liquid and gaseous radioactive waste releases vqu 4 ,s re .*

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will cause a significant adverse environmental impact.

8.

The plant will degrade state and local air quality, 1-U Sp 4'

will not enable Dow Chemical to close down inefficient fossil fired plants, and will not enable applicant to operate its ,,

older, less efficient units a smallar percentage of the, time.,

9. Applicant's ecological study of the site is of h *'

dubious validity because of the ecological damage caused by applicant's activity in the course of site clearing and pre-liminary construction. '

10. The validity of applicant's ecological study, the '$

environmental surveillance program and its studies of area

[]) water quality, is not supported by sufficient theoretical and experimental data.

11. Applicant has not utilized the best available tech-6 h($b nology to minimize the environmental' effects of the plant, and to reduce to near absolute zero the radiological releases to be expec't'ed under normal and accident conditions.

12. Applicant has failed to adequately consider the alternative gaseous radioactive waste control systems and alternate means of disposing of laundry wastes. .

13. The operation of the plant will result in signifi-

' p-}' u-cant chemical discharges and dissolved solids will be concen-O, ,s - s,,< trated by the pond so as to impair the wa ter que:Jity of t.h r:

"LM" .k/ ' Tittabawassee River.

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14.

W' s The hazards and environmental effects of the trans-h v portation of spent fuel and nuclear wastes from the Midland

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d plant to the reprocessing and ultimate storage sites are real and significent. ',v. '

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• 15.

As compared to the alternatives, a Midland nuclear ..

e plant suffers cost and environmental disadvantages. ' ' , , m , ' , ,,' r,--

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16.

A Midland nuclear plant would result in the highest /

cost electricity.

- 17. Applicant has failed to make a thorough and accurate cost comparison of a nuclear vs. fossil fuel plant to meet the alleged base load power needs of Midland; for example, appli-cant has failed to consider the comparative cost of de-commissioning both types of plants after their useful lives are over, a comparison which would disclose the significantly higher cost of decommissioning a nuclear plant. Applicant has also failed to take into account the fact that the c os ts of controlling fossil fuel plant pollution are lower, more predictable, and the technology for dealing with same more available, than for nuclear plants.

,,/.

18. The adverse environmental effects of the nuclear Y' v,". e 1/ fuel cycle exceed those of the fuel cycle of any alternative **

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to the Midland plant.

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4 . 6.

19. The environmental effects from a fossil fired plant -

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the same size as the Midland nuclear plant are less severe " ' '

7 and long lasting than those from such nuclear plant. '

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20.* Applicant has failed to adequately consider the ,a, alternative cooling systems that might be employed instead ,

of a c'ooling pond.

21. Applicant has failed to adequately assess the addi-i tional burden of radioactivity which would be added to the v' "

environment, and in the production of various substances,

! including industrial, commercial and pharmaceutical products i

because of the possibility of radioactive steam which will be g discharged to the environment through numerous vents.

. 22. The operations of MidJand and Dow will contribute to the environment a heavy burden of chemicals, radioactive substances and heat, the combination of which at best is '7 r

highly unpredictable with regard to the distribution of ,' ,

4

specific radionuclides; applicant has failed to adequately evaluate their interaction with living organisms in the river and in the surrounding biosphere, and in potential syner-gistic action with other chemicals, the heated, water and used steam, all of which will be dumped into the river, and shich have not been sufficiently studied.

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23. In addition to the total radioactivity in the solid, O\q .

7.

(g) liquid and gaseous effluents, the concentrations and activities of each specific nuclide to be discharged will have its poten-tial damaging effect upon living organisms; applicant has .

failed to adequately assess the extent to which the radio- V' s

active effluents from the Midland reactore will cause harm or damage to living organisms in the environment.

24. The maximum permissible concentration values tabu-t lated in Title 10 of the Code of Federal Regulations, which govern the discharges of radioactivity from the Midland plant, lead to an unacceptable risk estimate to man and the en-vironment; the applicant has failed to reliably estimate the quantity (number o,f curies) of each and every radionuclide

({} that is released to the environment, the distribution of these radionuclides within the biosphere and the resultant dosage to various organisms and to man, and applicant nas failed to adequately assess the potential damage to the biosphere and to man.

i

, 25. Th'e lack of a comprehensive study that takes into

, account both physical and biological concentrating mechanisms l and is based upon quantitative data on each and every radio-l nuclide in the inventory of the Midland plant precludes appli-l cant from accurately assessing the environmental impact of the k Midland plant.

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Intervenors contend applicant's Supplemental Environ-mental Report and amendments thereto do not sustain appli-cant's burden of proving that the Midland plant will not have an undue adverse impact upon the environment.

Intervenors reserve the right to serve ard file additional environmental contentions.

Dated: December 29, 1971 Respectfully submitted WILLIAM . GINSTER, ESQ.

IRVIN LI , ESQ.

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by:_

fryingLke Attorneys for Mapleton Intervenors O

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CERTIFICATION I certify that a copy of the foregoing document was mailed December 29, 1971, postage prepaid and properly addressed, to the members of the Atomic Safety and Licens-i'ng Board, the Secretary of the Commission, and all counsel of record.

Irving Like Attorney for Mapleton Intervenors O

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Spi 7 September 15, 1972 p O ,

UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION -

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF )

) Docket Nos. 50-329 -

CONSUMERS POWER COMPANY ) 50-330

)

(Midland Plant, Units 1 and 2) )

SAGINAW VALLEY ET AL. INTERVENORS '

PROPOSED FINDINGS OF FACT AND CONCLUSICNS OF LAW I .

O Environmental Matters At the last conference among counsel, the Board set September 15, 1972 as &c date on which the Saginaw Valley et al. Intervenors should submit their Proposed Findings and Fact and Conclusions of Law. Counsel for the Saginaw Valley et al . Intervenors was not at the l'ast Pre-hearing Conference but was informed of its substance and requirements after the fact. Neither counsel for Saginaw Valley et al. Intervenors nor Saginaw. Valley et.al. Inter-venors participated in the environmental phase of this hearing. The reasons, therefore, have been stated earlier in our submissions. Thus, we believe it basically and intrinsically

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U unf a!- for the Atomic Energy Commission (for it is the Commission,since this Board is merely an agent of the Com-ission) to schedule hearings on the Midland reactam at a time when Saginaw Valley et al. Intervenors ' attorney was pursuing work on behalf of segments of the public interest at the National ECCS Hearings. We also believe that the scheduling is all the more so unreasonable in view of the f act that the Midland hearing raised ECCS issues prior to the adoption of the Interim Acceptance Criteria and issue was joined, therefore, more than six months ahead of the Commission's regulations. In this context, for the Commis-sion to permit the Midland hearing to go on unabated without b, permitting Saginaw Valley et al. Intervenors the benefit of counsel, while at the same time not permitting ECCS issues to'be raised at the Midland hcaring on the grounds they are being raised at the National Henrings, results in a very anomalous position. Thus, the Commission encouraged Saginaw Valley et al. Intervenors (and their counsel) to go to the National Hearings and receive their rights with respect to those issues, while at the same time penalizing Saginaw Valley et al. Intervenors (and their counsel) for having so participated and, thus, not being available for the environmental pham of this proceeding.

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@ Since, in our judgment, Saginaw Valley et al.

Intervenors were unreasonably and unlawfully prohibited from participating in the environmental phase.of the pro-ceeding,1/ they have no conventional findings of ' fact to set forth. Instead, Saginaw Valley et al. Intervenors refer to their Statement of Environmental Contentions as to each of which Saginaw Valley et al. Intervenors believes the Board must make findings.

Our understanding of the evidence placed in the record by Applicant and the Regulatory Staf f lead us to believe that conclusions favoring Applicant and the Regulatory Staff on environmental matters cannot be per-missibly drawn. Therefore, we shall await the decision,

())

if any, by the Atomic Safety and Licensing Board and review it for its support and legality. See e.g. Tr. 821.

In the event that such a decision does not comport with our view of the applicable law, we intend to submit, on a timely basis, exceptions to such initial decision, and seek i

such further appellate review as may be required.

We believe'that the exclusion by the Board of environmental matters which it did not hear is sufficient in and of itself to condemn any conclusion which holds i

that the National Environmental Policy Act has been satis-factorily analyzed.

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1/ As noted before, Saginaw Valley et al. Intervenor:: tried without success to retain an attorney other than their present counsel.

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II Radiological . Health and Safety Matters We have reviewed the Applicant's Proposed Findings of Fact and Conclusions of Law, and we believe Applicant's submission is voluminous and serves as a starting point to lay the basis for the claim we make in this section of our Proposed Findings of Fact and Conclusions of Law. Appli-cant would have the Board, an entity set up by the Atomic

)

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

should be built and that is that. We are more convinced

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now than we were two years ago that the real difficulty with analyzing a nuclear reactor lies in the overwhelming commitment that is made before no e's really has an oppor-tunity to make an analysis. Perhaps this is all the law

. requires, although we think otherwise. Perhaps also the Atomic Energy Commission's promotional and regulatory functions do not create a bias, if you will, an intrinsic and inherent bias against those who challenge nuclear safety; but we think not.

We begin this section by alluding to various comments by the Board members which we believe support our position of such inherent bias against Intervenors. While

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

/ Witness, for example, the role of the Advisory Committee on Reactor Safeguards (a Committee of which Dr.

Hall was a member). That Committee consistently salves its conscience by alluding to unresolved safety problems,

([)

but nonetheless makes recommendations in favor of construc-tion and operation of nuclear power plants. They do so in the continual context and knowledge that problens noted several years ago continue to be unresolved. Did Dr. Hall come to this hearing with an open mind about alteratives to nuclear power? We think not. See, for example, Dr. Hall's pronouncement that it was the Intervenors who had to convince him of the lack of safety rather than what the law requires that the Applicant and Regulatory Staff prove objectively l the merit of their assertions. See Tr. 1019-48. See also j Tr. 1923, 162, 380-81.

h

m L2 Did Dr. Goodman come to this hearing with an open mind about the alternatives to nuclear power? We think not, and wg respectfully observe some of the comments made by Dr. Goodman and particularly his opening remarks at the hearing congratulating the people of Midland upon the acqui-sition of their soon to be built dual purpose power plant.

See, e.g., Tr. 1233, 1289, 1347, 1456, 1922, and 2697.

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

7 Thus, Chairman Murphy, at numerous times, required that intervenors disprove long-standing assumptions b.iore they would be pernitted to cross-examine and interrogate in such Ps areas. See, e.g., Tr. 1880 and 2099.

d See also Tr. 2958

] and 3048.

Although we have through the months found the Board's position and rulings understandable in light of the Board members' historical relationship with nuclear pcwer and the industry itself, we find them nonetheless unaccept-able. Given, for example, a continuation of the collective positions of Drs. Hall and Goodman, we believe that ECCS technology would be in even a far worse state than it is now and that the labora tory scientis ts who finally hid .the coura'ge to speak up would still be silenced. The so-called " experts" would

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[) be deciding everything, among themselves, without the kind of healthy criticisms that can only come from outside sources.

We have not, therefore, chosen to search the record and respond to this proceeding by submitting citations of matters which we believe were proved or disproved. Such a task, aside from the fact that rulings prohibited us from pursuing our position, would neceusarily detract from the f act that whatever occurred below, it was not and cannot be regarded as an exposition of the relevant issues. We are

, quick to add that perhaps the blame is to be shared equally, although we believe it is the Commission's responsibility,to provide a basis for adequate hearing, if it wishes to hold hearings.

What has happened is that the Atomic Energy Commission, so disturbed with its obligation to hold hearings on decisions already made and incapable of reversal, and so fearful of emerging as a proponent against public hearings, has reacted irrationally at every turn; and its agent, including the Board memb'ers here, have unfortunately not taken issue with such irrationality. We do not make these statements in personal disrespect of the Board members. We do maintain the belief, however, that the responsibility of Board members toward assuring a check upon Regulatory. Staff and industry decisions must ;o beyond that which was demonstrated below.

Unfortunately, everyone has been disserved by the lack of independence. Thus, Dow Chemical has been disserved.

It blindly relies upon Consumers Pcwer which in turn blindly relies upon Babcock and Wilcox which in turn is blindly regulated

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by the Regulatory Staff, an arm of the agency understaffed in talent and . manpower and unwilling or unable to listen to the advice of its hired experts; Consumers Power has been disserved. Thus, without independent examination, it made its commitment to nuclear power several years ago so much so that economics prevent reexamination; and last but not least the many Intervenors and "little peopic" who took abuse for exercising their statutory rights have been disserved. These people were then condemned for not'having had the expertise to raise and resolve problems which still perplex the " experts . " ,

Each of these occurrences has resulted from the fact that industry members were not self-critical, and did not ask what other alternatives there are to construct a nuclear power plant at a time when significant safety items are unresolved, and we do not know what we will do with the 1

" bloody mess" when the nat2ral life of the plant has expired.

We' set forth below significant areas of legal concern which compel us to conclude that no positive conclu-sions can be drawn in favor of Applicant and the Regulatory Staf f on this record ' regarding such issues . We set forth these areas not as an exhaustive list but as a sufficiently responsible list. And, as set forth in our environmental findings, we intend to pursue our legal remedies in the

!) event that it is necessary in respect to ary initial decision which may be rendered by the Board.

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A. The Board first agreed that the' emergency

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, plans of the Applicant were insuf ficient and, indeed,

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woefully inadequate. The Applicant then filed a lot

,'4 l 5 of papers and that was the end of that. In fact, the Board never received even the Regulatory Staff's

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view on the emergency plar . Why? Because no one thinks the accident will evar happen.

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• B. The Board was unir. pressed with the quality

, assurance and. quality cont rol methods of the Appli-

[ , cant and literally agreed that the Applicant's pro-cedures would .not comply with the relevant regulations.

> Indeed, it was determined at the hearing that QA and 1.

gw QC were nonexistent during the fabrication of the pressure vessel and that the Compliance Division had

< not even inspected the pressure vessel until it was

\1 Yet no significant changes more than 90% completed.

were ordered.

. C. The Advisory Committee on Reactor Safeguards Letter was admitted into evidence over objection to show'that the ACRS issued a f avorable recommendation regarding the Midland Unitr. The Board allowed as how the ACRS Letter was "not evidence." Yet as we read Applicant's Proposed Findings of Fact and Conclusions of Law, great pains are taken to point out that the ACR$ approved the Units and that the Applicant is busily engaged in attempting to resolve

's items which were noted as unresolved in the Letter. But no c' _9_

@ more was done. Why? We suppose it is because no one knows the answers to many of the unresolved safety matters, D. Emergency Core Cooling System effectiveness was an issue in this proceeding long before the Com-mission's Interim Acceptance Criteria of June, 1971.

All of a sudden, Intervenors around.the country were sent to Washington with lesser rights and the assur-ance that the ECCS hearings would last just long enough to license every plant whose application was on file with the Regulatory Staf f as of June, 1971.

We must commend the Board and particularly Chairman

([) Murphy for his honest attempt to resolve the proce-dural issues and denial of substantive rights inherent in depriving Intervenors here the right to raise ECCS issues, while nonetheless applying the existing ECCS regulation. However, AEC " policy" barred even the Chair' man's efforts.

E. Surely this Board and particularly Drs. Hall and Goodman are aware of the Reactor Operating Experi-ence Reports (" ROE") published by the Atomic Energy Commission. Did either of the scientific members of the Board inquire of the Applicant or the Regulatory Staff whether the industry and, particularly, the h' ,

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Applicant, has taken cognizance of these experiences or asked what steps Applicant intends to take to assure no reoccurrence of silly and sometimes near disastrous accidents?

F. The design of the Units and some of its more sophisticated safety systems are as yet incomplete.

When will Intervenors get an opportunity to determine whether the final design meets acceptable safety standards - at the operating stage where they will

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be accused of delaying the completed facility and it is too late to offer a substitute system or design?

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Such a result makes no sense but again, we suppose, O in the commission's view, it is progress.

G. In one of the very early orders of this Board (May 17, 1971) certain interrogatories.to Ap-plicant and the Regulatory Staff dealing with reactor pressure vessel failure and integrity were disallowed upon the grounds that reactor pressure vessel failure, if a credible accident, would require denial of a construction permit. We assume that the Board had decided by administrative fiat that reactor pressure vessel f ailure was incredible. Where is the evidence for such a conclusion? Has the Board read the ACRS reports dated August 17, 1972 on Zion Units 1 and 2 O

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O and Forked River Unit 1 which raise again the issue of reactor pressure vessel failure and allow as how research has to be done to determine whether such an accident is credible? Has the Board read the Regulatory Staff's Brief in Indian Point Unit 2 where it allows, in argument to the Appeal Board, that reactor pressure vessel integrity is indeed an issue in licensing proceedings and is required to be analyzed pursuant to the definition of a Loss of

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

Is the Board now prepared to suspend the issuance of a construction permit until such time as the question

() of credibility of reactor pressure vessel failure is resolved? -- -- - - -

CONCLUSION We trust the Board members will not take umbrage at the tone of.this submission. The remarks made herein arc evidence of the frustration that one group of Inter-i venors has experiened before or ~-istrative agency.

The f ault lies with the Commission, t.e industry and their Promotional perspective.

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of course, some issues are more important than

{p others and, unfortunately, the hearing failed to deal with the three most significant issues: that is, ECCS ef fective-ness, reactor pressure vessel failure, and the unalterable commitment to an industry about which we do not know enough.

We would ask the Board to deny the issuance of a construction permit on the grounds that the Applicant has not demonstrated that the public health and safety will be protected and that an insufficient and inadequate environ-mental analysis has been made.

Respectfully submitted, (N$r t l Att key for Saginaw' Valley et al. Intervene s Myron M. Cherry 109 North Dearborn Suite 1005 Chicago, Illinois 60602 312/641-5575 ,

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CERTIFICATION

)

I certify that copies of the foregoing Proposed Findings of Fact and Conclusions of Law of Saginaw Valley et al. Intervenors were mailed to the Members of the Atomic Safety and Licensing Board, the Secretary of the Atomic Energy Commission, and all counsel of record on September 15, 1972.

?

o Myron M. Cherry  !'

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g h UNITED STATES OF AMERICA

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,, g ATOMIC ENERGY COMMISSION C8kyS (

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD r

In the Matter of )

)

CONSUMERS POWER' COMPANY ) Docket Nos. 50-329 and 50-330

) -

(Midland Plant, Units 1 and 2) ) *

)

MAPLETON INTERVENORS' PROPOSED FINDINGS OF FACT

( AND CONCLUSIONS OF LAW 1

INTRODUCTION

% This licensing proceeding was initiated under the provisions of the Atomic es/ .

Energy Act of 1954, as amended, 42 U.S. C. Section 2011 et seg. for the purpose of considering applicant Consumers Power Company's application for issuance of a

/'  :

construction permit for the proposed Midland Plant, Units 1 and 2. In addition to t

the requirements for such a proceeding set forth in the provisions of the Atomic Energy Act and the regulations adopted thereunder, this proceeding was expanded to include an environmental evaluation as required under the National Environmental 4

Policy Act of l')69 (NEPA) 42 U.S. C. Section 4321 et seg. and the regulations promul-gated by the AEC for such environmental review,10 CFR Section 50 appendix D, adopted pursuant to the decision of the District of Columbia Circait Court in Calvert

_ Cliffs Coordinatine Committe, Inc. vs. AEC, 449 F. 2d 1109 (1971).

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FINDINGS OF FACT

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Ct ' ' 1.

The meteorological analysis of the proposed site and the data and models upon which it is based is insufficient and/or incompetent.

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The operation of the proposed cooling pond and/or cooling system will .

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create the likelihood of fogging and icing which will clearly constitute a traffic and safety hazard to the residents of Mapleton, Michigan, including the Mapleton Intei-venors, their business and/or social invitees.

,.~. . . .

3.

, The presence of fog and the deposition of water, either as a mist or as a glaze or rime ice, would, in the processes of condensation grov.th, will collect

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and concentrate whatever' radioactive material is present in the atmosphere in the 1

form of aerosols and water soluble gasses, and would concentrate such radioactive

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materials further in the deposited water, in 'such manner as to present an unaccept-able health and environmental hazard. - #

I 4.

The problem of fogging will be increased and aggravated by the operation

>f additional cooling facilities which the Dow Chemical Company will be obliged to construct in order to discharge into the atmosphere the excess heat transported to it in the form of process steam from the proposed nuclear plant, g, .

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An inadequate cost-benefit analysis has bee made as to the responses y~

, ',:, in the immediate area of the Midland Plant attributable to the introduction of active wastes into the air and into the cooling pond.

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h 6. An inadequate cost-benefit analysis has been made of the response in the Tittabawassee River and in Saginaw Bay over a long period of time due to the intro-duction of liquid radioactive wastes into the river.

i m, 7. Applicants have not demonstrated their ability to insure the protection of A

Saginaw Bay and its natural resources from the effluent of the Tittabawassee and Saginaw River systems.

8. Insufficient consideration has been given to long time lags (associated

[ . with the biological concentration process in the coupled river and bay ecosystem) s .

and to the lack of information on uptake and retention of the radioactive waste mater-ials from the A!idland Plant by aquatic organisms.

9. The risk to the Saginaw Bay ecosystem is unwarranted when alternate Y'

sources of energy a re readily available.

10. It is not in the public interest to risk many unknown long-term effects i

on the bay and river resources, and the municipal water supplies of several com-

.nuni tie s .

f. I1. The cost-benefit evaluation does not include all the costs over the lifetime

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' of the plant; very significant costs in the downstream sinh formed by Saginaw Bay have not yet been conside red.

42. The maximum annual release of tritium from the Alidland facility would be 6 time . the new AEC revised limits for tritium.

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Applicant's postulated releases of radioactive contaminants are under-estimates and biological concentration of radioisotopes will be considerably higher than predicted.

rp 14.

The proposed plant may emit radiation which would e::ceed maximum per-missible exposure levels in the current or proposed radiation standards, if one con-siders the reconcentration factor of certain radionuclides, such as, for example, .

Cesium 137 or Strontium 90.

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., 15, The synergistic relationships between thermal and radioactive pollution wui provide an excellent opportunity for biological concentration of radioactivity in -

the food chain of the Midland area. -

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e The biological effects of the tritium which will be released to the env

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rnent in the liquid waste discharges of the Midland reactor are too hazardous to justify

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selection of the Midland site.

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There is insufficient knowledge to determine conclusively that chronic low level racliation does not cause significant genetic and teratogenic damage.

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'Iiere is enough circumstantial evidence to raise a serious doubt concern-ing the safety of low level radiation.

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No study and calculation of the environmental. radiation which can be ex-pected from this plant over its projected lifetime of operation and its corresponding ffect upon human health has been performed.

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5-B 20.

( Applicant failed to adequately evaluate costs and benefits of locating j proposed plant at a greater distance from populated areas than proposed by applicant to minimize risk of exposure of the population to radioactive contamination or danger from a nuclear accident.

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21.

..a,,.; Applicant failed to adequately evalu.ite technical feasibility of delivering process steam to Dow Chemical Company in the event the Board determines plant should be located at a greater distance than proposed by applicant.

,. ( 22. Applicant ha.s inadequately evaluated the possibilities of (1) radioactive contamination of the Dow products, and (2) radioactivity released to the environment, l\

since 25 percent to 40 percent of the process steam will not be recovered; and, in particular, evidence of heat exchanger malfunctions and fuel element cladding failure as they may affect estimates of radioactivity leakage to the process steam.

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23. The radioactive emissions from the proposed nuclear plant will combine synergistically with gasseous and liquid effluents emitted from the chemical plants of the Dow Chemical Company, so as to produce harmful and toxic chemicals and substances in the atmosphere and/or the Midland area ecosystem, with a resultant adverse effect upon the health and well-being of the Mapleton Intervenors and other i

persons in the Midland area.

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. 24. No adequate evaluation of the environmental effects of a loss of coolant accident in which the ECCS fails to perform effectively has been conducted.

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25.

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s No ~ adequate benefit-cost analysis as required by 10 CFR 50, Appendix i

' D, Subsection'A. 3, has been performed and, in particular, but without limiting the

generality of the foregoing:

(a) Benefits are not sufficiently quantified and' consistently evaluated; (b) Generating costs are inadequately assessed; '

(c) - Environmental cost computations are not specified in such a manner as to provide a comprehensive enumeration of the primary environ-

. mental inipacts and the environmental sectors affected by the project;

, (d) The validity of applicant's methodology for assessing environmental cost is not substantiated by sufficient empirical evidence; (e) Applicant has failed to adequately

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(1) evaluate the feasible alternative approaches with available technology; (2) demonstrate its effort to internalize environmental costs:

(3) document its process of formulating alternative designs by means of supplementary information regarding viable alternative subsystem modifications it has considered.

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The alleged benefits of the Midland nuclear plant will not adequately g , V.

• compensate for its huge environmental costs.

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27. The Midland nuclear plant is unnecessary and is not a safe, economical f[h reliable generator Y/

of electric power ar.d process steam. '

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28. Liquid and gaseous radioactive waste releases of the plant will cause 9:p S a significant adverse environmental impact.

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.; 29. The validity of aplilia intN ecological study is not supported by sufficient theoretical and experimental elata.

y 30. Applicant has not utilie. <1 the best availabic technology to minimize y,,\,

the environmental effects of the plant.

,s 31.

\ A The operation of ilm pl.mt will result in significant chemical discharges

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and dissolved solids will be concent rated by the pond so as to impair the water quality of the Tittabawassee River.

A 32, Applicant has failed to make a thorough and accurate cost comparison

'of a nuclear vs. fossil fuel plant to meet the alleged base load power needs of Midland; by failing to consider the significantly higher cost of decommissioning a nuclear plant.

@ 33.

' ! *g Applicant has failed to adequately assess the additional burden of radio-activity which would be added to the environment, and in the production of various substances, including industrial, commercial and pharmaceutical products because the possibility of radioactive steam which will be discharged to the environment through numerous vents. '

f

,' A  ; 34. Applicant has failed to adequately evaluate their interaction with living f ,[N organisms in the river and in the surrounding biosphere, and in potential synergistic

.[ action with other chemicals, the heated water and used steam, all of which will be dumped into the river, and which have not been sufficiently studied.

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35.

Applicant has faileil ti. istequately assess the extent to which the radio-active effluents from the Miell.tnii r".u t<,rs will cause harm or damage to living organisms in the environment.

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c. 36. Maximum permis> ibir concentration values tabulated in Title 10 of the Codd of Federal Regulations, Icacl to an unacceptable risk estimate to man and the-environment.

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.- The lack of a comprehensive study that takes into account both physical

', and biological concentrating merlianisms and is based upon quantitative data on each and every radionuclide in the inventory of the Midland plant precludes applicant from accurately assessing the environmental impact of the Midland plant.

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.*. . q 0-r QiNCLUSIONS OF LAW

1. Pursuant to the Marin.ul I:nvironmental. Policy Act of 1969 (42 U. S. C.

Section 4321 et seq. )

It is the continuins; 1"'In y of the Federal Government, . . . to use all practicable means aint nicasures, . . . in a manner calculated to foster and promcite the r. in ral welfare, to create and maintain conditions under which man and natu re . an exist in productive harmony, and fulfill .

the social, economic, and other requirements of present and future gen-erations of Americans.

2. The purpose of the Aloinic Energy Act of 1954 (42 U. S. C. Sections 2011 et seq. )'

a. The development, use, and control of atomic energy shall be directed so as to make the maximum contribution to the general welfare . . . .

D .

and all policies and regulations adopted pursuant to this Act must "to the fullest I

extent possible" be interpreted and administered in accordance with the policies set forth in National Environmental Policy Act. '

The planning and decision-making of the Atomic Energy Commission in connection with the proposed Midland Plant, Units 1 and 2, have an impact on man's environment within the contemplation of Section 102 of NEPA, therefore to insure that the policies of NEPA are carried out the following steps must be performed:

a. An interdisciplinary analysis of the Midland Plant, Units 1 and 2, proposal which includes the resources and analytical methods of the (1) natural sciences, (2) social sciences and (3) environmental design arts must be employed.

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b. The cost-benefit ti ro.i.la based by the Atomic Energy Commis sion in its planning and decision-mak i ne process on the Midland Plant, Units.1 and 2, J -

proposal must (1) include critr eia which permit quantification of environmental amenities and values hitherto unquantified, for inclusion in this cost-benefit formula, and (2) to the extent that unqu..ntified environmental values and amenities cannot be he given to the abandonment of the cost-benefit quantified consideration mur. .

formula, with substitution . f a formula / approach which does adequately provide for the appropriate consideratinn of t.bc environmental values and amenities here in-

[

volved.

3. The unresolved coutlicts concerning alternative uses of environmental values, amenities and resources involved in the Midland Plant, Units 1 and 2, pro-i to the

,posal require the study, development and description of appropriate alternat ves basic course of action including the alternative of total abandonment of the project.

1 r

4. The Midland Plant, Units 1 and 2, proposal constitutes "majo.r Federal action" within the contemplation of Section 102 (c) of NEPA. Therefore in add

• tion to those matters set forth in the preceding paragraphs a detailed statement by a responsible official must be made which includes the following additional analysis:

(a) The Environmental impact of the proposed action.

, (b) Any adverse environmental effects which cannot be avoided should the l

, proposal be implemented.

(c) Alternatives to the propose action.

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(d)

The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (e)

Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented .

Pri.or to making the foregoing statement the responsible offical is required con sult -

to and obtain comments of Federal, State, and local agencies as well as ememb general public, and such comments must accompany the propoe.s1 thro review process.

6 5.

The only permissible actions which the Atomic Energy Commission m authorize pursuant to the Atomic Energy Act of 1954, as interpretedo pursuant t NEPA, are those actions which have long-term social benefits that outwe

' term environmental costs as determined by the analytical procedurc set forth in the foregoing paragraphs.

, 6.

The Atomic Energy Commission has failed to perform the duties set srth in Conclusions of Law numbers 2 through 5. .

3

, 7.

The construction and operation of the proposed Midland Plant, Units 1 and 2, on the proposed site constitute a~ nuisance and are a violationegal of vested l rights of biapleton Intervenors under the Constitutions of nthe State o of the United States.

8.

It was error on the part of the ASLB to not give any evidentiary weight h

to the testimony su bmitted of Dr. Charles W. Huver and to further refuse to any additional evidence from two of Mapleton's scientific experts relevant o-to radi logical is sues. -

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IT IS ORDEREI permit to applicar.t Co:

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CERTIFICATION I certify that a copy of the foregoing document was mailed September 14, 1972, postage prepaid and properly addressed, to the members of the Atomic Safety and Licensing Board, tbe Secretary of the Commission, and all counsel of record. ,

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WILLIAM'J. GINSTER A Ney for M,apleton Interveno rs usiness Addr'es's: No. 4 Merrill Building

- Saginaw, Michigan 48602

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217 environmental effects. The Board concludes that an adequate presenta-tion of this distant occurrence has been made and that the best estimate of the cost of decczz:issioning is a present worth value of less than

$8 million.

I= pact from Transportation of Fuel 236. Transportation of unirradiated fuel elements to the Plant, spent fuel elements from the Plant and packaged radioactive vaste from the Plcat will be made in shipping containers approved and licensed by the Department of Transpo:tation and vill be made in ac-cordance with detailed regulations of the Depannt of Transportation and the AEC (ASER Apphcant's Ex. 38F-1, pp. k.5-1 to k.5-11) . Such regulations it=it external radiation to the public from containers used in transport to extremely low levels (ASER Applicant's Ex. 38F-1, pp. k.5-2, 4 5-7 and 4 5-10) . Applicant pointed out that since 1962 it had made more than 50 sh1;nents of fuel elements to its facilities and 17 shi; cents of spent fuel frcza such facilities without incident and with negligible effects on the environment (ASEP. Applicant's Ex. 38F-1, p. 4 5-1). The Staff evaluated exposures that could be expected under non-accident conditions. For transport of new fuel the Staff concluded that the dose that could reasonably be expected to a me=ber of the public could be about 0.005 mrem per sht; ment and that therefore there vould be no effect durin6 nomal transportation (FES Staff Ex. 6, p. V-36). Evaluation of transport of spent fuel yielded a potential dose to a me=ber of the public of only about 13 mre= and an integrated population dose along the route of +J:e shi; ment of about 0.2 man-re= (IIS Staff Ex. 6, p. V-37). In view of natural backs cund levels and other ordinary exposures to radiation, this =ust

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218 be viewed as negligible. The Staff also evaluated the potential heat release frcc spent fuel ship::ents and found it to have negligible en-

, viron:nental effects (FIS Staff Ex. 6, p. V-37) . Estimated dosages fro =

shi; cent of radioactive vaste vould be equivalent to those from spent fuel, except that transportation of recycled tritium would result in no external dose (FES Staff Ex. 6, p. V-38) . The Board concludes that the Applicant furnished adequate infomation regarding nomal trans-portation and the Staff adequately evaluated the infomation. Inter-venors did not participate in this matter. The Board concludes that the environmental effects of fuel and vaste transportation under non-accident conditions are negligible.

237 The environnental effacts of transportation accidents were also evaluated. Applicant described the detailed accident analyses and tests that are perfomed on shippin6 containers to ensure that they meet the stringent criteria prcuulgated by the Department of Transporta-tion (ASER Applicant 's Ex. 38F-1, pp. 4 5-4 to 4.5-6) . The Staff analyzed the potential consequences froc: accidents to new fuel, spent fuel and vastes (FES Staff Ex. 6, pp. VI-6 to VI-8). Because of tbc design of the container and li=itations on quantities transported, it is considered extremely improbable that new fuel could bec ane critical even in the

! event of an accident (FIS Staff Ex. 6, p. VI-6). Even if it vere to become critical, the serious exposures vould be Wted to abcut 100 feet from the accident (FIS Staff Ex. 6, p. VI-6) . Evaluation of spent fuel shipments indicated that under extremely is,2ebable circu= stances an accident could result in the release of scme of the gases and acce' of the coolant frcx:: the containers which vould result in exposures of a few hundred millirem within about 100 feet downvind frcan the cask (FIS

219 Staff Ex. 6, p. VI-7). Solid vaste shipents would be unlikely to cause any significant exposure in the event of an accident because of the fact that the solid materials, even in the remote probability of a breach of packaging, would not spread as vould liquid or gases (FES Staff Ex. 6, p. VI-8) . Liquid vaste shipents are of such a lov level of activdty that even in the hi 6hly unlikely event of an accident it would not be expected that any significant exposure could result (FES Staff Ex. 6, p. VI-8).

238. 'Ihn Staff indicated that the consequences of such ac-cidents r.tst be evaluated in the context of the probability of an ac-cident (FES Staff Ex. 6, pp. VI-6 to VI-8). In response to the Board's inquiry on the likelihood of an accident to a shipent frca the Plant (Tr. 7613), the Staff indicated that radioactive shipents over the life cf the Plant could be expected to cpproximate 930,000 miles by truck (Staff letter dated July 24, 1172, P. 2). Recent accident sta- ,

tistics indicate one truck accident per 750,000 shipent-miles which would indicate the possibility of one tntek accident over the life of the Plant (Staff letter, dated July 24,1972,p.3). In the event of accident, depending on packaging, the probability of any release of radioactive material ranges frca:t 1 in 10 to 1 in 100 (Staff letter, dated July 24, 1972, p. 3). It is therefore extremely unlikely that there vill be any transportation accident that vill have any environ-mental s16 nificance.

239. The Environ = ental Protection Agency generally agreed with the Staff conclusion that postulated transportation accidents are hi6hly unlikely and that envirecmental risk is extremely lov (FES Staff

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220 Ex. 6, Appendix E, p. 37) but encourage analyses of accidents on a Eeneric basis. The Staff indicated that it did have such an aralysis under way and that results have progressed t.. the point that it appeared that the results of the study would be in agreement with the conclusions contained in the FIS (Staff letter, dated July 24,1972,p.1). In re-sponse to Board questions regarding the use of the most direct rail routes and the interstate highway system for fuel shipnents (Tr. 7610, 7611), the Staff concluded that there were offsetting considerations in use of various routes and that it did not believe that any special routin6 would be indicated (Staff letter, dated July 24,1972, p. 2) .

The Mapleton Intervenors did not involve themselves in this matter.

The Board finds that the Applicant supplied sufficient infomation and the Staff adequately evaluated it. The Board is of the conclusion that .

the probability of any significant effect from a transportation accident is so lov as to not be meaningfully quantifiable in tems of environ-mental cost.

Effect of Themal Releases to Dov 2kO. Much discussion was had at the hearing as to whether it is necessary to consider the impact of Applicant's themal releases to Dov(Tr.5917hk). As described in paragraph 90 above, Applicant utilizes the heat in steam in the Plant to make process steam which is sent to Dov. Applicant argued that the manner in which the heat put into the process stes= is utill:ed or eventually dissipated is not a legitimate concern of this Board. Applicant analogized the situ-ation to evaluation of the ultinate dispositien of electricity generated at the Plant and sold to its custaners th@.ut the state (Tr. 592L).

Mapleton Intervenors, on the other hand, argued that all heat releases

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-t Que s,t l en: At' Pane 76GS of L;.c trunr.cript, Dr. Goodstan directed the Staff'n attention to the follouinn EPA r.t at ement : "In itu revicts of. in: clear -

power, EPA has identified.a riecd for additional Informelon on tuo typea '

of accidents vhich could renult in. radiation c>:por.ure to' the public:

t hose involving t raur.portat ica of fuel and une.t e, acid in-plant accidents . ,

These consideraticar, are cor.c.on to all nuclear parer plants. S!.nce t.he degreo of ri:.h in gcuerally nioilar for all planta, ther.c ist.uca are niaenalile to a (;teneral onaly .1!.. Althoonh the ACC han been unthing on therre .

. ist.ucs for a nunher of ,ycars, we belir+c that a egre thorosmh anni..nis .

of there t en cuent isnu. En a rencral br:ci.g ce:arciel!.v t h.) _nrcht.Silit ies c>i occurretico r.nd 1 c c menced consenm t:ces, unnld ru_:>il s- in / h::t ter

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'I t.h _ t h. uvelcar elec t ric r r..cr inn:nctrv. iG% has caco iraged th:: ALG '

to conduct r.uch nualyr.ca.. A in::.her of r.cet in;;s br/c bnen helfi uith the '.

. . ACC on t hane :.atters, and th:y haver indicat ut! t hst. thay are actively -

uothiry: un these questionn. !!PA will be parcicipating in these ;cnernl rinalyses with the A1:0 staf f. . . ,

3 O t ith respect to t.he "taiena :>cnt. e'etteve<t';>eiheseeilitP"eea not. be delayect while these quer.Li< ins are beine. resolved on a gennral basic.

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t bi s vieu b':enu.m ue do not .m:'n < r th ' rey_ *.t:1 f .i o f __ t Ite ist . e::t t -

f;n t= J ont: uill pre?ci te:!c ner:rn; sag cht. trya i f c.jly. j te cou l pn.ent or oreornt-s r.e urocedcres vs. the imi t vi:1ua l f ac i li tia r. invol,n,d . If CPA belicved that a pob11e er cir.'iroar.vnt r.1 rl:.!: vere a:::cocia:cd with these tuo issues. .

for t he !!idland 1%ui, ue tu.uld, of cnuruc, reco:n::cwl against prc ceding wit.h t.he project.*" (Cr.splianit: ndded.) -

r. Goodcan regtr.st.ed to hurr.: t.hu staf f's feelings About this ml uhuthor -

.ht EPA teol3y has a significant polut on how the staff looks upon thi:

snat ter uith regard to tran:,portat.f on. -

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Ticeponte : A general analysis of i.ransportation hac b' con tinder netidy in the AP.C for t.o.v.e ti:an. The results have progrear.ed to t;he point t. hat the ::tnif i.s of the opinion that t h:.: renalts of the alvtly vi:en co:rplate vill not indicate the need for channes in erluip:a:nt er operating pro-cedures rat the individual f acilitioni involved. .

I!PA, froia itt. statement, appcors to agree uith the St aff'o vicu.. .

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• 2 pilertton: On Pa;;c 761) of t he t ran::cript, Dr. Con:fr-in ached a question co::cers.i:.3 the f o* le int, rr,t e:r:'nt by the Applicant: "U.* believe th..t this rail route J r. the r. ort direct cnd therefore one which uill isini:nizo ,,

ci: pot.uro s.heoid an incidci.t occur." be. Coeds.cn wanted to hnca if t!.o

!;taf f nt;rced uf th thin crate . cut. .

neeponse: The Staff does nct narc: Li st th : r.n::t direc.t route vil1 neccorarily raininiec the c>:posure if on incident o:: curs. *ihn e.::.ou:lt of expocura unnld depend no . on the )cnt;th of the route, but on local.

conditiona, in part!.cuinr the pcpulatica density in the fr.:cdinto -

vi'cinity of the is:cie nt.

Oa the other hand, choo.. int; tha stost direct route t..!cht duerca::e the ric'A of .trensportatian by re'.unin': the probcbility of nn incident. Tha ;tnfC is of the victr t. hat the redoctien in overall rish, if nny, th:it night be achievc.1 by dircet rout.,in;; eauld n:e be ninnifican;.. In genersl, ths .

SLnii doco not believe that t,pecici routing in indiented.

Ouentient On Pac.o 7610 of the trcuteript, Dr. C,odr.an ash:d a c;uentic.n

,. cor.ccrning ti:e followinn t.t nterent by th: Applicant: "!!a believa that ,

utiliantion of the . Inter:. tate Einhuny !;ysten will riinleice tt c risk of an incident duriar, ship acnt of ' r.p :nt fuel." Dr. Goodman vanted tenti.:o'ny -

an to uhether tl:o Jnt.cre, tat.c Higinraytt or tha back roada voub,3 be the better routing for chip acats.

!!cenon r:c : Utilicat. ion of Interstato n!;;hvayu ulll reduce the pro-behility of accider.ts.  : tat i:::.ic:. sin.it that the prehability ef. accident:a ou divided highwiys in lower than on non-divided high.tays. Ucucver, th r velocity of - 1.mpact - of tha:.c accident: uhich do o:: cur :nay be increased . . . _ _ . . .

becact.e of the higher cpcedo generally renched on Interstate nighunyu.

Therefore, although the ccacer;uer.ces of an accident on an Int.crstate liiphwy rd;;ht be grea;.ce, the i.robability it. lo:ic e. A: nut.ti'.:3 tito meber of n!!cs requh ud by utilization of Interstate Highu.iye to be not rnuch dif ferent t.hna for alternate route :, thn rir,h uould be about the ar.:.o in both cases. Again, uc do not believe that special rout.ing is indiccted.

O,ile c t i on : Oa Pano 7613 of the transcript, Chaircan !!urphy anhed, "Us.:

nony inst or.cen of (necidents in) trancport vould you cxpect over the ,

life of the renet or'i"

' ,T:c_yp rine.y,: The uutacr of truck imiles f or all ship =ents of rcdioactivo

• saat erial nay ha calculcted from pa;;cs 111-42 cud TII-43 nt the Final Envirniuc. ental State:3 cut . This indicutc9 abent 130,003 n.iles of truth 8

tran::pertation includin;; *.he return of empty containcra during an au-cumed 30-year life of- the plant. *fho number of niles invoirinn radio-

. activo ship:acnts 'unuld be about 600,000. I.f the irr::diated fuel in -

chipped by rail, the nu:ccr of shipn. ento and honce the nut ber of tailoa

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would be reduced.

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4-339 .5 Da:,cd on rer:r ut accident stati::t ics, 0) a shipncut of lucl or traste G noy be expected to he involved in an accident about onec in a total of D 750,000 Sip: : rit-nile::. Thi r. Judicates ther o uould be cbout one accident duriu;; Ih: life of th:r plant which involved a radionetive z.hipr.:nt.

The ::taH ha:; c::t hated t hat c:.ly shout 1 in 19 of thow accidents vhich involve '/ype A p:. chap.cn W or 1 *n 100 of thor.c 1avolv'i"; Type Il pack:ges 1 G) night teruit in sny leah.inc of re.dic active nattrial. Stie.h Icchq;n l

oy result in cn c):per.: re of a few hundred r rern co iridicated o:r pq;c

• VI-6 throu;;ht VI-G of the Pint.11:nviron nental Statencat.

In case ef on accident, precedurer, which c..rrier= are required (3) to folle.u vill reduce the conscr:ncreen of an accident in mir.

• ccccc. The procedures includa ecper,atica of dt.t..;;ed .,nd leriking pacl:s0ca frca peoplo, and notii! cation of the a. hipper and the Depach.unc of Tr mcperta-tion. Lodiciogicci assistar.cc teacs are nvailabla through cu inter-Govern cutal pro.r;r:.a to'provida equipped cud trair.cd pacennel. Theco tenes, dirpctched in recponne to cc11s for cit.orgency ac::1stence, can

• initigt.to the conscqncut:en of cn accidet.t.

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(1) Federal lii;,huay Aduiinistrati<m, "1959 Accidento of Largo !!ctor Carriers of Property," Dece:4 ar 1970; and Pctieral itailrced Adninistration Acci-

, dent tulletin I;c.133, "Su:cary and Analysio of 1.ccidento en 1milroads .

in the U. fi.," 1959 (A revicu of later data th::t h:.d not boca publi:.h-ed shwcJ concintency uith the 19fi9 data). .

@) Defined in 49 CPR f,17'3.3P.7 (j) cnd (h).

1 (3)49 CPR C 171.15,174.566 and 177.S61. ,

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Osc <.t f on : la Page 7423 o'r the traur.cript, :!e. Sn{r h, Counsci for tim-Applicant, so that represented that the Applicant was villing to treat phorganton t.he totr.1 discharge iniclut:ing the laundry uaste and startup (U3h var.te, based on rJec ac:.u:d over.,ge, would not exceed 35 pounds per day cxcIncive of the pond reenmet.cratf cr. of c :ictin;; phasphato .icycle in the river. 1:e then ineg. ired ubether the Staff, in light of thiu repre- --

sentation, voield be uilling to reco:::ider its proposal th0 the /.pplicant prevent any'dir. charge which neald result in increasing the phosphorua

, concentrntien 1 tha river above 0.id pp.n.. ,

1(cr.pnmi Thore appenrs to be no basis on uhich to dotermine the ef- ^

fcctivo enrrying capacity of n river for phosphates or those concentrctionn which will cen:sc detric:ntal receiving bn:!ies of unter.

7 eutroidiic effcets on the river i,ystem or Pht:aphnten oro frequently eno c,f the liutt-inn fact ors regrlatitin<;rrductivity in lakce, and r.rudice on tha Grcnt -

1.akes inve <;ce.onst rated entrophic effects associated with tributarf diachargcc.

The Fatten 1 Yechnical Advisory Certaittee to thu Secretcry of the f utcrior rects er.:!cd as a guideliric that the concentrntion of Total pho::pimrus :dioold not bo incre:: sed to levels cr.cceding 0.1. pp:a l '

in flovii.g strecas .or 0.05 ppn uhore streams enter lahco or reservoirs They furthee not ed that .

the :caintenance of these guidelines rr.sy or ray not

• '8 t prevent the esccurrence of undesirable b1m>::s and nuisance growthr..

f c criterin for current water manu;;er.ient appears to be essentially that mininiv.f r.3.the phos; hate diccharnen frca any facility, te decreano louding in tha river and ti:e inventory to receiving bodico of water. - -

Our calculations indicate thnt at the Applicant 's proposed reduction .

h ing cmmentrationof phosphate t'incimrces to an averano of 35 puends per dcy, the result-in t he coolina pr..: would be about 0.12 1.pra pho:phate*

tend the .rcr.ul ting incrersent of phor.pimter, in t he river would be c.b'out .

0.004 ppu et the averano river flou of 1450 cis and i bout 0.03 pra nr.

n 11cu of 200 cfc. The total increc. cat of phonphorus in the river a-

- a result of plant operatiM, e.g., due to pond evaporation und tha ad41-tion of 35 poimda per day at pond errailibrium, has been calculated an '

heing abont 0.0L pra phosphorus durius periodn uhen the river flo.s would be 200 cfs and C.C313 at 1450 cis.

Staff considers the prepoud reduction in phosphate dicehargco ac-

.nble. ..

Lunt the total In:ced on the Applicant dincharge *n ccanittncnt, the Staff will requir'r of t hosphates -

not exceed an nverage of 35 potada a day, excluoive of pond recencentration of existing levala in the river, .

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4 ATo convu. t fror.: phosphate to phocphoruo, uno a factor of 0 33 . .

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,0 p ifon: A discur.r,f on of biecian der:redat ton bcnnn on Pann 7383 of the trantert; t and ended en Page ?'s97 with Dr. Goodsun's t. tater.ent, "My O r ut:ge r.r. i on t r> t!m t thin bo exa4ined, both by tbc appilcant r.nd by the group here, .and cce if you can cora up wi:h co: e strr enthenin; of the reco r endation of Joucring of that limit." .

p.ct.ne;.,c : "the Staff proposes in iten 7(3) of the Su:nsry en.1 Conclusions of the final 1:nvirone.. ental :::ntenent that the Applicen: tc:tc the follw-ing action: In order en at, dure that the chlorine rer.idun1 in the river is negligible, the concentration in the pond bloudown :m.t be limited ,

to 0.05 ppm. .

Contfidering the enpocted rate of chlorine de,a,radation in the ponJ, total ,

rer.idual chlorine resulting iron the chlorination of the ccadanocr coolirq; -

ualcr cyr. ten is cupected to dcaay to chlorido prior to blo.:dmin. !!wcVer, if chlorinrr is used as a blo:ida en the pond ble rder.in cooling touet', conc residuni chlorius could be present durine, those tir.:s at tho intche point for.the pond bloudown. Therof erc, the knif has placed tho lin.it of 0.03

. pt.r2 chlorino reoidual on t.he pend blovdewn. This t.eans that, when the coling tuer han been chtcrinated, the Applicant cust recirculato pond ater through the twor without bloudmn until the residual chicrino ia 0.03 ppn or 1 css. 7his tray result in nn extended recirculseten ptrica if chlorination to perfurned at night.

If it is ast.uned that no further degradation occura during nixiu : uith the dilution stream durio~. blondoin, the concentrction uauld 1.n 0.0017 h ppm at nu nverage river flow of 1450 cfr- cua 0.01 p;n at a. river 11 cts of 200 cis.

The Applicant in restricted (:.cc Pano III-0, pit:ah C;VIT.0 :::d:TAh STATE-MC:7) from taking traheup water ualess the river F v is nreater than 350 cis. Until the river fic. is greater t han 650 cfs, the volu:;e of - - - - - - - -

., naheup (40 cf:4) is essentinily for evaporativo lo.nca (13 to 35 cf:,)

froa the pond. Operationally, t he Applienut is, rest.ricted frera bler.eing

%un thu pond unican thero is mheup unter available ubich eficctively ,

estricts pond bloudusn to thor.o tines when the resnitant ilon f.u tho

. iver at the pond dia. charge is equal to or creater then 610 cIs (650 cla ininns 40 cfs). .

l Since the above operacio.1al conJittana require a nininun river flw of

610 cfs at the point of plant direharge,. the limit of 0.05 ppm recidual .

j chlorine in the pur.d hivadowa effcetivel*j linits t he.r aximun concentration to 0.004 pp;a in the river l'or a pond him.dcun of 50 cfs and to 0.003 ppts for n pond bloujoun of 100 cfs. Furt her.more, chlorin:ition is character-istically an internittent procct.a of short duration. Under these conditione,

, no sI Gnificant kills of aquatic ort;anisnr. or n.casurnblo adverce effect on the aquatic ccolo;;y is cupreted. Therefore, the fitaff does not. holieve than any further rer.t riction on residual chlorino above the limit of 0.05 ppm rcriident chlorine in the pond bloudo.rn should be requirnd. . i O . .

.