# Appendix — Consumers Power Co. v. Aeschliman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 962

## Text

MICHAEL RODAK, JR., CLERK

wa

Appendix

IN THE

Supreme Court of the United States

OctoBEeR TERM, 1976

WE-528 See Environmental Defense Fund, Inc. v. Corps of En-
gineers, 470 F.2d 289 (8th Cir.), cert. denied, 412 U.S. 931
(1972), in which the Eighth Circuit Court of Appeals held
that, although NFPA requires agencies to evaluate objectively

78

I am also troubled by two other aspects of the majority
opinion. First, I am distressed because I believe the
majority opinion fails to inform the Commission in pre-
cise terms what it must do in order to comply with the
court’s ad hoe standard of review.* The majority sends
the waste storage issue back to the Commission for a
“thorough ventilation.” This language, of course, means
very little in procedural terms. In order to aid the
Commission in filling in the gaps in the record, the ma-
jority enumerates a number of procedural alternatives in
varying degrees of formality, some less intrusive into
agency prerogatives than others. Majority 39. Then,
heeding the Supreme Court’s admonition in FPC v.
Transcontinental Gas Pipe Line Corp., 96 S.Ct. 579
(1976) (per curiam), that we may not, except in extraor-
dinary circumstances, specify agency procedures on re-
mand, the majority declines to give the Commission any
direction as to which procedure or combination of them,
will suffice. The Commission is thus left to decide which
to adopt, further confused by the majority’s statement
that, “It may be that no combination of the procedures
mentioned above will prove adequate, and the agency will
be required to develop new procedures to accomplish the
innovative task of implementing NEPA through rule-
making.” Majority 39. Such specificity resembles a

their prujects, it does not require agency officials to be sub-
jectively impartial. In other words,

NEPA assumes as inevitable an institutional bias within
an agency ... and erects the procedural requirements
of § 102 to insure that there is no way the decision-maker
can fail to note the facts and understand the various
arguments advanced by the plaintiffs if he carefully re-
views the entire environmental impact statement.

Id. at 295 (quotation marks and citation omitted).

* Judicial imposition of procedural requirements on an ad
hoc basis is criticized in Wright, supra.

79

standardized test in which there are numerous possible
answers, including “all of the above,” “none of the above,”
or “various combinations of the above.” The result, I be-
lieve, is entirely predictable: the Commission may or
may not adopt one of the majority’s suggestions, but will
in any case seek to comply by mechanically generating
more “negative” information respecting current prob-
lems with disposal of high level radioactive wastes and
then will “overcome” this information with citations to
favorable studies and articles. Ultimately, of course, the
Commission must decide which information to accept and
which to reject, regardless of the type of procedure used.
The majority opinion appears to recognize as much
when it volunteers that, “On the other hand, the proce-
dures the agency adopted in this case, if adminstered in
a more sensitive, deliberate manner, might suffice.” Ma-
jority 40 (citation omitted). This time, however, the
decision whether licensing an additiopal reactor is worth
the additional environmental risk would be one of policy
or risk assessment and, consequently, would be review-
able only according to the customary “arbitrary, capri-
cious” standard. Amoco Oil Co. v. Environmental Pro-
tection Agency, 501 F.2d 722, 741 (1974). I believe it
almost inevitable that, after fully considering the prob-
Jems and alternative methods of waste disposal and stor-
age, the Commission will reach the same conclusion and
therefore see little to be gained other than delay from
imposing increased adversarial procedures in excess of
those customarily required.’

"It has been argued that those cases in which we have
granted a limited right of cross-examination on remand have
afforded little relief other than delay and a tool with which
to bargain for substantive concessions. Williams, “Hybrid
Rulemaking” Under the Administrative Procedure Act: A
Legal and Empirical Analysis, 42 U. CHI. L. REV. 401, 436-48.
It would seem, therefore, that the right of cross-examination
at a rulemaking proceeding frequently is better to have and be
denied than to utilize.

80

This brings me to my second, related concern with
the majority’s approach. I believe the majority’s insis-
tence upon increased adversariness and procedural rigid-
ity, uneasily combined with its non-direction toward any
specific procedures, continues a distressing trend to-
ward over-formalization of the administrative decision-
making process which ultimately will impair its utility.
As Judge Wright has recently noted, the administrative
response to overuse of judicial imposition of such ad
hoe procedural refinements is easily foreseeable. Fearing
reversal, administrators will tend to over-formalize,
clothing their actions “in the full wardrobe of adjudica-
tory procedures,” until the advantages of informal rule-
making as an administrative tool are lost in a heap of
judicially imposed procedure. Wright, The Courts and the
Rulemaking Process: The Limits of Judicial Review,
59 CORNELL L. REV. 375, 387-88 (1974).* The majority’s

*A further problem with over-reliance on the hybrid rule-
making approach has its roots in the hostility of some judges
to all forms of substantive review of agency decisions. The
line between substantive and procedural review is, of course,
a hazy one. The same judges who most vehemently protest
against judicial intrusions into the substance of administra-
tive action, especially in highly technical areas, may not hesi-
tate to require relatively more procedure of an agency when
they dislike its substantive result. There is, I believe, a dan-
ger that judges will feel less restrained in requiring ayencies
to adopt procedures in excess of those required by the APA
when review is couched in procedural, rather than substan-
tive, terms. The preoccupation of the majority opinion in this
case with the half-life of the plutonium atom and the myriad
of geological and other technical difficulties one faces in at-
tempting to safely store a highly toxic substance for a quar-
ter of a million years demonstrates that judges cannot avoid
the task of imriersing themselves in difficult and often tech-
nical matters in order to evaluate administrative action and
assure themselves that the agency has in fact dealt with all
major issues. Because the relative environmental importance
of the waste disposal issue before us is the subject of some

81

reliance upon the so-called “hybrid rulemaking” cases’
for its conclusion that the procedures prescribed by sec-
tion 553 are inadequate for resolution of the complex
issues involved in this case and its insistence that the
Commission adopt more formal adversary procedures are,
I believe, misplaced. Admittedly, there are rare cases
in which “basic considerations of fairness” require pro-
cedures more adversarial] than those prescribed by sec-
tion 553. See Majority 14-15, quoting from Respondent’s
Brief at 13-14. I cannot agree, however, that this case
requires us to reach this issue. Remanding an agency
decision with instructions to initiate such procedures is
an extraordinary judicial remedy which, I believe, should
be reserved for extraordinary cases.

The appropriate remedy at this point is not to impose
ad hoe procedural requirements in an attempt to raise
the level of petitioners’ participation, already adequate
under section 553, but to remand for an explanation
of the basis of Dr. Pittman’s statements and of the
staff’s numerical conclusions,’® i.e. for the documentation
which the majority finds so conspicuously lacking.** The

controversy, arguments about whether our focus here is “pro-
cedural” or “substantive” may be more semantic than deter-
minative.

* See the cases cited at note 23 of the majority opinion.

# As the majority states, due process considerations prob-
ably mandate that petitioners be allowed to comment upon
any additiona] information assembled by the Commission.
Neither the Constitution nor the Administrative Procedure
Act, however, directs the Commission to allow additional oral
presentation, cross-examination, or any other procedures in
addition to those required by section 553.

11 The extent of the required statement of basis may vary,
of course, according to the precise demands and issues of each
particular case, but, “{a]t a minimum, the statement should
refer to relevant submissions by interested parties and should

82

Commission should be able to supply the court with a
statement of the methods by which its staff arrived at
the figures embodied in Table S-3 and by which Dr. Pitt-

rebut or accept these submissions in an orderly fashion.”
Wright, supra at 381. This court has also distinguished be-
tween factual determinations and policy choices more pecu-
liarly within the expertise of the administrative agency. In
the former case, we commonly have insisted upon sufficient
attention to the facts to enable the reviewing court to ascer-
tain the underlying rationality of the resultant regulations.
Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d
722 (D.C. Cir.), cert. denied, 417 U.S. 921 (1974). In contrast,

{wjhere ... the regulations turn on choices of policy,
on an assessment of risks, or on predictions dealing with
matters on the frontiers of scientific knowledge, we will
demand adequate reasons and explanations, but not “find-
ings” of the sort familiar from the world of adjudication.

Id. at 741.

Often, of course, an agency ruling will encompass both
factual dzgerminations and policy choices. This is such a case.
For example, the decision to treat the waste storage issue
through generic rulemaking because it is common to all
licensing decisions is clearly a policy determination within
the agency’s special expertise which we should review only
for clear abuse of discretion. See NLRB v. Bell Aerospace
Co., 416 U.S. 267 (1974). The decision to license a particular
reactor is also a policy or “assessment of risks” decision
within the agency’s discretion, provided it has adequately
considered all underlying factual issues, including the waste
storage issue, and has determined to its own satisfaction
that safe methods of production and waste storage are already
technologically and economically feasible. Finally, once so
assured, the decision to postpone until later the question as
to which of several feasible methods should be utilized is
also, I believe, a policy, or risk assessment, decision.

This case, however, involves related factual determina-
tions for which we must find support in the statement of
basis required by section 553. Of particular relevance here is
Table S-3, which reduces the environmental effect of licensing
an additional reactor to certain numerical values and, in ef-

$3

man concluded that the waste storage problem is already
technologically and economically soluable. If it cannot,
then we will have no choice but to invalidate the Com-
mission’s rule under the “arbitrary, capricious” standard;
if it can, we should defer to the administrative weigh-
ing of risks and benefits of additional reactors.

fect, concludes that it is negligible. The claimed bases for the
judgments expressed in numerical terms in Table S-3 are the
data assembled by the staff in the draft Environmental Sur-
vey, adopted without substantial modification as Table S-3
and thus embodied in the final rule. As the majority indicates,
neither the Survey itself, the back-up documentation to which
it refers, nor the oral and written testimony offered at the
hearing adequately supports these factual conclusions with
respect to the waste disposal issue. Majority 21-22. The de-
tailed explanation which characterizes other portions of the
Environmental Survey is notably absent from this portion.

85
ATOMIC ENERGY COMMISSION REPORTS

Volume 4

Opinions anD DECISIONS OF THE
Atomic Enercy ComMMISSION
WITH SELECTED ORDERS

July 1, 1967 to June 30, 1972

Docket No. 50-271
ALAB-56

IN THE MATTER OF VERMONT YANKEE NUCLEAR POWEP
CORPORATION (VERMONT YANKEE NUCLEAR POWER
STATION)

Issued June 6, 1972

Atomic Sarety anp Licensinc AppeaL Boarp:
Srmwney G. Kinesiey, Chairman.
Dr. Jonn H. Buck.
Dr. Lawrence R. QuaRues.

Memorandum and Order

During the course of extended hearings for the issuance
of an operating license for this nuclear power station,’ the

* The provisional construction permit was issued on December 11,
1967.

86

Atomic Safety and Licensing Board has referred to us on
December 29, 1971, under Subsection 2.730(f) of the Rules
of Practice, 10 CFR Part 2, certain rulings concerning the
scope of environmental review under 10 CFR Part 50, Ap-
pendix D, as revised September 9, 1971.’

The referral by the Licensing Board does not explicitly
identify the questions to which it seeks answers. It cites
the Board’s rulings at certain pages of the transcript.
Those rulings refer in general terms to proceedings which
we have sought out in the record.

The referral originated in a motion of the intervenors
Natural Resources Defense Council, Inc. (NRDC). It has
two principal aspects:

a. The Board has referred to us oral rulings in which
it sustained objections to questions and to interroga-
tories concerning the levels of radioactivity and the
associated hazards which might be included in the op-
erations of a reprocessing plant to which irradiated
fuel from the Vermont Yankee plant might ultimately
be sent for reprocessing, and the transportation of
high level radioactive wastes from such a reprocessing
plant to an ultimate storage area.

b. The Board has also referred a motion of NRDC
which requested that, under Subsection 2.785(d) of the
Rules of Practice, the substantive questions be certified
to the Atomic Energy Commission on the asserted
ground that a broad policy question is involved which
should be determined by the Commission.

The original motion of NRDC sought orders of the Li-
censing Board which would open for consideration in the

* 36 Fed. Reg. 18071. See also 36 Fed. Reg. 18716, September 21,
1971; 36 Fed. Reg. 19153, September 30, 1971; 36 Fed. Reg. 21579,
November 11, 1971; 36 Fed. Reg. 23900, December 16, 1971; 37
Fed. Reg. 864, January 20, 1972; 37 Fed. Reg. 9619, May 13, 1972;
37 Fed. Reg. 9779, May 17, 1972.

87

proceeding the environmental impact of spent fuel trans-
portation and reprocessing, the disposition and ultimate
storage of high level wastes, and the disposal of the con-
taminated structures of the nuclear generating station at
the end of its usefu) life when it is decommissioned.

The Licensing Board denied the motion of NRDC, which,
after the decision in Calvert Cliffs’ Coordinating Commit-
tee, Inc. v. Atomic Energy Commission, 449 F.2d 1109 (D.C.
Cir. 1971), presented its ‘‘Renewed Motion .. . for Full
Consideration of Waste Handling Issues,’’ for orders di-
recting the staff to prepare a new detailed statement on
environmental considerations, directing the applicant to
respond to certain related specific interrogatories, and per-
mitting NRDC to introduce evidence by direet testimony
and cross-examination of witnesses. The motion was sup-
ported by the intervenor New England Coalition on Nu-
clear Pollution.

We consider at the outset the request that the Appeal
Board certify to the Commission the substantive questions
which are now in issue.

Under paragraph 2.785(a)(1) of its Rules of Practice,
10 CFR Part 2, the Commission has delegated to the Ap-
peal Board the authority and the review function which
would otherwise be exercised and performed by the Com-
mission itself. See 36 Fed. Reg. 3837, 3838, February 27,
1971. Having been given the responsibility of relieving the
Commission of this burden, it is our obligation to carry it
out, subject to the Commission’s review, unless we con-
clude that we are incapable of doing so without prejudice
to the Commission’s performar«? of iis duties. See 1969
Annual Report, Administrative Conference of the United
States, pp. 17, 38-39. If the Commission in its wisdom
should conclude that it should review on its own motion a
decision or action of this Appeal Board, it will doubtless
exercise its reserved power to do so. 10 CFR Section 2.786.

88

The motion of NRDC and the related rulings of the Li-
censing Board raise the question of the scope of Appendix
D of Part 50 of the Commission’s regulations. Appendix
D is patterned upon the language of Section 102 of the
National Environmental Policy Act of 1969, P.L. 91-190,
43 U.S.C. 4321 et seq. The Commission initially published
Appendix D as an interim statement of general principles
and procedures under that Act (35 Fed. Reg. 18469, De-
cember 4, 1970; see also 35 Fed. Reg. 5463, April 2, 1970).
After the decision of the United States Court of Appeals
for the District of Columbia Circuit in Calvert Cliffs’ Co-
ordinating Committee v. Atomic Energy Commission, 449
F.2d 1109 (July 23, 1971), it published a revised Appendix
D (36 Fed. Reg. 18071, September 9, 1971).

The issues presented by the NRDC motion and the re-
ferred rulings, as they now lie before this Appeal Board,
appear to be whether the Licensing Board is to consider
the environmental hazards of transporting and reproces-
sing spent fuel from the facility, transporting and disposing
of the high level wastes issuing from reprocessing, trans-
portation and storage of low level wastes, and ultimate
disposal of the contaminated structures of the facility itself
at the end of its useful life; and whether the detailed en-
vironmental impact statement prepared by the staff must
address each of these issues.

We have concluded that the Licensing Board should
consider the transportation of spent fuel to a reprocessing
plant, and the transportation from the nuclear power plant
of high level wastes as well as of low level wastes, but
shoud not consider in this proceeding operations of a re-
processing plant or the disposal of wastes resulting from
reprocessing. We have also concluded that the environ-
mental effects to be addressed by the staff should extend
to and be limited to the same scope.

During the course of the proceeding NRDC has served
voluminous interrogatories on various subjects, including

89

radioactive wastes and their disposal. The applicant has
answered almost all of them, but has declined to answer
two concerning reprocessing and the disposal of wastes
from a reprocessing plant. The staff’s draft detailed state-
ment on environmental considerations, which has been filed
since the Licensing Board’s referral to us, has taken into
account the handling of radioactive wastes at the plant and
the transportation of irradiated nuclear material and solid
radioactive waste from the plant.

Section A of Appendix D, 10 CFR Part 50, which pre-
scribes the scope of the subject matter of the environmental
study to be conducted in implementation of paragraph 102
(2)(C) of the National Environmental Policy Act, defines
that subject matter in the same language as paragraph 102
(2)(C), 42 U.S.C. 4332(2)(C):

‘*(i) the environmental impact of the proposed ac-
tion,

(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses
of man’s environment and the maintenance and en-
hancement of long-term productivity, »nd

(v) any irreversible and irretrievable commitments
of resources which would be involved in the proposed
action should it be implemented.’’

The applicant has included in its environmental study the
transportation of irradiated fuel from the reactor to a fuel
reprocessing plant, as well as the transportation of pack-
aged radioactive material from the reactor to burial
grounds for low level wastes. It has done so pursuant to
a memorandum of September 1, 1971, distributed by the
Director of Regulation by means of a circular letter of

90

September 3, 1971. The memorandum of September 1 was
not a regulation adopted and published in accordance with
Section 4 of the Administrative Procedure Act, 5 U.S.C.
553. It was a guide (see 36 Fed. Reg. 22851, n. 1, (1971)
which did not establish a definitive regulatory requirement,
but merely represented a solution considered acceptable
as complying with requirements otherwise imposed.’

We conclude that the exclusion of the reprocessing func-
tion and its resulting wastes from the environmental study
required by paragraph 102(2)(C) and by Appendix D of
Part 50 is consistent with the purposes of the Environ-
mental Policy Act and Appendix D and is proper.

Congress has directed in the Environmental Policy Act
that an agency follow certain procedures in its decision
making, and take into account the specified environmental
factors; but it has not prescribed that any particular re-

sult shall follow when those factors have been taken into
account.*

Whether the Environmental Policy Act and Appendix D
of Part 50 should be so construed that the environmental
study to be accomplished in this individual reactor licensing
proceeding is to be extended to the reprocessing of fuel

* If a statement of policy is intended to have binding effect, it i
a “‘rule’’ (Sec. 2(c). Administrative Procedure re 5 USC.
551(4)) which becomes effective when adopted pursuant to the
procedures of Section 4. National Labor Relations Board v. Wyman-
Gordon Co., 394 U.S. 759, 763-765 (1969) ; Texaco, Inc. v. Federal
Power Commission 412 F. 2d 740 (3d Cir. 1969); National Motor
Freight Traffic Association v. United States, 268 F. Supp. 90 (D.C.
1967), aff’d 393 U.S. 18 (1968) ; Seaboard World Airlines, Inc. v.

Cronouski, 230 F. Supp. 44 (D.C. 1944); Devcon C 7
1780, 20 Ad. L. 24 292 (1966). cap Aorist

* Calvert Cliffs’ Coordinating Committee v. Atomic Energy Com-
mission, 449 F. 2d 1109, 1112, 1115 (D.C. Cir. 1971) ; Goamatites
for Nuclear Responsibility v. Seaborg, 463 F. 2d 783 (1971), 3
E.R.C. 1126 (D.C. Cir. Oct. 5, 1971); Upper Pecos Association v.
Stans, 452 F. 2d 1233 (10th Cir. 1971).

91

elements in a reprocessing plant and the disposition of
waste resulting from that process requires examination
of the relation of this reactor to the reprocessing function
against the background of the nature, size and structure
of the nuclear industry. We may take official notice of these
general circumstances as descriptive of the nuclear indus-

try at large.’

There are well over 100 commercial central station nu-
clear plants which are operable, under construction, or on
order; more than 20 of these are already operating under
license, about 40 have been granted construction permits
and are in the course of operating license proceedings,
about 15 more have been granted construction permits, and
approximately another 40 are in construction permit pro-
ceedings. Nuclear Industry 1971, U.S. Atomic Energy Com-
mission, 81. In addition to chemical reprocessing facilities
operated by the Commission, three commercial reprocessing
plants are in operation or under construction, and at least
one other may be built in the near future. Id., 133-136.

The record indicates that none of the nuclear fuel in the
Vermont Yankee reactor will be replaced or reprocessed
until 18 months after the commencement of operation, when
about 4 percent of the fuel assemblies will be replaced. It
is expected that about 40 percent of the fuel assemblies will
be replaced 12 months later, and that 25 to 30 percent will
be replaced each 12 months thereafter. As assemblies are
removed from the reactor they will be stored in a storage
pool at the site for 3 or 4 months at least, until they are
shipped to a reproccosing plant. The spent fuel will be
transported, under contracts to be let by Vermont Yankee,
in heavily shielded casks by truck or rail, under applicable
regulations of the Atomic Energy Commission (see e.g.,

10 C.F.R. Sec. 2.743(i); Attorney General’s Manual on the
Administrative Procedure Act, 79-80; Davis, Administrative Law
Treatise, Vol. 2 and 1970 Supp., Secs. 15.03-15.06.

92

10 CFR Parts 70, 71, 73) and of the Department of Trans-
portation (49 CFR Parts 172, 173).

Aside from the spent fuel, the wastes which will be
generated at the plant will consist largely of slightly con-
taminated water treatment resins and such miscellaneous
slightly contaminated items as rags, floor sweepings, worn-
out equipment and paper. A small portion of the resins,
amounting to about 65 cubic feet per year, will be slightly
higher in activity and will be transported in appropriately
designed and shielded casks, probably by tractor-trailer.

We recognize that there will be an incremental environ-
mental effect ultimately resulting from the operation of
this reactor as the result of the operation of whatever re-
processing plants and disposal grounds may from time to
time be used during the life of the plant. There is no way
of ascertaining now which of the various reprocessing
plants now in existence or to be constructed will from time
to time receive some irradiated fuel elements from this
plant for reprocessing during its estimated 40-year life.
Reprocessing plants do not all use the same method of
chemical separation of fissionable material from the wastes,
and there is no reason to believe that during the useful life
of the Vermont Yankee plant other methods will not be
developed for that purpose.

Each reprocessing plant which has been and will be con-
structed is a ‘‘production facility’’ within the meaning of
Paragraph 50.2(a)(3) of the Commission’s regulations (10
CFR Part 50). In the interest of the protection of the
public health and safety and the national security, each
has been or will be subjected to full review under 10 CFR
Part 50 and other pertinent regulations through the pro-
cedures established in 10 CFR Part 2 for such a facility.
Each plant not yet licensed will be subjected to full en-
vironmental review as a part of the Commission’s licensing
action under Paragraph 102(2)(C) of the Environmental

93

Policy Act (10 CFR Part 50, App. D, par. A.1)—the Pproce-
dure which NRDC now seeks, in effect, to invoke in this
licensing proceeding for those same facilities en masse.
The procedure are already in course for two reprocessing
plants which are under construction or awaiting operation.°

The scope of the inquiry required by Paragraph 102(2)
(C) is repeatedly defined, by the language of that section
and as reflected in the language of Appendix D, as the
impact, the consequences and the alternatives of ‘the pro-
posed action,’’ which in the present case is the licensing
of a specific nuclear power reactor. The language of Section
102 directs that the environmental statement shall be ac-
complished ‘‘to the fullest extent possible.’’ But ‘‘the pro-
posed action’’ is the licensing of the Vermont Yankee re-
actor and not of other present and future facilities at
other places, to be operated by other firms, and having at
best a contingent and presently indefinable relation to this
facility. Paragraphs A.3, A.4, and A.8 of Appendix D re-
peatedly refer to the environmental impact of ‘‘the facili-
ty’’ as defining the scope of the analysis. Paragraph A.10
refers to ‘‘the proposed licensing action,’’ meaning the
licensing of the particular facility which is before the Li-
censing Board and before us in a specific proceeding.

It is evident to us that evaluation of the environmental
effects of the operation of one or more unidentifiable re-
processing plants, employing separation processes which
are unidentified and which may or may not now be known
or used, during the course of the forty-year life of the plant,
is not possible at this time and in this proceediug. If the
fuel elements of the Vermont Yankee plant pass through the
process stream of one reprocessing plant or another now
operating or to operate in the future, preceded and followed
by the fuel elements and their constituents from other

* Matter of General Electric Company (Docket No. 50-268) ; Mat-
ter of Allied Gulf Nuclear Systems, Inc. (Docket No. 50-332).

94

plants, we cannot see how any effect of that process on the
environment, taking into account the factors enumerated in
Subsection 101(b) and Section 102 of the Environmental
Policy Act, 42 U.S.C. Subsection 4331(b), 4332, can be
analyzed except as a part of the integrated analysis of the
total operation of that specific reprocessing plant. This
analysis will be conducted for each reprocessing plant to
be built in connection with the licensing of that plant as a
‘*facility.’’ Any reprocessing plant now in existence, if not
already required to be subject to environmental review
(see 10 CFR Part 50, App. D, Section B, Section C, and
paragraphs A.1, A.8, and A.14) will be subject to review
before any modification is permitted which, in the language
of Paragraph 102(2)(C)), is one ‘‘significantly affecting
the quality of the human environment.’’

No one has indicated, and we are unable to perceive, any
significant respect in which the Vermont Yankee plant
will have any different relation from any other nuclear
power station to the reprocessing part of the fuel cycle. The
logical consequence of the position of NRDC is that in
every reactor licensing proceeding it would be required by
Paragraph 102(2)(C) that there be an environmental analy-
sis of the operation of every reprocessing plant, present
and future, to which its nuclear fuel might be sent for re-
processing. We cannot believe that this was the intent of
Congress in directing that there be an environmental analy-
is in each case of ‘‘the proposed action.’’

In specifying the scope of the environmental analysis
prescribed by Paragraph 102(2)(C) as applicable to nu-
clear facilities, Appendix D has reflected the guidance of
the Council on Environmental Quality,’ which has been
designated by Congress in Subsection 102(B) and Title II
of the Environmental Policy Act, 42 U.S.C. 4342, as the

"See 35 Fed. Reg. 18469, December 4, 1970; 36 Fed. Reg. 18071,
September 9, 1971.

95

consultant to insure appropriate consideration of environ-
mental amenities and values.

The conclusion we reach is consistent with the ‘‘Guide-
lines of the Council on Environmental Quality for State-
ments on Proposed Federal Actions Affecting the Environ-
ment’’ (36 Fed. Reg. 7724, 1971). Although the ‘‘actions”’
subject to the Guidelines ‘‘are not limited to’’ those enu-
merated explicitly in Paragraph 5, it is evident on reading
the Guidelines as a whole that each environmental impact
statement should be about a specific ‘‘project .. . involving
a Federal... license’’ (e.g. par. 5(a) (ii), 5(b) or a specific
‘‘action’”’ (par. 6(a) (i) (iii)(iv)). The Guidelines do not
contemplate that the comprehensive environmental review
of every ‘‘project’’ or ‘‘action’’ is required to include
other ‘‘projects’’ or ‘‘actions.’’ They thus speak of the
effect of the proposed change upon ‘‘the area in question. ”’
(Par. 6(a) (ii); cf. pars. 9, 10). The ‘‘project . . . involving
a Federal ... license’’ (par. 5(a)(ii)) which we have before
us is the operation of the Vermont Yankee reactor.

We are not concerned here with a situation in which a
single ‘‘project’’ or ‘‘action’’ by the agency is being frag-
mented (Named Individual Members of San Antonio Con-
servation Society v. Texas Highway Department, 446 F.2d
1013 (5th Cir. 1971) ), but one in which we are simply called
upon to ascertain the scope of the environmental review
to be conducted in this proceeding by defining the ‘‘action’’
in which the agency is engaged.

The staff’s voluminous draft detailed impact statement
on the environmental considerations relating to the pro-
posed issuance of the Vermont Yankee operating license,
which has been filed under the Guidelines of the Council on
Environmental Quality and the Commission’s Appendix D,
will be referred for comment to other Federal agencies and
State and local officials. The draft detailed statement in-
cludes, among other things, consideration of the radioactive

96

wastes to be produced, the waste treatment and waste han-
dling systems, and the transportation of and disposition
of solid radioactive wastes. It also considers the ultimate
decommissioning and decontamination of the plant. The
inclusion of these subjects in the staff’s draft statement,
with such further evidence as may be admitted and the
Licensing Board’s findings and conclusions under Appen-

dix D, will dispose of so much of the motion of NRDC as
relates to them.

It should not be assumed that the environmental effects
of the handling and disposition of wastes are being ne-
glected. The Commission has issued a guide for the sub-
mission of information for the evaluation of the environ-
mental effects of facilities (37 Fed. Reg. 10013, 1972), and
the development of these detailed criteria is continuing.
Under Section 202 of the Atomic Energy Act, 42 U.S.C.
2252, the Commission is required to keep the Joint Commit-
tee on Atomic Energy ‘‘fully and completely informed with
respect to all of the Commission’s activities,’’ and the Joint
Committee is required to conduct and has conducted con-
tinuing studies of the activities of the Commission. The
transportation and disposition of high level wastes have
repeatedly been the subject of testimony before the Joint

Committee, and have at times been the subject of extended
hearings.°

The adoption of NRDC’s position could as a practical
matter call a halt to the licensing of individual reactors.
No power reactor could be licensed until every present
and future reprocessing plant was studied in some depth—

* See ¢.g., Hearings, Industrial Radioactive Waste Disposal, Jan-
uary 28-30, 1959, February 2-3, 1959, July 29, 1959; Hearings
Environmental Effects of Producing Electric Power, October 28-31,
1969, November 4-7, 1969, January 27-30, 1970, February 24-26,
1970; see also Selected Materials on Environmental Effects of
Producing Electric Power, Joint Committee on Atomic Energy,
91st Cong., 1st Sess., August 1969.

97

a process that would in turn, we presume, be asserted to
involve every present and future power reactor in order to
determine just what wastes would pass through each re-
processing plant. The operation of a reprocessing plant
and the disposition of its wastes can and should be eval-
uated in the licensing proceeding for each reprocessing
plant. ‘‘Each action’’ and ‘‘each project” and its envir-
onmental effects will thus be considered in depth in the
appropriate proceeding which will best disclose the ele-
ments to be weighed. Each such proceeding will provide
‘a useful point at which public pressure can be placed.’’
F. 8S. Cohen, Field Theory and Judicial Logic, 59 Yale
L.J. 238, 251-2 (1959). For a particular nuclear reactor,
analysis will thus be in its own individual proceeding, such
as this one; for a particular reprocessing plant, analysis
will be conducted in its own licensing proceeding with con-
sideration of all the circumstances on the basis of which
its particular environmental effects can be intelligently
considered: its location, surroundings, design, processing
method, capacity, and similar individual characteristics.
Only in this way can the purposes of the Environmental
Policy Act be sensibly and effectively served.’

* The Administrative Conference of the United States has recom-
mended reasonable limitation of alternatives to be considered in li-
censing procedures (Re-ommendation No, 15). Consideration of Al-
ternatives in Licensing Procedures, 1969 Annual Report, Adminis-
trative Conference of the United States (1970), 45: —

‘Court decisions, notably Scenic Hudson Preservation Con-
ference v. FPC, (354 F. 2d 608 (2d Cir. 1965), cert. denied,
384 U.S. 941 (1966)] have emphasized that in licensing cases
the Federal Power Commission must explore and give proper
consideration to possible alternatives to the specific plan pro-
posed by the applicant. This principle may in the future be
applied to other licensing agencies. Since the range of possible
alternatives in any case can be extensive and in some cases vir-
tually unbounded, ways must be sought to control the scope
and duration of licensing proceedings within manageable limits

Our careful study of the opinion of the Court of Appeals
for the District of Columbia Circuit in Calvert Cliffs’ Co-
ordinating Committee, Inc. v. Atomic Energy Commission,
449 F.2d 1109 (1971), does not lead us to any different con-
clusion. Notwithstanding strong language in that case on
the issues there presented, the Court’s observations are
addressed to the environmental study of ‘‘the proposal’’
or ‘‘the proposed action,’’ in the language of the Environ-

mental Policy Act, and to ‘‘a particular project’’ (449 F.2d
at 1114, 1123).

In Natural Resources Defense Council, Inc. v. Morton,
458 F.2d 827, 3 E.R.C. 1558 at 1563, 1564 (January 13,
1972), the same Court has more recently pointed out that
the required discussion of environmental effects need not be

exhaustive, but is required only to extend to reasonable
lengths :

‘“*The statute must be construed in the light of rea-
son if it is not to demand what is, fairly speaking, not
meaningfully possible. .. .’’

‘*So long as the officials and agencies have taken the
‘hard look’ at environmental consequences mandated
by Congress, the court does not seek to impose unrea-
sonable extremes or to interject itself within the area

of discretion of the executive as to the choice of the
action to be taken.’’ *

while meeting the requirements of the law.
** RECOMMENDATION

‘*Each agency which issues licenses . . . should seek to create
procedures fitting its particular circumstances which will as-
sure appropriate consideration of alternatives where necessary,
and at the same time will permit effective administration of
that agency's licensing functions.’’

* Citing the Calvert Cliffs’ case.

99

That the Court was unanimous in the views we have quoted
is evidenced in the separate opinion of Judge MacKinnon
(458 F.2d 827 at 839, 3 E.R.C. at 1565-1570).

Our conclusion is reinforced by Scientists’ Institute for
Public Information, Inc. v. Atomic Energy Commission,
Order of Court (D.C. March 24, 1972), in which the Court
rejected the claim that, in connection with the construction
of a proposed experimental fast breeder reactor, the en-
vironmental review must extend beyond the specific reactor
to the environmental effects of such reactors at large.

NRDC has asserted that it has no forum other than this
proceeding in which the broad environmental studies it
seeks may be pursued. That is not the case. Each reproces-
sing plant has been and will be subject to the licensing pro-
cedures and standards established by the Commission’s
regulations, and in each such present and future proceeding
a comprehensive analysis is being or will be made of its
environmental effect. The Commission has procedures for
rulemaking (10 CFR Part 2, Subpart H), under which the
intervenors may by petition initiate rulemaking for the
establishment of such regulations as they may choose to
put forward. If in the judgment of the Commission it
should be appropriate to resolve any specific questions
which affect the industry as a whole, within the broad policy
concerns which NRDC presents, then the rulemaking pro-
cedure is available.

Bearing in mind the purposes of the Environmental Pro-
tection Act, the Licensing Board will consider the extent
to which the low level wastes, and the 65 cubic feet per year
of resins which have a somewhat higher level of activity,
will have an effect ‘‘significantly affecting the quality of
the human environment”’’ (National Environmental Policy
Act of 1969, Sec. 102(2)(C), 42 U.S.C. 4332). In the exercise
of the Licensing Board’s discretion as to the extent to which
evidence will be admitted or interrogatories allowed

100

with reference to such subjects, it would be especially ap-
propriate to limit inquiry to a level of detail appropriate
to the character of the potential hazard associated with
these wastes, so long as the Board has in its judgment an
adequate basis for the required findings and conclusions
(10 CFR Subsection 2.743(c)).

Evaluation of the environmental aspects of the ultimate
depository of the high level wastes resulting from reproces-
sing is at this time speculative, because it has not yet been
determined what the nature or the location of the ultimate
depository will be. That project will also of course be sub-
ject to independent analysis and procedures in compliance
with the Environmental Protection Act, and it cannot be
the subject of appropriate evaluation in this proceeding.

The transportation of low level wastes to burial grounds
was included within the scope of environmental review
specified in the memorandum of the Director of Regulation
dated September 1, 1971, and issued on September 3, 1971.
Although that document does not have the effect of a bind-
ing regulation, we adopt it to that extent for the purposes
of this proceeding. Since the operation of such burial
grounds is licensed under other provisions of the Commis-
sion’s regulations (10 CFR Part 30), the environmental
aspects of each facility of that character may be consid-
ered in other proceedings.

The motion of NRDC included the request that the en-
vironmental study extend to the ultimate decommissioning
and decontamination of the facility at the end of its useful
life of about 40 years. The decommissioning and decontam-
ination of power reactors have already been conducted
within the framework of our licensing procedures, furnish-
ing a practical basis for analysis." The applicant has not

™ Matter of General Electric Company, Docket No. 50-18; Matt
of Puerto Rico Water Resources Authority, Docket No. 115-4 : Mat.
ter of City of Piqua, Ohio, Docket No. 115-2.

———

101

opposed the inclusion of decommissioning and decontamina-
tion in the environmental study, the staff has considered it
in its draft impact statement, and it may be considered in
the Licensing Board’s Findings and conclusions.

During the course of the hearing the Licensing Board
raised the question that compliance with the objectives of
the Environmental Policy Act does not explicitly fall with-
in the issues committed to the Licensing Board by the
notice of hearing issued in this proceeding. This notice of
hearing was superseded on March 1, 1972, with respect to
environmental considerations by a supplemental notice of
hearing which accomplished that purpose (37 Fed. Reg.
4733, (1972)).

Paragraph A(11) of Appendix D describes the functions
to be performed by the Licensing Board with regard to the
environmental statement and directs that its initial deci-
sion include findings and conclusions which may affirm or
modify the contents of the final detailed statement prepared
by the staff. The Licensing Board’s findings and conclu-
sions should of course be based upon all the evidence before
it (Administrative Procedure Act, Subsection 7(c), 5 U.S.C.
556(d)), and the evidence on which they will be based will
very largely be in the record already. The extent to which
further evidence may be required or appropriate is for the
Board to determine in its discretion. The Board should
allow such additional evidence as in its judgment is requi-
site to satisfy the purposes of the Environmental Policy
Act and to support the findings and conclusions required
by Appendix D, permitting only such additional evidence
to be admitted as is in its judgment relevant, material, and
reliable and not unduly repetitious (10 CFR Subsection
2.743(c)). The weight to be given to various environmental _
considerations is of course for the Board to consider.

102

It is therefore OrvERED:

1. So much of the motion of NRDC as requests
that the substantive questions involved in the referral
by the Atomic Safety and Licensing Board dated De-
cember 29, 1971, be referred to the Commission is
denied ;

2. Evidence as to the environmental effects of the
transportation of irradiated nuclear fuel from the
Vermont Yankee nuclear power plant to a reprocessing
plant or other destination shall be admitted;

3. Evidence as to the environmental effects of the
reprocessing of irradiated nuclear fuel, and the dis-
posal of wastes resulting from reprocessing, shall not
be admitted; y

4. Evidence as to the environmental effects of the
transportation of low level wastes, and of high level
solid wastes other than irradiated fuel, from the re-
actor to depositories shall be admitted;

5. Evidence as to the environmental effects of the
disposal of low and high level solid wastes shall not be
admitted ;

6. Evidence as to the environmental effects of de-
commissioning and decontamination of the facility at
the end of its useful life shall be admitted;

7. The scope of the final environmental statement
to be prepared by the staff, and of the findings and
conclusions of the Licensing Board pursuant to 10 CFR
50, Appendix D, shall be consistent with the foregoing.

By tue Atomic Sarery anp Licensine AppgaL Boarp,
Wuuusm L. Wooparp, Executive Secretary.

103
ATOMIC ENERGY COMMISSION REPORTS

Volume 5

Opinions aND DEcISsIONS OF THE
Atomic Engercy ComMISSION
Wrrn Se.ecrep Orpers

July 1, 1972, to December 31, 1972

UNITED STATES OF AMERICA
ATOMIC ENERGY COMMISSION

Atomic Sarery anp Licensinc AppgaL Boagrp:
Sidney G. Kingsley, Chairman
Dr. John H. Buck
Dr. Lawrence R. Quarles
Docket Nos. 50-329, 50-330

In the Matter of

Consumers Power Company
(Midland Plant, Units 1 and 2)

Memorandum and Order
(ALAB-60)

This is a proceeding on an application for construction
permits for two pressurized water nuclear power reactors,

104

each with an initial power rating of 2452 thermal mega-
watts, to be located on the shore of the Tittabawasse River
adjacent to the city limits of Midland, Michigan. An atomic
safety and licensing board presiding over the hearing has
referred to us, pursuant to 10 CFR 2.730(f), its order of
March 10, 1972 concerning the extent to which all aspects
of the fuel cycle ‘‘from the mining of uranium to the ulti-
mate storage of high level wastes’’ are to be considered in
this proceeding. The referral raises the question of the
scope of the Commission’s duties in conducting the environ-
mental study required by Section 102(2)(C) of the National
Environmental Policy Act, 42 U.S.C. 4332(2)(C).

The order of the Atomic Safety and Licensing Board is
that the environmental effects of the mining, production and
fabrication of nuclear fuel and the handling of spent fuel,
including its chemical reprocessing and waste storage, are
at issue in this proceeding only with respect to:

1. Transportation of fuel elements from a fuel fabri-
cation plant to the reactor site;

2. Transportation of spent fuel elements from the
reactor site to a fuel reprocessing plant;

3. Transportation of packaged radioactive material
from the site to low level waste burial grounds; and

4. Radioactive discharges at the site and any other
environmental effects directly associated with the
handling and use of fuel at the site.

The Board’s referral arises primarily from the conten-
tions of several groups of intervenors. The State of Kansas
is particularly concerned with the possibility that certain
wastes from nuclear power reactors in general might be
stored in the State of Kansas, but it has associated itself
generally with the objections of the intervenors.' The

*The possibility of underground storage of nuclear wastes in
abandoned salt mines in Kansas has been considered by the Com-

105

Board’s referral is phrased in terms of the entire fuel
cycle, as are the intervenors’ contentions. The basic posi-
tion of the intervenors is substantially similar to that of
the intervenors in Matter of Vermont Yankee Nuclear
Power Corporation (Docket No. 50-271), which was the
subject of our memorandum and order of June 6, 1972,—
AEC—.

The Commission’s regulatory staff has filed a volu-
minous final detailed statement on environmental considera-
tions after receipt of comments from the public, the Council
on Environmental Quality, and other Government agencies
as required by the Commission’s regulations, 10 CFR Part
50, Appendix D.*

The Licensing Board has recommended that, under the
authority of 10 CFR 2.785(d), we refer its rulings to the
Commission as raising novel questions of law and policy.
We decline to do so on the grounds on which we rested
such a decision in Matter of Vermont Yankee Nuclear
Power Corporation—AEC—(June 6, 1972), and on the
additional ground that, as to portions of the fuel cycle
concerned with the reprocessing of irradiated nuclear fuel
and the disposal of wastes after irradiation of fuel in a
reactor, the Commission has permitted that decision to
stand. See 10 CFR 2.786.

On the basis of our decision in Vermont Yankee and for
the reasons expressed there, we hold that the order of the
Licensing Board is affirmed as to the environmental effects
of the handling of spent fuel, including chemical reprocess-

mission, but other alternatives are now being explored. See H. Rept.
No. 92-1066, 92d Cong. 2d. Sess. 11-12.

236 F.R. 18071, September 9, 1971. See also 36 F.R. 18716, Sep-
tember 21, 1971; 36 F.R. 19153, September 30, 1971; 36 F.R. 21579,
November 11, 1971; 36 F.R. 23900, December 16, 1971; 37 F.R. 864,
January 20, 1972; 37 F.R. 9619, May 13, 1972; 37 F.R. 9779, May
17, 1972.

106

ing and waste storage. And we now extend that interpreta-
tion of the National Environmental Policy Act to earlier
stages of the fuel cycle.

The issue as to the part of the fuel cycle before the irradi-
ation of fuel in a reactor raises the question which we con-
sidered in Vermont Yankee; the definition, for the purposes
of the Environmental Policy Act, of the ‘‘project’’ or
‘faction’’ of the agency under Section 102 of the Act, 42
U.S.C. 4332, and the Commission’s regulations, 10 CFR 50,
Appendix D. Again the question is identification of the
‘‘major Federal action significantly affecting the quality
of the human environment’? (National Environmental
Policy Act, Section 102(2)(C), 42 U.S.C. 4332(2)(C) which
this agency is now undertaking. What this agency is under-
taking is consideration of the issuance of permits to con-
struct two individual power reactors.

The fuel to be used in these reactors will be of a common
type: an array of fuel rods each of which consists of uran-
ium dioxide sealed in cylindrical zirconium alloy contain-
ers. The uranium is mined as ore which is later pulverized
at uranium mills. It is then dissolved by chemical means at
processing plants, and the dissolved uranium is recovered
and calcined to yield uranium oxide powder. This powder
is refined at various plants to yield essentially pure
uranium oxide. By successive chemical processes, the oxide
is converted to crystalline uranium fluoride. The fluoride is
converted to a gas, uranium hexafluoride. The gas is en-
riched at gaseous diffusion plants; the diffusion process
separates it into a product having a concentration of the
isotope uranium-235 higher than in normal uranium, and
a depleted fraction having a uranium concentration lower
than normal.

The enriched uranium is converted by chemical processes
to uranium dioxide (or some other solid compound), is pre-
pared in an appropriate physical form, and is then clad in

107

zirconium alloy (or stainless steel) to produce fuel elements.
After irradiation in a reactor, the fuel is reprocessed in a
reprocessing plant by chemical solution of the fuel elements
and the separation of useful uranium and plutonium for
recycling for future use. Under current practice these suc-
cessive processes of mining, milling, refining, enrichment,
conversion, fabrication, irradiation, and reprocessing con-
stitute the fuel cycle.’

There are over 200 uranium mines in this country alone,
some underground and some of the open pit type, as well
as other sources of uranium.‘ Twenty mills are in operation
or scheduled to go into operation during the current calen-
dar year; four plants are engaged in the conversion of feed
materials to uranium hexafluoride, and there are competing
foreign plants; there are three gaseous diffusion plants
operated for the Commission; nine plants are engaged in
later stages of processing, and fourteen plants are engaged
in fabricating nuclear fuel.*

The facilities engaged in preparing fuel for use in power
reactors are either operated or licensed by the Commission.
From the time when the raw uranium ore is pulverized at
the mill, uranium is source material as defined by the
Atomic Energy Act, and its possession or other dealing
with it is required to be licensed under the Act.* Enrich-

*See Hogerton, Atomic Fuel (U.S. Atomic Energy Commission
1967) ; Singleton, Sources of Nuclear Fuel (U.S. Atomie Energy
Commission 1968).

* Statistical Data of the Uranium Industry, January 1, 1972
(USAEC 1972, Report No. GJO-100.)

* The Nuclear Industry 1971 (USAEC Report No. WASH-1174-
71, pp. 5, 18, 20, 23, 26-7, 39).

* Atomic Energy Act of 1954, Secs. 11(z),(62), 42 USC 2014(z) ;
2092; 10 CFR 40. An exemption for unrefined and unprocessed ore
is based on the Commission’s finding that there is no need to license
it from the standpoint of either public health and safety or the
national security. See 10 CFR 40.4(h), 40.13(a) (b).

108

ment in the gaseous diffusion plants ' creates special nuclear
material as defined by the Act, as to which such activities
are also required to be licensed.* Facilities dealing with
source material are thus operated under license,’ and those
involved with special material are licensed as either pro-
duction facilities or as utilization facilities.’

When in December of 1970 the Commission published
amendments of Appendix D of Part 50 of its regulations,
implementing the Environmental Policy Act (35 F.R. 18469,
December 4, 1970; see also 35 F.R. 5463, April 2, 1970), it
defined the scope of the procedures thus prescribed as ex-
tending to power reactors and fuel reprocessing plants
(Appendix D, par. 1, 35 F.R. 18473). It also directed that
compliance with the Environmental Policy Act be extended
to other facilities handling source material and special
nuclear material in the various stages of the fuel cycle:

Procedures and measures similar to those described
in the preceding paragraphs of this appendix will be
followed in proceedings other than those involving
nuclear power reactors and fuel reprocessing plants
when the Commission determines that the proposed
action is one significantly affecting the quality of the
human environment. The Commission has determined
that such proceedings will ordinarily include proceed-
ings for the issuance of the following types of ma-
terials licenses: (a) Licenses for possession and use of

* The gaseous diffusion plants are owned by the Commission and
operated for it by operating contractors. See Hiestand and Flor-

sheim, The Atomic Energy Commission Management Contract Con-
cept, 29 Fed. B.J. 67(1969).

* Atomic Energy Act of 1954, Secs. 11 aa., 53, 42 USC 2014 (aa),
2073, 10 CFR 70.

-*10 CFR 40.

** Atomic Energy Act of 1954, Secs. 11 v., 11 ecc., 42 U.S.C.
2014(ece) ; 10 CFR 50.2(a), 50.2(m), 50.2(b).

109

special nuclear material for fuel element fabrication,
scrap recovery and conversion of uranium hexafluor-
ide; (b) licenses for possession and use of source ma-
terial for uranium milling and production of uranium
hexafluoride; and (c) licenses authorizing commercial
radioactive waste disposal by land burial. (Appendix
D, 35 F.R. 18474, now par. A. 14.)

The Commission soon adopted regulations explicitly re-
quiring that an application for a license to process and use
source material which will significantly affect the quality
of the human environment be accompanied by an environ-
mental report under Appendix D, imposing compliance with
Appendix D as a prerequisite for a license, and imposing
similar requirements for special nuclear material licenses.”
The consequence is that each significant licensed activity
at each successive stage of the fuel cycle requires a separate
environmental statement complying with the Environmen-
tal Policy Act and with Appendix D.*

There is no material difference between this reactor
licensing proceeding and any other, and the intervenors
do not appear to claim that there is. What they assert is
that, notwithstanding the existing elaborate pattern of
compliance with the mandate of the Environmental Policy
Act at the various stages of the fuel cycle, it is the Commis-
sion’s duty in this (and in every other) individual reactor
licensing proceeding to take evidence upon and to consider
the environmental consequences of every aspect of the
whole fuel cycle.”

1110 CFR 40.31(f), 40.32(e), 10 CFR 7.21(f), 70.23(h), 36 FR.
12731, July 7, 1971.

12 An exemption for unrefined and unprocessed ore is based on
the Commission's findings that there is no need to license it from
the standpoint of either public health and safety or the national
security. See 10 CFR 40.4(h), 40.13(a) (b).

13 As the so-called Mapleton intervenors put it:

In general, Mapleton believes that all adverse environmental

110

The intervenors’ suggested extension of the environ-
mental study to uranium mining and tailings illustrates the
extent of the remoteness and generality of what they con-
tend must be analyzed in this proceeding, its lack of any
specific relation to the project before us, and its departure
from what we believe to be required by the Environmental
Policy Act. The health aspects of uranium mining and the
problem of tailings have been the subject of extensive con-
sideration by Congress and by other public authorities."
We recognize of course that an agency’s duty to conduct
an environmental study is not limited by its statutory au-
thority,* but the universality of what the intervenors claim
and its remoteness from an environmental study of the
specific project before us—the licensing of these two re-
actors—is perfectly plain. ;

The intervenors even seek to extend the environmental
study in this proceeding to such subjects as the production
of uranium by means not presently developed, such as the
liquid metal fast breeder reactor."* The development of this

effects and social and economic costs associated with the nuclear
fuel cycle, to wit, mining, milling, feed material preparation,
fuel enrichment, fuel fabrication, reactor operation, transpor-
tation, fuel reprocessing, and ultimate high-level radioactive
waste storage and disposal should be considered in this pro-

Counsel for the intervenor Environmental Defense Fund and for
the intervenors Saginaw Valley Nuclear Study Group and others

explicitly concur in such an all-embracing view of the study to be
undertaken.

“See Hearings, Use of Uranium Materials for Construction
Purposes, October 28-29, 1971, and Summary Analysis of Hearings,
39-44, 12-13 ; see also P.L. 92-314, Title II, approved June 16, 1972;
H. Rept. No. 92-1066, 92d Cong., 2d Sess., 7-8, 47-49.

** See Natural Resources Defense Council v. Morton, 458 F. 2d
827, 834-5 (D.C. Cir. 1972).

** The Saginaw Valley intervenors argue: **Since the proposed
plant may rely upon nuclear fuel created by a Breeder, the risks

111

type of reactor is in its early stages, and is a matter of
national policy ** which has no specific relationship to the
subject matter of this proceeding. The Commission has
already published an environmental study of a demonstra-
tion fast breeder project.” Undertaking to weigh here its
probable environmental consequences by the standards of
the Environmental Policy Act and under the procedures
of Appendix D would be an exercise in futility which would
be duplicitous, premature and far beyond the reasonable
scope of the present case. That would be even more true of
such a study of other means under development.

We are deeply conscious that, in enacting the Environ-
mental Policy Act, Congress intended that the phrase ‘‘to
the fullest extent possible’ in Section 102 should not be
understood as authorizing the avoidance of the duties im-
posed by that Section, and that Congress intended that an
agency comply with the directives in Section 102 unless
existing law makes full compliance impossible. (See Con-
ference Report, H.Rept. 91-765, 9-10). But, as we pointed
out in the Vermont Yankee case, our duties under the En-
vironmental Policy Act are defined by the proposed ‘‘pro)-
ect’’ or ‘‘action’’ before the agency. We cannot accept that
it was the purpose of Congress, in adopting the Environ-
mental Policy Act, to impose such a remote, conjectural
and multiplicitous requirement on this proceeding as the
intervenors assert, and as an inference to do so in every
reactor licensing proceeding.

and costs of the development and operation of Breeders must be

analyzed against alleged or asserted benefits, if any, that may
be gained by construction and operation of the proposed Plant.

17 See Message from the President of the United States Trans-
mitting a Program to Insure an Adequate Supply of Clean Energy
in the Future, June 4, 1971, 92d Cong., Ist Sess. H. Doe. No.
92-118.

18 Environmental Statement, Liquid Metal Fast Breeder Reactor
Demonstration Plant (April 1972, Report No. WASH-1509).

112

There is no way of ascertaining in the present proceed-
ing what plants in the various earlier stages of the fuel
cycle will be engaged in one stage or another of the pro-
duction of fuel for this plant among others. There is no
way in which one can now even tentatively identify, over
the prospective life of the proposed installation spanning
perhaps four decades, the specific mines, mills, refining and
conversion plants, and fabrication facilities which will from
time to time be involved in furnishing the fuel for these
reactors.

In any case, we cannot believe that Congress intended
that in the proceedings for the licensing of each individual
power reactor there be conducted an environmental study
of the present and future operations of an entire industry,
including complex and perhaps unidentifiable operations
performed by unidentifiable persons at unidentifiable loca-
tions under unidentifiable conditions. To embark on such
a venture would plunge us into a labyrinth of indeter-
minacy. What we regarded in Vermont Yankee as impos-
sible would here be ernormously compounded.

We held in the Vermont Yankee case that, under the
principles enunciated by the Court of Appeals for the
District of Columbia in Natural Resources Defense Council
v. Morton, 458 F’. 2d 827 (1972), the Environmental Policy
Act is to be construed in the light of reason, and that the
environmental study required by that Act for an individual
power reactor does not extend to reprocessing and the
ultimate disposal of wastes. We now conclude that, for the
reasons expressed in the Vermont Yankee case and in this
memorandum, the order of the Licensing Board dated
March 10, 1972 should be affirmed.

It is therefore Orperep:

1. Certification to the Commission of the order of the

Atomic Safety and Licensing Board dated March 10, 1972
is denied ;

113

2. The order of the Atomic Safety and Licensing
Board dated March 10, 1972 is affirmed.

Atomic Sarety anp LICENSING
AppgaL Boarp

Wuuim L. Wooparp
Executive Secretary

Dated: July 19, 1972

114

LBP-72-34

UNITED STATES OF AMERICA
ATOMIC ENERGY COMMISSION

Berore tHe Atomic Sarety anp Licensine Boarp
Docket Nos. 50-329, 50-330
In the Matter of

Consumers Power Company
(Midland Plant, Units 1 and 2)

HEADNOTE

The Atomic Safety and Licensing Board authorized issu-
ance of a construction permit to Consumers Power Com-
pany for the construction of a dual purpose pressurized
water nuclear power plant. The plant, consisting of two
units will produce about 1300 megawatts of elctricity and
also 4,050,000 pounds of process steam for sale to Dow
Chemical Company’s Midland plant, located on adjacent
land. The permit is issued subject to any changes in the
criteria for emergency core cooling systems and to under-
takings by the Applicant to conduct a number of ecological
studies and develop surveillance programs including a

study of the intensity and extent of fogging and icing from
the cooling pond.

APPEARANCES

Ricnarp G. Smrru, Esq., Joun K. Resrnricx, Esq.,
Rosert Lowenstein, Esq., and Haroxp Res, Esq.
on behalf of Consumers Power Company, Applicant

Muton R. Wesseii, Esq. and James N. O’Connor, Esq.
on behalf of Dow Chemical Company, Intervenor

115

Myron M. Cuerry, Esq.

on behalf of
Saginaw Valley Nuclear Study Group, Citizens
Committee for Environmental Protection of Michigan,
Sierra Club, United Automobile Workers of America,
West Michigan Environmental Action Council, and
University of Michigan Environmental Law Society,
Intervenors

Wuuum J. Grvsrer, Esq. and Invine Liz, Esq.
on behalf of Residents of Mapleton, Jntervenors

James A. Kenpatx, Esq.
on behalf of Midland Nuclear Power Committee, Intervenor

Wruum H. Warp, Esq.
on behalf of State of Kansas

Curtis G. Beck, Esq.
on behalf of the State of Michigan

Tomas F. Enceirnarpt, Esq. and Davm E. Karta, Esq.
on behalf of the Regulatory Staff of the
Atomic Energy Commission

Initial Decision
I. Backerounp

1. On January 13, 1969, Consumers Power Company
(‘*Applicant’’) filed with the Atomic Energy Commission
(**AEC’’) an application for a license to construct and
operate a dual purpose pressurized water nuclear power
plant.’ The proposed plant, designated the Midland Nuclear
Plant, Units 1 and 2 (‘‘Plant’’), would produce approxi-
mately 1300 megawatts of electricity and 4,050,000 pounds
of process steam for sale by Applicant to the Dow Chemical
Company. It would be located on Applicant’s approximately

The Application and its 21 amendments are collectively re-
ferred to as the ‘‘application’’ or the ‘‘PSAR’’.

116

1200-acre site on the south shore of the Tittabawassee River
in Midland County, Michigan.

2. Upon completion of the Staff review,’ the AEC, on
October 29, 1970 (35 F.R. 16749) published a Notice of
Hearing pursuant to which a pre-hearing conference was to
be held on November 17, 1970, and the hearing was to
begin on December 1, 1970. On or before November 17,
1970, as required by the Notice of Hearing, petitions to
intervene were filed by the Dow Chemical Company (Dow)
and the Midland Nuclear Power Committee * in support of
the application. Against the application, a joint petition to
intervene was filed by the Saginaw Valley Nuclear Study
Group, Citizens Committee for Environmental Protection
of Michigan, Sierra Club, United Auto Workers of Amer-
ica, Trout Unlimited, West Michigan Environmental Action
Council and University of Michigan Environmental Law
Society (hereinafter collectively called ‘‘Saginaw Inter-
venors’’) and a separate petition by the Environmental
Defense Fund (EDF).* These petitions were granted by
the Board in its Order dated November 24, 1970. A late
petition to intervene against the application filed by six
residents of the community of Mapleton (‘‘Mapleton In-

tervenors’’) was granted by the Board’s Ord -
ok ae y s Order of Decem

* Prior to completion of the Staff review, the application was re-
viewed by the Advisory Committee on fone Safeguards
(ACRS), the ACRS Reports, dated June 18, 1970 and September
23, 1970 were admitted into the record (Applicant’s Ex 4 and Ex
5) as required by law (42 U.S.C. § 2232(b)) for the sole purpose
of showing compliance with the statute and not as evidence of the
truth of any statement therein.

*The Midland Nuclear Power Committee di i
PI nb ag ny ey d not actively par-
*Trout Unlimited and Environmental Defense Fund withdrew

from the proceeding before the heari i
(Tr. 6 :) e hearing on environmental matters.

117

3. On December 1, 1970 the Hearing was begun for the
purpose of receiving limited appearances. Limited appear-
ances in favor of the application were made by the following
individuals and organizations: Harold Krefft for Federal
Power Commission; William G. Turney for Michigan
Water Resources Commission; Donald E. VanFarowe for
Michigan State Air Pollution Control Commission; James
Woodruff for Michigan Public Service Commission; John
A. Rapanos; Franklin E. Braman for Board of Directors
of Downtown Bay City, Inc.; Hon. Julius Blasy, Mayor,
City of Midland; Frank Olds, Chairman, Board of Com-
missioners, Midland County; Robert B. Chatterton, Super-
visor Midland Township, Midland County; Dr. Sidney
Smock for Midland Hospital Association; Fred L. Yockey,
City Manager, City of Midland; Dr. Edward L. Kern, Pres-
ident, High Performance Technology, Inc.; Clifford Mapes,
Vice Chairman, Midland County Road Commission; Ned
Arbury, President, Arbury & Sons Insurance; Milton Getz-
endaner, President, Midland Nature Club; H. C. Allison,
Vice President, Alden B. Dow Associates, Inc.; Fred Min-
zer for Minzer Realty; J. R. Buckely, Vice President, Mu-
tual Savings and Loan Association; Roy Lanham, Presi-
dent, Brown Lumber, Inc.; John A. Miller; Alan Ott, Vice
President and Director, Chemical Bank and Trust Com-
pany; Rev. Theodore M. Greenhoe for Memorial Presby-
terian Church; Robert Ferries, President, Ferries and
Maxwell Insurance Agency, Inc.; James G. Bandeen, Pres-
ident, Bandeen Chevrolet; Arthur E. Maass, Superinten-
dent, Wastewater Department, City of Midland; Lyn De-
Vries for Midland Business and Professional Womens
Club; Robert Parker, Executive Vice President, Midland
Area Chamber of Commerce; William H. Meier, President,
Meier Studio and Camera Shop; Robert Kingsley, Director
of Elementary Education, Midland Public Schools; George
B. Ulmer; Robert Copeland, Chairman, Midland Section,
American Institute of Chemical Engineers; Lewis Warren,
Executive Vice President, Greater Saginaw Chamber of

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Commerce; William Demers, President, Lumber Dealers
Association; Robert R. Denison, Airport Manager, Tri-
City Airport Commission; Bruce R. Benway, Vice Presi-
dent, First National Bank; Larry Reed, Executive Vice
President, Bay Area Chamber of Commerce; George Elle-
son, Bay County Industrial Development Corp.; and James
L. Collison, Executive Director, East Central Michigan
Economic Development District. Limited appearances op-
posing issuance of the construction permit were made by
Georgena Goff and Wendell Marshall. Limited appearances
expressing interest in procedural or safety matters related
to the Plant but not opposing issuance of a construction
permit were made by Thomas Doyle for Michigan Depart-
ment of Natural Resources; Judith Boli for Sagniaw
YWCA; William Foster; and Frederick L. Brown, Pres-
ident, Michigan United Conservation Clubs.

4. After the limited appearances, the hearing was ad-
journed to permit opposing intervenors to have discovery
and prepare for the hearing. Among the contentions of
opposing intervenors were several relating to ‘‘environ-
mental’’ (as opposed to radiological health and safety)
matters. Under the controlling regulations of the AEC,
environmental issues could not be raised in the proceeding.
On April 27, 1971, the Board held Intervenors’ challenge
to those regulations insufficient, thereby excluding all en-
vironmental questions from the proceeding.®

5. The hearing on radiological health and safety ques-
tions resumed on June 21, 1971, and continued on seventeen
days until July 23, 1971, when it was adjourned.‘ Coin-

* Except as to the conformance of the Environmental Impact

Statement with the Regulations, an issue which later developments
made academic.

* At that time the hearing on radiological matters was substan-
tially completed, except as to the question of the emergency core
cooling system (ECCS). By Order dated March 10, 1972, the record

119

cidentally, on the same day the United States Court of
Appeals for the District of Columbia (in Calvert Cliffs Co-
ordinating Committee v. AEC, 449 F. 2d 1109 (197 1)) held
that the AEC regulations did not comply with the National
Environmental Policy Act. (42 U.S.C. §§ 4321-49 (1970)).
One effect of the Calvert Cliffs decision was to require that

’ environmental matters be heard in pending proceedings, in-

cluding this proceeding.

6. Following the adoption of new regulations, the AEC
published, on December 4, 1971, a Supplemental Notice of
Hearing on environmental matters. A timely petition for
intervention on environmental issues by Steve J. Gadler
was denied by the Board on February 9, 1972." (By Order
of March 31, 1972, the Atomic Safety and Licensing Appeal
Board sustained the denial.)

7. On October 19, 1971, pursuant to the revised Regu-
lations, Applicant duly filed its Supplemental Environ-
mental Report (ASER).* This was followed by prepara-
tion of the Staff Draft Environmental Statement and the
circulation of that statement for comment as required by
law. The Final Environmental Statement (FES) was then
prepared and notice of its availability was published on
April 7, 1972 (37 CFR 7012).

was closed on radiological questions except ECCS and the iodine
spray removal system.

* On September 13, 1971, the State of Kansas petitioned to inter-
vene to challenge the AEC decision to locate an ultimate high-level
waste depository in Kansas. The Board permitted the intervention
for the limited purpose of arguing the legal question whether high-
level waste storage was an issue in this proceding. By Order dated
March 10, 1972, the Board ruled that high-level waste storage was
not an issue in the proceeding, but referred its decision to the
Appeal Board. The latter agreed. Kansas has not otherwise par-
ticipated in the proceeding.

* Applicants’ original Environmental Report (AER) was filed on
July 24, 1970 under then controlling regulations.

120

8. Evidentiary hearings on environmental matters be-
gan on May 17, 1972, and ended on June 15, 1972, after
fourteen days of hearings.

9. This proceeding is a contested proceeding within
the meaning of the regulations. It should be pointed out,
however, that Saginaw Intervenors who took the laboring
oath in the radiological hearing did not participate in the
environmental hearing and have not filed proper proposed
findings * or conclusions even on radiological matters, al-
though directed to do so by the Board’s Order of June 28,
1972. Mapleton Intervenors’ participation in the radiologi-
cal hearing was relatively limited but they fully partici-
pated in the environmental hearing. Unfortunately, their
proposed findings fall far short of the specification and
detail required by the Regulations, and do not serve the
purpose for which they were required.” As Applicant has
noted both Mapleton and Saginaw are in default; as Appli-
cant has also conceded, it is not clear what should be done
about the default. The Board might, we suppose, strike the
intervention and treat the proceeding as uncontested. This
would not make sense in the circumstances. The opposing
Intervenors by their participation strongly influenced the
conduct of the proceeding and their work should not be
ignored. On the other hand, we are troubled by the notion
of opposing Intervenors that they can avoid the burden

* Saginaw did file a paper entitled **Proposed Findi

and Conclusions of Law’’ but as to environmental Eta
pressly state that ‘‘ they have no conventional findings of fact to set
forth.’’ As to radiological issues, they state that they ‘‘have not
chosen to search the record and respond to this proceeding by sub-
mitting citations of matters which we believe were proved or dis-
prov "* They do claim to reserve the right to take exception to
any findings which the Board makes.

*° The Board would like to note that the failvre to
propose proper
findings and conclusions has greatly complicated the task of the
Board and has made it virtually impossible in some instances to
know whether particular issues are in fact contested.

121

of proposed findings and at the same time reserve the right
to attack the Board’s decision once made. We have con-
cluded that the best course would be the following: We will
treat as contested issues of fact those as to which inter-
venors introduced affirmative evidence or engaged in sub-
stantial cross examination. With respect to conclusions of
law, we will attempt to deal with those questions which we
understand to be raised by the proposed conclusions in the
light of earlier contentions by the intervenors. We leave
open the question of the effect of the failure to file adequate
Proposed Findings and Conclusions for consideration when
and if there are exceptions to our decision.

IJ. Raprorocica, Heattu anp SaFety

10. The proposed reactors are of the pressurized water
type, each with an ultimate power level of 2252 MWT. One
of the reactors will be used solely for the production of
electrical power (800 MWe); the other will produce ap-
proximately 500 MWe of electrical power and, in addition,
supply steam for use in various manufacturing processes.

11. Applicant’s proposed findings on radiological
issues cover approximately 100 pages (out of a total of
267). While the Board has found these very detailed pro-
posals helpful, it does not feel that it should respond in
kind. The proposed reactors are substantially identical to a
number of reaetors previously licensed. The Board has
reviewed the various aspects of the proposal, e.g., coolant
systems, leak detection systems, seismic design criteria,
instrumentation, radiation monitoring, control room, flood-
ing,” and finds that Applicant has submitted sufficient in-
formation and the Staff has conducted an adequate review

™ With respect to flooding, the staff testified that it would review
the Applicant’s calculation of the probable maximum flooding dur-
ing construction of the plant to assure that the calculational tech-
nique described by Applicant have been properly employed. (Staff
Safety Evaluation (‘‘SSE’’) p. 14)

122

of those aspects of the Plant. We do not believe it would
be helpful, nor is it required that we do so, to comment in
any detail on the standard features of the Plant, (except
where an issue is contested). Instead we will devote our
attention to those aspects of the proposal which are new or
unusual, to contested issues, and to those specific matters
as to which we are required to make findings.

12. The aspects of the Plant of primary interest stem
from the fact that its dual-purpose nature requires that the
reactor be located in close proximity to a large chemical
plant, a plant which is heavily populated during work hours.
The contested radiological issues are: meteorology and the
related dose calculations; quality assurance; emergency
procedures; and iodine spray removal systems.

13. The Plant site is located on the south shore of the
Tittabawassee River in Midland County,* Michigan. The
site consists of approximately 1200 acres of which a rela-
tively few acres along the river will be utilized for Plant
buildings and about 880 acres to the south of the area occu-
pied by the Plant itself will be used for a cooling pond. The
site is bounded on the north and east by the Tittabawassee
River, on the south by Gordonville Road and on the west
by farmland and scattered residences (PSAR Applicant’s
Ex. 1-A, § 2 and Figure 2-1).

14. Applicant has described the population density and
use characteristics in the site environs (PSAR Applicant’s
Ex. 1-A, § 2.2.5 and 2.2.6). The areas directly across the
river from the Plant to the north and east are occupied
primarily by the industrial complexes of the Dow and the
Dow Corning Company for a radius of one mile to one and
one-half miles. The area beyond these industrial complexes
to the north is occupied by the commercial and residential

* The site is presently in Midland Township ; however an Order
of annexation of the Township to the City of Midland has been is-
sued and is presently in litigation.

123

areas of the City of Midland and the area to the east is a
sparsely populated residential area containing many for-
ested areas and scattered farms. The area to the south of
the Plant is occupied by the cooling pond and other portions
of the site for about one mile, is primarily forested for an
additional two miles and primarily used for farming for
another two miles. The first mile to the east of the Plant
is industrial property owned by Applicant and Dow; the
next mile is mostly residential and light farming; and the
next three miles are sparsely populated and primarily agri-
cultural. The area five to fifty miles from the site is pri-
marily used for farming, where not forested, except for the
industrial communities of Bay City, Saginaw and Flint
(PSAR Applicant’s Ex. 1-A, § 2.2.6). Projections of popu-
lation growth have been made by Applicant for Midland
County and surrounding counties based on material sup-
plied by the Michigan Department of Commerce (PSAR
Applicant’s Ex. 1-A, § 2.2.5).

15. The required (10 CFR §100.3(a)) exclusion area
for the Plant has a radius of 0.31 miles (500 meters). The
land within this area will be owned by Applicant except for
a small portion which consists of a fenced-in waste treat-
ment facility owned by Dow. Dow employees visit this fa-
cility only occasionally and Dow has agreed that Applicant
may exercise the right to remove persons therefrom when
required (PSAR Applicant’s Ex. 1-A, § 2.2.4; Response to
Staff Question 2.8, PSAR Applicant’s Ex. 1-C, p. 2.8-1).
The Board concludes that Applicant has the authority to
‘‘determine all activities’’ in the calculated exclusion area
as required by 10 CFR Part 100.

16. The low population zone proposed by Applicant
has a radius of approximately one mile (1600 meters) from
the reactors. The area encompasses property owned and
controlled by Applicant south of the reactors, a part of the
Dow and Dow-Corning Company complexes to the north
and east and a few residences in the southwest (PSAR

124

Applicant ’s Ex. 1-A $ 2.2.5.5). The residential population
within this zone is approximately 38 and the transient in-
dustrial or business population, primarily employees of
Dow and Dow-Corning, is about 2145 (PSAR Applicant’s
Ex. 1-a, § 2.24; Tr. 3103, 3119, 3295). The residential popu-
lation within the zone is well within acceptable limits. The
size of the transient population is unusually large and the

acceptability of the low population zone depends upon the.

ability to evacuate the Dow and Dow-Corning employees.
Subject to what is said below (see Findings 31-33) with
respect to evacuation plans, the Board finds the population
zone satisfactory.

17. The distance from the reactor to the nearest bound-
ary of the City of Midland is 0.21 miles, considerably less
than the ‘“population center distance’’ of one and one-third
miles seemingly required by the Regulations (10 CFR
§ 100.11(a)(3)). However, in view of the fact that the pop-
ulation within one and one-third miles was largely limited
to a transient population and that populous areas of Mid-
land were sufficiently removed from the site Vicinity, the
Staff concluded that the reduced population distance was
acceptable (SSE, p. 9; Tr. 2135-39, 2145, 2165). We concur.”
The recently ordered annexation of Midland Township by

> City of Midland will not affect the population distribu-
on.

i 18. Applicant is a combination electric and natural gas
utility incorporation under the laws of the State of Michi-
gan. The Applicant will finance the total costs of construct-
ing nc Midland Plant as an integral part of its normal
construction program, using funds internal! nera
(cash on hand, undistributed earnings and depreciation soe
other accruals) and from the sale of securities (debt, equity,

** Again, the acceptability of the reduced population distance
pends on our conelusions as to the feasibility of rapid evecuatinn
of the transient population, discussed at Findings 31-33 below.

125

and short-term notes) when and as required, in the same
general manner as it finances other Plant additions. (PSAR
Applicant’s Ex. 1-D and 38E; SSE Appendix H, and Staff
Ex. 8.)

19. Applicant has had long experience in building and
operating fossil fuel plants and has gained experience in
nuclear plants at its Big Rock Nuclear Plant and Palisades
Plant. The Babcock and Wilcox Company (B&W) which
will design and supply the nuclear steam supply system,
and the Bechtel Corporation which will design and supply
the remainder of the Plant, have had extensive experience
in designing and constructing nuclear projects.

20. The application reflects that the activities to be
conducted would be within the jurisdiction of the United
States and that all of the directors and principal officers of
the Applicant’s organization are citizens of the United
States. Applicant is not owned, controlled, or dominated
by an alien, a foreign corporation, or a foreign govern-
ment. The Applicant will rely upon obtaining fuel as it is
needed from sources of supply available for civilian pur-
poses, so that no diversion of special nuclear material
needed for military purposes is involved (PSAR Appli-
cant’s Ex. 1-D; SSE p. 83, following Tr. 1674).

21. The AEC requires that data as to site meteorology
be included in the PSAR for a construction permit. This
information is used in evaluating the adequacy of plant
site and plant design. The meteorological data are used in
calculating the radiation dose which might be received over
any given period of time by a person at the site boundary
from normal operating or accidental airborne releases.
Intervenors questioned the adequacy of the meteorological
data with respect to the evaluation of the site under 10 CFR
Part 100. In particular, they challenged the assumption
as to diffusion rates used in that evaluation.

126

22. Two main sources of data were used by Appli :
The Dow Plant, which has recorded soother sa
over ten years, and the Saginaw (Tri-City) Airport, about
eight miles southeast of the site.** The Dow data was con-
sidered to be too incomplete for purposes of calculating
diffusion models, and for that purpose Applicant used the
more extensive, but more remote data from Tri-City Air-
~ a tgp Ex. 1-A, p. 2A-4). In order. to

a construction permit, the Board is not reaqui
find that the available meteorological data ..
(which it clearly is not). The Staff did not accept Appli-
cant’s data, but used, as is its practice, an arbitrary formula
incorporating what it claims to be many conservative fea-
tures. (SSE, p. 10). The Staff witness, an employee of the
~ ational Oceanographic and Atmospheric Administration
( NOAA”’) confirmed the conservatism of the assumptions
in light of the general conditions in the area. (Tr. 3704)
The testimony of Intervenor’s witnesses, although there is
some ambivalence, taken as a whole tends to corroborate
the conservatism.” (Tr. 3406-3687). The Board is satisfied
that the assumptions are sufficiently conservative to justify
a reasonable expectation that the site is satisfactory.

23. Because of the absence of on-site da i-
cant indicated it will conduct an on-site to rot pond
gram with a continuous recording of meteorological data
(wind direction, velocity and temperature lapse rate) until
at least a year’s history is obtained. ( PSAR, Applicant’s
Ex. 1-c p. 1.00-1). Since the conclusion of the hearing, the
AEC has promulgated Safety Guide No. 23, Onsite Meteor.
ology Programs, describing the requirements of an accept-
able on-site meteorological program, which is considerably

“* A third source of some upper air data was U.S. Weather Bu-

reau information from Flint, Michigan, about 50 miles
Midland. (PSAR, Applicant’s Ex. 1-A, pp. 2A-3 to aa P

ad For example, (at Tr. 3659) Dr. Epstein characterized j
as ‘‘ being rather good from the point of diffusion by and large’

127

more extensive than that proposed by Applicant in the
PSAR. The Board concludes that the Staff should require
Applicant to conduct a meteorological program of the scope
described in the Safety Guide No. 23. The program must be
sufficient to validate the conservatism of the meteorological
assumptions referred to above and can be developed and
executed during the construction phase.

24. The application states that the reactor vessel,
steam generator, and pressurizer will be designed, manu-
factured and tested in accordance with Section III of the
ASME Code. (PSAR, Applicant’s Ex. 1-A, § 4.5). Several
types of nondestructive tests are to be performed during
fabrication of the reactor vessel. These tests include radi-
ography of welds, ultrasonic testing, magnetic particle ex-
amination, and dye penetrant testing. (PSAR, Applicant’s
Ex. 1-A, §§ 4.5.1 and 4.5.2). Surveillance specimens con-
sisting of material representative of the reactor vessels
are to be exposed in the reactor vessels to allow monitoring
of the neutron induced nil ductility transition temperature
shift. (PSAR, Applicant’s Ex. 1-A, § 4.2.5.2).

25. The reactor coolant piping is to conform to the
nuclear power piping code, USASI B31.7, and the reactor
coolant pump castings are to be manufactured in accordance
with Section III of the ASME Code, where applicable.
(PSAR, Applicant’s Ex. 1-A, § 4.5). All system components
are to be designed to withstand normal loads of mechanical,
hydraulic and thermal origin plus the forces that would
result from the blowdown of the reactor coolant system as
a result of a design basis loss-of-coolant accident, concur-
rent with the design basis earthquake loads. (PSAR, Appli-
cant’s Ex. 1-A, Appendix 5A). The proposed codes and
standards for reactor coolant system components and pip-
ing comply with 10 CFR § 50.55a. The Staff has reviewed
the codes, the plans for design and fabrication, and the
quality specified for the reactor vessels and coolant piping

128

and concluded that the reactor vessels and coolant piping
as planned are acceptable. (SSE, p. 20).

26. Finally, the quality assurance program calls for
verification by the Applicant of the methods used by the
vendor to certify that this equipment meets the specifica-
tions developed on the above bases. (SSE, p. 22).

27. The Staff and their consultants have reviewed and
found the seismic design methods acceptable. Major core
and core support components will be designed to provide
assurance that they are not vulnerable to vibration. Con-
firmatory vibration testing will be conducted as part of the
preoperational start-up program. The Staff has found ac-
ceptable the Applicant’s plans and methods for limiting

the vibration of the internal components. (SSE 22;
SSE, Appendix @). ee

28. A great deal of the discussion with respect to
Quality Assurance by the Intervenors reflected -q ae
misunderstanding of the Board’s function in this area at the
construction permit stage. That function is to ascertain
whether the Applicant has adopted a program of quality
assurance, over which it will have final responsibility, and
which, if implemented in accordance with the representa-
tions of the application, will satisfy the requirements of
Appendix B of 10 CFR Part 50. The enforcement of the
program is the responsibility of the Commission which has
delegated the enforcement function to the Director of Reg-
ulation. The Board must assume that the Director of Regu-
lation, through the Directorate of Regulatory Operations

will require adherence to the quality assurance
described in the application. —.

29. The record in this proceeding shows that Applicant
is committed to a comprehensive, documented quality assur-
ance program for which it will have final responsibility. The
application contains a description of the program, including
u discussion of how the applicable requirements of Appen-

129

dix B of 10 CFR Part 50 will be satisfied. The Board has
reviewed this information and concluded that if the pro-
gram is implemented in accordance with the representation
in the application, the requirements of Appendix B will in
fact be satisfied. During the hearing, much additional infor-
mation relating to the question of quality assurance was
introduced into the record (Tr. 4009 et seq.). For example,
the record includes manuals implementing the quality
assurance program; Division of Compliance (now Direc-
torate of Regulatory Operations) reports, noting, inter alia,
some deficiencies in the Applicant’s implementation of the
program; and documentation relating to what the Saginaw
Intervenors allege was inadequate quality assurance during
the construction of the Applicant’s Palisades Plant. The
Board has considered this additional information, but only
for the limited purpose of determining whether any evi-
dence has been adduced which would be inconsistent with
findings favorable to the Applicant on the ultimate issues
in the proceeding. The Board has found no such evidence
in the record.

30. A major objection of Mapleton Intervenors is that
fabrication of the reactor vessels for this plant had been
commenced and one of the vessels was approximately 50%
complete at the time of the radiological hearing, and that
the AEC’s Division of Compliance had not yet inspected
the reactor vessel nor made audits of the fabricator’s docu-
mentation. There is nothing in the Regulations or in sound
practice which prohibits the beginning of fabrication of the
pressure vessel before the construction permit is granted.
Nor is there any requirement that the Division of Com-
pliance inspect the vessel during fabrication. A witness
from the Division of Compliance described generally the
steps involved in reactor vessel fabrication, the documen-
tation accompanying each step and the testing of the re-
actor vessel at the end of fabrication (Tr. 4539-41). At the
end of this procedure the Division of Compliance will audit

130

the documentation and make a physical inspection of the
vessels (Tr. 4541, 4568-69). Any deficiencies will be brought

to the attention of Ap»licant and it will be required to
correct them (Tr. 4569).

31. Applicant submitted an emergency plan prescrib-
ing immediate action to be taken to minimize exposure of
persons to radiation, both within the exclusion area and
outside the exclusion area from any major accidental re-
lease of radioactivity. The emergency plan prescribed the
actions to be taken in order of priority, the responsibilities
of Plant personnel and summarized the personnel and ma-
terials available for assistance. The emergency plan took
into account evacuation of the Dow Chemical and Dow-
Corning plants in the event of a large accident and gave
consideration to procedures in the event of an accident at
Dow Chemical that could affect the Plant. (PSAR, Appli-
cant’s Ex. 1-A, Appendix 20-1 through 2C-20).

32. Testimony at the hearing indicated that Applicant
had prepared the plan prior to issuance of the AEC’s
“Guide to the Preparation of Emergency Plans for Pro-
duction and Utilization Facilities” in early 1970, and prior
to promulgation of Appendix E to 10 CFR Part 50. (Tr.
2243). Despite its acceptability to the Staff, the Board
found this original plan inadequate, and so advised Appli-
cant at the hearing. (Tr. 2258, 2271). Applicant thereupon
revised its emergency plan based on its Palisades Plant
operating license stage emergency plan and on more de-
tailed contact with local agencies. (Tr. 2604-2615). The
revised plan contains and incorporates the State of Michi-
gan emergency plan, the Midland County Civil Defense
Plan and Dow Chemical evacuation procedures. Appendix
E to 10 CFR Part 50 requires the Applicant to include in
the PSAR a ‘‘discussion of preliminary plans for coping
with emergencies.’’ The discussion is to include ‘‘ sufficient
information to assure the compatibility of proposed emer-
gency plans’’ with the plant location. The purpose of this

131

requirement as we understand it is not to insist on specific
proposals, but to give enough general information to indi-
cate that a satisfactory plan is feasible.

33. In view of the ‘‘credit’’ taken by the Applicant in
establishing the population center distance and the rela-
tively high number of transients in the low population zone,
the Board was particularly interested in the evacuation pro-
cedures of Dow and Dow-Corning. Considerable teotimeny
on the Dow procedures was adduced at the hearing. (Tr.
2664-2683; 3047-3266). Notwithstanding the testimony of
Saginaw Intervenors’ witness (Tr. 4695-4821), based on
experience elsewhere in uncontrolled situations, the Board
is satisfied that timely evacuation is reasonably assured.
However, the Board agrees with the Staff’s view that ad-
vance planning should be done to protect the population in
the low population zone and that such plans should be
capable of expansion and mobilization of extra resources
should a more serious accident occur. The Board is satis-
fied that the revised plan conforms with the requirements
of Appendix E to 10 CFR 50.

34. The reactor building spray system is provided to
remove heat and fission products from the reactor building
atmosphere following a loss-of-coolant accident in order to
limit the reactor building pressure to the design value and
to reduce the post-accident level of fission products in the
reactor building atmosphere. Chemicals are added to the
water coming from the borated water storage tank after a
loss-of-coolant accident to establish a basic pH by addition
of sodium hydroxide and to provide for iodine retention
by addition of sodium thiosulfate. ( PSAR, Applicant’s Ex.
1-A, § 6.2). The major question raised was as to the long-
term stability of the sodium thiosulfate. In the Board’s
view, Applicant’s testimony at the hearing confirmed the
long-term stability of sodium thiosulfate solutions (Tr.

2836-55).

132

35. Electric power generated by the Plant is to be fed
through separate connections to a main transformer for
each unit. There, it is stepped up to 345 kV and delivered to
a switchyard on separate overhead lines. The units and
associated switchyard will be part of the Applicant’s inte-
grated electric system. The Plant electrical output also feeds
the Plant station power transformers. The five 345 kV
transmission lines which terminate at the Midland switch-
yard will provide startun and standby power from the
system through a step-cown substation (to change the
voltage from 345 kV) and a Plant start-up transformer. A
second Plant start-up transformer will provide an alternate
off-site power source via another 138 kV substation.
(PSAR, Applicant’s Ex. 1-B, §4 8.2.1; p. 8.2-2; SSE, pp.
41-42). The Plant has an auxiliary power distribution sys-
tem which is a two-bus system for each unit. The engineered
safeguards system bus sections are electrically separate
and redundant and will be located in separate rooms of the
auxiliary building to provide physical isolation. The re-
dundant safeguard bus sections will have access to (a) the
Plant electrical output through the station power trans-
formers, (b) the off-site area transmission network, and
(c) the onsite emergency diesel generators. (PSAR, Appli-
cant’s Ex. 1-B, § 8.2.2, SSE, pp. 42-43). The Plant’s direct
current power supply for safeguards systems consists of
two 125-volt batteries located in separate rooms. Two sep-
arate 125-volt d-c power distribution buses will be provided
to supply redundant safety related loads in each unit. These
batteries will have the capacity to provide a safe and
orderly hot shutdown in the event that all a-c power is lost.
Separate 250-volt batteries will supply non-safety related
loads on site. (SSE, p. 44-45).

36. The Saginaw Intervenors questioned whether there
was sufficient redundancy and electrical independence in
order to assure that electrical power would always be avail-
able to operate required safeguards equipment. Applicant’s

133

testimony was that the design criteria for the two-unit
Plant are satisfied by the two shared diesel generators
and that their ability to perform their safety functions is
not significantly impaired by such sharing. (Tr. 2330-2340).

37. The Board asked Applicant to indicate the experi-
ence of other industries with emergency generation and
their redundancy requirements. (Tr. 2920-21). Applicant
testified that no industry, except the nuclear industry, re-
quires redundant emergency power sources although some
airports have redundant systems. The absence of such a
requirement appears to be based on the satisfactory per-
formance of emergency power systems over the past
twenty years. (Testimony of Witness Castleberry, filed
August 16, 1971.)

38. The Staff has found the electrical system, including
the backup diesel system adequate; however the Staff has
required that test data be supplied to confirm the suit-
ability of the diesel generators as an on-site emergency
power source prior to the operating license review (SSE,
p. 43).** We concur.

Ill. Emercency Core Coouine System (ECCS)

39. The sufficiency of the ECCS was contested by In-
tervenors from the outset of the proceedings and would,
in the normal course of events, have been one of the radio-
logical issues litigated in June and July 1971. On June 29,
1971, the AEC issued new rules governing ECCS in the
form of ‘‘Interim Criteria for Emergency Core Cooling
Systems for Light-Water Power Reactors” (36 F.R.
12247); the Criteria were amended on December 18, 1971
(36 F.R. 24082) to cover B & W reactors. In the meantime
the AEC had on November 30, 1971 (36 F.R. 27774) pub-

* Th Staff has also indicated that more detailed cable installa-
tion — additional design criteria will be required (SSE, p. 45).

134

lished a Notice of Rule Making Hearing on ECCS.” Both
Mapleton and Saginaw Intervenors are parties to that
hearing.

40. Intervenors do not contest the compliance of the
proposed reactor with the Interim Criteria. The Staff has

found that the proposed reactors do meet the criteria and
the Board finds the Staff review adequate.

41. Intervenors do, however, challenge the validity of
the criteria. Normally such a challenge would be made
(under the Calvert Cliffs doctrine) by attempting to estab-
lish a sufficient case of invalidity to warrant the Board’s
referral to the Commission, Here, as the Board has pointed
out in its Order of Maréh 10, 1972, the usual practice would
make no sense. The AEC has the issue before it; it is being
vigorously litigated in the national ECCS hearing (Docket
No. RM-50-1) and nothing but confusion would be added
by our consideration of the issue here.”

42. We believe that this mode of proceeding is man-
dated by the AEC instruction that the pendency of the
rule-making hearing should not affect the orderly resolu-
tion of the ECCS issue in licensing proceedings (37 F.R.
288). We also are of the view that no problems of public
health and safety are created by so proceeding. Applicant
will be bound to comply with any changes in criteria which
may be adopted as a result of the national hearing. In any
event, Applicant has committed itself to meeting any appli-
cable ECCS regulation forthcoming from the proceeding
and has furnished the Board with a compilation of dates by
which major components involved in ECCS analysis are

—_—_

* The Interim Acceptance Criteria were promulgated without a
rule-making hearing.

Licensing Appeal Board in Wisconsin Electric Power Company et
al. (Point Beach Nuclear Plant, Unit 2), ALAB-78 (November 10,
1972), at pp. 517-539 in WASH-1218(Suppl. 1).

135

needed at the site in order to meet a schedule of commercial
operation in May 1977 (Applicant’s letter of June 6, 1972).
This schedule indicates that no major components involved
in the ECCS analysis are needed at the site prior to the
spring of 1974. Applicant in furnishing the list also agreed
that unless the ECCS rulemaking had been completed ear-
lier, none of those major components would be shipped
prior to the date needed ou site without prior AEC ap-
proval (Applicant’s letter of June 6, 1972). Thus, if any
modification in equipment is necessary, the equipment will
still be in the shop where it can be more readily modified
than if it had been shipped or installed.

TV. Ewvrronmentat Issves

43. With respect to environmental questions the Board
is required to do the following: (a) determine whether the
requirements of the National Environmental Policy Act
and Appendix D to Part 50 have been complied with, (b)
independently consider the final balance among conflicting
environmental factors in the record of the proceeding, (c)
determine after weighing the environmental, economic,
technical and other benefits against environmental costs
whether the permit should be issued, denied, or appropri-
ately conditioned, (d) (in a contested proceeding) decide
any matters in controversy among the parties. By its Order
to March 10, 1972, the Board ruled that it would not con-
sider the environmental effects of the fuel cycle except in
the following aspects: (1) the transportation of fuel ele-
ments from the fuel fabrication plant to the reactor site,
(2) the transportation of spent fuel elements from the site
to the fuel reprocessing plant, (3) the transportation of
packaged radioactive material from the site to low-level
waste burial grounds, and (4) radioactive discharges oceur-
ring at the site and any other environmental effects directly
associated with the handling and use of the nuclear fuel at
the site. That decision of the Board was upheld by the

136

Atomic Safety and Licensing Appeal Board. In reaching
our decision we do not mean to suggest that there are no
environmental costs associated with mining, fabrication and
waste disposal. But we are not engaged here with an assess-
ment of the entire atomic energy program and there is no
meaningful way—except the cost of fuel—that we can
assess those costs in this proceeding.

44. Environmental issues are a new area of responsi-
bility for the Atomic Safety and Licensing Boards; as yet
there are no precedents to guide the Boards and the regu-
lations are vague as to how the environmental decision is
to be made. In the hope that it will be helpful to Boards
in other cases, we have attempted to describe in some detail
how we have gone about deciding environmental issues. In
the process we have treated some issues in more detail than
is warranted by the evidence adduced in the hearing.

45. The difficulty lies in the direction to the Boards to
independently consider the final balance after weighing the
costs and benefits. ‘‘Final balance’’ and ‘‘weighing’’ costs
against benefits have a deceptively mechanistic connotation,
as though one could make a calculation of the costs and
benefits and decide on the basis of the arithmetic. Obviously
this is not possible. Calculations of costs and benefits may
be a useful exercise, but more often than not the qualifica-

tions are so speculative and non-objective as to be worse
than useless.

46. The chief benefits claimed by Applicant and the
Staff are the production of electricity (and process steam)
and the elimination of the air pollution from Dow’s present
fossil-fuel steam plant. The claim of production of elec-
tricity as a benefit is in turn premised on the need for
additional electricity on Applicant’s system. The demon-
stration of that need took the conventional format.

47. Applicant presented detailed electric sales fore-
casts through 1980, converted sales forecasts into estimates

137

of peak demand for electricity and related the projections
to its existing generating capacity, its construction and re-
tirement program and projections for the Michigan Electric
Power Pool to demonstrate the need for electricity from
the Plant. (ASER Applicant’s Ex. 38F-1, Section 2; Appli-
cant’s Ex. 38G, revised Ex. 1 to Section 2; Applicant’s Ex.
38K, pp. 108-114.) The projected increases in sales over the
next ten years result from population increases, particu-
larly large increases in the adult population which result
in increased household formation, and increased usage per
consuming unit, including significant increase in electricity
being used for control or elimination of air and water pollu-
tion (ASER Applicant’s Ex. 38F-1, pp. 2-6 to 2-9; Tr. 6528-
33). The Staff has concluded that the projections of need
are reasonable, and a witness from the Federal Power Com-
mission (FPC) agreed (Tr. 8090-91). Intervenors do not
seriously challenge the projections, although Mapleton
made a weak try at eliciting a concession that the additional
capacity was really to satisfy Canada’s needs rather than
local needs. We find that this ‘‘contention’’ is without
foundation, and we conclude that Applicant’s projections of
need are reasonable. (ASER Applicant’s Ex. 38G, Table
DEM.-1 to revised Ex. 1 to Section 2; Applicant’s Ex. 38K,
pp. 109, 111.)

48. Intervenors have suggested at various times that
the Board must go behind the characterization of ‘‘de-
mand’’ made by the Applicant to determine whether an
appropriate alternative to satisfying the demand would
be to set limits on particular uses of electiicity. The Board
declines to do so. So far as appears from the record, the
postulated demand is made up of normal industrial and
residential use and it is, in our view, beyond our province
to inquire into whether the customary uses being made of
electricity in our society are ‘‘proper’’ or ‘‘improper’’. The
suggestion was also made that Applicant is stimulating de-
mand by its advertising. No evidence was offered on this

138

point and absent some evidence that Applicant is creating

abnormal] demand, the Board did not consider the question.

49. Once the Board accepts the need and the ‘‘benefit’’
of satisfying that need, its conclusions on the cost benefit
questions (although not as to alternatives) is, in our view
practically a foregone conclusion. It would require some
evidence of special environmental damage to outweigh the
benefit and there is no suggestion of such special damage
m a ane if such evidence existed, it would

robably be relevant to i j
SS ie the question of alternatives rather

50. Nevertheless, we believe it would be instructive to
review in some detail the subject of the cost of the damage
to terrestrial ecology at the site. The evidence on this point
was @ substantial portion of Mapleton Intervenors affirma-
tive case and the subject illustrates very well the nature
of some of the problems posed for all concerned by the re-

quirement that the costs and benefits i
the be weighed and a

; 51. As noted earlier, the site is adjacent

industrial complex and some soatdaniaal acon fein
is nothing unique about it,” and in all likelihood, if not
used for the proposed plant, it will be used for some other
industrial, or possibly residential, development. Applicant’s
assessment of the impact of the plant on the terrestrial
ecology is based on a survey performed by a team under
the general supervision of Dr. Leslie Gysel of Michigan
State University.” (ASER, following p. 3-1.) Applicant

™ The Board visited the site and nothing tradict
plieant’s evidence as to the absence of unique chasasrerists: al

20 . >
After the close of the Applicant offered a written state-

139

concededly did not attempt to identify every species of
plant or animal at the site or to make detailed population
estimates. Instead, it listed those wildlife species that had
been personally observed at the site, those for which signs
such as scat, tracks, etc. had been observed by local resi-
dents and plant site security personnel. The result of the
survey is the conclusion that there are no special character-
istics of the site of special value as a wildlife habitat.

52. Intervenors on the other hand challenge the survey
as completely inadequate and assign a ‘‘conservative’’
value of $36,000,000 to the flora and fauna to be disturbed
by construction. Approximately $30,000,000 of this amount
is for losses of bird life and anima! life alone. (Tr. 8563.)
The method used to arrive at these evaluations was to
estimate populations of species which would be expected
to be found in the area on the basis of existing studies. In-
tervenors then estimated the number of each species ex-
pected to be found and assigned an arbitrary value to each
bird and animal, for example, $10.00 per sparrow and
$10.00 per mouse. Intervenors’ witness, Dr. Stuart Hol-
comb, made no allowance for the effect of predation, al-
though he conceded that predation would take a consider-
able toll. (Tr. 8592, 8596.) Nor did he make any allowance
for the fact that many of the birds to be found are gen-
erally considered pests (indeed there are bounties in the
State of Michigan on some of them). He then multiplied his
final figure by 30 representing the expected life of the
plant of 30 years. The Board finds this method of eyglua-
tion and calculation wholly insupportable. We note without
further comment, for example, that the figures shown in-
elude $151,000 per year as the value of mice to be lost and

140

$190,000 per year for varieties of sparrows—a total of
some $10,000,000 over the life of the plant for mice and
sparrows alone.

53. The testimony does however illustrate that a more
elaborate survey of ecological effects on the plant site could
have been made. The real question is at what expense and
to what end. We agree with Dr. Gysel that a complete sur-
vey would be very expensive and, for some species, not
even possible. We are not insensitive to the problems
posed, but we believe that it is only realistic to accept the
cost of the land as the cost of the ecological impact on the
site, at least absent a showing of some special characteris-
tics as to particular species or value of the tract of land as
a habitat for wildlife. But even if we were to accept Dr.
Holeomb’s premise, and his arithmetic, the result would be
no different. Given our prevailing values there is no way
in which the loss of flora and fauna in a site of this kind
can outweigh the benefits of supplying needed electricity.

54. Are the other disbenefits claimed by Intervenors
substantial in comparison to the need for electricity? Those
stressed by Intervenors include the threat of process steam
contamination; the impact on aquatic ecology; the effect of
releases of radioactivity during normal operation; the
claimed ‘‘synergistic’’ interaction of releases of radio-
activity with chemicals released from Dow; the effect of
accidents; fogging and icing from the cooling pond; and
the effect of decommissioning.

55. To the extent that the claimed disbenefits are based
on releases of radioactivity within the limits permitted by
the regulations, these contentions of Intervenors were
treated during the radiological hearings as attacks on the
regulations. Under the prevailing practice, such attacks can
only be considered by the Boards for the purpose of ascer-
taining whether a sufficient showing of invalidity has been
made to warrant referral to the Commission. For those

141

purposes, the showing was, in all cases, clearly insufficient.
However, in the environmental hearing, the Board per-
mitted testimony and cross-examination on such matters as
pertinent to the cost-benefit analysis.

56. As originally proposed, the process steam supplied
to Dow would have been produced via secondary heat ex-
changers. At an early stage, Applicant modified the pro-
posal to provide a tertiary heat exchanger—further insulat-
ing the process steam from the possibility of introduction of
radiation from the primary coolant. The process steam will
be monitored for radioactivity with an on-line gross gamma
monitoring system and with grab samples for gross beta.
The tertiary steam to Dow will not contain more radio-
activity than the Lake Huron makeup water supplied to
the tertiary heat exchangers. (PSAR Applicant’s Ex. 1-c,
p. 11.00-2.) If any Dow products exceeds the inherent nat-
ural background radioactivity, the product will be decon-
taminated or disposed of as necessary. (Applicant’s Ex.
38c.)

57. The Board finds that the system promises to pro-
vide assurance that leakage of radioactivity into the process
steam will be an extremely remote possibility; that Appli-
cant has submitted sufficient information; and Staff has
performed an adequate review with respect to process
steam monitoring. The environmental effects of the process
will be insubstantial.

58. The liquid waste treatment system is designed to
collect, process and reuse or dispose of off-site all liquid
waste, except for laundry waste, containing radionuclides
generated during normal operation of the Plant. (PSAR
Applicant’s Ex. 1-B, Section 11.) About 120 gallons per
day will be the only waste containing radionuclides from
the Plant that will be released to the Tittabawassee River
during normal operation. The Applicant estimates that the
gross activity in the dilution stream from this laundry

142

waste, based on operation with 1% failed fuel for a full
year will not exceed 25 pico curies per liter on an annual
average, i.e., equivalent to about two curies per year.
(PSAR Applicant’s Ex. 38-E, p. 11.1-1.) Using this upper
limit concentration, the Applicant calculates a potential
dose to a hypothetical individual who consumes 2200 cc’s
per day of water from the river and eats 37 lb of fish per
year from the river to be about 0.8 mrem/year. (PSAR
Applicant’s Ex. 38-E, p. 11.8-11.)

59. Potentially high-activity waste-gas is routed to the
waste-gas surge tank where its activity is monitored. In
the event of high levels of radioactivity, the waste-gas is
routed to waste-gas decay tanks where such gases can be
stored for up to sixty days to permit decay of all of the
radioactive gases, other than krypton 85, to essentially zero.
(PSAR Applicant’s Ex. 1-B, p. 11-7; ASER, p. 4.2-4A.)

60. Applicant estimated that in the event both reactors
operate for a full year with 0.1% failed fuel, the quantity
of Kr-85 and Xe-133 released through the radwaste treat-
ment system will be about 1224 curies and 50 curies, re-
spectively. The applicant further calculated the dose to an
individual continuously present at the site boundary for a
full year to be about 0.46 mrem/year. (ASER Applicant’s
Ex. 38F-1, Section 4.2.) A calculation of the dose using 60
days’ holdup and 1% failed fuel would be approximately
4.6 mrem/year. This dose is a small fraction of 10 CFR
Part 20 and is less than the dose specified in the proposed
Appendix I to 10 CFR Part 50.

61. The solid waste treatment system consists of tank-
age and facilities for collecting and packaging spent de-
mineralizer resins and evaporator bottoms and for pack-
aging contaminated items such as spent filter elements,
rags, clothing, etc. All radioactive material from the solid
waste system will be shipped off-site for storage by AEC
licensed contractors. (PSAR Applicant’s Ex. 1-B, p. 11-8.)

143

In the Board’s view, the environmental effects of the nor-
mal releases of radioactivity and disposal of solid wastes
are minimal.

62. While no aquatic environmental studies have been
conducted by Applicant or the Staff, there have been nu-
merous studies conducted by the Michigan Water Resources
Commission, Michigan Department of Natural Resources
and by Dow over the years. (ASER Applicant’s Ex. 38F-1,
Section 3.2.2.)

63. The Michigan Water Resources Commission is im-
plementing a program to improve discharges into the river
and improve river water quality. The Tittabawassee River
from Midland to its confluence with the Saginaw River is
designated to be upgraded not later than January 1, 1974,
for intolerant fish warmwater species and agricultural uses.
(Tr. 5664-65.) Applicant will be required to conduct a
thorough ecological study of the site and its environs prior
to Plant operation to establish base line values as recom-
mended by the Staff. Applicant has committed itself to
discharges that are significantly lower than those permitted
by the standards for thermal releases and total disso

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1662%3A2. Public record. Not legal advice.