ML19259B190
| ML19259B190 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/04/1979 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7901170064 | |
| Download: ML19259B190 (13) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p
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Docket Nos. 50-329 r --
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50-330 (M
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(Remand Proceeding)
ORDER CONCERNING REMANDED ISSUES (January 4, 1979)
On April 10, 1978, the Commission issued an Order requesting the parties to this construction permit proceeding to state their views as to what issues, if any, remain for consideration in light of the Supreme Court's decision in Vermont Yankee Nuclear Power Co. v. Natural Resources Defense Council and Consumer Power Co. v. Aeschliman, 55 L. Ed. 2d 460 (1978).
Thereafter on November 6, 1978, the Commission entered a Memorandum and Order which stated in part that "we conclude that in light of the Supreme Court's decision, current Commission practice, and the presently expected initiation of the operating license proceeding, the only issue identified above which remains as framed for considera-tion by the Licensing Board is the airing and resolution of the charges relating to Consumers' conduct."
The Licensing Board was also directed to " address the issue of the environ-mental effects of radon as required by subsequent Commission actions" (Slip Opinion, p. 2).
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4 s I.
Environmental Effects of Radon The environmental effects of radon are in issue here because this proceeding was pending when the Commission deleted the radon term from Table S-3, and provided for reopening the record to hear evidence on radon releases in pending proceed-ings.1/
The Commission's Memorandum and Order of November 6, 1978 in the instant proceeding further provided:
"However, the generic nature of this issue leads us to conclude that the interests of the parties will best be served by structuring the Licensing Board's review of this issue in accordance with the procedure set out by the Appeal Board in ALAB-480 [ Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-480 (May 30, 1978)].
The radon evidentiary record and decision in the Perkins [ Duke Power Comoany (Perkins Nuclear Station, Units 1, 2
3), Docket Nos. STN 50-488, 50-489, 50-490]
proceeding will be served on the parties to this proceeding.
Within 21 days after service, the parties may request in writing that the Licensing Board (a) receive additional written evidence on the radon question; (b) call for a further hearing on the Perkins record; or (c) consider obj ections to any aspect of the Perkins radon proceeding.
The request shall set forth with specificity the respects in which the Perkins record is deemed to be incomplete, inaccurate, or obj ectionable, as well as pre-cisely how such defects should be remedied.
"Uithin the same 21 days a party may file a memorandum with the Licensing Board addressed to two questions.
(a) whether the Perkins evidentiary record supports the generic findings and conclusions of the Perkins Licensing Board 1/43 Fed. Reg. 15613, 15616 (1978).
- q e.
. respecting the nount of the radon emissions in the mining and ralling process and resultant health effects; and (b) whether the radon emissions and resultant health effects are such as to tip the NEPA balance a ainst continued construction of the Midland plant.g' (Slip Opinion, pp. 3-4.)
As directed by the Commission, the Perkins radon evidentiary record and decision was served on he parties to this proceeding on November 17, 1978.
Within 21 days after such service, the Staff on December 8, 1978, filed its response to the Commission Order.
The Staff took the view that the Licensing Board need not receive additional written evidence on the radon question and need not call for a further hearing on the Perkins record.
It was considered that the Perkins evidentiary record supported the generic findings and conclusions of that licensing board respecting radon emissions in the mining and milling process and the resultant health effects.
The findings were deemed to be equally applicable to the effects of the fuel cycle supporting the Midland facility.
The Staff further stated that given a clear case of need for the Midland facility, the cost-benefit balance in this proceeding would not be tipped by the tiny increments associated with radon release from the uranium fuel cycle.2/
'/
2 NRC Staff Response, pp. 3-6.
. The Applicant, Consumers Power Company, also filed a memorandum in response to the Commission's Order on December 8, 1978.
This response included an affidavit by G. Hoyt Whipple, Professor of Radiological Health at the University of Michigan.
The Applicant did not request that additional evidence be received on the radon question, or that further hearings be held on the Perkins record.
It concluded that radon releases and the resulting impacts were insignificant in striking the cost-benefit balance, and that the Perkins evidentiary record supported the generic findings and conclusions of the Board.
The Applicant further urged that a consideration of the effects of radon in the Midland plant cost-benefit balance will not tip that balance against continued construction of the nuclear facility, and that the impacts associated with radon emissions are so de minimis that the balance is altered imperceptibly at most.
None of the Intervenors in this proceeding has responded to the Commission's Order, or to the Perkins evidentiary record
. and decision or the NEPA balance on continued construction of the Midland plant.1/
The Appeal Board in ALAB-480 established the procedure of using the Perkins record and decision for the parties in seventeen separate proceedings to frame their positions regard-ing the radon issue (Philadelohia Electric Co.
(Peach Bottom Units 1 and 3), ALAB-480, 7 NRC 796, 804-06 (1978)).
In ALAB-509 (December 1, 1978), the Appeal Board stated that from the papers submitted to it, a number of parties were dissatis-fied with either the record or the decision in Perkins, or both.
The parties were requested to submit further memoranda dealing with the Perkins findings on radon emission rates and concentration levels, as well as that licensing board's de minimis theory (Slip Opinion, pp. 5-7, 9-10).
The time within which the parties could submit briefs on these matters was extended in ALAB-512 (December 21, 1978).b/
1/ ounsel for Intervenors Other than Dow Chemical Company sent C
a letter dated November 13, 1978, to the Chairman of this construction permit Licensing Board, which stated in part that the Commission's Order of November 6, 1978, " suggests that some joint consideration may be had on both the eperating and construction matters."
The Applicant treated this letter as a motion for consolidation of the operating license and construction permit proceedings, and filed an answer in opposition.
The Board will not strain to give effect to letters sent to it by experienced counsel, and will generally disregard such informal communications.
We note in passing that the Commission's reference to the fact that "the con-struction and operating license proceedings will overlap..."
(Slip Opinion, p. 6), refers to an overlapping in time, not subj ect matter.
4/See also Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-511 (December 19, 1978).
. We have concluded that the radon question in this proceeding should be taken under advisement, and our decision on that issue will be deferred until the Appeal Board has acted in the pending Perkins-related reviews.
II.
Charges Relating to Conduct of Applicant The only other discrete issue to be considered by this Licensing Board is the airing and resolution of certain charges relating to the conduct of Consumers and its counsel in the prior construction permit suspension proceeding.
These allegations were described by the suspension proceeding Licensing Board in paragraph 10 of its September 23, 1977 decision (6 NRC at 485-86) as follows:
"There is evidence in this record that Licensee has considered conducting its share of this proceeding in such a way as to not disclose important facts to the Board.
Notes taken by a Dow attorney of meetings with Consumers' actorneys indicate the desire of the latter to ' finesse' the dispute with Dou if no Intervenors appeared (Intervenors Ex. 25, page 2, paragraph B).
The same notes reflect the exploration by a Consumers' attorney of the possibility of using Dow witnesses unfamiliar with the facts relating to the Dow-Consumers dispute to testify at the hearing; they further disclose a proposed strategy by Consumers to ' drag feet' in the hearing process because as long as construction continues, Consumers 'has a lever' (page 3, para-graph 4).
Assuming that the proposals set out here were made and acted upon, none were successful.
Aggressive Intervenors did appear and the Dow-Consumers matter was aired; the Dow witnesses furnished were highly knowledgeable men (Mr-Temple headed the Michigan Division of Dow), and Licensee
. has not slowed the suspension hearing.
Of course there remains the suspicion, raised by the dis-closure of these instances, that there may have been similar ploys which were successful."
In ruling upon a petition by the Licensee to reconsider paragraphs 9, 10 and 11 of its Order of September 23, 1977, the suspension proceeding Licensing Board further stated:
" Licensee and Staff are fearful that the language we used in the paragraphs indicated might be considered to constitute findings of fact on some items which we had indicated would not be considered as part of the suspension decision.
One of these is the preparation of the testimony of the witness Joseph Temple which was the subj ect of controversy during the suspension hearing.
Though we made no reference to the preparation of the Temple testimony in the paragraphs complained of, there is concern that they may be interpreted to constitute findings against the Licensee on that controversy.
No such findings were made nor intended.
Nor have we concluded that there was any misconduct on the part of attorneys in this proceeding in the questioned paragraphs.
Like the Temple testi-mony, we have put aside the question of attorneys' conduct to be treated separately.
" Paragraph 9 is merely an attempt to summarize that part of Seabrook under consideration and we think it fairly does so.
" Paragraph 10 is a comment on Midland Intervenors' Exhibit 25.
It begins by reciting that the exhibit relates that certain suggestions were made.
It seems to us beyond doubt that it relates what we have said that it relates.
The Board followed that recital with a sentence which reads.
'None of these proposed stratagems were successful.'
This may be understood to imply that we have finally concluded that the suggestions were made and, further, acted upon.
We did not mean to so imply and tha sencence should be amended
. to make that clear.
The next-to-las t sentence in the paragraph is a recitation of events with which we assume Licensee does not quarrel and on which we stand.
The final sentence is to the effect that the disclosures of Exhibit 25 raise a suspicion of
'similar ploys.'
Of course they do.
That is not to say that we will act on suspicion, or that it will not be dispelled, or that rules relative to burden of proof and preponderance of evidence will be disregarded."
(Order of November 4,1977, pp.
2-4.)
The Licensing Board further provided by its Order of November 4, 1977, that its prior order of September 23, 1977, be amended so that the sentence which appeared in its entirety on line five of page eight, would read:
" Assuming that the proposals set out here were made and acted upon, none were successful."
Upon review by the Appeal Board, this Board was directed to make a full airing and resolution of such charges, whether or not the parties are themselves otherwise interested in pursuing these matters.
In 7 NRC 177, at footnote 87, the Appeal Board stated:
"We have eschewed any comment on the significance of the events which led the Board below to include in paragraphs 9-11 of its decision (6 NRC at 485-86, as amended by order of November 4, 1977) comments relating to an alleged, albeit unsuccess-ful, attempt by the applicant to prevent full disclosure of the facts relating to Dow's inten-tions with regard to its contract.
That matter was not put to rest by the November 4th order.
Nor was it dealt with--indeed it was specifically excluded from consideration--in another order the Board issued that same day, referring certain
. attorney misconduct charges to a special licensing board pursuant to 10 CFR S2.713(c).
That Board has since been told by the Commission to attempt to settle those charges, failing which it will be dissolved (January 30, 1978, letter from the Chair-man of the Commission to the Chairman of the Special Licensing Board).
The reasons the Commission gave for dissolving the special board do not apply to the entirely different type of charges involved here.
And it is important that they be fully aired and resolved.
Consequently, we fully expect both that matter and the merits of the ACRS 's ' unresolved safety issues' to be explored further at future hear-ings before the Licensing Board.
This must be done whether or not the parties are themselves otherwise interested in pursuing these matters."
Finally, the Commission in its Memorandum and Order of November 6, 1978, removed the issue of the ACRS reports on unresolved safety issues from our consideration, leaving it to be considered in the operating license proceeding (Slip Opinion, pp. 5-6).
However, the Commission left standing the Appeal Board's direction in ALAB-458 for this Licensing Board to explore further the attorney conduct issue, stating at page 6 of its Slip Opinion the following:
"The only other matter remaining for Commission consideration is the airing and resolution of charges arising from the alleged attempt by Consumers to prevent full disclosure of the facts relating to Dow's intentions with regard to its contract.
The Vermont Yankee decision had no effect on this matter because the charges arose from Consumers' alleged actions at the post-Aeschliman suspension proceeding before the Licensing Board.
Furthermore, nothing has happened since the Appeal Board's decision in ALAB-458 which would warrant our modifying its instructions to the Licensing Board to further explore the charges at a future hearing [7 NRC at 177,
- n. 87).
Thus, there is no reasons for us to reverse our earlier decision not to review ALAB-458 on this matter."
. Accordingly, we intend to establish a schedule for an evidentiary hearing on these charges relating to alleged attempts to prevent full disclosure of facts to an NRC licensing board.
To assist the Board in this regard, the parties and counsel are directed to file the following information within 45 days of the service of this Order:
1.
A statement of the issues of fact or law which are involved in this hearing, including legal duties of parties to NRC regarding full disclosure.
2.
Designation of all portions of the prior record which should be considered, including transcript references, affidavits, exhibits, documents, briefs and other writings.
3.
List of the names and addresses of all witnesses or persons alleged to possess information regarding this matter.
4.
Motions, points and authorities, briefs or memoranda of law.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 3,
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Marshall E. Miller, Chairman Dated at Bethesda, Maryland this 6th day of January 1979.