ML19312E987
| ML19312E987 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/16/1980 |
| From: | Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006180302 | |
| Download: ML19312E987 (8) | |
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o UNITED STATES OF Af1 ERICA 6/16/80 NUCLEAR REGULATORY COMMISS10:1 BEFORE THE AT0i11C SAFETY AND LICENSING BOARD In the !1atter of
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CONSUi1ERS POWER COMPANY
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Docket Nos. 50-329-0?1 50-330-0ft (liidland Plant, Units 1 and 2)
In the Matter of
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CONSU!!ERS POWER C0hPANY Docket Nos. 50-329-OL
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50-330-0L (flidland Plant, Units 1 and 2)
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NRC STAFF RESPONSE TO CONSUi1ERS POWER COMPANY'S MOTION FOR PARTIAL CONSOLIDATION 1
AND STAFF MOTION TO POSTPONE FURTHER RESPONSE INTR 00UCTI0ti On flay 27, 1980, Consumers Power Company (Consumers) filed a motion to con-
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solidate for discovery, evidentiary presentation and fact finding purposes, issues relating to soil conditions and plant fill material in three pro-ceedings:
(1) the hearing requested by Consumers with respect to a Decembcr 6, 1979 Order Modifying Construction Permits (for ease of reference, this will be referred to as the enforcement hearing);
(2) the operating license hearing; and (3) any hearing which may be requested and ordered in connection with amendments filed in accordance with Paragraph IV(1) of 800 6180302 G
the Decenber 6,1979 Order (for ease of reference, this will be referred to as the construction pemit amendment hearing).1/
The NRC Staff believes Consumers' notion is prenature and should be held in abeyance pending the period during which petitions for leave to intervene nay be filed and ruled on. The Staff moves the Board to pemit it to past-pone furthe: response to Consumers' rrotion until after intervention has been detemined and all parties are given an opportunity to respond.
DISCUSSION
===1.
Background===
On December 6,1979, the Acting Director of the Office of fluclear Reactor Regulation and the Director of the Office of Inspection and Enforcement signed an order modifying the two construction pemits held by Consumers for the Midland Plant.
The December 6,1979 Order recites that in August 1978 Consumers had infomed the fluclear Regulatory Commission that unusual settlement of the diesel generator building had occ' rred (December 6,1979 Order, p.1.)
The Order u
states that further investigation by the Office of Inspection and Enforce-nent revealed a breakdown in quality assurance related to soil construction activities under and around safety related structures and systems.
(Decem-ber 6, 1979 Order, p. 1.) Appendix A to the Order sets out the items of 1/
Consumers Power Company "flotion for Partial Consolidation," p.1.
noncompliance found by the NRC investigation. Appendix B to the Order sets out a material false statement alleged to have been made in the FSAR.
On flarch 21, 1979, the Director, Office of Nuclear Reactor Regulation, for-mally requested, under 10 C.F.R. 9 50.54(f), information concerning the above natters to determine whether action should be taken to modify, suspend or revoke the construction permits.
(December 6,1979 Order, p. 3.)
The Staff concluded that the quality assurance deficiencies involving the settlement of the diesel generator building and soil &ctivities, the false statement in the FSAR, and the unresolved safety issue concerning the ade-quacy of the remedial action to correct the deficiencies in the soil con-struction under and around safety related structures and systems were ade-quate bases to refuse to grant a construction permit and that, therefore, i
suspension of certain activities under the construction permits was war-ranted.
(December 6, 1979 Order, p. 4.)
Consumer's construction permits were modified by prohibiting certain speci-fied soil construction activities pending the submission of an amendment to the Application seeking approval of remedial actions associated with those soil construction activities and the issuance of an amendment to the con-struction permits authorizing the remedial actions.
(Dece,ber 6,1979 Order, p. 4.)
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In Part V of the Order, the Licenm or any person whose interest was affected by the Order were given 20 days to request a hearing with respect to all or any part of the Order.
In the event of a hearing, the issues to be con-sidered were stated:
"(1) whether the facts set forth in Part II of this Order are correct; and (2) whether this Order should be sustained."
(Decem-ber 6,1979 Order, p. 6.)
The Order was to become effective on the expiration of the period during which a hearing may be requested or, in the event a hearing was requested, on the date specified in an order made following the hearing.
(December 6, 1979 Order, p. 6.)
On December 26, 1979, Consumers requested a hearing in accordance with Part V of the Order Modifying Construction Permits. On March 20, 1980, the Cor-mission published in the, Federal Register (45 Fed. Rec. 18214-5) a Notice of Evidentiary Hearing.
In the Notice, the Commission stated that if Con-sumers moved to consolidate this proceeding with other NRC proceedings which involve substantially identical issues, the Board should consider whether such consolidation would adversely affect the expeditious resolution of the issues.
Notice of opportunity for intervention was not provided in the Commission's March 20, 1980 Federal Register notice.
On May 28, 1980, the Chairman of the Atomic Safety and Licensing Board ap-pointed by the Commission in its March 20, 1980 Federal Register notice caused to be published in the Federal Register an amended notice of evidentiary
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hearing with respect to the order modifying construction permits (45 Fed.
4 Rg. 35949).
The fiay 28, 1980 Federal Register notice published as an attachment the December 6,1979 Order and, in addition, gave notice that by June 27, 1980 any persons whose interest may be affected by this proceeding could file a petition for leave to intervene.
In the operating license hearing, two contentions related to the soil con-struction activities were accepted by the Board in a Special Prehearing Conference Order dated February 23, 1979.
Contention No. 24 of Intervenor fiary Sinclair, as interpreted by the Board, relates to the type of material used by Consumers under one of the essential buildings.
The contention was accepted conditioned on the Board's agreenent with Staff's comment that the questien appeared not to be one of site suitability, but rather of the type of material used by Consumers.
In any event, the Board stated that a suit-able restatement of the contention was to be provided by Intervenor.1'/ Such a restatenent has not been filed to date.
In addition, the Licensing Board stated with respect to Contention 2 of the !!apleton Intervenors:
"This is the sane issue a:, Sinclair Contention 24.
It is accepted as it relates to settling of the flidland diesel generator building."U Paragraph IV(1) of the Decenber 6,1979 Order tiodifying Construction Pernits prohibits certain specified soil construction activities pending the sub-mission of an anendment to the application seeking approval of remedial 2/
Special Frehearing Conference Order, dated February 23, 1979, p. 8.
3/
Id., p. 21
actions and the issuance of an amendment to the two construction permits.
On December 19, 1979, Consumers filed amendment 72 to their application for construction pennits and operating licenses. Amendment 72 contains a state-ment that it is submitted in accordance with Paragraph IV(1) of the Order Modifying Construction Permits dated December 6,1979.
2.
Staff Response and Motion The Staff suggests that the Board's consideration of Consumers' motion could involve significant questions concerning notice, interested parties, issues and burden of going forward with the evidence.
The Staff further suggests that all parties should be given an opportunity to address consolidation and that these issues can be more appropriately addressed after intervention has been determined.
The Staff therefore moves this Baard to permit it to postpone further response to Consumers' motion until after intervention has been determined and all parties are given an opportunity to respond.
In the event this Board determines that the Staff's further response should not be postponed, the Staff moves the Board to permit Staff's further response to be filed by Friday, June 27, 1980.
Respectfully submitted, L,T ff, William D. Paton Counsel for NRC Staff Dated at Bethesda, fiaryland this 16th day of June,1930
.,CEL iiATES OF '"E;;CA
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- 'iULf, TORY C6"/'155 :
BEFORE THE AT0nlC SAFETY AND L!CENSD.; E0ARD In the Matter of
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CONSUMERS. POWER COMPANY
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Docket Nos. 50-329-0M
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50-330-0M (Midland Plant, Units 1 and 2)
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329-OL
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50-330-OL
("idland Plant, Units 1 and 2)
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CERTIFICATE _OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CONSUMERS POWER COMPANY'S MOTION FOR PARTIAL CONSOLIDATION AND MOTION TO DELAY FURTHER RESP 0NE" in the above-captioned proceedino have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail systen this 16th day of June,1980.
Ivan W. Smith, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street U. S. Nuclear Regulatory Commission Midland, Michigan 48640 Washington, D. C.
20555 Michael I. Miller, Esq.
Mr. Gustave A. Linenberger Ronald G. Zamarin, Esq.
Atomic Safety and Licensing Boar.1 Martha E. Gibbs, Esq.
U. S. Nuclear Regulatory Commission Caryl A. Bartelman, Esq.
Washington, D. C.
20555 Ishan, Lincoln & Beale One First National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Apt. B-125 Boca Raton, Florida 33433
- Atomic Safety & Licensing Board Panel U. S. Nuclear Reculatory Commission frank J. Kelley Washington, D. C.
20555 Attorney General of the State of Michigan Steriart H. Freeman
- Atomic Safety & Licensing Appeal Pane Assistant Attorney General U. S. Nuclear Regulatory Commission Gregory T. Taylor Washington, D. C.
20555 Assistant Attorney General Environmental Protection Division
- Docketing and Service Section 720 law Building Office of the Secretary Lansing, Michigan 48913 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Myron M. Cherry, Esq.
1 IBM Plaza Grant J. Merritt, Esq.
Chicago, Illinois 60611 Thompson, Nielson, Klaverkamp
& James 80 South Eighth Street Minneapolis, Minnesota 55402 9
. Judd L. Bacon.: Esq.
Consu;.ers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 l'r. Steve Gadler 2120 Carier Avenue St. Paul, Minnesota 55108 Ucndell H. Marshall, Vice President Mid.est Environmental Protection Associates RFD 10 Midland, Michigan 48640 s__
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' William D. Paton Counsel for NRC Staff l
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