ML19331A271
| ML19331A271 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/09/1974 |
| From: | Murray J Z, Olmstead W US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007160850 | |
| Download: ML19331A271 (8) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of CONSUMERS POWER COMPANY
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Construction Pennit
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Nos. 81 and 82 (Midland Plant, Units 1 and 2)
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(ShowCause)
AEC REGULATORY STAFF'S BRIEF IN OPPOSITION TO SAGINAW GROUP'S PETITION TO REOPEN THE RECORD AND/0R FOR RECONSIDERATION OF INITIAL DECISION The Staff has reviewed the petition to recpen the record and/or for reconsideration of the initial decision of the Atomic Safety and Licensing Board dated September 25, 1974 filed by Saginaw intervenors. The Staff believes Saginaw's petition shculd be denied.
To grant a petition to reopen th'e record the moving party must assign some substantial basis for its request.M Considerations are:
(1) the timeliness of the motion, (2).the significance or gravity of the issues sought to be raised, and (3) whether the issues' resolution requires further evidence to be taken.E To justify granting such a y In the matter of Vermont Yankee Nuclear Power Corp., ALAB-167, RAI-73-12,1151,1152 (Dec. 20,1973).
2] In the matter of Verment Yankee Nuclear Power Corp., ALAB-138, RAI-73-7, 520, 522 (July 31,1973).
It should be noted that these requirements were developed by the Appeal Board in the context of a reactor licensing pr:ceeding which by definition involves broad (Continued on next page.)
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motion, the moving paper must be strong enough in light of any opposing filings to avoid nmmary disposition.M The need for a timely concicsion to administrative proceedings is well recognized and short of a significant showing that the issue is so grave that the hearing must be reopened such requests can and should be denied.#/
As shown below none of the above requirements for reopening the record have been met by Saginaw.
Apparently Saginaw's counsel believes that Consumers has alleged some type of " continuing" act on the part of various defendents which is 2/ (continued) issues of major significance to plant safety.
In contrast, a j
show cause proceeding involves a relatively narrow and specific issue which is explicitly delineated in the applicable notice of hearing. Thus, for example, were someone to allege the presence i
of a serious geologic fault underlying a nuclear facility, this i
issue would not be appropriately pursued in a show cause proceeding on quality assurance.
Rather, an interested party should pursue i
the appropriate remedy under other provisions of AEC regulations, e.g., 10 CFR 1 2.206.
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y Id.
i 4f United States v. I.C.C., 396 U.S. 491 (1970).
It should be noted that the Atomic Safety and Licensing Appeal Board apparently has adopted this rationale if motion denials are based on a complete record see e.g.
In the matter of Vermont Yankee Nuclear l
Corp., ALAB-124, RAI 73-5, 358, 365 (May 23,1973).
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relevant in this proceeding. Counsel admits the allegations in the complaint are " historical in nature" but believes they "... are current in nature in that Consumers Power Company alleges that Bechtel Corporation and Bechtel Company continue as of this day to make adequate repairs in a non-negligent manner."E This is a misreading of the issues set forth in the complaint.
Consumers alleges that its damage as a result of an alleged breech of contract is continuing.
The nature of repairs is not described except to say the defendant
" failed to promptly and adequately repair" equipment and systems supplied under contract. The acts giving rise to Consumers' suit constitute alleged breeches of cc1 tracts entered into in 1966 and 1967. 6_f Although it is unclear w at precise date the disagreement over the terms of the various contracts arose, it is clear the parties' positions as to the requirements of the contracts have been fixed for some time and that the " continuing" aspect of the case if any is Consumers' continuini damage if its position as a matter of law is j
upheld. Nothing i the complaint alleges or proves that adequate repairs are not being made by Consumers or that Consumers is allowing the facility to be constructed or operated in a negligent or unsafe manner.
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5] Intervenor's Petition to Reopen at p. 4.
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6/. Consumers' Power Co. v. Combustion Engineering, #K 74-323 CA 8 (W.D. Mi. 197_.).
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. Saginaw's petition is fatally defective because it is not relevant to this show cause proceeding.
The discovery in this proceeding was properly limited to the Midland facility and the attitude of Consumers toward compliance with Commission regulations and lichnse requirements.2/
Since the complaint upon which Saginaw relys concerns the Palisades plant, the only possible relevance to the Midland show cause proceed-ing would be on the issue of Consumers' attitude toward implementing a quality assurance program in compliance with Comission regulations.
If the complaint is probative of anything it is proof positive of a healthy attitude toward QA implementation. The complaint shows that Consumers is using available legal tools to insure that its nuclear facilities are properly constructed in accordance with Commission j
regulations.
The action of Consumers in filing such a complaint as here involved is if anything, in furtherance of the Comission's QA l
program; not in derogation of it.
l Had Saginaw participated more fully in this pmceeding or perused the j
complimentary transcript provided to it more completely, it would have found the testimony replete with references to recent steps taken by Consumers to improve its QA program. Nothing can be gained l
by another historical exp1:, ration of alleged past practices and behavior of another place and time which did not confonn to Comission standards. The issue in this proceeding is prospective and requires a 7f Atomic Safety and Licensing Board Orders of May 13,1974 and May 14,1974.-
determination of whether there is reasonable assurance that QA implementation will continue to conform to Comission regulations.
Past performance under contracts issued in 1966 for the Palisades plant is not relevant or material to such a determination. Since Saginaw did not attend most of the hearings it is not in a position to evaluate the witnesses' sincerity and demeanor in regard to QA implementation which nust of necessity be important to the question of future impler:entation.
If the complaint is viewed in light of the record in this proceeding it is clear that it is consistent with the initial decision reached by the board en the matter of Consumers' attitude. Constrers performed i
a detailed review of the Bechtel and B&W QA program.8_/ As a result of I
such review it directed Bechtel to assure its procedures complied with QA requirements.91 The transcript reveals that a reorganization was effected by Consumers to more adequately administer its QA program.
l The Board and the Staff questioned both Bechtel and Consumers witnesses
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about the overall responsibility for QA implemuatation.
In answer to j
a specific Staff question Mr. Ferriss stated that "If they (Consumers) provide us direction we (Bechtel) proceed in that direction."10/ The i
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f 8] Testimony of Howell, f'ol10 wing Tr. 485, pp. 20-22.
4 9/ Testimony of Kelley, following Tr. 458, pp. 33-34.
10/ Tr. 690.
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w QA programs of both Bechtel and Consumers were reorganized in 1973 to make QA an independent function and therefore more effective.11/
In essence the attitude issue centered on the last six months in which Mr. Keppler stated "a very discernable change in attitude" had been seen. 12/ It is clear that a mere complaint alleging old actions which breeched old contracts for a different facility at a difft ?nt location involving different operating personnel can not be probative on the issues already fully explored and settled in this show cause proceeding.
Returning to the requirements necessary to sustain a petition to reopen the record it is clear the burden has not been met by Saginaw.
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The motion is not timely since it concerns alleged matters which occurred I
well before the record was closed. The issues sought to be raised are not grave or significant.
In fact the issues are not relevant at all i
to the Midland proceeding. The moving paper is not strong enough to j
avoid summary disposition since it is based solely on allegation and i
l heresay and contains not one proven fact.
Finally the need for a con-1 clusion to this proceeding and a final determination of the matter outweighs any conceivable benefit to be derived from a foray into a
Consumers' contractual affairs.
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11/ Tr. 691. See' testimony of Howell, following Tr. 485, pp.12-22.
12/ Tr. 389.
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1 For these reasons the Regulatory Staff believes that the petition to reopen the rece'
- should be denied.
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Respectfully submitted,
@Mkm..
c William J.
lmstead Counsel for AEC Regulatory Staff VM/
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James P. Murray, Jr'.
Chief Rulemaking and Enforcement
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Counsel Dated at Bethesda, Maryland this 9th day of October,1974.
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UNITED STATES OF AMERICA ATOMIC ENERGY COINISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I'1 the Matter of
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CONSUMERS POWER COMPANY Construction Permit 1
(Show Cause)
Nos. 81 and 82 (Midland Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "AEC Regulatory Staff's Brief in Opposition to Saginaw Group's Petition to Reopen the Record and/or for Reconsideration of Initial Decision", dated October 9,1974 in the captioned matter have been served on the fcilowing by hand delivery or by deposit in the United States rail, first class or air mail, this 9th day of October,1974:
Michael Glaser, Esq., Chairman Laurence M. Scoville, Jr.
Atomic Safety and Licensing Clark, Klein, Winter, Parsons &
Board Prewitt 1150 - 17th St., N.W.
1600 First Federal Building Washington, D.C.
20036 1001 Woodward Avenue Detroit, Michigan 48226 Mr. Lester Kornblith, Jr.
Atamic Safety and Licensing Myron M. Cherry, Esq.
Beard Panel Suite 4501 U.S. Atomic Energy Commission One IBM Plaza Washington, D.C.
20545 Chicago, Illinois 60603 Dr. Emeth A. Luebke Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Atomic Energy Comission U.S. Atomic Energy Comission Washington, D.C.
20545 Washington, D.C.
20545 h
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ecr a U.S. Atcmic Energy Commission WilliamJ.Olmpead Washington, D.C.
20545 Counsel for AEC Regulatory Staff 4
John G. Gleeson, Esq.
The Dow Chemical Co.
2030 Dow Center Midland, Michigan 48640 __
l Michael I. Miller, Esq.
Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60670
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