ML19331A732
| ML19331A732 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee, Midland File:NorthStar Vermont Yankee icon.png |
| Issue date: | 11/06/1978 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8007210739 | |
| Download: ML19331A732 (10) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- 44114,
' COMMISSIONERS:
'80"2 q
Victor Gilinsky f
Richard T. Kennedy 1
NOV 7NO I
Peter A. Bradford
%AdN John F. Ahearne E
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~1 In the Matter of
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CONSUMERS POWER COMPANY Docket No. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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i MEMORANDUM AND ORDER On April 10, 1978, we issued an order requesting the parties to this above-captioned proceeding to state their views as to what issues, if any, remain for Commission consideration at a reopened Midland pro-ceeding in light of the Supreme Court's decisions in Vermont Yankee Nuclear Power Co. v. Natural Resources Defense Council and Consumer Power Co. v. Aeschliman, 55 L.Ed.2d 460 (1978). The parties' submis-sions principally discussed the five matters identified by the Appeal Board:
1.
Appraisal of the environmental impact of the nuclear fuel cycle.
l 2.
Consideration of the possible effects of energy con-servation in reducing or eliminating the need for a plant of this size.
i 3.
Consideration of whether changed circumstances have affected the Dow Chemical Company's need for process steam which it is to receive from one of the units under an existing contract.
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4.
Consideration of " unresolved safety issues," " design problems," "other problems" and their " resolution,"
" additional matters of concern to the committee,"
and " clarifications of the ambiguities" involved in the ACRS letters and reports, as discussed in the Aeschliman opinion and referred to by the Appeal Board.
5.
A full airing and resolution of charges " relating to an alleged, albeit unsuccessful, attempt by the applicant to prevent full disclosure of the facts relating to Dow's intentions with regard to its contract." Both this matter and the merits of the ACRS's unresolved safety issues are to be explored further by the Licensing Board, whether or not the parties are them-selves otherwise interested in pursuing these matters.
[ Citations omitted.]
In addition, Intarvenors other than Dow suggested that we also consider Consumers' continuing history of Quality Assurance and Quality Control (QA-QC) violations and lack of financial qualifications to complete the Midland project.
For the reasons discussed below, we conclude that in light of the Supreme Court's decision, current Connission 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
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relating to Consumers' conduct. However, the Licensing Board will also address the issue of the environmental effects of radon as required by subsequent Commission actions.
1.
No issue now remains in the matter of the environmental impact from the portions of the nuclear fuel cycle considered by the Court of Appeals. Those parts of Table S-3 are not an issue currently before the Connission because the Supreme Court in Vermont Yankee reversed the
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c Court of Appeals decision upsetting the waste management and reprocessing aspectsofTableS-3.3/ Furthermore, this proceeding is not now affected by the Supreme Court's remand proceeding in the Court of Appeals.2/
However, the environnental effects of radon are in issue here because the Commission has deleted the radon term from Table S-3.3/ In the statement accompanying this amendment the Commission stated that the record on environmental issues will be reopened to hear evidence on radon releases if proceedings are still pending before a Licensing or Appeal Board.S/ A proceeding was pending here when the Commission issued its statement. Thus, by the plain terms of the Commission's statement, the Licensing Board must consider the radon issue.5/ 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-480.5/ The radon evidentiary record and decision in the i
1/
55 L.Ed.2d at 482.
I 2/
Id.
3/
43 Fed. Reg. 15613 (1978).
4/
Id. at 15616.
5/
The policy considerations supporting the statement of April 14, 1978 are equally applicable to any pending proceeding. Consequently, we do not find that our conclusion in that statement should be qualified by the reason a proceeding is pending.
6/
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-480 (May 30,1978).
4 PerkinsU roceeding will be served on the parties to this proceeding.
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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 objections 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 objectionable, as well as precisely how such defects should be remedied.
Within 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 respecting the amount of the radon emissions in the mining and milling process and resultant health effects; and (b) whether the radon emissions and resultant health effects are such as to tip the NEPA balance against continued construction of the Midland plant.E (A party who has filed a request to supplement the evidentiary record adduced in Perkins might, of course, choose to defer the submis-sion of a memorandum on these two questions pending the outcome of his request and any supplementation of the reco-d which may be ordered.)
7/
Duke Power Comoany (Perkins Nuclear Station, Units 1, 2 and 3),
Docket Nos. STN 50-488, 50 489, 50-490.
y In confronting this question, the party could either accept the Perkins Licensing Board's generic findings or employ his own analysis of the Perkins record (presumably set forth in response to the first question).
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5 2.
No issue remains in the energy conservation matter because the a
Supreme Court reversed the Court of Appeals remand to the Comission.9/
Furthermore, the Appeal Board found that energy conservation will not decrease demand enough to render superfluous any substantial portion of Midland'scapacity.E 3.
No issue remains in the matter of Dow's need for process steam.
The Supreme Court noted that the Comission, after consideration of changed circumstances, had properly refused to reopen the proceeding on this matter. b In addition, the Appeal Board found that Dow pres-entlyintendstoliveuptoitscontract.E 4.
No issue remains for the Licensing Board in the matter of unresolved safety issues referred to in the ACRS letters and reports.
The Supreme Court reversed the Court of Appeals' holding that the Licens-ing Board should have returned the ACRS report to the ACRS for further elaboration.E And since the decision in Aeschliman, the staff has prepared Supplement No. 2 to the Safety Evaluation Report in which it found that each item identified by the ACRS has been resolved to the satisfaction of the ACRS and the staff, or is capable of resolution prior i
l 9]
55 L.Ed. 2d at 486.
-10/ 7 NRC at 166-67. A letter of October 18, 1978 from Consumers Power Company informing the Commission of its latest short-term forecast update was received af ter the Comission concluded its consideration of these matters.
The parties remain free to file any appropriate motions before the Licensing Board.
11/ 55 L.Ed. 2d at 486 n. 22.
12/ 7 NRC at 167.
W 55 L.Ed. 2d at 487-88.
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to the issuance of the operating license. The absence in the staff report of some indication of a problem which will create serious safety concerns, and the fact that the construction and operating license proceedings will overlap, lead us to believe that in this instance the remaining unresolved safety issues can be more profitably considered under the standards appro-priatetoanoperatinglicenseproceeding.El Therefore, the Appeal Board's instructions to the Licensing Board to consider this matter are vacated.
5.
The only other matter remaining for Comission consideration is the airing and resolution of charges arising from the alleged attempt l
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. Furthennore, 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.EI Thus, there is no reason for us to reverse our earlier decision not to review ALAB-458 on this matter.
i 14/ It must be emphasized that this decision is limited to this unique situation and is in no way intended to modify the Appeal Beard's
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decision in Gulf States Utilities Comoany (River Bend Station, I
Units 1 and 2). ALAB-444, 6 NRC 760 0 977).
15/ 7 NRC at 177, n.87.
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Other Matters Intervenors also suggested that the Comission should consider Consumers' alleged continuing history of QA-QC violations and lack of financial qualifications to complete the Midland project. These items are clearly beyond the scope of the matters identified by the Appeal
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Board for consideration at a reopened proceeding.
Furthermore, Inter-venors present no new information on these items beyond the evidence already before the Appeal Board. Therefore, Intervenors have not sustained their burden of demonstrating the possibility of a significant safety-related issue warranting reopening a hearing.E Thus, the reopened proceeding should not be expanded to consider other matters not identified in the Order of April 10, 1978.
It is so ORDERED.
For the Comission.
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SAMUEL J. 2CMLK Secretary of tlie Comission Dated at Washington, D.C.,
this day of November, 1978.
16/ Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-167, 6 AEC 1151,1152 (1973).
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UNITED STATES OF AMERICA NUCI. EAR REGULATORY CO>DIISSION In the !!atter of
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CONSUMERS P0'.'ER CO'.EANY
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Docket No.(s) 50-329
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5>330
'("idland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE
,ceby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled by the Office of-the Secretary of the Commission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Co:::tission's Rules and Regulations.
Dated at 1.'ashington, D.C. this
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day of t/
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~aws4 Of fice 6f' the Secretary of tS Commission
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m UNITED STATES OF AMERICA a
NUCLEAR REGULATORY COMMISSION
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In the Matter of
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CONSUMERS POWF.R COMPANY
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Docket No. (s) 50-329
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50-330 (Midland Plant, Units 1 and 2)
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SERVICE LIST Marshall E. Miller, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulstory Commission Washington, D.C.
20555 Dr. Emmeth A. Luebke James A. Kendall, Esq.
Atomic Safety,and Licenstag Board Currie and Kendall U.S. Nuclear Regulatory Commission 135 North Saginaw Road Washington, D.C.
20555 Midland, Michigan 48640.
Dr. J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell Consumers Power Company Houston, Texas 77096 212 West Michigan Avenue
.'4 Jackson, Michigan 49201 Office of the Executfve Legal Director Counsel for NRC Staff William J. Ginster, Esq.
U.S. Nuclear Regulatory Commission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602 Myron M. Cherry, Esq.
One IBM Pla:a Chicago, Illinois 60611 Harold F. Reis, Esq.
Lowense.ein, Newman, Reis & Axelrad Honorable Curtis G. Beck E
1025 Connecticut Avenue, N.W.
Assistant Attorney General Washington, D.C.
20036 State of Michigan Seven Story Office Building Honorable Charles A. Briscoe 525 West Ottawa Assistant Attorney General Lansing, Michigan 48913 State of Kansas Topeka, Kansas 66612 Lee Nute, Esq.
Michigan Division Irving Like, Esq.
The Dow Chemical Company Reilly, Like and Schneider 200 Weat Main Street Midland, Michigan 48640 Babylon, New York 11702
50-329, -330 page 2 s
Anthony Z. Roisman, Esc.
Natural.Resou'rces Defense Council Washington DC 200b Joseph Gallo, Esq.
Isham, Lincoln & Beale 1050 - 17th Street, N.W.
Washington, D.C.
20036 Michael I. Miller, Esq.
Caryl A. Bartelman, Esq.
Isham, Lincoln & Beale One First National Bank Plaza Chicago, Illinois 60603 Ms. Mary Sinclair 5711 Summerset Street Midland, Michigan 48640 Mr. Steve Gadler, P.E.
2120 Carter Avenue St. Paul, Minnesota 55108'
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n DEAR SIR, 00CdET NOS 50-329 AND 50-330 MIDLAND SLANTS UNITS 1 AND 2 SINCE fuu DULLED ALL INTERESTED PARTIES BY TELEPHONC CONFERENCE IN DEGARDS COLONEL STEVE GADLER PROFESSIONAL ENGINEER OF ST PAUL MINNESOTA TO ACT IN MY PLACE INSTEAD TEMPORARY FOR N0h CONSUMER'S POWER wAS ALSO INCLUDED AND REGISTERED NO OBJECTIONS HOWEVER TODAY THEY FAIL TO FILE A C0ay 0F T"EME eRIEF ENTITLED "BRIEF.0F CONSUMER'S POWER COMPANY, IN SUPouRT OF IT'S POSITION THAT MA H143hALLIS PETITIONS TO INTERVENE IS S a a. r E D Y,
- ES, JUCICATA DATED OCTOBER 31 1976 BY ISHEM, LINCOLN, AND BEALE SUITE u200 1 FIRST NATIONAL PLAZA CHICAGO ILLINDIS 60603 IS RESPECTFULLY BY MICHAEL I MILLER AND MARTHA E GIBBS ATTORNIES FOR CCNSU~EAS FUaER CONDANY, UNDER THE CIRCUMSTANCES TIME IS OF THE ESSENCE I AM SUAE YOU CAN APPRECIATE THIS THEREFORE I *ISH TO TREAT THIS AS AN OVEUS!iE AND SEGUEST THAT IT BE CORRECTED SY CONSUMER'S POWER ATTORNIES FURNISHING A COPY OF THE FOREGOING SERVICE OF PAPERS AND THINGS TO INCLUDE MY AGENT COLONEL STEVE GADLER PROFESSIONAL ENGINEER 2120 CARTER AVE'.sE ST is A U L ". I N N E S O T A I TRUST THIS WILL BE TAMEN CARE OF TODAY VERY T3ULY YLU-S, WENDELL H MARSHALL PRESIDENT FOR MAPLETON INTERVENORS RFD 10 "ICLAND MI 48640 A COPY OF TMIS MESSAGE WAS SENT TO MR WENDELL H MARSHALL PRESIDENT FOR MAPLETON INTERVENCa3 RFD 10 MIDLAND MI 48640 AND TO CONSUMER'S P0aEh CD ATIN ISHAM LINCOLN AND BEALE 1 IST NATIONAL PLAZA CHICAGO IL o0e03.
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