ML19331A741
| ML19331A741 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/28/1978 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19331A739 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8007210748 | |
| Download: ML19331A741 (14) | |
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UNITED STATES OF AMERICA gh
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e NUCLEAR REGULATORY CCffilSSION D
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6 Before the Atomic Safety and Licensine Board b om In the Matter of:
CONSUMERS POWER CCMPANY,
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Occket Nos.
50-329-OL
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50-330-OL (Midland Plant, Units 1 and 2)
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NRC STAFF RESPONSE TO CONTENTIONS OF MARY P. SINCLAIR Introduction On November 13, 1978, this Board issued a Memorandum and Order requiring the parties to this proceeding to set forth their respective positions concerning the supplemental contentions recently filed by Mary P. Sinclair and Wendell H. Marshall.
The NRC Staff has reviewed its. Sinclair's contentions and is hereby setting forth its view with regard to them.
Ms. Sinclair originally filed some contentions in this proceeding in conjunction with her June 5,1978 " Petition for Leave to Intervene",
since the Commission's revised rule 10 CFR 2.714 does not recuire inter-vening parties to file contentions until 15 days pricr to the first prenearing conference, Ms. Sinclair succlemented her original contentions with an additional filing on Octocer 31, 1978. Her original contentions accear to be substantially includec in her supplemental filing. Con-secuently, the NRC Staff has chosen to respond to the supplemental filing and all references will be to that filing unless otherwise in-
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, The NRC Staff objects to Ms. Sinclair's contentions 1-4 because they are i
vague, overly broad and constitute a generalized attack on the methods used by the NRC Staff to insure compliance with Comission regulations.M Nothing in these contentions relates to specific instances of noncompliance with Comission directives nor is it obvious what the relevance of this contention is to the ultimate issues which must be decided by this Board in this licensing proceeding.
The NRC Staff objects to Ms. Sinclair's contention five because it concerns a matter not appropriate for consideration by this Board in the operating license proceeding.
This issue concerns catters which arose during the course of litigation associated with the construction pemit proceeding.
As such these matters were considered and disposed of by the Boards presiding during those hearings.
The specific issue con-cerning whether there was an attempt to prevent disclosure' of facts during the remand hearings was recently addressed by the Comission and has been remanded to the licensing board designated in that matter.
(See Comission's Memorandum and Order of November 6, 1978.)
Ms. Sinclair's Contention 6 is objectionable in its present form. Con-sumers' QA/QC perfomance has been the subject of extensive litigation fri Commission proceedings in this docket.
[See Consumers Power Company (Midland Units 1 & 2), LSP-74-71, E AEC 584 (1974).] Absent any showing by Ms. Sinclair that substantially new or different circ'astances have arisen which require reexamination of those issues, further inquiry M
No contention 3 apre'ars, in Ms. Sinclair's filing.
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should not be permitted.
[ Alabama Power Cemeany (Joseph M. Farley Nuclear Plant, Units 1 & 2), CLI-74-12, 7 AEC 203 (1974).]
Contention 7 has been ocoted by the Commission's November 6,1978 Mem-orandum and Order directing the remand Licensing Board to consider the question concerning whether there was an attempt to prevent disclosure of facts during the remand croceeding.
The remainder of Ms. Sinclair's centention 7 is cbjectionable for the reasons cited in response to con-tention 6.
Contention 8 is cbjectionable because it constitutes legal argu=ent and is not a factual contention requiring litigation. To the exter:t that Ms.
Sinclair is able to demonstrate in her contentions that a matter is appropriate for consideration in an operating license proceeding, the contenticn can te admitted. Absent such a demonstraticn, legal argu=ent can not be used to supcort litigation.
Contention 9 is an attempt by Ms. Sinclair to relitigate issues pre-viously resolved by this agency. [See Censurers Pcwer Ccecany, (Midland Units 1 & 2), ALAS 468, 7 hRC 465 (1978).] No demonstration is attemeted wnich would shcw that the conclusions previously reacned en the Ocw-Censumers relaticnship are no lenger valid in lignt of tne renegotiated contract.
No argu=ent is made that the centract as renegotiated is inconsistent with the facts as known to the Licensing Board and the parties at the remanded proceecing. No effort is = ace to argue hcw tne
_ centract would change the decision of the Licensing Board.
Con-sequently, contention 9 should be rejected.
Cententions 10 and 11 are objectionable for the same reasons as Con-tention 9 since they rest on the same premise.
Ms. Sinclair's contention 12 is a generalized attack on the Rasmussen Report based in essence on the criticisms of that report centained in the " Lewis Report", NUREG/CR-0400 and further argument based en the Liquid Pathway Study, NUREG-0440. No attempt is made to show the rele-vance these generic documents have to specific issues in this pro-ceeding.
Further no attempt has been made to demonstrate why the initial decision on construction permits on this docket, which predated the Rasmussen Report, the Liquid Pathway Study, and the Lewis Cc:miittee, was based in wnole or in part en any of the material cited.
Absent a show-ing of relevance, Contention 12 should be rejected.
Ms. Sinclair's centention 13 is objectionable on its face since it cites for its basis the 1977 record cc= piled during the recand proceedings on wnich a final decision has been rendered.
Tnis issue cannot be re-litigated. [Farley, suora.]
Contentions 14 and 15 are repetitive and thus cojectionable. (See cen-tentions 5, 7, 9, & 11.) Contention 16 is similarly objectionable since it raises need for power issues resolvec cn this decket in the cen-structicn permit preceeding.
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, In Contention 17, Ms. Sinclair is essentially making legal argument based on the need contentions which she seeks to litigate.
This con-tention is not factually based or specific. Consequently the NRC Staff objects to its admission in this proceeding.
Contentions 18 & 19 are continuations of similar argument and are equally objectionable. To the extent that need for power is an issue in this proceeding, the issue must be framed as noted in the discussion on Contention 16.
In Contention 20, Ms. Sinclair raises three discreet matters:
the possible use of plutonium, thorium or other fissionable isotopes; long
-tenn contracts for fuel waste disposal; and the inadiquacy of spent fuel storage facilities.
Since there is currently no plan to use plu-tonium, thorium or other fir sionable isotopes, this portion of the contention is objectionable.
'o the extent Ms. Sinclair is arguing that the Applicant is required to have a contract for ultimate waste dis-pasal, her second matter is barred from litigation in this proceeding.
[See Northern "tates Power Co. (Prairie Island Units 1 & 2), ALA8455, 7 NRC 41 (19'. 3). The NRC Staff believes the remaining matter lacks sufficient specificity to determine its admissibility. The remainder of j
the contention concerns fuel cycle impacts as covered by Table S-3. The l
argument that the rule lacks support and was invalidly promulgated is, 1
I of course, an impermissible attack on the rule.
The other arguments I
raised in this connection are the subject of the Commission's November 6,1978 Memorandum and Order, and should not be considered as a part of this operating license proceeding. Contention 21 is an elaboration on l
Contention 20 and should be rejected as repetitive.
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, The NRC Staff has no objection to Contention 22.
Contention 23 argues that Consumers' Environmental Report is inadequate because, inter alia, the Staff has had to direct numerous questions to Consumers to obtain infomation not contained in the report.
Ms.
Sinclair, however, points to no requirement for environmental reports which states what must be included in them.
Further, no argument is made that such reports cannot be supplemented.
This contention is objectionable ind does not raise an issue cognizable in this proceeding.
Contention 24 deals with the recent questions raised concerning the back-fill used under the generator building which has resulted in severe settlement.
Since this matter is the subject of ongoing Staff concern and review, no objection is made to Ms. Sinclair's contention.
It is noted, however, that the question is not one of site suitability, ra-ther, it relates to the type of material used by the Applicant under the building in question.
Thc NRC Staff has no objection to Ms. Sinclair's Contention 25.
Contention 26 is not appropriate to this proceeding at this time. As a result of the antitrust decision in this docket, Consumers has been required to give access to its facility. [ See ALAB-452, 6 NRC 892 (1977).] What new coowners may ultimately apply as coapplicants is a matter of speculation at this time.
Certainly, Ms. Sinclair can not be heard to argue that sales mandated by this Commission are illegal.
Thus this contention is objectionable.
. Since Ms. Sinclair's Cententions 27-34 deal witn matters identified in NUREG-0410 these =atters are approcriate for censiderstien in this proceeding.
Tne NRC Staff does not, however, acmit to the factual or legal accuracy of the matters represented.
'4hile not cbjecting to Contention 35, the NRC Staff notes that it =ay be the same contention as Conteittien 32.
If so, it should be censolidated or clarified.
No cbjection to the admission of Cententions 33-38 is =ade at this ti:ne.
In Contention 29, Ms. Sinclair argues en the basis of testimony in the Slack Fox Freceeding that 1ppendix J cf 10 CFR ? art 50 is difficult to apply. Frca this it is concluded that safety issues ccvered by Ap;endix J are ccen and unresolved.
This centention, aside free being based on testi=cny in anctner pecceecing net relevant here is vtgue and not related tc the specific review cf Censu=ers' acplication which will be concucted in.nis preceeding. Tne NRC Staff urges the rejection of tnis cententien.
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'4h ile Ms. Sinclair's Cententien c0 accre-tes qualification pregrams
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wnica are covered in NUREG-0410, the contention cces not acdress sce-cific ecui; rent at the Midland facility.
It thus fails tc present a meaningful issue for litigaticn in tnis preceeding.
Centention ci similarly lacks specific system identificaticn and shculd net be ac-mitted unless revisec.
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. The NRC Staff has no objection to Contentions 42-44.
Ms. Sinclair's Contention 45 is objectionable since it lacks specificity and is apparently based on testimony in another proceeding involving a facility of different design and type. In addition it is repetitive of other contentions in so far as it raises QA/QC issues.
Contention 46 addresses issues applicable to Offshore Power Systems which have little applicability to the Midland facility.
Othervire, it is over-generalized and vague.
The NRC Staff objects to this con-tention.
The NRC Staff has no objection to Contentions 47 and 48.
At page 32 of Ms. Sinclair's contentions, the numbering repeats contentions 44-48 although the subject matter of these contentions is different. For convenience of response the NRC Staff will refer to these contentions as 44a-48a.
l Contention 44a as written can be construed as an impermissible attack l
l upon the Commission's rules and thus be objectionable. Ms. Sinclair's remedy is to seek rulemaking in accordance with the procedures set forth in 10 CFR Part 2.
I Contention 45a lacks sufficient detail and specificity to be admitted in its present fom.
The NRC Staff is unable to determine what Ms.
Sinclair feels is wrong with fuel element geometry.
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The NRC Staff has no objection to Contention 46a.
O Contention 47a seems to relate to financial qualifications of Consumers Power Company to.ecommission the reactor.
The NRC Staff objects to this contention for the same reasons set forth on the earlier con-tentions involving financial qualifications.
Contention 48a involving turbine missles states that they "can not be ruled out."
No further elaboration explaining how this affects Midland is provided.
The NRC Staff objects to this contentica on grounds of speci fici ty.
Contentions 49 and 50 also lack sufficient specificity to enable the NRC Staff to evaluate their significance for Midland.
These items are undergoing Staff review for Midland so no further objection is inter-posed at this time.
Ms. Sinclair's Contention 51 raises an issue which has been undergoing NRC Staff review.
Specific cable routing procedures at Midland have recently been implemented.
Consequently, the generic matters raised by Ms. Sinclair are no longer applicable to Midland.
Thus, the NRC Staff does not believe that this is a litigable contention in its present fa nn.
Contentions 52-54 amount to argument and raise no litigable issues of fact.
Therefore, the NRC Staff objects to these contentions.
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. Contention 55 is barred by the Farley rationale, suora. The synergistic q
effects of chemical / radiation ha:ards was a contention considered in the l
i construction pemit phase of this proceeding.
CONCLUSION For the foregoing reasons, the NRC Staff objects to Ms. Sinclair's contentions numbered 1.:21, 23, 26, 35, 39-41, 45, 46, 44a, 45a, and 47a-54.
No objection is tendered for contentions numbered 22, 24, 27-34, 42-44, 47, 48 and 46a.
A quali#ied objection is made to con-tention 16.
Respectfully Submitted, f..-e v
WilliamJ.01mst!ad Counsel for NP.C taff Dated at Bethesda, Maryland this 28th day of November 1978 i
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NUCLEAR REGULATORY COMMISSION 2
SEFORE THE ATOMIC SAFETY AND LICE 3
In the Matter of
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CONSUMERS POWER COMPANY Occket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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(Operating License Proceeding)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captiened matter.
In accordance with 52.713(a),
10 CFR Part 2, the following infomatien is provided.
Name
- Bernard M. Sardenick Address
- U.S. Nuclear Regulatory Comission Office of the Executive Legal Director Washington, D. C.
20555 Telephone Numcer
- Area Code 301 - 492-8674 (cr IDS Code 179 - Ext. 7474)
Admissions
- U.S. Court of Appeals for the District of Columbia Circuit
- District of Columbia Court of Appeais Name of Party
- NRC Staff U.S. Nuclear Regulatory Comissicn Washington, D. C.
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A Sernarc M. Barcenict Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of Nove=cer,1978.
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- 9196, UNITED STATES OF AMERICA T
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M NUCLEAR REGULATORY COMMISSION D
Y BEFORE THE ATOMIC SArtif AND LICENSING BOARD b
In the Matter of CONSUMERS POWER COMPANY
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Docket Nos. 50-329 1
(Operating Licenses Proceeding) 50-330 (Midland Plant, Units 1 and 2)
NOTICE OF APPEARNiCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 32.714(a),
10 0FR Part 2, the following infomation is provided:
Name:
- Richard X. Hoefling Address:
- U. S. Nuclear Regulatory Comission Office of the Executive Legal Director Washington, D. C.
20555 Telephone Numcer:
- Area Code 301 492-7520 Admissions:
- Court of Appeals of the State of Maryland Name of Party:
- NRC Staff
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Ricnard K. Hoefling Counsel for NRC Staff j Dated at Bethesda, Maryland this 28th day of November,1978.
/tb UNITED STATES OF AMERICA
'N' NUCLEAR REGULATORY COMMISSION M-g,k[. N g h.
3 BEFORE THE ATOMIC SAFETY ANC LICENSING BOARD c
In tne Matter of
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CONSUMERS POWER COMPANY
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Occket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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(Operating Licenses Proceeding)
CERTIFICATE OF SERVICc I hereby certify s.at copies of "NRC STAFF RESPONSE TO CONTENTIONS OF MAPLETON INTERVENORS", "NF.C STAFF RESPONSE TO CONTENTIONS OF MARY P.
SINCLAIR" AND " NOTICE OF APPEARANCE OF RICHARD K. HOEFLING" AND
" NOTICE OF APPEARANCE OF BERNARD M. BORDENICK", dated November 28, 1978, in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, this 28th day of November,1 78.
Ivan W. Smith, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Sumerset Street U. S. Nuclear Regulatory Ccmission tiidland, Michigan 48640 Washington, D. C.
20555 Michael I~. Miller, Esq.
Mr. Lester Kornblith, Jr.
Ronald G. Zamarin, Esq.
Atcmic Safety and Licensing Board Martha E. Gibbs, Esq.
U. S. Nuclear Regulatory Comission Caryl A. Bartelman, Esq.
Washington, D. C.
20555 Isham, Lincoln & Seale One First National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Act. B-125 Boca Raton, Florida 33433 Atomic Safety & Licensing Board Panel U. S. Nuclear Reculatory Comission Frank J. Kelley Washington, D. C.
20555 Attorney General of the State of Michigan Stewart H. Freeman Atomic Safety a Licensing Appeal Panel Assistant Attorney General U. S. Nuclear Regulatory Comission Gregory T. Taylor Washington, D. C.
20555 l
Assistant Attorney General Environmental Protection Division Occketing and Service Section 720 Law Building Office of the Secretary Lansing, Michigan 48913 U. S. Nuclear Regulatory Comission Washington, D. C.
20555 Myron M. Cherry, Esq.
1 IBM Plaza Chicago, Illinois 60611 l
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. O Judd L. Bacon, Esq.
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan '49201 Wendell Marshall Route #2 Midland, Michigan 48640 Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 l.
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William J. Olmstead Counsel for NRC Staff l
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