ML19331A881
| ML19331A881 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/09/1974 |
| From: | Jenny Murray, Olmstead W US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SC, NUDOCS 8007230912 | |
| Download: ML19331A881 (7) | |
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~ UNITED STATES OF AMERICA OCT1 ON W
ATOMIC EitERGY COMMISSI0ft OL p
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In the Matter of j (_,
CONSUMERS PO'.iER COMPANY Construction Permit p ' d e
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Nos. 81 and 82 (Midland Plant, Units 1 and 2)
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(Show Cause)
AEC REGULATORY STAFF'S BRIEF If1 OPPOSITIOil TO SAGIi!A'l GROUP'S PETITIO:1 TO REOPEN THE RECORD aid /0R FOR RECO:ISIDEPATIO;; 0F Ii4ITIAL DECISIO!
The Staff has reviewe'd the petition to reopen 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 should be denied.
To grant a petition to reopen th'e record the moving party must assign
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some substantial basis for its request.1/ 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.2f To justify granting such a INIS DOCUMENT CONTAINS P00R QUAUTY PAGES lf In the matter of Vermont Yankee Nuclear Power Corp., ALAB-167, RAI-73-12, 1151, 1152 (Dec. 20, 1973).
2/ In the matter of Vermont' 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 proceeding which by definition involves broad l
(Continued on next page.)
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g motion, the moving paper must be strong enough in light of any opposing filings to avoid summary disposition.2/ The need for a timely conclusion 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.S/
As shown below none of the above requirements for reopening the record have been met by Saginaw, Apparently Saginaw's counsel believes that Censumers 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 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 of a serious geologic fault underlying a nuclear facility, this issue would not be appropriately pursued in a show cause proceeding on quality assurance.
Rather, an interested party should pursue the appropriate remedy under other provisions of AEC ' regulations, e.g., 10 CFR 5 2.206.
I 3/ 'Id.
4/ 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 Corp., ALAB-124, RAI 73-5, 358, 365 (May 23,1973).
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3-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 Bechtei Corporation and Bechtel Company continue as of this day to make t
adequate repairs in a non-negligent manner."E/ This is a misreadin9 of the issues set forth in the complaint.
Consumers alleges that itt damaae 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 contracts. entered into in 1966 and 19f7.5/ Although it is unclear what 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' continuino danace if its position as a matter of law is upheld. Nothing in 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 manne.
1/ Intervenor's Petition to Reopen at p. 4.
g/. Consumere' Power Co. v. Combustion Engineering, #X 74-323 CA 8 (W.D. Mi. 197_).
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-4 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 i
toward compliance with Commission regulations and license 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 qual,ity assurance program in compliance with Commission 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 regulations.
The action of Consumers in filing such a complaint as here involved is if arything, in furtherance of t[ie Comission's QA program; not in ' derogation of 'it.
Had Saginaw participated more fully in this proceeding or perused the 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 by another historical exploration of alleged past practices ar.d bahavior of another place and time which did not conform to Commission standards. The issue in this proceeding is prospective and requires a l
7f Atomic Safety and Licensing Board Orders of May 13,1974 and May 14,1974.
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determination of whether there is reasonable assurance that QA implementation sill continue to conform'to Comission regulations.
Past perfor.an'.e under centracts issued in 1966 for the Palisades i
plant is not relevant or material to such a determina ion. Since Saginaw did not attend most of the hearinos it is not in a position to evaluate the witnesses' sincerity and demeanor in regard ~ to QA implementation which must of necessity be important to the question of future implementation.
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. Consumors performed a detailed review of the Bechtel and B&U QA program.8_/ As a result of such review it directed Bechtel to assure its procedures complied with QA requirements.9l The t'ranscript reveals that a reorganization was effected by Cons'umers to more adequately administer its QA program.
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The Board and the Staff questioned b'oth Bechtel and Consumers witnesses about the overall responsibility for QA implementation.
In answr to a specific Staff question Mr. Ferriss stated that "If they (Consumers) provide us direction we (Bechtel) proceed in that direction."10/ The 8] Testimony of Howell, following Tr. 485, pp. 20-22.
9f Testimony of Kelley, following Tr. 458, pp. 33-34.
10/ Tr. 690.
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QA programs of both Bechtel and Consumers were reorganized in 1973 to make QA an independent function and therefore more effective. ll/
In essence the attitude issue centered on the last six months in which Mr. Keppler stated "a very discernable change in attittde" had been seen. 12/ It is clear that a mere complaint alleging old actions which breeched old contracts for a different facility at a different 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.
The motion is not timely since it concerns alleged matters which occurred well before the record was closed.
The issues sought to be raised are not grave or significant.
In fact the issues are not reievant at all to the Midland proceeding.
The moving paper is not strong enough to avoid summary disposition since it is based solely on allegation and heresay and contains not one proven fact.
Finally the need for a con-clusion to this proceeding and a final determination of the matter outweighs any conceivable benefit to be derived from a foray into
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Consumers' contractual affairs.
J1/ Tr. 691. See testimony of Howell, following.Tr. 485, pp.12-22.
J2/ Tr. 389.
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7-For these reasons the Regulatory Staff believes.that the petition to reopen the record should be denied.
Respectfully submitted, (g])$$.t$w.,:,
c William J. dlmstead Counsel for AEC Regulatory Staff XN'im
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"/ James P. flurray, Jr'.
Chief Rulemaking and Enforcement Counsel
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Dated at Bethesda, Maryland this 9th day of October,1974.
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