ML19331B016
| ML19331B016 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/20/1973 |
| From: | Grant G US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Sierra Club |
| References | |
| NUDOCS 8007250706 | |
| Download: ML19331B016 (7) | |
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"?1ET NUMBER
' & Ui!L. FAC. 50.f 9-3 2 O UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION p
A COMMISSIONERS:
00CKETE0 Dixy Lee Ray, Chairmn CEE g
Clarence E Larson F-DEC211973 9
Wiilum c.. Arlegsman William A. Anders DQ
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lo N
Y In the Matter of
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CONSU?ERS POWER CO.
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Construction Perm!t Nos. 81
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82 (Midland Plant, Units 1 and 2)
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Mr. Myron Cherry, for the Sierra Club Petitioners.
Messrs. Harold F. Reis and Judd L. Bacon, for the applicant.
Mr. James P. Murray, Jr., for the AEC Regulatory Staff.
MEMORANDUM AND ORDER Pending before us is an " Emergency Petition" filed by the Sierra Club and other petitioners in this proceeding on December 18, 1973, asking us to set aside " illegal action" by tne Director of Regulation. Responses in opposition to the Sierra Club petition have been filed by Consumers Power Company and the AEC regulatory staff. The petition arises out of the following circumstances.
Construction of the Midland faci'.ity has been proceeding since December of 1972 under duly issued construction permits.
Reviews concucted by the Directorate of Regulatory Operaticns of var:cos activit;es performed under the pemits revealed significant ceficiencias in implementation of the licensee's quality assurance prcseam, particularly in relation to cadwelding 8o onso yog g
2 operations at the site. Cadwelding is a process wnereby metal reinforcing bars used in ccncrete cerstruction for the facility are fused together.
In a memrandum to the Director of Regulation dated November 26, 1973, the Atomic Safety and Licensing Appeal Board, watch had earlier affirmed issuance of the construction permits, referred to some of these quality assurance deficiencies occurring after its decision, and urged that vigorous enforcement action be taken against the licensee.
On December 3,1973, the Director of Regulation issued an order requir-ing the licensee to show cause why all activities under the construction permits should not be suspended pending a showing by the licensee that it is in compliance with the Cocnission's regulations pertaining to quality assurance, and that there is a reasonable assurance that such compliance will continue throughout the construction process. The order granted the licensee twenty days to answer, and, within the same period, allowed the licensee or any interested person to request a hearing.
In addition, it was found that "pending a further order and determination by the Director cf Regulation, the public healtn, interest or safety requires continuec suspension of the cadwelding activities" at the site.
On December 6-7, 1973, representatives of the Directorate of Regulatory Operations conducted a reinspection of activities at the Midland site, with particular reference to corrective actions concerning cadwelding activities. The written report of this inspection, dated December 11, 1973, stated that "no violations of AEC requirements were icentified during the inspection." The report dealt in detail with corrective actions taken by the licensee witn respect to cacwelcing.
3 On December 17, 1973, the Director of Regulation determined, on tne oasis of the inspection of December 6-7, that "the licensee now has appro-priate procecures for c2dwelding operations and that all cadweld inspection personnel have been appropriately trained." The Director further determined that "the public health, interest or safety does not require the continued suspension of cadwelding activities at the plant site." Accordingly, the order to show cause was modified to allow resumption of cadwelding, leaving other provisions of the order in full force and effect.
It is these modi-fications of the initial order to show cause which the petitioners ask us to hold invalid and set aside. For the reasons that follow, we decline to do so.
The petitioners' legal theory appears to be that the Director's sub-sequent modification of his initial show cause order " violated" the initial order. Thus, we are told that the modification was " contrary to the show cause order." Petition, p. 4.
Petitioners argue that the initial order
" restricted the Director of Regulation's freedom," depriving him of dis-cretion to take subsequent action prior to the hearing.
Petition, p. 5.
The statement that, because of the modification, " petitioners will be ce-prived of their rights in connection with the safety finding underlying the snow cause order" incicates petitioners' view that they acquired "vestec rights" in the status establishec oy the initial order, pending nearing and decision of the issues it raisec. There is no merit in these contentions.
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To begin with, the rule pursuant to which the suspension order was issued (10 CFR 2.202(f)] contemplates possible modification prior to hearing. Consistent with the rule, the show cause order directed that "no cadwelding operations at the site shall be resumed pending a further order and determination by the Director of Regulation."
(Emphasisadded.)
The Director's finding that the public health, interest or safety required suspension of cadwelding was also qualified by the same phrase - " pend-ing a further order and determination by the Director of Regulation."
Thus the possibility of the very modification in issue was twice expressly recognized in the initial order. Under petitioners' theory that the modification was " contrary to tne show cause order," we would be required to ignore our own regulation as well as the quoted language in the order.
I We decline to rewrite the order to fit petitioners' legal theory.
More fundamentally, petitioners misconceive the nature and legal con-sequences of the authority exercised by the Director of Regulation in his order -- entered without notice and an opportunity for hearing -- directing that cadwelding activities be suspended pending a hearing. The norm for administrative action modifying outstanding licenses embraces a prior opportunity to be heard.
In exceptional circumstances, however, the Director is authorized to take su:miary action. See 10 CFR 2.202(f);
section 9(b), Administrative Procedure Act, 5 U.S.C. 558(c); section 181, Atomic Energy Act of 1954, as amended, 42 L.S.C. 2231.
But it has always l
been recognized that sumary administrat;ve action substantially curtailing
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5 existing rignts -- here, the right to construct a nuclear power plant pursuant to a validly issued construction permit -- is a " drastic pro-cedure." Fahey v. Mallcaee, 332 U.S. 245, 253 (1947). See Ewing v.
Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950); Davis, Administrative Law Q 7.08.
Such action, unless warranted by compelling safety considerations, can have serious consequences. Unwarranted suspension af construction of a needed generating plant is contrary to the public interest. Moreover, a period of enforced suspension of construction may result in layoffs and consequent hardship for employees at the site. And, obviously, an extendec suspension may generate substantial additional costs which the consumer may ultimately bear through increased electricity rates.
In view of the potentially serious consequences of summary suspension orders contemplating a later hearing, the Director of Regulation has dis-cretion to modify such orders on the basis of subsequent developments warranting such action, prior to the hearing.
If the rule were otherwise,
- ne Director might well be reluctant to issue summary orders, knowing that (under petitioners' theory) they must remain unchanged and in effect for substantial periods of time, regardiess of changed circumstances. Sucn a rule would be inimical to the public interest.
Contrary to petitioners' contentions, tne modification of the show cause order did not foreclose consiceration at the hearing of any of the issues framed by the initial show cause orcer. As stated in the initial
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5 order, the issues at that hearing (if one is requested) shall be --
"(1) wne:her cne licenste is implementing its quality assurance program in compi':nce with Commission regulaticns, and (2) wnetner there is reasonable assurance that such implementation will continue tnrougacut tne construction process." This formula-ion plainly includes., cut is not limited co, cadwelding. The ultimate quality assurance issues are much broader. The Director has merely determined that pending a nearing, and on the basis of information now available to hin, cadwelding may be resumed consistent with the public health, interest and safety.
Should the licensee or any interested person request a hearing, the matter will be heard and determined not by tne Director, but by a licensing ocard.
If the petitioners nevertheless believe that the Director has pre-judged this matter, they can, by requesting a hearing, transfer the decisional autnority from him to a licensing bcard.
The petition appears to rest exclusively on :ne theory -hat the Direc:ce of Regulation had no authority to modify the cadwelding suspension order after it was entered, a theory we nave rejected. Apart from procedure, petitioners have not attacked tne merits cf the Director's determination.
Nevertheless, we have reviewed tne inspec:tcn reper: upon which the lifting of tne suspension order was casec.
We, of course, make no determi.7ation n :ne merits of tne issuas in the shew cause proceeding, inciuc;; cacweicing :ssuas. Our raviaw a: :nis juncture is limited to whetner :na ;. ac:ce, On :he casts of information
7 then available to him, abused his ciscretion in lifting the cadweldi;.g suspension.
-"1e report of the Dececcer 6-7, 1973 inspection reflects that previourly.cencified quality assurance deficiencies relating to cadwelding have ceen corrected. Report, pp. 3-4, 11-14. The report shows that four AEC inspectors visited the site. The inspection included personal evaluation of forty-seven cadwelds, selected at random in reactor base slabs. All were found to be " conforming, in all respects, to the requirements." The inspectors also state that they witnessed a satisfactory demonstration of current methods of cacwel1 inspection by the architect-engineer's. inspectors. Additional eviaence may be adducec in the show cause proceeding concerning cadwelding as well as the broader quality assurance issues.
However the catter may then appear, on this record, we find that the Director dic not abuse his discretion.
Petitioners' reliance on 3rcoks v. AEC, 476 F.2d 924 (C.A.D.C.1973) is misplaced.
The show cause proceeding, unlike Brooks, does not involve cenial of an opportunity for hearing; the order expressly grants a hearing upon the request of any interestec ; arson. Aside from the fact that the Brooks ccurt, like the Director nere, ceclined to suspend construction pending the hearing, the ase has no relevance.
The petition is denied.
It is so ORDERED.
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1 Act ng Secretary of the Cpission Dated at Germantown, Maryland
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this 20th day of December,1973.
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