ML19331B036
| ML19331B036 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/28/1973 |
| From: | Cusato E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Saginaw Intervenor |
| References | |
| ALAB-106, ALAB-132, NUDOCS 8007250734 | |
| Download: ML19331B036 (20) | |
Text
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THIS DOCUMENT CONTAINS P00R QUAUTY PAGES UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION N
ATOMIC SAFETY AND LICENSING APPEAL BOARD D0CIEiED li' M
4 Alan S.
Rosenthal, Chairman JUN 2 81973 a-Dr. John H.
Buck, Member William C. Parler, Member g}
- r et me:xraiarr
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ta a enc 3.mt
)
In the Matter of
)
4
)
CONSUMERS POWEJ COMPANY
) Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2
)
)
Messrs. Harold F.
Reis, Washington, D.
C.,
and Judd L.
Bacon, Jackson, Michigan, for the applicant, Consumers Power Company.
Mr. Myron M.
Cherry, Chicago, Illinois, for the Saginaw Intervenors (Saginaw Valley Nuclear Study Group, et al.).
Mr. David E.
Kartalia, for the AEC Regulatory Staff.
MEMORANDUM AND ORDER (ALAB-132)
We have before us a motion by the Saginaw Intervenors for the entry of an order " enforcing the conditions con-tained in ALAB-106, and in particular paragraph one of Section IV which requires a certain ' complete' report to be filed in advance of construction activities."1/
The order must, according to the motion, " enjoin the Applicant from l_/ Saginaw Intervenors' Motion to Enforce ALAB-106, June 6, 1973, p.
1.
soonso 737
- resuming or continuing construction activities until such time as a ' complete' report contemplated by ALAB-106 has
./
"2 been filed and approved by the Appeal Board * *
- For the reasons stated subsequently, we are not granting the precise relief which the Saginaw Intervenors seek.
In the implementation of ALAB-106, however, we are j
now directing the regulatory staff to provide us with certain information on the basis of which we will determine whether, and if so what, further relief should be ordered.
I.
By initial decision dated December 14, 1972, the Atomic Safety and Licensing Board (Licensing Board) authorized the Director of Regulation to issue construction permits to Consumers Power Company (applicant), for a dual purpose pressurized water nuclear power plant, designated the Midland Nuclear Plant, Un.ts 1 and 2.
The construction permits were issued on December 15, 1972.
Most of the r
i extensive exceptions to the initial decision which were filed by the Saginaw Intervenors and others were considered and denied in ALAB-123, RAI-73-5, p. 331 (May 18, 1973). 3/
Prior to that decision, we also issued two memoranda and orders 2/ Ibid.
3/'ALAB-123 is now before the Commission for review pursuant to 10 CFR 52.786.
ALAB-123 affirmed the i
initial decision, "as modified by ALAB-106."
RAI-73-5, p. 332 (May 18, 1973).
i
. disposing of certain of the Saginaw Intervenors' exceptions.
In ALAN-101, RAI-73-2, p. 60 (February 20, 1973), we denied the Saginaw Intervenors' exception which sought to dis-qualify the members of the Licensing Board.
Subsequently, in ALAB-106, RAI-73-3, p. 182 (March 26, 1973) we dealt with an issue concerning the applicant's quality assurance and quality control (QA) which had been raised by daginaw Intervenors.
Only ALAB-106 is involved on the motion now before us.
In ALAB-106, we reviewed the h}1 story of the failure, as documented in the record of this proceeding, of the applicant and its architect-engineer to observe required QA practices and procedures.
Because of that history, we concluded that additional QA conditions must be imposed upon the applicant. S/
These conditions "to which the outstanding construction permits are to be deemed subject, and which are to be considered as a predicate for the permits now to remain in effect" included the following as Condition 1:5!
By April 9, 1973, or the date of resumption of construction activities (whichever is later),
the applicant shall furnish a complete report to this Board, with copies to all other parties jL/ RAI-73-3, p. 186 (March 26, 1973).
cL/ Ibid.
The construction permits were subsequently amended on May 23, 1973 by the Director of Regulation to include these conditions.
- to this proceeding, on the quality assurance action being undertaken by the applicant and/or its architect-engineer to assure that the con-struction work already performed and the materials now on the site are in satisfactory condition.
This report, in addition to covering actual con-struction work and materials, shall also cover inspection and calibration of instrumentation to be used in the QA program.
We stated that we would " appreciate receiving staff comments on the report required by condition 1 and these comments 3hould include the results of any staff inspection." 5!
We also stated: 2!
It is the expectation of this Board that the staff will closely monitor the activities of the applicant and architect-engineer with reference to the QA program described in the PSAR [ Preliminary Safety Analysis Report],as that program has been or may be amended.
To this end, the staff's enforcement responsi-bilities are in no way limited by the con-ditions herein prescribed, and the staff is free to take any remedial action over and above these conditions which it may deem necessary.
ALAD-106 concluded with an explanation of the reason why we had departed from ordinary practice and dealt only with the QA exception initially: 8/
In normal circumstances we would dispose of all of the issues posed by exceptions and by an initial decision in one opinion.
- Here,
_6/ RAI-73-3, p. 186 (March 26, 1973).
_2/ Ibid.
_8/ RAI-73-3, p.
187 (March 26, 1973).
however, we viewed the evidence in the quality assurance area as constituting a special cir-cumstance which warranted an unusual course of action -- particularly in view of the possibly imminent resumption of construction and the concomitant importance of assuring adequate QA activities in connection with such construction.
The applicant filed a report dated May 25, 1973 pur-suant to Condition 1 in ALAB-106.
In their motion to enforce, the Saginaw Intervenors assert that a "very cursory review" of the applicant's report reveals that it is not the "' complete' report demanded by ALAB-106";
and that a " detailed analysis" of the report leaves Saginaw Intervenors with the belief that the applicant "has no intention of voluntarily complying with any QA and QC activity which does not happen to comport with its narrow interpretation of the enormous responsibilities involved in constructing a reactor." E!
In its response to the motion to enforce,the applicant asserts first of all that we have no jurisdiction to consider that motion.10/
' ar jurisdiction has been terminated, accordina to the applicant, because it is
" appellate in nature"; we have " fully exercised and dis-charged [our] functions" with the issuance of ALAB-123 to
_9/ Motion to Enforce, p. 5.
10/ Applicant's Response to Saginaw Intervenors' Motion to Enforce ALAB-106, June 18, 1973, pp.
3-5.
k
.. ~ which no petition for reconsideration was filed.3d/
Our order in ALAB-106, the applicant insists, is now reviewable only by the Commission.ll/
The responsibility for the enforcement of the conditions in that order " lies with the Director of Regulation through the Directorate of Regulatory Operations" and the relief sought "if any were appropriate, is solely within the purview of the Director of Regulation."
Secondly,the applicant argues that,1f we nevertheless consider the merits of the motion to enforce, it should be denied because its May 25, 1973 report " complies withboththeletterandspiritofALAB-106."bb[oreover,
"[s]hould the report be found wanting by the Director of Regulation, * *
- he possesses couplete power to take such l
action as may be necessary to enforce all of the terms and conditions of the construction permits, including those incorporated pursuant to ALAB-106."15/
The staff's response to the motion to enforce also questions our jurisdiction, and in any event the
" appropriateness" of our entertaining the motion and 11/ Id. at pp. 3-4.
12/ Id. at p. 4.
13/ Id. at pp.
4-5.
14/ Id. at p. 6.
i lj/ Ibid.
s
P
.~
- yranting the relief requested.15!
The staff's jurisdictional arguments apparently are based in part on the fact that we did not state in ALAB-106 that we were retaining jurisdiction; that the order (ALAB-106] on its face " represents a final disposition of quality assurance and quality control issues in this proceeding"; that subsequently our final decision
[ALAB-123) was issued, holding that issuance of those construction permits was correct; and that that final decision is now before the Commission for possible review.11/
Finally, the staff contends:18/
In addition, if the Appeal Board were to enter-tain a request for relief such as the inter-venors have made in their motion, it would become involved in an undertaking wholly inappropriate to the Board's role as an essentially appellate body.
We submit that the Appeal Board cannot, and in all events should not, take on responsibility for monitoring the construction of the Midland Plant.
That responsibility, under the existin allocation of authority within the Commission,g rests with the Director of Regulation.
Concerning the merits of the motion to enforce, the staff asserts that, based on its review of the applicant's report, "we see no substantial basis for asserting that
--16/ AEC Regulatory Staff's Answer to Saginaw Intervenors' Motion to Enforce ALAB-106, June 19, 1973, p. 2.
17/ Id. at pp. 2-3.
18/ Id. at p. 3.
4
_~ the applicant has failed to comply with condition 1 of ALAB-106."bS!
The staff informs us that the applicant's performance with respect to quality assurance matters "will be monitored by the AEC Directorate of Regulatory Operations as part of its normal reactor inspection program."SS!
We deal first with our jurisdiction to entertain' the motion and we now turn to that question.
II.
The staff's response which questions our jurisdiction to entertain the motion appears to us to rest heavily on the belief that to do so would mean that we would "take on responsibility for monitoring the construction of the Midland Plant," a responsibility which rests with the Director of Regulation.
Viewed in its best light, the concern of the staff is misdirectel.
We are aware of the responsibilities which the Commission has delegated respectively to the Director of Regulation and to us.
No action or inaction on our part could reallocate those responsibilities.
We took pains in ALAB-106 to point out the obvious:31/
19/ Id. at p. 4.
20/ Id. at p. 5.
21/ RAI-73-3, fn. 7 at p.
184,and p. 186.
- We recognize, as did the Licensing Board, that, with respect to quality assurance (as well as other aspects of reactor construction and operation), the regulatory staff has on-going enforcement responsibilities to make certain that the permittee or licensee com-plies with all of the requirements imposed upon it.*
- It is the expectation of this Board that the staff will closely monitor the activities of the applicant and architect-engineer with reference to the QA program described in the PSAR, as that program has been or may be amended.
We fail to perceive any basis for the staff's position that the assertion on our part of jurisdiction to entertain the present motion to enforce would mean that we were taking on " responsibility for monitoring the construction of the Midland plant." It is apparent to us that the staff misconceives completely the purpose and effect of Condition 1 in ALAB-106.
A.
We explained in ALAB-106 why our appellate decisional responsibilities could best be carried out by imposing conditions rather than remanding the case to the Licensing Board for further proceedings.
There was no room left*
for doubt that these conditions "are to be considered as a predicate for the permits now to remain in effect."3S#
In large measure the conditions were designed to deal with a special circumstance as revealed by the evidentiary 1
i 31/ Id. at p. 186.
)
- record in the QA area.
The last inspection prior to the appli-cant's suspension of construction was made on January 7, 1971.
At that time, the applicant was questioned about advance planning to " restore the site to full construction status when required."
A representative of the applicant stated that this planning was the architect-engineer's respon-sibility and that "he anticipated that it would include adequate steps to verify the integrity of the existing struc-tures, etc., before resuming construction."S ! The inspection report states that "the applicant was urged to give con-sideration to this aspect of the facility shutdown status."?t/
On the basis of the evidentiary record, we found in ALAU-106 that "neither the applicant nor its architect-engineer has provided reasonable assurance that the QA program will be implemented properly."S5/
We also found that for this project they have not " demonstrated their concern with maintaining QA programs in synchronization with their construction programs, nor have they demon
- rated that they will have properly trained people on site to imple-ment the QA program."S5!
23/ RAI-73-3, p.
185.
_2_4/ Ibid.
35/ Ibid.
26/ Ibid.
i
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?
i
., B.
Against this background, Condition 1 is very significant because it required a report to us on, among other things, the quality assurance status of work already performed and materials on the site.
We directed that this report be submitted to us because its requested coverage went to the heart of a quality assurance problem raised by the record.
We reject completely the position asserted by the staff and the applicant that we have no authority to con-sider and act on a report to us called for in a condition which we determined to be necessary for the decision we have rendered on appeal, Our decision in ALAB-106 most assuredly did not assume that we would merely be the recipient of the report called for by Condition 1 and would be powerless to act if we found it inadequate.
We have every right to assure ourselves that the necessary QA measures are in fact being taken.
Such assurance, or lack thereof, would be obtained from the report,and from staff comments on the report as well as the results of the staff inspection which we had anticipated.
This being so, we concluded in ALAB-106 that there was no necessity for us to invoke a more stringent remedy in deciding the quality assurance issues before us on exceptions to the initial decision.
- In these circumstances, we hold that we have juris-diction to consider the motion to enforce 1! We now consider the issues which it raises.
III.
A.
The May 25, 1973 report (i.e. the report required by Condition 1 of ALAB-106) filed by the applicant contained:
(1) a description of the inventory and inspection control procedures being undertaken to assure that the construction work already performed and the materials stored on site are in satisfactory condition;(2) an identification of the qualification and responsibilities of specialists performing the inspections and examinations; (3) a description of the calibration procedure utilized for controlling the accuracy of measuring and test equipment employed in the quality assurance program; and (4) a summary of the results of inspections which had been conducted as of the date the report was prepared. E!
--27/ We find equally without merit the other reasons asserted by the staff and the applicant why we have no juris-diction to entertain the Saginaw Intervenors' motion.
--'28/ " Applicant's Report on Quality Assurance Action Being Undertaken to Assure Satisfactory Condition of Work Already Performed and Materials Now on Site",
May 25, 1973
(" Applicant's Report").
_ 13 The Saginaw Intervenors' motion to enforce is based in part on the assertion that the applicant's report is incomplete because it does not list and discuss each item of construction already performed and give a narrative (with accompanying documents if necessary) of what was done to assure that work already performed is satisfactory.31/
According to the motion, the report instead gives an " outline" in the most general terms imaginable.
We stated in ALAB-106 that the record not only includes extensive information on the QA aspects of construction but
~~
also shows that the actual structural work which has been performed appears to be satisfactory.EE!
Indeed,had there been any gaps in the record on such matters, we would probably have remanded the proceeding to the Licensing Board for further findings or evidentiary pro-ceedings.
In any event, Condition 1 does not explicitly require,and we do not need for our purposes,a report which covers again ground which has already been covered in the inspection records referred to in ALAB-106.
We did con-template,and we do need for our purposes,a report which discusses, among other things,the quality assurance actions 29/ Motion to Enforce, p. 5.
30/ RAI-73-3, p.
186 (March 26, 1973).
j I
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_ 14 -
being undertaken to assure that the construction work aircady performed and the materials now on the site arc in satisfactory condit. ion notwithstandirq the extended period during which the applicant had sus-pended construction and placed the materials on site in a standby status.
We do not agree that the report is incomplete because its scope and depth of coverage are not as 4
great as the Saginaw Intervenors would like.
Nor do we find support from our review of the report for a conclusion that the applicant "has no intention of voluntarily complying with any QA * *
- activity which does not happen to comport with its narrow interpre-tation of the enormous responsibilities involved in constructing a reactor."$1!
The Saginaw Intervenors assert that the applica t's report " intentionally evades disclosing critical pr>blems" concerning rusting of materials and a large crack in the concrete near the reactor building.}2/
The applicant's report states that materials at the site will be inspected for damage due to rusting.22/
The staff asserts that the l
31/ Motion to Enforce, p. 5.
i 32/ Id. at pp. 6-7.
i 33/ Applicant's Report, Part II, pp. 6-15.
w c
w
15 -
iluention raised "by corrosion of components stored at the site has been a matter of record for some time."2d! While we think the applicant's report should have covered any known "large crack" in concrete, it does describe a plan for the visual inspection of structural concrete.22/
The applicanc has stated in its response to the motion to 4
enforce that it believes it has located the crack shown in the photograph which accompanied that motion.25[
Its response i
was accompanied by an affidavit of a person who, upon his inspection of the crack, has concluded that it is a normal drying shrinkage crack showing no evidence of shear type motions, and that it will not impair the structural integrity of the concrete.21!
In view of the foregoing, there is no basis for a conclusion at this time that l
there was any intentional evasion of critical problems I
l in the applicant's report.
7 i
34/ Staff's Answer to Motion to Enforce, p. 4.
35/ Applicant's Report, Part II, p. 5.
36/ Applicant's Response to Motion to Enforce, p. 8.
37/ Affidavit of Francis W. Joyce, June 15, 1973, pp. 2 and 3.
t f
I
J
.. D.
Our view on the issues raised by the motion to enforce does not mean that, on the basis of the applicant's report alone, we are now able to conclude that the steps which the applicant has taken, or is taking, will assure adequate QA for the resumed construction.
The words in the report could be self-serving declarations.
We intimate no view that they are, but in the absence of any helpful input from those charged with enforcement responsibility, we have no way of knowing.
We cannot derive from the applicant's report alone the assurance we anticipated receiving from the remedies we prescribed in ALAB-106.
In requesting applicant's report together with the results of any staff inspection, and in noting our expectation that "the staff will closely monitor the activities of the applicant and architect-engineer with reference to the QA program * *
, we were not engaging in an idle exercise.
To reiterate, these anticipated actions by the applicant and staff formed a vital part of the remedy fashioned in ALAB-106, which decided a contested QA issue.
In view of the special circumstances of this pro-ceeding (OA problems, construction suspended for a long period, and the imminence of resumed construction),
and the response of staff counsel at oral argument 4
- 17 _
(A.C. Tr. 133-34), we did not pause to consider, in fashioning the remedies in ALAB-106, that there would be no staff inspection prior to the resumption of con-struction.
It seems to us that not even a peppercorn of perspicuity is needed to appreciate the essential need for staff inspection inputs to enable us, or for that matter anyone else, to evaluate in a meaningful way the applicant's report.
Thus, we did not believe it necessary to have expressly directed in ALAB-106 that a staff inspection be conducted prior to the resumption of construction.
The staff's answer to the motion to enforce states that the applicant's performance "will be monitored by the AEC Directorate of Regulatory Operations as part of its normal reactor inspection program."}8/
By way of footnote, the staff has informed us:21/
The first inspection, excluding ' management inspections' conducted at applicant's head-quarters rather than at the rite, will be performed early this summer.
Of course, regular inspections of the site in its
' mothballed' condition have been made since construction was suspended in 1970.
We are not aware of the results of any inspection conducted subsequent to January 7, 1971 (CO Report No. 329 and 330/71-1).
According to its answer, the staff's conclusion that 38/ Regulatory Staff's Answer, p. 5.
39/ Id. fn. 4 at p. 5.
e m there is "no substantial basis for asserting that the l
applicant has failed to comply with Condition 1" is a
i (b l as ed., on (the staff's] review of (the applicant's]
report."$S/
But a staff position which is based only on its review of the report sheds little light on the important question of what the applicant has actually done to assure adeqqate QA activities for the resumed construction.
IV.
1 In sum, we have received no input from the regulatory staff which would assist us in our assessment of the adequacy of the applicant's QA program at the time it resumed construction.
We find it difficult, in the absence of such assistance from those properly charged with enforcement responsibility, to make such an assess-ment.
Accordingly, to assist us in determining whether construction should be allowed to continue under the outstanding construction permits, the regulatory staff is directed as follows:
i 1.
If the staff has conducted a full-field inspec-tion of the Midland plant subsequent to March 26, 1973, 40/ Id. at p. 4.
- %s it shall, within 10 days of the date of this memorandum i
and order, furnish us with a report of such inspect on i
and with its comments, in the light of any such inspect on, on the applicant's report to us.
If the staff has not conducted a full field 2.
inspection of the Midland plant subsequent to March 26, 1973, such an inspection shall be conducted within thirty Within 10 days of the date of this memorandum and order.the staff days after the completion of such inspection, shall furnish us with a report of the inspection and in the light of such inspection, on h
with its comments, j
the applicant's report to us.
In the event the staff must proceed under 3.
it shall notify us within 10 days paragraph 2 above, of the date of this memorandum and order of that fact.
The staff report called for under paragraphs 1 4.
i lled or 2 above shall also include all of the informat on ca for by Condition 2 in Part IV of ALAB-106, as of the date of the staff's report.d1!
LAB-106 41/ An addendum to the motion requests that we amend A i h copies to require the applicant to serve intervenors w t 4.
This of the reports called for by Conditions 2, 3 and
~~
It is our view that although the the request is denied.
intervenors are entitled to see these reports, f
h in necessary arrangements should be handled other t an f
the context of a continuing adjudication.
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It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i
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Esther G. Cusato 1
Secretary to the Appeal Board Dated:
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