ML19331B053

Petition to Revoke CPPR-81 & CPPR-82 on Grounds That CPC is, & Continues to Be,In Violation of AEC QA Regulations & Does Not Have Technical Competence to Construct Facility. Statement of Interest & Authorization of Filing Encl

ML19331B053
Person / Time
Site:	Midland
Issue date:	12/18/1973
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor, Sierra Club
To:	US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML19331B048	List: ML19331B047 ML19331B053
References
NUDOCS 8007250751
Download: ML19331B053 (11)

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. ' December 18, 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION lIn the' Matter of )

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CONSUMERS POWER COMPANY )

) Docket Nos. 50-329 (Midland Plant, Units 1 and 2) ) 50-330

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Before the Commission )

PETITION TO THE ATOMIC ENERGY CO:CIISSION TO REVOKE CONSTRUCTION PERMITS NOS. 81 AND 82

. The Saginaw Valley Nuclear Study Group, Midland, Michigan, Citizens Committee for Environmental Protection of Michigan, Midland, Michigan, Sierra Club, San Francisco, California (and its Michigan affiliates), United Auto Workers of America, Detroit Michigan, and West Michigan' Environmental Action Coun-cil, Lansing, Michigan, (hereafter referred to as "Saginaw-Sierra") hereby petition the Atomic Energy Commission to re-voke Construction Permits Nos. 81 and 82 upon the legal grounds that undisputed facts, as a matter of law, demonstrate that the holder.of these Construction Permits, Consumers Power Company, is and continues to be in consistent and flagrant violation of applicable, Atomic Energy Commission regulations dealing with quality-assurance, thereby demonstrating that it cannot accommo-  !

date any requirement of compliance with such regulations, and l additionally upon the grounds that undisputed facts demonstrate 8007250_-757

that Consumers Power Company does not (and in connection with these dockets, never had) the required technical competence to construct a nuclear facility in accordance with the Atomic Energy Commission's rules and regulations and the Atomic Energy Act.

The legal authority for the granting of this petition is found in the Atomic Energy Act (42 USC S2236a and 10 CFR S50.100) which authorizes the revocation of a' license:

" . . .because of conditions revealed by. . .any report, record, inspection, or other means which would warrant the Commission to refuse to grant a license to an original application...or for failure to con-struct...a facility in accordance with the terms of the construction permit...or for violation of, or failure to observe, any of the terms or provisions of the act, regulations, license, permit, or order of the Commission."

The undisputed facts show that Consumers Power Company cannot demonstrate assurance of c .npliance with quality-assurance regulations and, accordingly, based upon such a failing, would not be able to be granted an original construc-i tion permit. The law requires, given such a showing, that the construction permits now be revoked. See also " Criteria l

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Det.crmining E'

n forcement Action," is' sued to all Atomic . .

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Energy Commission licensees under date of November 1,1972, 4

by F. E. Kruesi, Director of Regulatory Operations.

J l In further support of this Petition To Revoke Construc-tion Permits, petitioners state as follows:

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h. The Atomic Energy Commission regards quality-assurance and quality-control as the first line of defense. Yet utilities

, have not appreciated the significance of quality-assurance and quality-control. See Wash-1250.

i Consumers Power Company has continually exhibited a con-sistent disregard or inability to follow QA regulations and i

despite repeated opportunities for redemption, it has not been able (or has been unwilling) to take redemptive measures.

There is no warrant for merely a suspension of activities l

under Construction Permits Nos. 81 and 82, since a suspension i

order has an implicit presumption that matters can be corrected.

The record of Consumers Power Company in connection with Con-struction Permits Nos. 81 and 82 indicates that Constmers has

, had numerous opportunities to demonstrate compliance or an ability to take-added corrective measures and each time it has )

i failed. There is, therefore, no basis for such a presumption

4 and the continued and flagrant violations warrant immediate revocation of these construction permits.

Consumers Power Company may always, at some future time, make a re-application for a construction permit, thereby assuring that if in the future the record changes, Consumers may again request the privileges and rights of an Atomic Energy Commission permit or license.

B,. The construction permits must be revoked because there no longer is any basis (if there ever was initially) for a finding that there is reasonable assurance that consumers Power Company can conply with quality-assurance and quality-control regulations, thus der.onstrating technical competence.

In ALAB-106-(RAI-73-3, 182,185, Consumers Power Company, Midland Plant, Units 1 and 2) dated March 26, 1973, the Com-mission, through its Appeal Board, stated:

"On the basis of the evidence summarized above, we find that neither the applicant nor the architect-engineer has provided reasonable assurance that the QA program will be implemented properly, even though both organizations have e;:perience in build-ing reactors. They have, in this project, not demonstrated their concern with maintaining QA pro-k

m grams in synchronization with their construction programs, nor have they demonstrated that they will have properly trained people on site to im-plement the QA program."

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Apparently willing to roly upon the " promise" of Consumers Power Company and the speculation inherent in such reliance, the ' Appeal Board, notwithstanding such a finding, refused to revoke the construction permits. In a later communicatiJn ,

the Appeal Board has acknowledged the error of its ways and stated:

"It would thus appear with the benefit of hindsight that it was not enough for us simply to impose reporting conditions in ALAB-106." Memorandum of the Appeal Board to Director of Regulation, Novembe', 26, 1973, l

-atp.4,attachedtoOrderToShowgauseinreCon-struction Permits Nos. 81 and 82. I i

J At best, therefore, ALAB-106 merely gave Consumers Power Company a conditional construction permit subject to future revocation if the promise of assurance was not demonstrated.

This is made clear by ALAB-147 (RAI-73-9, 636, 637, Consumers Power Company, Midland Plant, Units 1 and 2) where the Appeal Board believed it necessary ultimately to make a finding that I the compliance lacking at the time of ALAB-106 was now available.

1/ This memorandum is a " report, record, inspection, or other means" within the meaning of 42 USC 52236a and 10 CFR S50.100 as are the Compliance Division inspection reports and other correspondence concerning regulation violations in Docket Nos. j 50-329 and 50-330.- '

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In ALAB-147, the Commission thus held, through its Appeal Board, that:

"We are now satisfied from our review of the staff's report of its June 26-28, 1973 inspection taken in conjunction with the applicant's May 25 report, that there is now a reasonable assurance that ap-propriate QA action is being taken by- the appli-cant with respect to the construction work which has been, and is being, performed on the Midland facility."

ALAB-147 did not, however, make such a finding with re--

spect to the applicant's architect-engineer. ALAB-147 at pp. 639-41.

Subsequent'to ALAB-147, the Appeal Board has reported to the Director of Regulaf ion in the aforesaid memorandum of November 26, 1973, that:

"It also seems evident that, contrary to our find-ing in ALAB-147 (which necessarily was founded on the materials then before us), there is not a rea-sonable assurance that appropriate QA action is now being ta' ken. If anything, there is a solid assurance that exactly the opposite is the case."

(Emphasis in the original). Appeal Board memoran-dum to Director of Regulation, November 26, 1973, supra, at p.4.

The Appeal Board thereafter recommended 'arastic action" suggesting that revocation was the action necessary. Thus, at p.5 of its memorandum, in allowing that after an adjudicatory proceeding is over the function of supervision belongs to the

~ Director of Regulation, the Appeal Board stated:

"By implicit in that statement -- and in the choice we made not to revoke the construction oermit --

was the assumption that the staff would not coun-tenance for long a continuation of the deplorable QA performance which the reccsrd revealed L Td been obtained during the construction work under the exemption." (Emphasis added.)

Accordingly, it is clear that no assurance exists any longer to support a finding of the. reasonable assurance necessary to grant.a construction permit. It is also clear, within the mean-ing of 42 USC 52236a and 10 CFR 550.100, that circumstances now ,

exist which demonstrate that no such assurance is available

(" exactly the opposite is the case") and the construction per-mits mtist be revoked. Such a result is also requi' red by the i

law of the case as evidenced by the Commission's decisions (through its Appeal Board) in these dockets. ALAB-106, suora; ALAB-147, suora; and Appeal Board Memorandum'of November 26, 1973, suora.

As the Commission said through its Appeal Board in ALAB-126 (Vermont Yankee Nuclear Power Station, June 7, 1973) RAI-73-6, 393 at p.396:

"Neither the Iiconsing Board nor this Board should hesitate to act if substantive grounds appear which warrant the lifting of a license."

.s Certainly this is true concerning the obligations of the Atomic Energy Commission itself. Indeed, the Commission has held that the non-existence of an adequate QA program

" compels" the revocation of a license. See ALAB-124 (Vermont Yankee Nuclear Power Station, May 23, 1973) RAI-73-5, 358, 362.

C. In further support of this petition, petitioners incor-porate by referenca the inspection reports of the compliance i

division (including correspondence regarding such compliance)

, contained in the official records of the Atomic Energy Commis-sion with respect to Dockets 50-329 and 50-330, as well as the most recent report of the Appeal Board to the Director of Regu-lation regarding this subject and dated November 26, 1973. !

These documents ,are official records od the Commission and have already been made available to Consumers Power Company.

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1/ It is clear that the record of Consumers Power company in i Docket Nos. 50-329 and 50-330 warrants,as a matter of law, I the revocation of construction permits for the Midland facil-ity. A reference to the history of Consumers Pcwer Company in other than the Midland facility makes revocation of the Midland licenses an overwhelming necessity. See, for example, November 8, 1973 letter from A. Giambusso to Consumers Power Company (re Project No. 500), and letter of October 24, 1973 from James G. Koppler to Consumers Power Company in Docket No. 50-255'. The first letter rejects Consumers' proposed application for a Quanicassee Plant, and the second reference indicates that Consumers Power Company wilfully violated  ;

i Atomic Energy Commission regulations concerning reporting l' of significant variations in safety connected operating parameters.

D. Petitioners request timely action by the Commission on this petition in light of the significance of the first line of defense to the continued protection of the public health and safety and in light of the obvious fact that revocation should be had now, not later, before further commitments of resources to the ill-fated project.1/

WHEREFORE, petitioners request the immediate revocation of Construction Permits Nos. 81 and 32.

SAGINAW INTERVENORS NUCLEAR STUDY GROUP CITIZENS CO!O1ITTEE FOR ENVIRONMENTAL PROTECTION OF MICHIGAN SIERRA CLUB UNITED AUTO WORKERS OF AMERICA

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WEST MICHI AN ENVIRONMENT ACTION COUNCIL

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Myron M. Cherry By: ISI

/  !" / AC Thef8fsetorneys / k '

Robert L. Graham j One I B M Plaza /

Chicago, Illinois 60611

-1/ Petitioners acknowledge the existence of the Director of Regulation's December 3, 1973 Order To Show Cause dealing with " suspension" of all activities under Construction Per-mits Nos. 81 and 82. While any Hearing which may result from this Order To Show cause may consider revocation as a remedy, petitioner 5 are filing this petit' ion because of their belief that, as a matter of law and based upon the Appeal Board's decisions and reports, revocation is a presently required remedy and, indeed, is the only remedy which the commission may pursue. A failure to revoke under the circumstances pre-sented by this petition is clearly an abuse of discretion.

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-STATEMENT OF 1NTEREST AND AUTHORIZATION OF FILING Each of the petitioners to the foregoing Petition has j standing to file this Petition by presently having a direct

, _ and continued interest in the resol'ution of these problems i in connection with Docket Nos. 50-329 and 50-330. We refer i the Atomic Energy Commission to the proceedings in connec-1

tion with Docket Nos. 50-329 and 50-330 for a more complete statement as to petitioners' interest and standing. Petitioners to this Petition are also intervenors in the related adjudica-tory and judicial proceedings concerning these dockets.

1 I am authorized as attorney for each of the foregoing petitioners in connection with the filing of the foregoing

" Petition To The Atomic Energy Commission To Revoke Construc- i tion Permits Nos. 81 and 82."

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Myr'ohjf Cherry

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d CERTIFICATION I certify that a copy of the foregoing .' Petition To The Atomic Energy Commission To Revoke Construction Pennits Nos.

81 And 82" was mailed, postage prepaid and properly addressed, Air Mail, to the Secretary of the Commission (with sufficient copies for distribution to the Commissioners) prior to the

'close of business on December 18, 1973. Additionally, copies have also been mailed on the same date to Washington Counsel 1

for Consumers Power Company, New York Counsel for Dow Chemi-cal Company, Counsel for the Regulatory Staff and Counsel for the so-called Mapleton Intervenors in Docket Nos. 50-329 and 50-330.

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Myhod theiry

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