ML19331B137
| ML19331B137 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/19/1973 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ALAB-106, NUDOCS 8007250828 | |
| Download: ML19331B137 (8) | |
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t di 13 UNITED STATES OF AMERICA j
ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAI. BOARD In the Matter of
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7, CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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AEC REGULATORY STAFF'S ANSWER TO SAGINAW INTERVENORS' MOTION TO ENFORCE ALAB-106 The AEC Regulatory Staff opposes the Saginaw Intervenors' motion of June 6,1973 seeking enforcement of ALAB-106, the Appeal Board's Memorandum and Ordei of March 26, 1973 mandating incorporation in the Midland Plant construction permits of certain additional reporting conditions relating to quality assurance and quality control.
The gist of the intervenors' motion is that further construction c.nd fabrication of material, delivery of material to the Midland site, and all activities permitted by the Midland construction permits should Se enjoined pending a survey and report to the Appeal Board by the Directorate of Regulatory Operations with r
respect to work already performed by the applicant. As a basis for their i
contention that such extraordinary intervention by the Appeal Board is in 1/ RA1-73-3, p.182.
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8007250 gi order, the intervenors assert (a) that the applicant's report to the Appeal Board pursuant to condition 1 of ALAB-106 is deficient because it does not demonstrate that " work already performed and materials on site are in a satisfactory condition" but, rather, details the applicant's plans for making such a demonstration, and (b) that the same report " intentionally evades disclosing critical problems" involving certain rusted material and certain allegedly serious cracking of concrete. (motion, pp.5-7)
At the outset, we note that the jurisdiction of the Appeal Board to entertain this motion and grant the relief requested by the intervenors, and in any case the appropriateness cf its so doing, is at least open to question. Nowhere in ALAB-106 did the Appeal Board state that it was retaining jurisdiction with respect to the matters therein discussed. On it' face, that decision represents s
a final disposition of quality assurance and quality control issues in this proceeding. Moreover, on May 18, 1973, the Appeal Board' issued what clearly purports to be its final decision in this proceeding, ALAB-123, which concluded that "the authorization of the issuance of construction permits to the Midland facility was correct" and affirmed the initial decision in this proceeding " subject to the modification (of construction permit conditions) directed in ALAB-106". (Slip opinion, p.96) Indeed, the Commission is now considering whether it should review the Appeal Board's apparently
final decision in ALAB-123.
Surely, if the Appeal Board had intended to 4
retain jurisdiction over matters arguably going to the validity of the Midland plant construction permits, it would not have issued, for possible review by the Commission pursuant to 10 CFR $ 2.786, a decision holding that the issuance of those construction permits was correct.
In addition, if the Appeal Board were to entertain a request for relief such as the intervenors 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 existing allocation of authority within the Commission, rests with the Director or Regulation.
Turning now to the merits of the intervenors' motion, we submit, first, that the intervenors have simply misconstrued condition 1 of ALAB-106, which provided as follows:
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 to this proceeding, on tha quality assurance See Order of the Commission dated June 7,1973 in this matter.
- 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 construction work and materials, shall also cover inspection and calibration of instru-mentation to be used in the QA program.
Contrary to the intervenors' contention, this condition did not direct the applicant to account directly to the Appeal Board for the actual quality of all construction and each item of material now at the site. Rather, the con-dition called for a report "on the quality assurance action being undertaken
... to assure that the construction work already performed and the materials now on site are in satisfactory condition." Under cover of a letter dated May 25, 1973, the applicant made exactly such a report to the Appeal Board.
Based on our own review of that report, we see no substantial basis for asserting that the applicant has failed to comply with condition 1 of ALAB-106.
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Likewise, there is no basis for intervenors' assertion that the applicant's report to the Appeal Board " intentionally evades disclosing critical problems".
The question raised by corrosion of components stored at the site has been a matter of record for some time. ( See, g., AB Tr.134) The applicant's report deals with this questien in an appropriate manner by detailing the
. procedures the applicant will follow to establish the quality of corroded components..With respect to the intervenors'second example of alleged evasiveness on the part of the applicant, i.e., the matter of certain cracked concrete, we have only the bare assertion of intervenors' legally trained representative to suggest that any significant problem in fact exists.3/ In any case, the applicant's report also discloses the applicant's plan to make a visualinspection of structural concrete and to prepare a map of visually visually significant cracks.
We note that the applicant's pe'rformance with respect to these and other pertinent quality assurance / quality control procedures, as well as the reso-lution of problems brought to light as a result of the applicant's procedures, will be monitored by the AEC Directorate of Regulatory Operations as part of its normal reactor inspection program.
1/ We here reiterate our previous observation (AB Tr.135) to the effect that assertions of counsel on technical matters are not entitled to much weight.
1/ The first inspection, excluding " management inspections" conducted at applicant's headquarters rather than at the site, will be performed early this summer. Of course, regular inspections of the site in its
" mothballed" condition have been made since construction was sus-pended in 1970.
Accordingly, and for the reasons set forth heref n', the Saginaw Intervenors'-
motion of June 6,1973 to enforce ALAB-106 is without merit and should be denied.
Respectfully submitted, h
ht/{b$dbb David E. Kat talia Counsel for AEC Regulatory Staff
~ Dr.ted at Bethes'da, Maryland this 19th day of June,1973
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "AEC Regulatory Staff's Answer to Saginaw Intervenors' Motion to Enforce ALAB-106", dated June 19,1973, in the captioned matter, have been served on the following by deposit in the United States mail, first class or air mail, this 19th day of June,1973:
Alan S. Rosenthal, Chairman Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board Columbia University School of Law U. S. Atomic Energy Commission Box 38 Washington, D. C. 20545 435 West 116th Street New York, New York 10027 Dr. John H. Buck.
Atomic Safety and Licensing Appeal Dr. David E. Hall.-
Board Los Alamaa Scientific Laboratory U. S. Atomic Energy Commission P. O. Box 1663 Washington, D. C.
20545 Los Alamos, New Mexico 87544 William C. Parler. Esq.
Dr. Clark Goodman Atomic Safety and Licensing Appeal Frofessor of Physics Board University of Houston U. S. Atomic Energy Commission
- 801 Cullen Boulevard Washington, D. C. 20545 Houston, Texas 77004 Howard J. Vogel, Esq.
Harold Reis, Esq.
Knittle and Vogel Newman, Reis and Axelrad 814 Flour Exchange Building 1100 Connecticut Avenue, N. W.
310 Fourth Avenue South Washington, D. C. 20036 Minneapolis, Minnesota 55415 l
N.
Irving Like, Esq.
James A. Kendall, Esq.
Reilly, Like and Schneider 135 N. Saginaw Road 200 West Main Street Midland, Michigan 48640 Babylon, New York 11702 David Comey, Esq.
Harold P. Graves, Esq.
109 North Dearborn Street Vice President and General Counsel Suite 1001 Consumers Power Company Chicago, Illinois 60602 212 West Michigai Avenue Jackson, Michigan 49201 Honorable Vern Miller Attorney General Milton R. Wessel, Esq.
Topeka, Kansas 66601 Kay, Schcler, Fierman, Hays and Handler Richard G. Smith, Esq.
425 Park Avenue Smith and Brooker, P.C.
\\, 703 Washington Avenue Bay City, Michigan 47806 James N. O' Conner The Dow Chemical Company Atomic Safety and Licensing Board 2030 Dow Center Panel Midland, Michigan 48640 U. S. Atomic Energy Commission Washington, D. C.
20545 Ms. Mary Sinclair 5711 Summerset Street Atomic Safety and Licensing Appeal Midland, Michigan 48640 Board U. S. Atomic Energy Commission Honorable William H. Ward Washington, D. C. 20545 Assistant Attorney General Topeka, Kansas 60601 Mr. Frank W. Karas Chief, Public Proceedings Staff Myron M. Cherry, Esq.
Office of the Secretary of the Jenner and Block Commission One IBM Plaza U. S. Atomic Energy Commission Chicago, Illinois 60603 Washington, D. C.
20545 William J. Ginster, Esq.
Suite 4 Merril Building Saginaw, Michigan 48602 t, V 5
t' SQ David E. Kartalia Counsel for AEC Regulatory Staff
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