ML19331B162

Response in Opposition to Saginaw Intervenors' 730328 Motion & Suppl Re Intervenors' 730115 Exceptions to Initial Decision.Allegation of Unresolved Nuclear Safety Issues Is Based on Gross Meaning Distortion.Certificate of Svc Encl

ML19331B162
Person / Time
Site:	Midland
Issue date:	04/09/1973
From:	Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8007250852
Download: ML19331B162 (10)

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD April 9, 1973 IN THE MATTER OF )

) Docket Nos. ps 50-3 CONSUMERS POWER COMPANY ) and 5 - 30

)

(Midland Plant, Units 1 and 2) )

OPPOSITION OF APPLICANT, CONSUMERS POWER COMPANY, TO MOTION AND SUPPLEMENT FILED BY THE SAGINAW INTERVENORS ON MARCH 28, 1973 On March 28, 1973, the Saginaw Intervenors, et al. (Saginaw Intervenors) filed, together with attachments , a " Motion and Supplement to Saginaw Valley, et al. , Intervenor's Statement of Exceptions to the Initial Decision Filed on January 15, 1973" (Motion and Supplement) . That document moves "to supplement the record on appeal and place before the Appeal Board newly dis-1/

covered information . . ."' (p. 1) and requests the Board to consider the subject matter of the attachments "as additional grounds for reversal of the permits issued by the Licensing Board."

(p. 3)

Applicant, Con ;amers Power Company, cpposes grant of the requests made in the IIotica and Supplement. The claim of the Saginaw Intervenors that the attachments to the Motion and Supplement disclose unresolved nuclear safety issues affecting

-1/ It is not clear whether the phrase " newly discovered information" is intended to have a different meaning than " newly discovered evidence" and if so, the nature and legal consequences of the difference.

8007250 [S g .

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the Midland Nuclear Plant is based on a gross distortion of the meaning of the attachments to that document. In fact, the attachments do not indicate that any such unresolved issues cxist. In addition, no good cause for the filing has been shcun.

Finally, to the extent that the filing constitutes, as its title indicates, a supplement to the Saginaw Intervenors' statement of exceptions, it fails, as did the original statement of ex-ceptions, to comply with 10 CFR 52.762.

The total lack of merit of the basic cortentions contained in the Motion and Supplement is clearly demonstrated if the attachments are examined in context. Those attachments , constitute an exchange of letters between the Advisory Committee on Reactor Safeguards (ACRS) and the Atomic Energy Commission (AEC) . The first letter is dated December 18, 1972, was signed by C. P. Siess, then Chairman of the ACRS, and was addressed to James R. Schlesinger, then Chairman of the AEC. The first page of the letter contains the catch line "

Subject:

STATUS OF GENERIC ITEMS RELATING TO LIGHT-WATER REACTORS." In the letter Dr. Siess states that the ACRS and the AEC Regulatory Staff "have identified a number of safety problems during recent years that are common to a specific type of light-water reactor or to all light-water reactors (LWRs) . "

These are. referred to as " generic items." The letter is in the nature of a report concerning the status of the resolution of such generic items, and those items are divided into two groups in attachments to the letter. Group I is entitled " Resolved m

Generic Items," and 25 such iters are enumerated as falling within Group I. Group II is entitled " Resolution Pending," and 22 items are enumerated as falling within this group. Dr. Siess' letter concludes as follows:

" Group I of the attachment includes generic problers that have been resolved together with the specific action that resulted in the resolution. Group II includes those items for which resolution on a generic basis is still pending. The ACRS and the Regulatory Staff will continue to consider Group II items and their significance to safety on a case-by-case basis until generic resolution is reached. Formal actions, such as issuance of Regulations or Safety Guides, are anticipated for many of the Group II items.

"The ACRS expects to report to you from time to time on the status of generic items." (Em-phasis suppliod)

The second attachment to the Motion and Supplement is a letter from then Acting AEC Chairman Ray to ACRS Chairman Mangelsdorf, dated February 5, 1973, and is in response to the ACRS letter of December 18, 1972. It describes the December 18 letter as one which " lists the generic items which have been referred to in past ACRS letters as well as some additional ones identified by the Regulatory staff in the licensing process . . .

and notes that the ACRS classification of items as falling within either Group I or Group II "is consistent with the Regulatory staff's evaluation." It expresses gratification at the number of generic items which have been resolved and states that "The Regulatory staf f will continue to give high priority to the generic items listed in Group II in order to move them to the Group I list

as having been resolved on a generic basis." However, it notes that:

". . . For some items, the nature of the specific issue as it appears in individual licensing cases is so varied that it may be necessary to continue to decide these items on a case-by-case basis for some time, taking into account the specifics of the plant under censideration. For a few items, such as common mode failures,' a generic resolution may not be forthcoming for some time.

"The Commission expects that all safety issues, whether identified as being generic in nature or not, vill continue to be resolved for each licensinc case in a timelv manner. The solutions to generic issues as they are evaluated in their applicability to individual licensing cases , ,and the experience which is gained in constructing and operating nuclear power plants, will be important sources for developing generic solutions."

(Emphasis supplied)

From the foregoing exchange, it is clear that an effort has been made to solve as many safety problems as possible on a generic basis, that that effort is continuing, the the effort has met with substantial success, and that additional generic solutions to out-standing problems are anticipated; nevertheless, items not suscep-tible to generic resolution have in the past been handled, and will continue to be handled in the future, on a case-by-case basis.

Nothing in the exchange indicates that there has been a failure to resolve any serious safety problem in individual cases by one of the two approaches. Thus, while Dr. Ray's letter recognizes that "for a few items , such as ' common mode failures,'

a generic resolution may not be forthcoming for some time . . .,

s it states that "all safety issues, whether identified as being generic in nature or not, will continue to be resolved for each licensinc case in a timely manner." (Emphasis supplied)

The Motion and Supplement contends as follows (p. 2) :

" Attachments 1 and 2 to this motion indicate that there are at least 22 items which are ,

presently unresolved without any demonstration that these matters can be resolved at all. In fact, attachment 2 is an admission by the Acting.

Chairman

' ...a of the Atomic Energy Commission that few items such as ' common mode failures

may not be resolved for sometime c . ."

In part by quotation and in part by paraphrase, the last sentence set forth above purports to describe the content of the sentence from Dr. Ray's letter, which in fact reads as follows:

"For a few items, such as ' common mode failures,' a generic resolution may not be forthcoming for some time." However, the Motion and Supplement omits from the quotation the qualifying words "a generic resolution" and totally fails to refer to the language of the exchange which makes it clear to anyone who has actually read the letters that all safety issues have in the past been resolved, either generically or on a case-by-case basis, "for each licensing . case in a timely manner." These omissions thereby operate to distort the exchange and attribute to it a meaning quite the opposite of what was clearly intended.

Moreover, the broadside contention of the Motion and Supple-

. ment (p. 3) that allegedly " unresolved matters were not either addressed or resolved by the Licensing Board . . . " is wholly incorrect -- to the extent that it is not simply irrelevant.

-A Thus, of the 22 items listed in Group II, under the title " Resolution Pending," in Dr. Siess' letter of December 18, 1972, three (items 9, 19 and 21) are inapplicable on their face because they apply to boiling water reactors; what is involved here is the construction of a press _rized water reactor. Accordingly, these three items are irrelevant to this proceeding; and, contrary to the undocumented Saginaw contention, all of the remaining items applicable to this proceeding have in fact been addressed and appropriately resolved.

See Staff Safety Evaluation (Tr.1674, et seq) , section 5.6, pp. 23-24, 47, 63-64, 75; PSAR ( Applicant's Ex. 1-A) , pp. 3.15, 4.5-1, 6.15-1, 7.3.2.1A, 7.7-1, 7.12-1, 7.17-1, 7.18-1; Staff Supplemental Safety Evaluation (Staff Ex. 8) , pp. 2, 8-11; Applicant's Ex. 33; Tr. 2330-2340, 2497, 2920-2921; Initial Decision, paras, 11, 80.

The record in this proceeding also discloses that f avorable ACRS reports dated June 18, 1970, and September 23, 1970 ( Applicant 's Ex. 4 and Ex. 5) , were admitted in evidence "for the sole purpose of showing compliance with the statute" (Initial Decision, p. 3,

n. 1; see also Tr. 1690, 1895, 1396). In its Brief in opposition to the Exceptions of the Saginaw Intervenors the Applicant noted that Exception II.I.-2/ referred to later ACRS letters written in different contexts with the apparent purpose of using those letters to demonstrate that the ACRS judgment about the Midland plant had somehow been modified. The Applicant pointed out that the f

._ 2/ Saginaw Intervenors' Motion and Supplement contends that the exchange of correspondence attached to it supports their Exceptions I.I. and V.I. We assume that these references are typographical errors and they intend to refer instead to II.I.

and IV.I.

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letters refer ed to by the Saginaw Intervenors were not in evidence and that: "In any event, it seems hardly likely that the later ACRS letters referred to in Exception II.I. make any point other than the ACRS believes that efforts should be made to deal with problems identified by an ongoing technology." (Applicant 's Brief in Opposition, pp. 33-34) Obviously, the exchange referred to in the Motion and Supplement does no more. In no way does the exchange operate to confer validity on Saginaw Exception II.I.

Saginaw Intervenors' Exception IV.I. enumerated a number of areas in which the Final Environmental Statement in this proceeding was allegedly inadequate. Among these was included the " Nature and Character of Unresolved Safety Issues" as evidenced by "each ACRS letter ever written . . . . As we have demonstrated above, the exchange attached to the Motion.

and Supplement and the record do not indicate that there exists any unresolved issue with respect to the plant here in question.

To the contrary, they indicate that all safety issues were re-solved in an appropriate and timely manner. Consequently, the exchange adds nothing to Exception IV.I.

The foregoing demonstrates that the Motion and Supplement contains no " newly discovered information"; nor does it provide

" additional grounds for reversal." In addition to its sub-stantive inadequacies, the Motion and Supplement is gravely defective procedurally.

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s-The document asserts that.the Saginaw "Intervenors' counsel l only received these letters yesterday, March 27, 1973 . . .

and that this constitutes good cause for the filing. A check of'the Atomic Energy Commission's Public Document Room discloses that copies of the letters were available in the AEC Public Document Room on February 9,1973. Accordingly, with reason--

, able diligence, the documents coul'd have been in the hands' of the Saginaw Intervenors six weeks earlier. Moreover, it is  !

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clear from the contents of the December 18 letter and from the record in this p1 ceeding that_the letter does not constitute -

- new information. Rather, it is a new compilation of informa--

- tion which has been available for some time and' provides

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no evidence whatsoever that safety issues in this proceeding 3}' Therefore,

- have not been dealt with in a satisfactory manner.-

there is no good cause for. filing-the Mot' ion and Supplement.

i Finally, the Saginaw'Intervenors contend in the Motion-J

! and Supplement that:

"d) ' The letter of February 5,1973 'from

Acting' Chairman Ray to Mr. Mangelsdorf I stresses that the: Commission requires these matters to be resolved in each ~

i -licensing case. It is clear from the record that the unresolved ~ matters were-i not either addressed or' resolved by the.

. Licensing Board." ( p . 11)  ;

I 3[ . As the AEC Regulatory Staff noted in its Brief in. Cpposition (p. 22) to :the Saginaw Intervenors ' Exceptions , " ., . .- the l' matters' discussed in the ACRS letters in this proceeding l have been otherwise. addressed in the record in. a ~ satisf actory manner."

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The statement "It is clear frca the record" wholly fails to meet the requirements of precision concerning references to the record required for exceptions. See 10 CFR 52.762.

For the foregoing reasons the requests contained in the Motion and Supplement should be denied.

Respectfully submitted, Harold F. Reis Newman, Reis & Axelrad 1100 Connecticut Avenue, N.W.

Washington, D. C. 20036 Dated:_ April 9, 1973 Attorneys for Applicant t

' UNITED STATES OF A ' ERICA ATOMIC ENERGY COFMISSION In the Matter of )

)

CONSUF.ERS POWER COMPA:1Y ) Docket Nos. 50-329 and 50-330

)

(Midland Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Opposition of Applicant, Consumers Power Ccmpany, to Motion and , Supplement Filed by the Saginaw Intervenors on March 28, 1973", dated April 9, 1973, in the above-captioned matter, have been served on the following in person or by deposit in the United States mail, first class or airmail, this 9th day of April, 1973.

Alan S. Rosenthal, Esq., Chairman David E. Kartalia, Esq.

Atomic Safety and Licensing U. S. Atomic Energy Corr.ission Appeal Board .

Washington, D. C. 20545 U. S. Atomic Energy Commission Washington, D. C. 20545 Milton R. Wessel, Esq.

Kaye, Scholer, Fierman, Hays Dr. John H. Buck, Member and Handler Atomic Safety and Licensing 425 Park Avenue Appeal Board -New-Yorky-New York 10022 U. S. Atomic Energy Commission Washington, D. C. 20545 James N. O 'Connor, Esq.

The Dow Chemical Company William C. Parler, Esq. , Member 2030 Dow Center Atomic Safety and Licensing Midland, Michigan 48640 Appeal Board U. S. Atomic Energy Commission Myron M. Cherry, Esq. (2)

Washington, D. C. 20545 One IBM Plaza Chicago, Illinois 60611 William J. Ginster, Esq.

Suite 4, Merrill Building S aginaw, Michigan 48602 Irving Like, Esq.

Reilly, Like and Schneider Mr. Frank W. Karas (20) 200 West Main Chief, Public Proceedings Branch Babylon, New York 11702 Office of the Secretary of the Commission Hon. William H. Ward U. S. Atomic Energy Commission Assistant Attorney General Washington, D. C. 20545 State of Kansas Topeka, Kansas 66612 James A. Kendall, Esq.

135 N. Saginaw Road Howard J. Vogel, Esq.

Midland, Michigan 43640 Knittle & Vogel 814 Flour Exchange Building Judd L. Bacon, Esq. Minneapolis, Minnesota 55415 Consumers Powar Company 212 West Michigan Avenue ,

Jackson, Michigan 49201 / /,

V -

Ri chard G . Smith , Esq . "

Harold F. Reis Smith & Brooker, P.C.

730 Washington Avenue Bay City, Michigan 48706

.