ML19331B238
| ML19331B238 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/18/1973 |
| From: | Bacon J, Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19331B239 | List: |
| References | |
| ALAB-106, NUDOCS 8007280831 | |
| Download: ML19331B238 (9) | |
Text
THIS DOCUMENT CONTAINS P0OR QUAUTY PAGES D
F CA ATOMIC ENERGY COMMISSION BEMRE THE ATCNIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
CONSUMERS POWER COMPANY Docket Nos. 50-329
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and 50-330 (Midland Plant, Units 1 and 2) )
)
APPLICANI'S RESPONSE TO SAGINAW INTERVENORS' "MaIION" TO ENFORCE AIAB-106 I.
Introduction Pursuant to the Initial Decision of an Atomic Safety and Licensing Board (Licensing Board),
Consumers Power Company (Consumers Power; Applicant) was issued pemits, on December 15, 1972, authorizing the construction of its Midland Plant, Units 1 and 2.
Thereafter, exceptions to the Initial Decision vere taken by certain intervenors.
The Atomic Safety and Licensing Appeal Board (Appeal Board) considered all exceptions and,.as a result, issued three separate decisions, the net effect of which was to affirm the Initial Decision of the Licensing Board subject to certain conditions.
1] Consumers Power Co. (Midland Plant, Units 1 and 2), Initial De-cision dated December 114, 1972.
2] 37 Fed. Reg. 28,312 (1972).
}/ Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101 RAI-73-2 (Feb. 20,1973); ALAB-106, RAI-73-3 (Mar. 26,1973);
ALAB-123, RAI-73 __ (May 18,1973).
800gggy g3(
2 The Appeal Board's first decision, ALAB-lOL, rejected a charge of disqualifying bias made by the Saginav Intervenors against the Chairman and other members of the Licensing Board. The second de-cision, AIAB-lO6, made the continuing effectiveness of the Applicant's construction pemits dependent on the submission of certain reports concerning quality assurance and quality control at the Midland con-struction site. The Appeal Board's third and final decision - ALAB-123, issued on May 18, 1973 - rejected all of the remaining exceptions.
Since a petition for reconsideration of that decision was not filed by any party,N the Appeal Board's actial is now subject to adminis-trative review by the Commission only.
Under date of June 6,1973, the Saginaw Intervenors (Inter-venors) submitted by mail a filing captioned "Saginaw Intervenors' Motion to Enforce ALAB-lO6" (hereinafter " filing"). In essence, the filing alleges that Consumers Power has not fulfilled the conditions of ALAB-lO6 and that the construction vork at the Midland site is un-satisfactory.
It requests the Appeal Board co order the Directorate of Regulatory Orerations to perfom a complete survey and inspection M The Commission's Rules of PracT,1ce provide for the filing of a petition for reconsideration within ten days after the date of the decision, 10 CFR $$ 2 771, 2 785 (1973).
g See 10 CFR $ 2.786 (1973); In the Matter of Consumers Power Co.,
(Midland Units 1 and 2), Commission Order dated June 7,1973 6j Filing, pp. 5-6.
g Filing, pp. 6-7
3 of the construction site and furnish a detailed report concerning all work performed to date and all material at the site. In addition, the Appeal Board is requested to enjoin Consumers Power "from exercising rights pursuant to the construction permits until such time as afore-said survey and report is acecznplished, submitted, and verified."
II. Jurisdiction The jurisdiction of the Appeal Board is appellate in nature.
As part of the Cocanission's procedures for the orderly disposition of Licensing Board issuances, Appeal Boards review the Initial Decisions of presiding officers in all proceedings on applications under Part 50 of the Connission's regulations for facility licenses and construction permits.
Decisions and actions of Appeal Boards are subject to ad-ministrative review only by the Commission itself.
In the instant proceeding, the Appeal Board has fully exer-cised and discharged its functions. With the issuance of ALAB-123, af-fiming the Initial Decision of the Licensing Board subject to the modification directed in ALAB-lO6, the responsibility delegated to the Appeal Board was discharged. 'wten a petition for reconsideration was j
8 Filing, pp. 8-9 In an addendum the Intervenors also request that they be furnished with copies of certain other reports.
pf 10 CFR $ 1.21 (1973); 34 Fed. Reg. 13,360 (1969).
10]See10CFRPart2,AppendixA,IX(a).
g 10 CFR $ 2 786. A party may, however, within tui days of an Appeal Board's decision, petition for reconsideration. 10 CFR $ 2 771.
4 not filed within ten days of the date of ALAB-123, the Appeal Board's jurisdiction in this proceeding was terninnted and its action became subject only to review by the Ccxanission itself, acting on its own motion.
This does not mean, of course, that the conditions imposed by A1AB-106 a e unenforceable and only part of "a lofty statement."
All of the subject conditions have been incorporated into the Applicant's construction pe mits.
They are, thus, fully enforceable under the Commission's regulations.16/ The responsibility for such enforcement lies with the Director of Regulation through the Directorate of Regu-latory Operations.
In sum, the jurisdiction of the Appeal Board has terminated and the relief sought, if any were appropriate, is solely within the y Except, of course, in case of a ramand by the Commission.
6 See 10 CFR $$ 2 771, 2 785, 2 786 (1973). See also In the Matter of Consumers Power Co., (Midland Units 1 and 2), Ccenission order dated June 7,1973, extending to July 10, 1973 the time within which the Ccx: mission may review the Appeal Board's decision in this proceeding.
6 Filing, p. 4.
g AIAB-106 provided, by its tems, that "the initial decision, and the constructicu pemits issued as a result thereof, are hereby modified to the extent indicated in thio opinion." RAI-73-3 at 187 See also 38 Fed. Reg. 14,182 (1973).
g See 10 CFR $$ 2.200.205, 50.100 (1973).
g See generally 10 CFR $ 2.200.205
r 5
purview of the Director of Regulation. The filing is, therefore, pro-cedurally defective and a nullity, and should be summm11y dismissed.18/
III. Merits Although the Appeal Board should decline to accept the Inter-venors' filing, the Applicant nevertheless desires to respond, since the filing miscontrues the requirements of ALAB-106 and mischaracterizes conditions at the site.
ALAB-106 makes the continued effectiveness of the Applicant's construction permits contingent upon four conditions. The first of these, which serves as the focus of the Intervenors' filing, reads as follows:
By April 9,1973, or the date of resumption of con-struction activities (whichever is later), the ap-plicant shall furnish a complete report to this Board, with copies to all other parties to this proceeding, on the quality assursnee action being undertaken by the applicant and/or its architect-engineer to assure that the construction work al-ready perfomed and the materiale now on the site are in satisfactory condition. This report, in addition to covering actual construction work and materials, shall also cover inspection and calibra-tion g instrumentation to be used in the QA pro-gram.
l_8] % Consumers Power Co. (Midland Units 1 and 2), ALAB-ll5, RAI-73-4 at 257 (April 17, 1973). The Appeal Board has, of course, retained jurisdiction in certain cases after issuing a decision. Compare ALAB-106 with, e.g., Yemont Yankee Nuclear Power Corp. (Vemont Yankee Nuclear Power Station), ALla-124, RAI-73 _, (May 23, 1973). Mien it is appropriate to retain jurisdiction the Appeal Board leaves no uncertainty but clearly indicates that it is doing so.
See, e.g., id. at 4.
-19/ Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-106, RAI-73-3 at 166 (March 26, 1973).
6 On May 25,1973, more than one week before the resumption of construction, the Applicant filed its report with the Appeal Board, the Regulatory Staff, and all other parties to this proceeding.
The re-port contained: (1) a description of the inventory and inspection con-trol procedures being undertaken to assure that the construction vork already performed and the materials stored on site are in satisfactory condition, (2'; an identification of the qualifications and responsibili-ties of specialists perfoming the inspections and examinations, (3) a description of the calibration procedure utilized for controlling the accuracy of measuring and test equipnent employed in the quality assur-snee program, and (!+) a summey of the results of inspections which had been conducted as of the date the report was prepared. The report, as subnitted by the Applicant, complies with both the letter and spirit of AIAB-106. Should the report be fourd wanting by the Director of Regulation, however, he possesses complete pc.:er to take such action as may be necessary to enforce all of the terms and conditions of the construction permits, including those incorporated pursuant to ALAB-106.
j 2
"ATplicant's Report on Quality Assurance Action Being Undertaken to Assure Satisfactory Condition of Work Already Perfomed and Materials Now on Site" dated May 25, 1973 [ hereinafter "Appli-cant's Report"].
2j See ALAB-106, RAI-73-3 at 186; 10 CFR $$ 2.200.205
)
7 Two additional points bear mentioning. First, the Saginaw Intervenors' filing refers to "a large crack in the concrete near the reactor building which raised serious questions about the safety of the foundation." The filing appears to further describe the crack as "in the concrete near the site of the reactor building" and has at-tached a photograph of that crack taken "sometime ago."
The photo-graph and the description in the filing were insufficient to make it possible to detezmine either the location or significance of the crack.
Moreover, counsel for the Saginaw Intervenors disclosed to counsel for the Applicant that the photcgraph was in fact taken a few months after the concrete was poured in the fall of 1970. of course, this was well before the 18 days of hearings relating to radiological health and safety matters, inclMing quality assurance matters, which vere held in this proceeding begieing on June 21, 1971. The filing makes no contention that the photograph was not in the hands of the Saginav Intervenors at the time of those hearings; nor does it advance 22/ Filing, pp. 6-7 The Applicant has been seriously inconvenienced by the failure of the Intervenors to provide it with a satisfactory copy of the photograph. This deficiency in the service of the filing upon the Applicant resulted in the expenditure of tens of man-hours just to determine that the picture, by itself, was worthless as a means of evaluating the crack or establishing its location. See note 23 infra.
2}/ The photograph contained no means of referencing either scale or orientation. The filing described the crack as being located "at the base of the site of the reactor at the east access loop."
There is, however, no such thing as an " access loop" nor did the filing indicate whether the crack was in a floor or vall section of concrete.
8 any other reason for the Saginav Intervenors' failure to raise the mat-ter during those hearings or at any time prior to the filin6-Following an identification by Intervenors' counsel, on a PSAR drawing, of the approximate locatien of the crack pictured in the photograph, the Applicant believes it has located the crack. The Inter-venors' photograph appears to show a portion of a vertical Class L crac' located on the inner vall of the No. 1 Containment tendon ac-cess gallery opposite a point 3E5 feet frca the middle of the auxiliarr building access door, measured in a clockwise direction (or 5 feet measured in a counterclockwise direction). Mr. Francis W. Joyce, a Supervisery Civil Specialist, Quality Centrol, employed by Bechtel Power Corporation, has eyms N d the crack, has concluded that it ap--
pears to be essentially the same as the crack shown in the photogra;h attached to the Intervenors ' filing, that it is a nomal dr/ing shrink-age crack shoving no evidence of shear type motions, and that it vill not impair the structural integrity of the concrete. His affidavit to that effect is attached hereto.
In any event, the Applicant and its architect-engineer are conducting a comprehensive inspection of the structural concrete at the site as part of the program described in the May 25 report.j 2
De-ficiencies identified as a result of the inspectica, if any, vill be corrected.
2)h/ A Class 4 crack is one having a width of.030 inches to.Oh0 inches.
2j See Applicant's Report, pp. L-5
9 Secondly, the Intervenors mention "the rusting of material en on the site."26/
As described in the Applicant's May 25 report, materials at the site vill be inspected for damage due to " rusting."
This in-spection vill employ such techniques as visual examinations, dimen'sion-al measurements, pit depth measurements and microscopic examinations.
Defects vill be corrected or the material vill not be used.
IV.
Conclusion In sum, the Appeal Board has no jurisdiction to entertain the Intervenors' filing and should dismiss it smmnarily. However, even when considered on their merits, the allegations contained in the filing have no basis in fact and require that the requested relief be den:2d.
Respectfully submitted, Harold F. Reis Newman, Reis & Axelrad 1100 Connecticut Avenue, NW Washington, DC 20036 (202) 296-7585
/s/ Judd L. Bacon Judd L. Bacon Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 Attachment (517) 788-1366 Dated: June 18, 1973 Attorneys for Applicant 2g Filing, p. 6 27/ See Applicant's Report, pp. 6-15 2g Id., pp. 6-7 Some liner plate sections have already been ex-amined and found to be satisfactory, subject to the necessity of cleanup and repriming. See id., Part II, Inspection 2.0.
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