ML19331D419
| ML19331D419 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/29/1980 |
| From: | Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8009020429 | |
| Download: ML19331D419 (11) | |
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3 UNITED STA.TES OF AMERICA NUCLEAR REGULATORY COMMISSION 8/29/80 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY
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Docket Nos. 50-329-0M
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50-330-0M (Midland Plant, Units 1 and 2)
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329-OL
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50-330-0L (Midland Plant, Units 1 and 2)
)
NRC STAFF RESPONSE TO AMENDED PETITION OF BARBARA STAMIRIS On December 6, 1979, an order was issued modifying the construction permits in this proceeding. Pursuant to that Order Consumers Power Company requested a hearing. On June 27, 1980 Barbara Stamiris filed a petition to intervene in this procteding. On July 24, 1980 the Licensing Board in this proceeding issued a Memorandum and Order Ruling upon Standing to Intervene. Forsuant to that Order, the petitioner Barbara Stamiris filed a supplement to her petition containing certain contentions. Also pursuant to the July 24, 1980 Order, the Nuclear Regulatory Commission Staff (Staff) was granted up to and including August 29, 1980 to file its response to contentions.
INTRODUCTION Un March 20, 1980, the Commission published a Notice of Hearing, 45 Fed.
Reg.-18214, on certain issues relative to an Order Modifying Co..struction Permits by the Acting Director of Nuclear Reactor Regulation and the Director 8'009020N1Cl
of Inspection and Enforcement, dated December 6, 1979, which would prohibit Consumers Power Company from performing certain soil-related activities pending submission of an amendment to their application and issuance of amend-ments to the construction permits. Consumers Power Company requested a hearing on that Order.
Subsequently, on May 28, 1980, the Atomic Safety and Licensing Board, desig-nated to preside over any hearing in the soil-related proceeding, published in the Federal Register an amended Notice of Hearing announcing that persons whose interests might be affected by the proceeding could file petitions for leave to intervene on or before June 27, 1980. 45 Fed. Reg. 35949.
Barbara Stamiris who resides within 25 miles of the Midland plant, filed a petition to intervene. By Memorandum and Order dated July 24, 1980, the T,oard found that Petitioner Stamiris had standing to intervene and provided for the later filing of contentions within the scope of the proceeding.
'Also pending before the Board is a Motion for Pretrial Consolidation, dated Ma,e 27, 1980,- by Consumers Power Company which requests, among other things, tha'. this proceeding on soil-related activities be consolidated with the Midland operating license proceeding to the extent that the operating license proceeding also includes soil-related issues. Consideration of this motion may effect the Boards rulings on contentions.
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Pursuant to the July 24, 1980 Order of the Board Petitioner Stamiris filed six contentions. Contention one deals with the potential for soil subsidence at the site. Contention two sets fcrth several a' legations in support of petitioners claim that Consumers can not be trusted to divulge and attend to safety issues. Contention three deals with the claim that Consumers places their own financial and time interests above their concern for safety issues.
Contention four deals with Consumer's quality assurance program. Contention five addresses the adequacy of the proposed remedial action. Contention six concerns the need for additional information requested by the Staff to complete its safety assessment.
The St:#f recommends that contention four be accepted as written. The Staff also recommends that petitioner be permitted to amend contentions one, two and three, that contentions one and six be particularized and that contention five should not be accepted unless amended.
DISCUSSION To be admissible as a contention in a Commission Licensing proceeding, a contention must fall within the scope of issues set forth in the Federal Register Notice of Hearing (Notice of Hearing) in that proceeding and comply with the requirements of 10 C.F.R. 5 2.714(b) and applicable Commission case law. See, eg., Northern States Power Co. (Prairie Island, Units Nos. 1 and 2), ALAB-197, 6 AEC 188, 194 (1973); aff'd BPI v. Atomic Energy Com-mission, 502 F.2d 424, 429 (D. C. Cir. 1974); Duquesne Light Co. (Beaver Valley, Unit No. 1), ALAB-109, 6 AEC 242, 245 (1973); Philadelphia Electric C_o. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 1230-21 (1974).
0 10 C.F.R. I 2:714(b) requires that contentions which intervenors seek to have litigated be filed along with the bases for those contentions set forth with reasonable specificity. A contention must be rejected where:
(a) it constitutes an attack on applicable statutory i
requirements; tb) it challenges the basic structure of the Commission's regulatory process or is an attack on the regula-tions; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
-The purpose of the bases requirement of 10 C.F.R. 5 2.714 is to assure that the contention in question 30es not suffer from any of the infirmities listed above, to establish sufficient foundation for the contention to warrant further inquiry of the subject matter in the proceeding, and to put the other
parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra at 20.
From the standpoint of bases, it is unnecessary for the petition "to detail the evidence which will be offered in support of each contention."
Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-130, 6 AEC 423, 426 (1973).
Furthermore, in examining the contentions and bases therefore, a licensing board is not to reach the merits of the contentions. Duke Power Company (Amendment to Materials License SNM-1773 -
Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979); Peach Bottom, supra at 20; Grand Gulf, supra at 426. Nonetheless, it is encumbent upon the intervenors to set forth contentions which are sufficiently detailed and specific to demonstrate that the issues raised are admissible and that further inquiry is warranted, and to put the other parties on notice as to what they will have to defend against or oppose.
On May 20, 1980, an smended Notice of Hearing was published in 45 Fed. Reg. 18214 which set forth what would be the scope of the hearing on the December 6, 1979 Order.
It stated that the issues to be considered would be:
(1) whether thefacts set forth in Part II of the Order were correct; and (2) whether the Order should be sustained.
Petitioner's contentions must fall within the scope of the hearing as defined in the May 20, 1980 amended Notice of Hearing.
Petitioner contends that the soil conditions at the site, their potential for subsidence identified in the 1970 SER, and their inability to support plant structures without the use of fill soils and compaction procedures represent inadequate attention to health and safety requirements (10 C.F.R. Part 100).
At page 4 of the Staff's " Order Modifying Construction Permits" dated December 6, 1979, the Staff provided three bases warranting suspension of certain construction activities. Two of those bases were: (1) quality assurance deficiencies involving soil activities and (2) the unresolved safety issue concerning the adequacy of the remedial action to correct the deficiencies in soil construction.
It is not clear whether petitioners first contention relates to either of these bases.
The Staff believes Petitioner should be allowed to amend her contention,if she can, to relate to either of the above stated bases.
If such amendment is allowed, the contention should also be particularized.
In her second contention petitioner sets forth several allegations which she alleges show that Consumers can not be trusted to divulge and attend to important safety issues. The issue of trust is not within the scope o the limited issues in this proceeding. One of the circumstances set forth by petitioner in support of her allegation that Consumers can not be. trusted is that they made a false statement in the FSAR regarding fill soils under the diesel generator building, citing Table 2.5-14.
It appears to the Staff that petitioner should be permitted to amend that portion of her second contention to allege that Consumers made a material false statement in the FSAR and tt3t therefore the Order should be sustained. Assuming, as alleged by Petitioner, that Consumers has been evasive in answering questions concerning geologic classification and seismic characteristics, l
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Petitioner should be permitted to amend her contention to relate those circumstances to the unresolved safety issue concerning the adequacy of the remedial action to c,orrect the deficiencies in soil construction. With respect to Petitioners contention that there is an overall pattern of reluctance in responding to N.R.C. quest. ions (referencing an August 4,1980 letter) petitioner should be permitted to amend this contention by relating it to the portion of Part II of the December 6 " Order Modifying Construction Permits" which discusses Licensees failure to provide information necessary for the Staff to evaluate the technical adequacy and proper implementation of the remedial action proposed by Licensee.
Petitioner alleges that Consumers is placing their own financial and time schedule interests above their concern for safety issues involved with the soil settlement. She sets forth four allegations to demonstrate her claim.
The contention as presently written is outside the limited scope of the issues in this proceeding. Petitioner should be permitted to amend her contention to relate her allegation that Consumer's continued work on the diesel generator building while unresolved safety issues existed, to the unresolved safety issues concerning the adequacy of the remedial action to correct the deficiencies in the soil construction.
Petitioner alleges that Consumers has not implemented its quality assurance pro-gram in compliance with Commission regulations (10 C.F.R. Part 50 Appendix B) throughout the construction process as was reasonably " assured" to occur in the
conclusions of the 1973 show cause hearings on past quality assurance deficiencies.
Petitioner particularizes the contention by setting forth three examples where design and construction specifications were not followed. The Staff believes this contention to be acceptable as written.
Petitioner alleges that the performed and proposed remedial action of Consumers regarding the differential soil settlement under s'afety related structures (set forth in Consumers application for amendments 72. 74, 76 and
- 77) fall far short of meeting health and safety requirements. The contention appears to be within the scope of the proceeding but it lacks specificity and should not be accepted by the Board unless it is appropriately amended.
Petitioner alleges that the additional information and testing requested of Consumers by the NRC and its consultant the Army Corp of En'gineers (referenc-ing a letter dated August 4, 1980 from the Staff to Consumers) is essential for Staff to perform its evaluation of health and safety interest and must therefore be responded to fully. The Staff believes that the contention is sufficiently related to the unresolved safety issue concerning the adequacy of the remedial action to correct the deficiencies in soil construction to be acceptable but that since the letter of August 4, 1980 is not presently before this Board the amendaent should be particularized to indicate the nature of the additional information and testing requested by the Staff in that letter.
mr-y.
r 9-CONCLUSION For the reasons stated herein, the Staff recommends that contention four be accepted as written. The Staff also recommends that petitioner be permitted to amend contentions one, two and three, that contentions one and six be particularized and that contention five should not be accepted unless amended.
Respectfully submitted, 3
/
e s
William D.
ton Counsel for NRC Staff Dated at Bethesda, Maryland 1
this 29th day of August,1980.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICErlSING BOARD In the Matter of
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C0tiSUMERS POWER COMPANY
) Docket Nos. 50-329-0M
)
50-330-0M (Midland Plant, Units 1 and 2)
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In the Matter of Docket Nos. 50-329-0L CONSUMERS POWER COMPANY 50-330-0L (Midland Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO AMENDED PETITION OF BARBARA STAMIRIS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of August, 1980:
- Ivan W. Smith, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Sumerset Street U. S. ?!uclear Regulatory Commission Midland, Michigan 48640 Mashington, D. C.
20555 Michael I. Miller, Esq.
- Mr. Gustave A. Linenberger Ronald G. Zamarin, Esq.
Atomic Safety and Licensing Board Martha E. Gibbs, Esq.
U. S. ?!uclear Regulatory Commission Caryl A. Bartelman, Esq.
Washington, D. C.
20555 Isham, Lincoln & Beale One First i;ational Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Apt. B-125 Boca Raton, Florida 33433
- Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Conmission Frank J. Kelley Washington, D. C.
20555 Attorney General of the State of Michigan Stewart H. Freeman
- Atomic Safety & Licensing Appeal Panel Assistant Attorney General U. S. Nuclear Regalatory Commission Gregory T. Taylor Washington, D. C.
20555 Assistant Attorney General Environmental Protection Division
- Docketing and Service Section 720 Law Building Of fice of the Secretary Lansing, Michigan 48913 U. S. Nuclear Regulatory Comission Washington, D. C.
20555
%ron M. Cherry, Esq.
1 IBM Plaza Grant J. Merritt, Esq.
Chicago, Illinois 60611 Thompson, Nielson, Klaverkamp S James 80 South Eighth Street Minneapolis, Minnesota 55402 A
2 Judd L. Eacon, Esq.
Ms. Carol ' Gilbert Consun.ers Power Co:r.pany 903 N. 7th Street 212 West titchigan Avenue Saainaw, Michigan 48601 Jact. son,,Ilichigan 49201 Mr. Willia'm A. Thibodeau Ms. Barbara Stamiris 3245 Weigl Road 5795 N. River Saginaw, Michigan 48603 Freeland, Michigan 48623 Mr. Terry R. Miller tir. Steve Gadler 3329 Glendora Drive 2120 Carter Avenue Bay City, Michigan 48706 St. Paul, Minnesota 55108 Wendell H. Marshall, Vice President Midwest Environraental Protection Associates g-RfD 10 Midland, Michigan 48640 Mr. flichael A. Race 2015 Seventh Street Bay City, Michigan 48706 Ms. Sandra D. Reist 1301 Fourth. Street Bay City, Michigan 48706 Sharon K. Warren 636 Hillcrest Midland, Michigan 48640 4
Patrick A. Race 1004 N. Sheridan Bay City, Michigan 48706 George C. Wilson, Sr.
4618 Clunie Saginaw, Michigan 48603 William Olmstead Counsel r NRC Staff
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