ML19344A072

Comments on ASLB 710826 Order Re Eccs,Environ & Other Issues,Ks Petition to Intervene & Remaining Questions Re Aslab 710921 Decision.Midland Daily News 710908 Article & Motions to Implement Comments Encl

ML19344A072
Person / Time
Site:	Midland
Issue date:	09/30/1971
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Murphy A Atomic Safety and Licensing Board Panel
Shared Package
ML19344A073	List: ML19344A072 ML19344A077 ML19344A078 ML19344A080
References
NUDOCS 8007290946
Download: ML19344A072 (10)

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'p' @ OCCKET NUMBER

, ,. PROD. & UDL. EAC. 36-92.D M

& D0CE1 i0 4 MYRON H. CHERRY

@C. ,,w* SUITE 100 100 NOHTH DEAHilQltN fit ,4t*NT Li OCT 41971

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-Arthur W. Murphy, Esq., Chairman '

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Atomic Safety and Licensing Board ~~ ~

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435 West 116th Street, Box 38 /Q' '(;

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Re: Midland Hearings - AEC Docket Numbers 50-329, 5L-330.

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Dear Mr. Chairman:

I i We have received your Order dated August 26, 1971 and have the following comments to make. Although this letter is divided in accordance with the categories as set forth in your Order, we do not wish to indicate that such a division represents viable or appropriate categories of analyzing the-

. issucs in this proceeding. Attached to this letter is a series of motions to implement suggestions and requests 4 made in this letter.

A. Issues =Other Than ECCS and Environmental Issues.

We .,5 ject to the Board's improper Order that no further oral evidence.will be received.except by leave of the Board.

While we understand the Board's desire to expedite the proceedings, a desire which we find salutary and with which we agree, wo do not believe that this objective iarrants the Board's Order, or.indeed, assuming its validity, justifies its imposition.- Regardless of how any party feels about public hearings, the fact remains.that a public hearing is necessary._under the-law, and that in large part delays in this ~

proceeding have been caused by'the Atomic Energy's inability to' cope with contested hearings and the Regulatory Staff's-

, and Applicant's failure to provide substantive material for analysis. I

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Thus1the' Board need not b4 reminded that the Regulatory Staff has dragged its feet in donnection with producing an

, Environmental Report prior to $he now famous Calvert Cliffs

, case;.and indeed.subscquent toJCalvert Cliffs, neither the~

Regulatory Staff nor Applicant has seen fit to. respond substantively with any alacrity to :our letter of August 10,

'1971 urging a discussion'toward establishing critoria for b it and..other analyses now required

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.Wo1also do.not believe tha't tho Applicant has been candid' or responsibleiwithe respect tq' its participation in~ this matter. ' Time!and time again Intervenors requested.information from Applicant and Regulatory Staff with respect lto-the

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re-evaluation of the:ECCS problem; and despite _ the fact that time would.have been saved ifaIntervenors could have participated with the Regulatory Staff, Applicant and Babcock

& Wilcox in such.re-evaluations, we have not since the earlier recess of these proceedings received.any word on '

these raatters. Morcover,.the: Board will notc that the September 1 dcodline'of' Applicant for submission of material to the Regulatory Staf f' has not' been met, and the Applicant shows no signs-of being concerned about missing-that date.

~Neither. Applicant nor'the Regulatory Staff has informed the parties or the Board'of the status of the ECCS. review and has not' petitioned the_ Board' forffurther, time in ' connection with such' review. .

Intervenors have notimade.any filings on September 15,

'1971.with respect to; synergistic effects of Dow' effluents...

Now that"a full environraental review must be made, we dolnot belicve that the' Board.can properly view synergistic effects

.ascattacks upon Part_20Estandards. Rather.such a' consideration is1anlintegral. part of 'the: cost-benefit :and environnental

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analysisinow requi' red by11aw, and more information is needed not :only -by the Intervenors but- also lar the Board J to assens the environmental impactRof'a nuclear power plant situated next'to a chemical, comp 1'ex.

z We have raised these additional issues by1virtueiof requests for discovery included within ouriset ofl motions _herein.J i iWe'do not understand the, reasoning'bchind the Board's Orderflimiting1IntervenorsL! evidence.with respect to quality _

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-assuranceSand' quality controll to'those specified in the-

transcript onJpages.4168 and 417_7. .That

discussien of' the Lquality :assur'anco. and quality icontrol matters .was but one part

-ofsthe issues; moreover,.sincecthe-Palisades; quality control' manuals 1andithe' Midland quality control nanuals are now'in~the

. record Jit wouldtappear 'that?anyl comparison -of 5the two fproccdures-'isia' matter'for_-argument'and notffurther testimony.

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IntervenorsLwould!have hopedithat.the Board would have initiated?its-own. inquiry _into; quality control'and quality assurance..asiaLresult ofathe disclosures made at the_ hearing,-

Lincluding".the: disclosure T that:the-Compliance Division of the

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" Arthur W.. Murphy, Esq.. September 30, 1971 Page Three Commisnion is 'not satisfied with quality contro] and quality assurance at the Midland Plant. Given limited resources and at least the chairman's view of.the ole of the public intervenor, that is one who assists the ard, un do not

, see any reason why disclosures thus far ade do not prt>mpt the Board to further inquiry on its.own initiative. We would hope that the Board would see fit to do so. In any event, Intervenors will conti'nue-their compilation of quality control and quality assurance _ materials and will tender such intormation to the Board when it is comp 3cted. If at that timo the Board feels it is not in the public interest to accept such evidence, the Board certainly can issue such an Order. .

B. ECCS Issues. .

We enclose for the Board's information a copy of an artic1c which appcared in the Midland Daily Neus, September 7, 1971, which begins with the sentence: -

"A September 1 deadline [for the filing of ECCS material] has turned into November 1, j but Co.tsumers Power Company isn't too j concer2od."

l Above in this letter we have called'to-the attention'of the Board the failure of Applicant and.Rogulatory Staff to meet asserted dates with respect to ECCS. filings, and more important, the failure of these ~ parties to permi t Intervonors '

to be privy to the re-evaluation ~ process. It has now taken the Applicant and the Regulat6ry Staff almost three years toLattempt to resolve the emergency cooling prob 1cm and it has not.yet been resolved. Moreover, there is no indication that it will be resolved. The Applicant asserted that it would submit information by September'l but that deadline was pushed-back without even a notice to'the Board, let alone a motion

.for late filing. Considering'the difficultics which the Regulatory Staff and the Applicant have had in compilingi ECCS

'information, we ~do. not believe that it is a ' fair or realistic suggestion that Intervenors can evaluate any filings by Applicant'within 15 days'aften receipt thereof.

'The Regulatory -Staff stated on the record that it would take them'a' minimum of six weeks to evaluate ECCS information and weLdoLnot see how any' earlier period of time can he .

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imposed.upon Intervenors.- Ac!cordingly, we enclose within our-set of motions a motion'that the Doard rescind its 15-day' Order.with-respect to ECCS matters and grant Intervenors ' a minimum of 90 d'ays af ter the Applicant and Regulatory Staff have reached an accord, if any, within which.to analyze emergency copling system problema.

In addition, we'also enclose a motion renewing our earlier motion to dismiss the application and an alternative motion in the nature of a show cause order why the application should not be dismissed upon the grounds that the Applicant and the Regulatory Staff.have demonstrated an inability to resolve the emergency core cooling system problem. .

C.

Environmental Issues _.

We believe it is neither~ fair nor permissible for this Board to impose the' initial opligation as to environmental .

matters upon;the Intervenors. Both the Calvert Cliffs' decision and tho ~ Commission's revised Appendix D indicate j that independent 1and initial inquiry as to environmental matters must start'with the Regulatory Staff; accordingly )

we_do not see how Intervenors'can be compelled an.a matter q of. law.to submit discovery motions with respect to

-environmental mattArs or preliminarily set forth issues to.he considered until a detailed environmental statement has been prepared by the Regulatory Staff. Indeed the Board's10rder of August 26, 1971, apparently through an oversight, did not impose any obligation on any-other party respecting. environmental issues.  ;

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The status of the environmental. issues in this case is '

just 1as if the. matter had been noticed for hearing without the availabilityfof a final or draft' detailed 7nvironmental statement. Insofar as' environmental issues are concerned,.

-intervenors may_not_be required to state their contentions or finally move for discovery in the absence of such a

report. In fact'in a case similar to Midland, at least inso-far as~cnvironmental matters are-concerned, the ASLB has t ruledi that Petitions ' to 'Interveno on environmental mattern nced not be-filed until 30 days after availability and filing l by the-Director 'of? Regulation of the Final Detailed Statement of EnvironmentalEConsiderations required by revised Appendix D, U --

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i~ September 30,.1971 Arthur W.rMurphy, Esq. 3 Page Five 10 CFR Part_50. .See paragraph'12, page 4-5 of " Order

.on Applicant's -Motion to Dismi' s s Petition" rendered by the-Atomic Safety and Licensin 1971, in- the matter of Alabama,g Power Board Company, on September Docket 16,.

Nos.

50-348~and 50-349.

I In addition we call the Dbard's attention to revised Appendix D'itself which places the initial inquiry and burden of investigation with respect to environmental matters upon'the Regulatory Staff. Sce Revised' Appendix D to Part 50, Part A thereof,.pages 9-12 and 17-21. Thus, the Commission's Revised Appendix D to Part 50 not only-provices for independent and i'nitial environmental inquiry upon Applicant, Regulatory Staff and the Board, it also provides for heard.nas to commence only after preparation of required documents,.thereby clearly contemplating that an intervonor and the public shall have the benefit-of the administrative environmental review prior to taking any position. The sirtation thus is no different than requiring an~ intervonor to stet.e his contentions on nuclear safety prior to the finalizing or filing of a PSAR; and the Commission has not. ~

yet _ gono that far, f

Accordingly included within our motions is a motion requesting the Board ~tet rescind its order on environmental -

issues dated ~ August - 26, 1971 with a' request that the i LAtomic' Safety and Licensing Board re-read our letter of '

-August 10, 1971, and direct itself to consider following the procedure as set forth therein.-  !

Notwithstanding;our posit' ion, we are, to demonstrate- I our good: faith, onclosing, without prejudice to our rights, I

a. motion' for discovery which includes a request for relevant documentsJanc a renewing-of certain interrogatories previously I

-filed which were dismissed ~upon the basis that certain  ; I

'is, sues were not within the Commission's jurisdiction. We j are unable at1 this time. to file any further interrogatories  ; i or make more specific our discovery requests but believe  !

that, givt the cooperation of. the other partic.s, substantial t

work can be completed while the various procedur'al matters are belag-workel out. We would call .tdua Board's attenti on to the = fact thatiduring Lthe first week in August, Mr. Lowenstein, one of Applicant',s counsel, requested our participation in i

informal' discovery. As a result of that request, we labored long hours to'quickly put'together.an informal request for E

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a documentu .and included such n' list within our letter of Auoust-10, 1971. To this date, neither Mr. Lowenstein nur Applicant has seen fit to begin the process of' an exchanqo of documents.

We are also filing, in N good faithEattempt to comply with-page 4 of the Board's Odder of August 26, 1971 and

without prejudice to our rights to have initial and subst an-tial environmental inquiry commenced by the administrative process, a statement of the broad issues which we believe-must be explored pursuant to the Nat.onal Environmental

. Policy Act and -its required cost--bonefit analysis.

< r 14 Petition-to Intervene ofsthe State of Kansas

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We have received a copy p' f the Petition to Intervene filed by.the State of.. Kansas.. We urge the Board to permit.

the Petition. allowing the State of Kansas to participato as -

a party to these proceedings.; In support thereof, we state ,

as follown:

1. The State of Kansas has-a sincere interest in a proceeding to construct a nuclear power plant, inasmuch as.

the State of Kansas is at the, moment the paramount or sole 7

repository site for radioactive wastes which may be produced by the proposed. Midland Units;

2. The Petition filed by the State of Kansas is timely in that. it is- filed within a reasonable . time af ter the calvert

' Cliffs' decision and idua Atom $c Energy Commission's Reviscd App?ndix'D to Part 50.

The'B9ard will note that had Kansas

. attempted to intervene prior to now the Board and other' parties  ;

I may. well have takenJ the position that Kan< as 's Petition raised issues beyond: the scope of the Commission's jurisdiction.

Thus,. Kansas Lis intervening at 'the earliest possible time when realistically.it would be permitted-to intervenc;

, -3. As pointed out in our letter of August 10, 1971, sinco stho Atomic Energy Commission and this Board had tahan the : erroneous. position dhat p4titions to intervene on environ-mental-issues were1not r,ermitted (see .carlier rulings on EDF e - -

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offers - ' roof), the' law probably requires a re-noticing of the Mina.and hearings , so - as to af ford persons who did not earlier ~ intervene because of the ' nature of _the original Accordingly,

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notice of -hearing ' a present right to intervene.

the Petition to Intervene by Ka,nsas is appropriate and unre than: timely since it' comes befqre a re-noticing of the case

'which we believe is required by law; I

4. The admission of the State of Kansas as a' party will not cause any delay in these proceedings. The Petition-of thc State of Kansas indicates that it is ~primarily interested in raising issues which have not heretofore been analyzed _ by the Board or the parties; indeed, the issues

, raised by-the. State of Kansas have also been raised-by Intervenors althou-h the part.icular interest of ;the citizens of the State of Kansas is better represented by the Attorney General of' that State. ,,

Accordingly, we respectfully request that the Board allow the Petition to Intervene filed by the State of . Kansas" III Questions-Still Remaining Subsequent to the Atomic Safety and Licensing Appeal

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Board's Decision of September 21, 1971 Intervenors have received.~the-ASLAB's Decision of September 21, 1971 in connection with this Board's earlier

. certification of questions und4r date of August 18,~1971.

We regret:.to_say that we are hopelessly confused by

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-the Appeal Board's Decision. It does not seem to us that the- Appeal . Board ' directly . answered the ques tions certified, but rather followed a circuitous ' line of reasoning in an

. offort.to1 find some waygto-sustain the Regulatory Staff's

. posi' tion . Be that as; it may', we will attempt 'to, comply

-with the Appeal Board's Order but still believe' that this

-Board hasinot'roccived appropriate guidance in' connection with the remaining 1 portions of those proceedings. .

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Q September 30, 1971 Arthur.W.7 Murphy, Esq. Pago Eight 6

A. With: respect ltothe.AhpcalBoard'sdecisionthat "thc: bes t available- technology" is not an ' issue, the-Appeal Board seems to have. missed what we believo ~ to be-

'the thrust- of this Board's certification ques tion No. 1.

Thus.at the bottom of page 3 og the Appeal Board's Decision, it says -that comparative techno, logy is only important if the applicant fails to. sustain pts burden of proof with respect to the operability of hts proposed spray ' system.

This Decision makes' absolutely no sense since if the

. applicant had f ailed to meet its burden of proof, then comparative. technology would not be at issue since the applicant would have' failed to makh a. prima facie case

, and an.intervonor would not bc; required to do anything.

Moreover, under.the Appeal Board's contrived' formula if an applicant had proved the operability of its spray system, .

comparative technology would still be irrelevant because applicant has carried the day. This " heads I win-tails you lose" formula tdoes not answer the basic question whether Intervenors can use comparative information in the context of determining.whether applican't has carried its burden of ,

proof with respect to a particular system or sys tems. He therefore -urge the Board once again to certify its question

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No. 1 to the Appeal Board in an effort to obtain a more direct Decision prior to the reconvening of the hearings, if any,- in : these dockets with respect to the issues remaining to.be resolved. We' enclose a-Motion in order-to implement this request.

B. The remainder of the Appeal Board's Decision also fails to meet the issues which were presented by the Board.

Tho ' Appeal Board cannot glibly assume that our' Motion to

. Produce'was. made;in1 connection.,with Section 2.744 when in f acti as the Board well knows , , Westinghouse voluntarily

_ produced the :laimed proprietary reports in connc'ction with

_ an ' oral Motion pursuant to 'Section 2.720. Although the Appeal Board apparently finds n'o distinction betwcon the requirements of Section 2.720 and . 2.744 (and even this isn't clear), two principles.seem'to' emerge,'and they are:

. fl._'The: Appeal Board' assumed-that the Bbtrd had made althorough investigation' of the claim- of proprietaryf and this in -f act' is -not true. In *

.., . fact, the-Board made a-preliminary examination with:rcspect'to the-question of proprietary but

. fdid not1 permit 1Intervenors, as is usually the 4~ ,cr.se in judicialf proceedings ,. to answer - the n-am, -ye y

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. claim of proprietary by virtue of .n analyses of the subject documents and the introduction of evidence. Obviously Intervenors are no t in a position to do this without permission to use the subject docmnents and consult necessary experts, such as chemists; and

2. The-Apiaal Board'did not itself review the claim documents and mhke any determination as to~whether.in fact the documents were proprietary.

The question of "need or relevance" becomes more or 3 css important as a direct result of whether in fact documents are proprietary.- Accordingly, the' only realistic way to attempt to comply with the Appeal Board's Order is to request that the Board investigate f actually and in depth the question of propriotary, and permit Intervenors to use the subject documents and disclose .them to expert witnesses for the '

limited purpose of arguing the question of proprietary. This procedure will assure that if in fact the documents are proprietary Westinghouse competitors will not secure any advantage. 'The Board should bpar in mind that pursuant to the formula set forth at pages,7 and 8 in the Appeal Board's

. Decision on Certified Question.No. 3, a-decision on proprietary is one to be made " based upon all relevant factors-available." We believe the Board will agree with us that it did not make a- decision on the issue of proprietary based on all f actors since In' crvenors were not permitted reasonable opportunity to argur the question. <

Accordingly, we enclose a' Motion requesting the Board to meet the issue of proprietary'in an effort to resolve this question fairly.- p Res d ctfully, Mb;l __

4. Cherr acc: ALSB- I Secretary, AEC. .  !

• All Counsel of Record '

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Arf.icle from MIDLAND DAILY NEWS, yidland, Michigan, 9/8/71 4

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A te:drn '. r ! '+i l'.se h is 1 i< n mme reabstic data to ate their sy>temt Sa turds.y.s. 5"mhys and ha'i-turnad inr.. 'O.W mie r 1. h.u ex,ves Conwm t/s' ECCS mint- ' Kenter saH tha additmn.sl dcys in ordre to expct e ti.e Coi u.n. rs '..r tr.mp uy ma::.rin. worir requer.tyd Sv the AEC. .iek- prou rdm:5.

Ni . i ae. . nl. In . luna. roc AEC issuad occ. in: H&W in .npand ita evab- In a letter en bra rm; w r,'.

Wi!!iani i.. :Ic.. Co~ums re laterim ::uiddmc.s for ECCS de- atton and pi t n' ore dified m c hairman AttWr W L1":;m3 I

pint:re ' . up r fro th" Ll. schpment m til nuclear plams variables into it< code. actnunte v.enel ur ed 't re to ai.' t.

laad nip .. er rm,cr plint. ' *d liccaus: of I.CCS tc<t failures at fer his November 1 estim na " tight centir.dnt !u.'.nten! ..

Mt 9p'. rt ar 4 'or wbmpuun tha Alf's frf :hn ic3 ting ground. 10r rompletion of ih.: work, nu r c.n h sta;< ni the istr e d to the For ..,. I' v ra. I'.n. :mi .. r1rlier in th. ye ar. Those I.-m .That aspect of the plant r.rt ia;s. Inptim with an t "<. 4 to

> na ..f .. e r . <4 e .n.p. iter . < ; . wr:c on a m-%-up scale and spc - Nidhnd public hea:in2. terp par tie, t.diy a.s! . *:ruc- .

fir sie pl.tr e r :r.u; enev t or,, the rme tent:ng sfatem desi;.n sthose resumprian date sedl is tively no tip:rd i'ntd all ir.:an ,

ox.I;.. ; ay. ri ( ECC'd. *il g was nmihr to that bein,g used fint known hue latcly lakan h4ve been re e!".ed. 1 TCCS b a re a .a! n h;w d by two niher reactor fabrica. semething er a back seat ta Mrs. Mary M,ebir, chief in- l j fcau.re ..I a e N r.la.:t in i n.ae tar r. Weui:2 house and Com ftlalters of environmental ena. - cal spokcmewn for interven-  ;

of an acri<!

nt se tric rc:.. r r. bus: ion ' L n;. m eling, accord- sferalinn at;erting the plar.t. nrs oppenina, the utrient plant's  ;

f(cuirr i :.I re..u J /r r-in; to Comums . Ms Ch 'mical Company's N. rcostrurthm, saht "Mr. Uwt j

(""'"**C' C"n!ing syttam de- torney m the h(aring, Mil on has sonne tend sug t.estmns,

.' hearing.

ir;;' the tr.:InduW%nti of the r-;Me far th.ign s f.1r the *didland plant is a 74 %essel. l.as requc.sted the llou cver, the licensing board phnt's cr nstror'.u1 permit t:nt Product of rabecek and Wil- A;tomic Safety and 1.icen in;; vill still om le rble to ione revisi m of s'.c F.O b rn:le cc.uhl cox, tmdcr contract with the Peard tn procrert promptly on c. a construction f r rmi' until the be coa.p;cte d he September I, p"O'? '" P' ovide the scactor fqrmal level wah the envirnr..emircomental and A FC ,..ist.**ys had e .fi. rmore uscel fnr ibis si c, and niental items. He has sn;;. (nn the Midl:ind sitel is in.

A EC's s epia t

-ElJttd al l '.I I. an at'did6J. I ItS coffe is tfilfesent from tha nnn Etsled,"that severable envilha. "A3 Mr. Th 4PI .tays, thic six wer.ks hever.*f then uno'.i IV

-(mp cd ny Westinghouse and rdentalismes be identified ( orh tr.uld be mary ranntha swry. In -  ;

i. re ;uiird fi ' tha com mir. .a1 Combusibn Kn,': meeting, af 10313g And the "littahanas. th meantmie, i Fore thP h(CD- )

l staff an ev:-laate Ce n'.o r.: t r'.. A (*ent .fri spokesman sai.! 54e River heat,m;) and the tvi- smg board ru cbnfy the sa.'t.

cirk. The time delav Inr the the AEC has a !:cd B&W, since o$nce nr ca,c,h heard on a pree- ty Inces m icla: inn in the new ECr5 n'.aterial ' u as on'. the Idahn te t failures, to eu nical basis, even to the poin: cmergency core tooling fy.t y'~ reen why the .%lidl nd puFlic pand it.s re evaluation of its nl convemng the hearing on tem."

hearinig vas tres ned Juiv 11. own ECCS romputer code, 'in - l Nort IGwier s.tys Sm'cr'bar ef:ccl. to do son additinnal stu. ,

dies to come up with the 'per-feet ende.' " T!:c spokesman ,

, said the other pretsure vessel fabricators pmbably also were asked by the AEC to re evalu-l ,

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