ML19344A255
| ML19344A255 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/27/1971 |
| From: | Lowenstein R LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Goodman C, Hall D, Murphy A Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8008070635 | |
| Download: ML19344A255 (5) | |
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uw ornecs IO ],' ] 'S LowENSTEIN AND NmexAN yl(. a noo couw cr.cus svenut.. n. w. LnQ wasuenoron. o.c. aoose d aos see-rsas ) .oesar towa=src." July 27, 1971 -{ JACE R NEWMAN JEnomeg t smAnruan ~.
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, }' Arthur W. Murphy, Esq., Chairman Dr. Clark Goodman Atomic Safety and Licensing Board Professor of Physics Columbia University School of Law University of Houste' Box 38, 435 West 116th Street 3801 Cullen Boulevard New York, New York 10027 Houston, Texas 77004 Dr. David B. Hall Los Alamos Scientific Laboratory P.O. Box 1663 Los Alamos, New Mexico 87544 In the Matter of Consumers Power Company Midland Plant Units 1 and 2 j Docket Nos. 50-329 and 50-330 Gentlemen This letter contains applicant's comments with regard to the document entitled, "Intervenor's Suggestions as to Questions to be' Certified with Respect to the Use of Comparative and/or Proprietary Information," dated July 12th, 1971, and filed in this proceeding on behalf of the Saginaw Intervenors. We are setting forth in this letter the reasons why applicant believes.such questions should not be certified to the Appeals Board concerning the Westinghouse proprietary reports. We are also attaching to this letter suggested -questions for the Atomic Safety and Licensing Board (herein-af ter the "ASLB"), to certify tr the Appeals Board in the event the ASLB adheres to its Aocision announced at the hearing (Tr. 2728) to certit, ,Uons. As stated at the hearing, aop.icant believes that the Saginaw Intervenors have not set fcrth by motion, in the transcript, or in the document entitled "Intervenors Suggestions," the facts on which they rely to shcw their 1 2008070 [3p
I. lE)WENSTEIN AND NnwxAs -2a need for the Westinghouse proprietary reports, or the relevance of the reports. Consequently, in view of the ASLB's findings that Saginaw Intervenors.do not need the Westinghouse proprietary topical reports in this pro-ceeding because the information contained in th; vaoorts which might be useful to them in the Midland proceeo ng is set forth elsewhere in the literature,* Saginaw Int'rvenors should be required to describe by reference to the open technical and scientific literature the nature of their need. In addi ion, applicant believes that these questions should not be certified to the Appeals Beard because the matter does not qualify for certification under the guidance furnished in 10 CFR Part 2, Appendix A, Section III (g) (2) which states: "A question may be cel tified to the Commission for its det erminatioc when the question is beyond the board's auth-ority, or when a major or novel question of policy, law or procedure is '.nvolved which cannot be resolved except by the Commission and when the prompt and final decision of the question in important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party. For example, a board may find it appropriate to certify PS~el questions to the Commission as to the egulatory jurisdiction of the Commission or the right of persons to intervene." The equipment to be installed in the Midland units in connection with applicant's proposed sodium thiosulfate j removal system would not be such as will preclude later adaptation to a sodium hydroxide system in the unlikely event that ; the determinations of the ASLB with regard to such systems were to be reversed by the Appeals Board after issuance of an initial decision. For that reason, appli cant believes that
- In its finding, the Board referred to several technical papers contained in the April 1971 issue of Nuclear Technology and Parts I and II of Report TM-2412 from the Oak Ridge National Laboratefy (Tr. 2301).
I l LOWENSTEIN AND NEWMAN certification is not "important for the protection of the public interest or to avoid undue delay or serious pre-judice to the interests of'a party." Moreover, applicanc believes that there is no " major or novel question of policy, law or procedure" to certify to the Appeals Board with regard to Saginaw Intervenors' con-tention that the Board should make a " comparative analysis" as to the iodino removal spray systems of the Babcock and Wilcox Company and the Westinghouse Company. The question to be considered under Atomic Energy Commissicn equlations and the notice of hearing is whether the systers in question satisfy the safety standards and criteria of the Atomic Energy Commission. The evidence produced in the record by applicant demonstrates that the Babcock and Wilcox iodine reinoval spray system proposed by applicant does comply with the Atomic Energy Commission's standards and criteria; a*.d the incorporation of such systems has been approved by the Commission in other proceedings. It has never been a part of the Atomic Energy Commission's regulatory proceedings for licensing boards or the Atomic Energy Commission to require comparison of competing systems in an effort to determine which is superior; and such a comparison is neither provided for nor contemplated by the Atomic Energy Commission's regulations. Indeed, had such " comparative analysis" been required by the Atomic Energy Commission, the Commission might have been compelled to make an unnecessary and undesirable choice between pressurized and boiling water reactors or between water-moderated and gas cooled reacters. In any event, the question as to whether the Board is required to make a comparative evaluation should not be certified to the Appeals Board in the absence of a. factual showing by Saginaw Intervenors in the nature of an offer of, proof setting forth facts available from the open literature to support th'ir contention that the Westinghouse system is e superior, if such indeed be their contention. Saginaw Intervonors allege that " applicant and staf f regularly rely upon comparative analysis and there is no good reason why the Board should deny intervenors a similar right to information to make comparative analysis." (Page 2). In support of that contention, the Saginaw Intervenors refer to Footnote 1 of Section 50.34. Footnote 1, however, does ~ not support the contention of the Saginaw Intervenors. It merely provides a mechanism by which applicant may identify similarities to, and differences from, other facilities so that the staff can readily identify those items of novelty which will warrant specific attention during the regulatory review. 9
LOWENSTEIN AND NEWMAN 4 If the Board, contrary to the views expressed herein, decides to certify questions to the Appeals Board with regard to the matters discussed in this letter, applicant suggests that the Board consider those attached to this letter. If the Board certifies questions to the Appeals Board, applicant would appreciate the opportunity to file a brief memorandum with the Appeals Board. Respectfully yours, w-Attorney for Applicant Consumers Power Company RL:sb Attachment cca William J. Ginster, Esq. James A. Kendall, Esq. Thomas F. Engelhardt, Esq. Milton R. Wessel, Esq. James N. O'Connor, Esq. Myron M. Cherry, Esq. Algie A. Wells, Esq. Stanley T. Robinson, Esq. Anthony Z. Roisman, Esq. Irving Like, Esq. I-l
- o'. I IJyNESSTEIN AND NewxAN ATTACHMENT (TO APPLICANT'S LETTER DATED JULY 27, 1971) 1. Q. In a contested proceeding on an application for a construction permit, in which an intervenor contends that an engineered safety system should not be approved, and assuning that the evidence presented demonstrates that such engineered safety system is adequate to protect public health and safety and meets applicable AEC require-ments, is an Atomic Safety and Licensing Board required to consider the intervenor's contention that a system offered by a competing supplier is superior in terms of safety? 2. Q. Do the criteria and procedures of Section 2.744, with regard to proprietary information in reports filed with the Atomic Energy Commission in support of licensing applications, apply to applications for subpoenas under Section 2.720 to obtain such reports from the originating company? 3. (a) Q. Is the Atomic Safety and Licensing Board required to make a determination under Section 2.744 (d) (2) as to whether a report is properly designated " proprietary" if it finds there is no need or relevance under Section 2.744 (d) (117
- 3. (b)
Q. Does the Board have discretion to allow examination of the report by persons not associated with competitors, and under an appropriate protective order, for the purpose of affording parties to the proceeding the opportunity to demonstrate facts relevant to the Board's consideration of the questions covered by Section 2.744 (d) (1) and (2)7 a --}}