ML20008G167

Response Opposing Proposed QA Stipulation Between NRC & Util.Stipulation Would Not Allow Full & Fair Consideration of Issues in Hearing

ML20008G167
Person / Time
Site:	Midland
Issue date:	06/24/1981
From:	Stamiris B AFFILIATION NOT ASSIGNED
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20008G165	List: ML20008G164 ML20008G167
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8107020383
Download: ML20008G167 (8)

Text

,

vbv f gf__ CJZL 0022:r : rc3

- ---. _ -..._ _ ,j U.S. NUCLEAR REGUle. TORY COE11SSIGi In the Matter of Docket Nos. 50-329 CPCo. Midland Plants 50-330

, m nits 1 & 2. OM & OL _

t I

c;; G ED usnac

' M 2 g jg8)p '-- - BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Wc40h8

~

, 3  % 6/24/81 ennch g m 4 INTERVENOR OBJECTION TO NRC/CPCo. OUALITY ASSURANCE STIPULATION; l

l l

I object to the proposed QA Stipulation between the NRC and CP because myvights as--a party to this proceeding, and the rights of,the public at large are adversely affected by an agree-l ment which would not allow full and fair consideration of the issues upon which this h* earing was orig:nally based.

The OA' Stipulation, and the exclusory manner in which it was negotiated, have violated both the letter and the spirit of the Code of Federal Regulations governing this proceeding. The regulation on Stipulations, 10 C.F.R. 2.753, states "the parties t.ay stipulate ... any relevant fact or the contents or authenticity of any document. Such a stipulation may be recieved in evidence.

The parties may also stipulate as to the procedure to be followed in the proceeding. Such stipulations may, on motion ~of all parties, be recognized by the presiding officer to govern the conduct of the proc.eeding."

The clear intent of this paragraph is to protect. the rights of all parties by precluding a stipulation between two parties 810 7 02.0 3 8 3 'c w, . , ...,.. 3,.n n , 3. .s, ; r Y , . a, x,a h- .

if a third party, affected by that stipulation, objects. Further-more, stipulations are limited by 2.753 to matters concerning "any relevant fact or the contents or authenticity of any document" or to proceedural matters.

This stipulation would go far beyond these limitations toward resolving the ultimate question at issue in this proceeding; whether reasonable assurance exists that GA " will be appropriately implemented with respect to future soils construction activities, including remedial actions." (part 3 of stipulation)

Such conclusory statements are contrary to " the rule that a Licensing Board may not delegate its obligation to decide ,

significant issues to the NRC staff", for,. if such decisions can not be delegated to the Staff, it must follow that neither should the Staff take upon itself the decision of such significant is's ue s . ( 1 )

The NRC/ Consumer Power Co. agreement not to litigate the 5 years of CA breakdown which led to this hearing, because of one recent satisfactory OA inspection is an inecultable exchange at best.

The issues and arguments raised by the NRC and Consumers (as in the OA Summary Disposition Motion and Answer), concerning how a nuclear plant came to be built on unsuitable soil foundations without an adequate CA program, are certainly issues and arguments (1) NRC Practice and Procedure Digest, Supplement I to Digest 2, Feb. 1980; p.12; Pub 11c Service Co. of Indiana, Marble Hill 1 & 2, ALAB -461, 7 NRC 313, 318 (1978) .

.. . ,. . .u  %- .<,.s. 4 ,, ,, , , , '< , * ,,

l s.

which deserve to. be heard by the public who must live with that plant.

Although I have been repeatedly-assured that my rights -

would " not (be) prejudiced by an agreement between the Applicant and Staff; and that notwithstanding any agreement between those parties, (my) contentions would be addressed at the evidentiary hearing." (p. 6, June 12 Memorandum and Order of the Board); I remain unconvinced.

The litigation of my OA and Managerial attitude contentions will be merely an academic excercise in light of the agreements made between the NRC and Applicant on that subject. Furthermore the adoption of t$he OA Stipulation would shift the focus of the hearing from the events leading up to the Dec. 6 order, on which my contentions are based, to the recent OA improvements and .

. commitments by the Applicant, on the appam.nt belief that past performance is immaterial in making " reasonable assurance" judgements. By this shift of focus, I am further disadvantaged because of my lack of access to recent documents from the NRC and the Applicant in 1980-61 as discussed in my 12/22/80, 4/23/81, and 6/3/81 reauests.

Even if these arguments concerning the effect of the OA Stipulation on my contentions are rejected, as they have been in previous conference calls, there can be no question that this is also a stipulation "as to the proceedure to be followed in the proceedin0". And even the narrowest interpretation of Rule 2.753, prohibits such stipulations from occuring, except "on motion of all parties."

' t' ... . .J,. 2.c Je , ,,,. ., n., -

~-,. - . - - , - - - - , , . . - . _ _ . , . _ . . _ . - , - - . - . _ , , _ - . --

., _ _ . - . ~ , _ . ,

As I stated earlier, I object not only to the stipulation itself, but also to the manner in which it was negotiated o'ver the past several months. Although"the'. App'licsnt has been invited -

totattend'every meeting between myself and NRC counsel, as I was told is proper, I have been repeatedly excluded from meetings between the Staff and Applicant, and refused access to" confident-ial" memos on the CA Stipulation, despite my specific requests to the contrary. (See Attachment A)

As is evident from the chronology of events, the OA Stip-ulation is closely tied to the Staffs Motion for Summary Disposi-tion on OA Prior to Dec. 6, 1979. The s tated purpose of the

. Applicant in discussing the-QA Stipulation on 5-27-81 was to keep the Board from " invest (ing) substantial time and effort In considering and ruling rp r. the Motion for' Summary Disposition with regard to quality assurance." (6/9/8f CP Response to 5/29/81 Notice Yet by agreeing not to. contest the OA breakdown prior

~

to Dec.6, 1979, the Applicant now contradicts all the arguments and legal citations he has presented "which prohibit ssch judgements on an ultimate issue at this stage in the proceeding."

(p.18 CP Answer to Staff Summary Disposition Motion) and protest

" dispos (ing) of those issues without a hearing".

The CA Stipulation goes one step further than the OA Summary Disposition Motion for it seeks to dispose of the OA issue, not by offering an-undontrovertable factualcrecord,.1.but by offeringra s'ubj ect tve , jtid gemehtof i" re asonatb.le i as s urance" S fon rthe cruture y l f o ty whichano fa'ctualoev,idence can be produced precisely because it has not yet happened.

S , . , ._ : -

..e .,. , w . -

To gain insight as to the overall effectiveness of such a regulatory approach, consider this chain of events; 1) A hearing is called on specific OA deficiencies and their effect on plant _

construction, 2).Those deficiencies are " Identified and attended to" by the licensce, 3) on the basis of the corrective actions forced by the NRC, and the percieved QA improvements just prior to the hearing; reasonable assurance is given that GA will be apiropriately implemented in the future. .. 'c .

That chain of events leaves only one remaining question:

whether the reasonable assurance, so given, turns out to be correct, Ironically, the chain of events just described took place in 1974,

• and we now know that the OA reasonable assuranca judger.cnt was wrong in. LBP 74-71)as It.- was :before .that'. i.3, ALAB .147$ In IIght .of .the .uncen- .

tested FA breakdown which occurred from 1974-1979, as set f;cth in the Dec.6, 1979 order on soil settlement issues, l't is obvious that the perceived OA improvements of late 1974 were inadecuate.

Despite this antecedent, the NRC is willing to repeat the very same regulatory approach concerning soil settlement issues in 1901. Only one significant difference exists between the events in the 1974 proceeding and the events in this proceeding, and that is in the timing of the " reasonable assurance" Judgement. Whereas that judgement took place,in 1974,as a part of the hearing process, it is being offered ,in 1981, as a part of a stipulation prior to the hearing; a stipulation made in the name of expedience.

o as stated by the Aopeal Board of ALAB 106 in their memo to M.

Muntzing ,p. 4, 11/26[74.

u. ~. ,; . , ::, ,.\ . . , s . v .: k - r. , n,.. . >-

1 1 have presented my arguments to the proposed OA Stipulation, although I share the doubts of Judge Bechhoefer_( as expressed in granting me this opportunity on 5/27/81) that it could make a diff- _

erence. In fact, even if the Board were to formally deny the pro-posed OA Stipulation now, it would be of IIttle consecuence. For, nothing can undo the " reasonable assurance" already given, -or infor-mal agreements-between..two partie.s,.and,their;cffects on the.. hear,ing about to take place. .

Respectfully Submitted, An w dtam&su cc: ASLB members Wm. Paton, NRC M. Miller, CPCo.

Secretary,,NRC Attorney Gen. F. Kelley

• ' 3 ,' ,I, ,, '8 , ,7 . , .

S ,J *.

. .A $ *

,y s . " ,j.,,

~.

Attachment A Chronology of Intervenor Opposition to NRC/CPCo. OA Stipulation March Telephone Conversations Mid-March: Mr.Paton mentions 3 possible CA Stipulation and its possible effect on averting submission of the Staff Summary Dispo-sition motion. I object, citing Rule 2.753.

I receive NRC, CPCo. approval to call Judge Bechhoefer to discuss his interpretacion of Rule 2.753. He indicated that I could object to a stipulation but he would rule on that objection to decide whether the stipulation could go forward without my consent.

Approx March 16 Conversation with Mr. Paton, Mr.Gilray to explore G11 rays current assessment of CP OA.. Mr.Gilray would not state that, as of that* day, CA was adecuate. Neither would Mr.

Keppler give such a s+ atement, as of that day, but plannr.d to spend a week onsite fo re c.amitias himself.( as'relat-ed t.o me by Mr. Paton.) Lacking these statements of current GA adecuacy as a basis for the OA Stipulation, it appeared that it would be necessary forrthe Staff.to' submit its Motion for Su= mary Disposition on OA.

April 13 Meeting, Bethesda,'CP-NRC Counsel, to discuss CA Stipulation.

I was permitted, but unable to attend.

Conference calI from that meeting sought extension of time in which to submit Staff Motion for Summary Disposition.

I objected because the Motion was ready, and its ultimate submission was dependent on the possible OA Stipulation once a0ain. The two week extension was denied because of Judge Bechhoefers schedule conflicts.

May 5 Conversation with Mr.Paton. I am informed of an extension of time sought by Applicant (and granted) in which to submit their answer to the Summary Disposition Motion. .

I also learn of the " confident'al"~ memo from CP to NRC on the OA Stipulation.

May 8 1 initiate a conference call to object to my exclusion from the call granting cps extension of time to. submit l their Summary Disposition Answer. I also object to the

. . r ,. ., v ar. .,,...

, - .,w --,-..- - - - , . . , - - -,,- , . . , - - - - - . - - - - - , - - -

Attachment A: continued extension itself because I believed it to be related to the possible CA Stipulation once.again.

I request permiss ion to see the " confidential" memo, or at Icast for Judge Bechhoefer to see it to assess the validity of my suspicions. All objections and requests are denied.

May 15 Meeting Bethesda, CP-NRC Couasel to discuss CA Stiputation of which I mn uninformed. I read of it in the Bay City Times.

May 18 NEC Inspection Team arrives Midland.

May 19 Conversation with Mr.Paton. I request permission to attend Inspection Exit Meetino. May 20- request denied. Offer is made to arrange personal meeting with Mr.Keppler instead.

I accept.

May 21 Meeting ~with Mr.K'ep'oler. We discuss how he makes a reasonable assurance judgement, avoiding specifics of the Just con-pleted inspection and his pending CA assessment.

May 26 Ellen Brown calls to inform me of conference call planned to discuss other possible ' stipulations. and their effect on hearing schedules.

May 27 Cckferencecall initiated by Mr. Miller. He discusse: Mr.

Kepplers " reasonable assurance" and the meeting ~ith Mt.

Keppler, NRC,and CP Counsel scheduled for thu 2 th to finalize the CA dtipulation. Since Mr. Paton had denied my right to attend that meeting, I sought a ruling fron Judge Bechhoefer. My reauest was denied.

I attempted unsuccessfully to reach Mr. Keppler to express my dismay at being excluded from the 28th meeting in the hopes that that decision might be reversed.

May 28 Mr. Keppler returns my call. Having received my letter on the subject, and my message of dismay (related via Mr. Paton who happened to intercept my morning call), Mr. Keppler informed me that he had not yet given his" reasonable assurance" to Consumers and would not attend the meeting on the QA Stipulation.

May 29 I submit Notice of Violation of 2.780 (Ex Parte Communication.)

concerning Mr. Millers premature statement of Kepplers

" reasonable. assurance".

June 5 NRC/ CPCo. OA Stipulation is submitted a s. ,

7 r , 3, . ,

.- , - , a., ...

-__ _ , _ , . , , .. -__. - - _ . . , _ . , - _ _ _ , _ . . _ - _ . _ . _ . . . ,. . . _ _ _