ML20024E877

Motion to Reconsider Schedule for Submitting Proposed Findings of Fact on Remedial Soils Issues.Intervenors Should Be Required to File Proposed Findings on Remedial Soils Issues by 831115.Certificate of Svc Encl

ML20024E877
Person / Time
Site:	Midland
Issue date:	09/02/1983
From:	Steptoe P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8309070163
Download: ML20024E877 (7)

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9/2/83 UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'6 A10 Q7 BEFORE THE ATOMIC SAFETY AND LICENSING BO g 9 VlYi In the Matter of )

) Docket Nos. 50-329-OM CONSUMERS POWER COMPANY ) 50-330-OM

) 50-329-OL (Midland Plant, Units 1 ) 50-330-OL and 2) )

APPLICANT'S MOTION TO RECONSIDER SCHEDULE FOR SUBMITTING FINDINGS OF FACT ON REMEDIAL SOILS ISSUES On August 5, 1983 Applicant submitted its proposed findings of fact and conclusions of law on remedial soils 1

issues. / In a conference call on August 25 the Licensing Board adopted a schedule directing the NRC Staff to submit its pro-posed findings and conclusions of law on November 15, 1983, more than 100 days after August 5. Intervenors were given approximately 45 more days, until December 30, to file their proposed findings of fact and conclusions of law on remedial soils issues. Applicant was given until January 16, 1984 1/ Applicant had submitted on July 6, 1983 one chapter of its proposed findings, dealing with seismic issues. This chapter was about 60 pages in length or about 20% of the complete set of findings submitted on August 5, 1983.

8309070163 830902 PDR ADOCK 05000329 G PDR 9 503

to reply.2 /

Applicant urges the Licensing Board to reconsider this time schedule. We have no objection to the NRC Staff's November 15, 1983 date. But to allow Intervenors still 45 more days, until December 30, almost 150 days after Applicant filed its proposed findings, is extraordinary and excessive.

The Licensing Board should require Intervenors to file their proposed findings on remedial soils issues on November 15, at the same time as the NRC Staff. (Applicant's reply would then be due December 2, 1983.)

The rationale for granting Intervenors approximately 45 days more than the NRC Staff apparently is to allow Intervenors to review the Staff's proposed findings, following which Inter-venors would be able to limit their own findings to those issues where they disagree with the Staff. Tr. 20177. In the first place, this sequence is unusual in NRC practice.

The NRC's regulations contemplate that normally, parties not having the burden of proof will submit their proposed findings before the NRC Staff. 10 CFR S 2.754. Moreover, in this case there are very few differences between the NRC Staff and 2/ See Memorandum and Order (Memorializing The Telephone Conference Licensing Board call of 8/25/83) dated August 30, 1983.

had previously discussed the schedule for proposed findings at the hearings on August 2, 1983. Tr. 20149-20191. At that time Applicant had not yet filed all of its proposed findings on remedial soils issues, so that the Staff was unable to estimate how much time it would require to prepare responsive findings. Tr. 20156, 20159-60. It appears however from a review of the transcript that the Licensing Board decided on August 2 to allow Intervenors about 45 days longer than whatever the NRC Staff would require, although Applicant did not realize that decision had been made at that time. Tr.

20184, 20177-78, 20183.

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. Applicant on remedial soils issues, and the NRC Staff is itself using Applicant's proposed findings as a basis for-its own findings. Where there are differences between Applicant and the NRC Staff, these have already been described in the detailed and comprehensive proposed findings filed by Applicant on August 5. There will be little additional benefit to Intervenors in reviewing the NRC Staff's proposed findings before Intervenors submit their own.

The schedule established by the Licensing Board is much longer than the standard schedule set forth in 10 CFR S 2.754, which provides that unless otherwise ordered, parties not having the burden of proof will file proposed findings 40 days after the close of the record, 10 days after Applicant and 10 days before the NRC Staff. It is much longer than the schedule followed in 1981 in this proceeding, where Intervenors filed their proposed findings approximately 40 days after Applicant, and 20 days before the NRC Staff.3/ And although Applicant has not conducted a thorouga survey of other NRC cases, the schedule for responsive filings established in this proceeding on August 25 is much longer than the schedules established in other NRC proceedings of comparable length and complexity, and may well be unprecedented.4/

3/ In 1981, Applicant filed its proposed findings on October

28. Ms. Stamiris filed her proposed findings on December 10 (approximately 40 days later) and the NRC Staff filed on December 30, 1981 (60 days later). Evidentiary hearings also took place during that time period. Moreover, in 1981 Ms. Stamiris did not have the assistance of counsel, as she does now with respect to Q.A. and management attitude issues.

4/ In the TMI restart proceeding, for example, the parties generally were required to file proposed findings simultaneously, and then given 30 days to reply to each others' proposed findings.

In South Texas, intervenors filed proposed findings (after one extension) about 6 weeks after the applicant, and the NRC Staff followed two weeks later.

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It is true of course that the Licensing Board has the authority to alter the standard schedule for proposed findings of fact set forth in 10 CFR S 2.754. Applicant also recognizes that the record in this proceeding is unusually long. (Indeed we have in the past expressed concern about the length and quality of the record.) We understand that Intervenors must prepare for and participate in the final evidentiary hearings on quality assurance and management attitude issues in late September and early October. Never-theless, Applicant believes all these considerations are adequately factored into the November 15, 1983 date. It is not unreasonable or unfair to give Intervenors a period of approximately 100 days after Applicant to submit their own proposed findings.

The fact that there is uncertainty concerning the fuel load date for Midland Unit 2 does not justify an un-reasonably protracted schedule for submitting findings of fact on remedial soils issues.5/ There are quality assurance and management attitude findings to be submitted, two partial 5/ Applicant's present target fuel load schedule for Unit 2, the first unit to be completed, is October 1984. The NRC Staff has expressed its opinion that this schedule is too optimistic by at least a year. See August 9, 1983 letter from Novak to Cook. Following the Dow lawsuit, Applicant has announced changes in the sequence of construction work at the plant and has established a task force to review the impact of these changes on its target fuel load schedule for Unit 2. See J. Brunner letter to Chairman Bechhoefer dated August 30, 1983.

O initial decisions to be written, and a lengthy operating license case still to come. While there is, as Chairman Bechhoefer pointed out, no necessary reason why these things must be done sequentially, (Tr. 20169), Applicant fears that almost inevitably, that will be what takes place. Therefore, to grant Intervenors 45 days more than the NRC Staff to respond to Applicant's proposed findings on remedial soils issues will almost certainly extend completion of this licensing proceeding by an equal amount. Time given away now can never be recovered.

Applicant respectfully urges this Licensing Board to reconsider the schedule for filing proposed findings of fact on remedial soils issues.

Resp ed, s .

(j 4( "4 M-One of the Spptoe' Philip P.

Attorney / s for Consumers Power Company Isham, Lincoln & Beale 3 First National Plaza Chicago, Illinois 60602 (312) 558 7500

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket Nos. 50-329-OM CONSUMERS POWER COMPANY ) 50-330-OM

) 50-329-OL (Midland Plant, Units 1 ) 50-330-OL and 2) )

CERTIFICATE OF SERVICE I, Philip P. Steptoe, one of the attorneys for Consumers Power Company, hereby certify that a copy of "Appli-cant's Motion to Reconsider Schedule For Submitting Findings of Fact On Remedial Soils Issues" was served upon all persons shown in the attached service list by deposit in the United States mail, first class, this 2nd day of Se eiger,1 .

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as Philip P. Tiepto6[

SUBSCRIBED AND SWORN before me this 2nd day of September, 1983.

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Notary Public My Commission Expires January 14,1982

r-SERVICE LIST

, Frank J. Kelley, Esq. Steve Gadler, Esq.

Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55108 Carole Steinberg, Esq.

Assistant Attorney General Atomic Safety & Licensing Environmental Protection Div. Appeal Panel 720 Law Building U.S. Nuclear Regulatory Comm.

Lansing, Michigan 48913 Washington, D. C. 20555 Myron M. Cherry, Esq. Mr. Scott W. Stucky Cherry & Flynn Chief, Docketing & Services Suite 3700 U.S. Nuclear Regulatory Comm.

Three First National Plaza Office of the Secretary Chicago, Illinois 60602 Washington, D. C. 20555 Mr. Wendell H. Marshall Ms. Mary Sinclair 4625 S. Saginaw Road 5711 Summerset Street Midland, Michigan 48640 Midland, Michigan 48640 Charles Bechhoefer, Esq. William D. Paton, Esq.

Atomic Safety & Licensing Counsel for the NRC Staff Board Panel U.S. Nuclear Regulatory Comm.

U.S. Nuclear Regulatory Comm. Washington, D. C. 20555 Washington, D. C. 20555 Atomic Safety & Licensing Dr. Frederick P. Cowan Board Panel 6152 N. Verde Trail U.S. Nuclear Regulatory Comm.

Apt. B-125 Washington, D. C. 20555 Boca Raton, Florida 33433 Ms. Barbara Stamiris Mr. D. F. Judd 5795 North River Road Babcock & Wilcox Route 3 P. O. Box 1260 Freeland, Michigan 48623 Lynchburg, Virginia 24505 Dr. Jerry Harbour James E. Brunner, Esq. Atomic Safety & Licensing Consumers Power Company Board Panel 212 West Michigan Avenue U.S. Nuclear Regulatory Comm.

Jackson, Michigan 49201 Washington, D. C. 20555 Lynne Bernabei Thomas Devine Louis Clark Government Accountability Project of the Institute for Policy Studies 1901 0 Street, N.W.

Washington, D. C. 20009