ML20028E102
| ML20028E102 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/17/1983 |
| 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 8301200347 | |
| Download: ML20028E102 (10) | |
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January 17, 1983 DOCKETED USHRc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION +83 m a g g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD c 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 SUGGESTION OF MOOTNESS OR IN THE ALTERNATIVE MOTION TO CLOSE THE RECORD WITH RESPECT TO MATERIAL FALSE STATEMENT On December 6, 1979 the Acting Director of the Office of Nuclear Reactor Regulation and the Director of the Office of Inspection and Enforcement issued an Order Modifying Construction Permits (" Order") which would have prohibited Consumers Power Company from performing certain soil-related activities at the Midland Plant pending approval of amendments to its construction permits. One of the bases for the issuance of the Order identified in Part III thereof was a " false statement in the FSAR". Part II of the Order identifies this false statement (at p. 2):
8301200347 830117 PDR ADOCK 05000329 O PDR q .]h ? j
[A]s described in Appendix B to this Order, a material false statement was made in the FSAR in that the FSAR falsely stated that "All fill and backfill were placed according to Table 2.5-9."
This statement is materia? in that this portion of the FSAR would have been found unacceptable without further Staff analysis and questions if the Staff had known that Category I structures had been placed in fact on random fill rather than controlled compacted cohesive fill as stated in the FSAR.
Applicant requested a hearing with respect to the Order on December 26, 1979 which led to the appointment of this Licensing Board on March 14, 1980. The Commission's March 14, 1980 Order states:
The Atomic Safety and Licensing Board shall consider and decide the following issues:
- 1. Whether the facts set forth in Part II of the Directors' Order of December 6, 1979 are correct, and
- 2. Whether that Order should be sustained.
See also December 6, 1979 Order at p. 6.
Subsequently certain interested persons were allowed to intervene, contentions were admitted, and the proceeding
! arising out of the December 6, 1979 Order (the "OM" or " Soils" proceer.ing) was consolidated with the Midland operating license proceeding. Prehearing Conference Order Ruling on Contentions and on Censolidation of Proceedings dated October 24, 1980.
The two general issues identified in the Commission's March 14, 1980 Order, together with intervenors' specific contentions, represent the matters in controversy which this Board must decide.
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Only one of intervenors' contentions, Stamiris contention 1(a), relates to the material false statement allegation in the December 6, 1979 Order.1/ That contention has been fully litigated in the evidentiary hearings held in July and August of 1981, and the parties have submitted findings of fact as to this contention. !
1/ Stamiris contention 1(a) states:
" Consumers Power Company statements and responses to NRC regarding soil settlement issues reflect a less than complete and candid dedication to providing information relevant to health and safety standards with 1-2spect to resolving the soil settlement problems, as seen in:
(a) the material false statement in the FSAR (Order of Modification, Appendix B)."
There are no matters in controversy in the operating license portion of this consolidated proceeding which relate to the
, material false statement allegation. See 10 CFR S 2.760a.
l 2/ See Applicant's Proposed Findings of Fact and Conclusions of Law dated October 28, 1981 at pp. 62-65; Stamiris Proposed Findings of Fact submitted on December 10, 1981 at pp. 34-40; l NRC Staff Proposed Findings of Fact and Conclusic ns of Law l dated December 30, 1981 at pp. 17-21.
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1 In its October 2, 1981 Memorandum (Concerning Telephone Conference Call of September 25, 1981 and Appli-cant's Motion for Partial Decision) the Licensing Board granted Applicant's request that it issue a partial initial decision with respect to Stamiris contention 1(a) and other quality assurance and " management attitude" issues.3/
In so doing , however, the Board observed with respect to the material false statement:
Testimony has already been received on the
" management attitude" aspects of the state-ment, but the parties have not yet addressed the merits of the allegation in the Modification Order concerning the statement.
October 2, 1981 Memorandum, supra, at p. 4.4/ This distinction arose out of Ms. Stamiris' claim that there was still an "open item" with respect to the material false statement, and was made at the suggestion of Applicant and the Staff.
It now appears that there is no longer any need to litigate further the " merits" of the material false statement allegation. This is because Applicant has entered into a number of stipulations with the Staff agreeing not to contest 3/ The record has since been reopened with respect to quality assurance, but not management attitude issues.
Memorandum and Order (Reopening Record on QA Matters and Establishing Schedule for Prehearing Conference and Discovery)
July 7, 1982.
4/ As will be discus,ed below, the Board's statement that the parties had not yet a6 dressed the " merits" of the allegation was not, strictly speaking, accurate. The NRC Staff has presented such testimony. See NRC Staff Testimony of Hood, Kimball and l Gallagher on Stamiris Contention 1 at pp. 4-6 and attachments 15 and 17, following Tr. 1560; Tr. 2618-9.
that there were other valid and adequate bases for the issuance of the December 6, 1979 Order. See Joint Exhibits 1 (Q. A. ) ,
2 (Aux. Bldg.), 3 (BWST and Underground Piping) , 4 (SWPS),
5 (DGB). Thus it is not necessary to determine the " merits" of the material false statement allegation to decide, as the Commission in its March 14, 1980 Order directed, whether the December 6, 1979 Order should be sustained or modified. The material false statement issue has for all practical purposes become moot.
It could be argued, of course, that even if the Board presently has sufficient information in the record to i
resolve Ms. Stamiris' contention 1(a) and to determine whether the December 6, 1979 Order should be sustained on other grounds, the Board has the duty to determine whether the December 6, 1979 Order could have been sustained on the basis of the material false statement alleged therein. This seems to be a sterile and pointless exercise.5/ It seems extremely 5/ This Board has not been delegated the task of determining the appropriateness of a monetary penalty or other sanction not i set forth in the December 6, 1979 Order See Metropolitan l Edison Company (Three Mile Island Nuclear Station Unit No.
- 1) , CLI-82-31, 16 NRC , October 14, 1982. Therefore there is no need for further scrutiny of the material false statement for any purpose other than determining whether the December 6, 1979 Order should be sustained or modified.
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unlikely that further litigation of the material- false s ta temen'. issue will influence the Board's final decision in this proceeding.
Moreor7r, despite Ms. Stamiris' suggestion in 1981 that there was an "open" item with respect to the material false statement allegation, a careful review of the evidentiary record establishes that no significant "open" item exists.
The record is adequate to support any findings which this Board could conceivably need to make on this issue. There is evidence that the FSAR statement listed in Appendix B of the December 6, 1979 Order was inaccurate, and Applicant has conceded this.5/ The record also establishes that the misstatement was not intentional.2/ Finally, the Staff's explanation of why it believes the statement was material has been received in evidence. / Intervenors had the oppor-tunity to cross-examine cn all these issues.
6/ See NRC Staff Testimony of Hood, Kimball and Gallagher on Stamiris Contention 1 at pp. 4-6 and Attachments 15 and 17, following Tr. 1560; Direct Testimony of Stephen H. Howell at pp. 16-18 following Tr. 2802.
7/ Direct Testimony of Stephen H. Howell at pp. 16-18, following Tr. 2802; NRC Staff Testimony of Hood, Kimball and Gallagher on Stamiris Contention 1 at pp. 4-6, following Tr. 1560, and Tr. 2729-30.
8/ NRC Staff testimony of Hood, Kimball and Gallagher on
, Stamiris Contention 1 at pp. 4-6 and Attachmen'.s 15 and 17, which is bound into the record following Tr. 1560. (The relevant portions of the testimony were admitted into evidence at Tr. 2619.) The Staff's comments on the materiality of the statement were admitted into evidence over Applicant's objection. Tr. 2618. Compare Tr. 4426-27.
Presumably, when the Board indicated that there might be further litigation of the " merits" of the material false statement allegation, it contemplated further testimony as to whether the statement was material. However, Applicant, having since that time agreed not to contest that there were other bases for the issuance of the December 6, 1979 Order, does not intend to submit testimony from its own witnesses concerning the materiality of the statement. The Staff's testimony has already been received into evidence. No other party has identified witnesses on this issue. Moreover, it is the Staff's view of the statement which is of primary interest in light of the definition of " materiality" established in Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480, 486 (1976). E/ See also ALAB-324, 3 NRC 347, 358-9 (1976);
LBP-75-54, 2 NRC 498, 509-510 (1975). In short, the record is adequate on this issue even if the Board believes it is necessary to make findings with respect to the material false statement allegation.
9/ According to the Commission, "[K]nowledge of falsity is not necessary for liability under Section 186 of the Atomic Energy Act, and ... materiality should be judged by whether a reasonable staff member should consider the information in question in doing his job." CLI-76-22, 4 NRC 480, 486.
O The Licensing Board's ultimate task in this soils proceeding is to determine whether the corrective actions listed in the December 6, 1979 Order should be sustained, overruled, modified or supplemented. It seems clear that the Board's decision will rest on its resolution of the quality assurance, management attitude, and remedial measures issues which have been and are being litigated in this proceeding.
Further discussions of the " merits" or materiality of an historical FSAR statement which the record already establishes was erroneously but inadvertently made would be unlikely to affect the Board's ultimate decision. Accordingly, Applicant suggests that except insofar as it has already been litigated in connection with Stamiris contention 1(a) , the material false statement issue is moot, and that no further testimony or findings should be required. In the alternative, the Board should declare the record to be sufficient with respect to this issue.
Re ully s i ed, Y YM Philip P. S 21)
.sptoe f' One of the s[ittorneys 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 83 JM 19 A10:53 f,_. mm
[#'b BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b;ODil 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 " Suggestion of Mootness Or in the Alternative Motion to Close the Record With Respect to Material False Statement" was served upon all persons shown in the attachedservicelistbydegositintheUnitedStates mail, first class, this / % day u ry, 1983.
s-.
i a PhDip P. Ste-3 toe- q r
l SUBSCRIBED A D SWORN before me this / - day of January, 19@3.
& Zl%w Notary Public My Commission Exp'.res knm! 14,1 d
SERVICE LIST Frank J. Kelley, Esq. Steve Gadler, Esq.
Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55.'08 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.' C. R. Stephens 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 5795 North River Road Mr. D. F. Judd Route 3 Babcock & Wilcox Freeland, Michigan 48623 P. O. Box 1260 Lynchburg, Virginia 24505 Dr. Jerry Harbour Atomic Safety & Licensing James E. Brunner, Esq. Board Panel Consumers Power Company U.S. Nuclear Regulatory Comm.
212 West Michigan Avenue Washington, D. C. 20555 Jackson, Michigan 49201 Lee L. Bishop, Esq.
Harmon & Weiss 1725 "I" Street N.W. #506 Washington, D. C. 20006
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