ML20151B555

Forwards Supplemental Affidavit for Commission & H Denton to Consider.Requested Hearing Would Encourage Resolution of Important Issues

ML20151B555
Person / Time
Site:	Byron
Issue date:	01/27/1981
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Ahearne J, Gilinsky V, Hendrie J NRC COMMISSION (OCM)
References
NUDOCS 8102170386
Download: ML20151B555 (2)

Text

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C H E" A R Y 6. FLYNN ONC law PLAZA C HICAG o, ILLIN CIS 6 0 6

1362 5 6 5. t ' 7 7 January 27, 1981 Jchn F. Ahearne, Chai=an Victor Gilinsky, Ccmissioner ig g,^ , l Joseph M. Henirie, Ccmrissioner g Peter A. Bradford, Ccmnissioner United States Nuclear Pegulatory Ccmnission ( 'S Washington, D. C. 20555 ggge H:Jold R. Denton, Director FEB 2 481 > ~4 Cffice of Nuclear Peactor Pegulation p of w sf$s Suethry Q Uni ed States Suclear Regulatory C=uu.snen \p, y Lcr.Les,,&

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I r.derstr.d fr= a January 14, 1981 Ceder that the Ccrission itself has extended the time to January 30 to review the partial decision of Mr. Denton cn our petiticn.

Because Mr. Denton's cccm.:nications to me mtain a host of in-accuracies I have enclosed a Supplemental Affidavit wh. ten I wish both the Ccmnission and :c Denton to consider.

I cannet stress sericusly encugh the inecmprehensibility which I experience each time I see the u"zesolved safety problems excanded while building and operation croceeds apace. The Rockford League of Wcrnn Voters has attempted to follow all of ta rules of the Ccmission in seeking to have a prompt hearing at this juncture on serious matters affecting Byron.

We seek no delay but rather are encouraging resciution of the issues new backeo by solid technical assistance frcm a groue that has previously been of assistance to the Ccmission itself.

If the Camission follows Mr. Denton's lead and ignores our si.ple -

recuest for a hearing, in our jude~ert the Ccmnission would be not only abdicating respcasibility but doing a lisservice to whatever potential this r cer.t:/ has fer nuclear energy. It is clear (at least because no reactors have been Ordered fcr three years) tha: the industry itself wishes a solu:icn to these nagging questicns one way or a-other. ?sason, therefore, cannet 1)So3 5  :

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Messrs. Ahearne, Cilinsky, Hendrie, Bradford, and Dentan l

Page two i l January 27, 1981  ;

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l i persuade me that avoidance of a pw.g hearing cr. the issues we raise is either sound or in the public interest. Unfortunately, this Agency in the past has made decisions whichhave degradated the public interest. There i

. is still tim fer someone of responsibility to assist the Pr;ckford Imague  !

I of Women Voters in its efforts to seek a hearing. 'We trust that will be at least the majority of the Ca mission, since I have learned through inforal conversations that Mr. Denton has already derarmined to deny the reminder of our 2.5 3 recuest. Indeed the only reason we ha*ze not as yet docke.ed an appeal is because of the Comission's January 14, 1981 Order which, suggests i

that the Comission itself may recognize the merit of our petition and in the public interest the desirability of moving forward with hearings concerning it.

We nest any.iously await your reply, altiough as I have indicated to tir. Denton on tw occasions, we will treat the absence cf a prompt reply as a denial in toto.

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enclosure -

Supplercental AffidaM.t [

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l UNITED S A"IS OF AME?lCA A

NUCLEAR REG""J_~ CRY CCtOESSION  !

1 Ccmnissioners: '

l John F. Ahearne, Chairman 1 Victor Gilinsky Jcseph M. Hendrie Peter'A. Branford

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In the Matter of )

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CCMMotMEALTH EDISON COMPANY ', Docket No. 50-454

) 50-455 (Byron Nuclear Power Station, ) (2.206) i Units 1 and 2) )

s STATE OF ILLINOIS ) ,  %\

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COUNTY OF C C C K ) / ND V-usefitC +

SUPPLEMENTAL AFFILWIT IN SUPPORT I3 lb FE9 21981 r, Fr-CF PZ;CEST FOR AC ION PUPSUANT TO $~~1 a

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10 C.F.R. SECTIONS 2.202 AND 2.206 &.ct d the Secnta

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MYRCN M. C'IERRY, being first duly sworn, on oath states:

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1. I am cc.r. cal for t'.s %;:i':f * . :p Of WO-. n '/ trs. I give this Affidavit in connection with the recuest for action pursuant to 10 C.F.R., SS 2.202 and 2.206 filed herein by the League on Novem-her 21, 1980, and still pending before 9.e Director cf the Office of i

Nuclear Reactor Regulation. The purpose of this Affidavit is to provide i 8

further support for paragraphs (a), (b), and (c) of the relief regaested l by the League, and to provide support f:r the league's request that the l Director reconsider his denial (by lettar of Dece.sar 22,1980) of i I

• l paragraph (d) of the relief requested b.* the Leacua  ;

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2. The Director's letter of December 22, 1980 asserts that "the Icague's petition does not cuestien the gaality of constraction (of the Byron Nuclear Pcuer Plant] but rade gaestions de adegaacy of plant design." The letter then asserts that design issues "do not nor-mally warrant suspension of constraction since such questions are resolved during the operating license review process." However:

(a) The Affidavit of Richard B. Hubbard and Gregon C.

Minor subnitted in support of the League's petition dces in fact question the quality of ccnstruction of the Byron facility. Both pages 35-40 of that Affidavit, dealing wich whether de ega:prent instal".ef furing plant constraction is adecuate to withstand de circ = stances cf norral use, f

! and pages 61-64 of that Affidavit, dealing with sericus quality assurance and quality control deficiencies identified by the NRC itself during the construction of the Byron facility, relate directly to the Taality of construction.

(b) Further cre, even as to design issues, it is inade-quate blandly to state that "such questions are resolved during the cperating license revis. prccess." As is dec=ented i . cc:.sidsrable detail thrcughout the Affidavit of Messrs. H dbard and Minor and as was found teth 1

l by the Kemeny Ccnmission and by the NBC's Special Inquiry Group follcwing the 1979 Three-Mile Island nuclear accident, in fact the NRC's operating Pather, it is cus-li:cr.se prccess aces not resolve design safety issues.

tc~. ry either to ignore those issues, or to exclude them frcm consideration en a variety of technical prccedural crcunds, or simply to grant operating licenses while acknowledging that such issues recain unresolved.

3. The Director's Decernber 22, 1980 letter next asserts as a J l

reason for refusing to suspend Byron plant construction while the issues raised by the Iaague's petition are considered, that "the licensee proe d s j l

1 at its risk and must bear any... costs" necessitated by design change re-qairerents arising after construction is ccmplete. Tra le**" "en asserts j that "I know of no reason to conclude that (ccmnonwealth niison) would not i

be prudent in adjusting schedules. to effect changes with a mininun of 1 l

I rework and extra costs." Mcwever: l (a) After lengthy examination, I am able to find no instance in which the NPC has denied an operating license to a cu...ercial nuclear utility and no instance in which the EC has recuired ccarercial utility, as a condition of an operating license, to make design chances, da ecst of which placed the utility at financial risk. By contrast, I am aware of a nt: er of NRC decisicsholding that the expense a utility Pas already incurred in constructicn is a significant factor to be censidered in deciding wPether to campel the utility to make design changes which would reqaire construction re'.ork, and I c.m further aware that (as both the Ke.Teny Conrissien and the 1.7.C Special Ingairy Group found) when design changes are suggested at de operating license stage "econcmic considerations" often " lead to a reluctance to order major changes." Accordingly, as a matter of NFC practice it is in fact not true that the licensee prcceeds at its own risk. Father, the true rish is that the further tha licensee has gone, the less likely the IRC is to recuire design changes which would otherwise be desirable.

(b) Far from evidencing a prudent willingness to adjust its schedule in order to factor in design changea, comnonwealth Edison successfully l 1

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importuned the Illinois Camerce Ccmnission to authorize and direct it to canplete the Byron nuclear facility as rapidly as possible, which that Cc=nission did by Order dated Cetober 15, 1980, and Ccrenwealth Edison is ,

vigorcusly resisting any attempts to alter that'direceive. I:

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4. Tha Director's letter of Decenter 22, 1980 also asserts that "past experience" indicates that "it is highly unlikely that any major structural changes will be required" at the operating license stage. How-ever, apart fran tending to support the point s.:de in paragraph 3 (a) above, this statement ignores the fact, doc mented in detail in the Affidavit of Messrs. Hubbard and Minor, that since the Three-+1ile Island accident (fcilowing whid '%" %ve been va:/ few cperating license hearings) the NRC's approach to operating license hearings has been described as eriously inadequate both by the Kemeny Ccmission and the NRC Special Inquim/ Group.

The Director's staterent would seem to indicate either that the NRC has no intention of changing its practices, or that the Director is attempting to apply the lessens of "past experience" to a situation which-because of changes in practica--is not paralJ.el to that which preceded the Three-Mile Island accident. Finally, it is impossible to reconcile the Director's statement that major design changes are never required at the operating l l

license stage with his earlier refusal to consider design changes on the j ground that "such questions are resolved during the operating license review l crocess." l

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5. On t% basis of his reasons quoted alxwe, the Director's  :

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December 22, 1980 letter concludes that there is " reasonable assurance that any safety changes required at the Byren facility can be implemented prior l i

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u to the certpletion at the coerating license review." Tre preceding para-i graphs of this Affidavit, demonstrating that the reasons on which that conclusica is based are erroneous, also derenstrate that the conclusion itself cannot stard. It cannot stand for an addi:icnal reascn. As is i r

I detailed in tra Affidavit of Messrs. Hubbard and .uncr, based On the .testi-i many of Cccmonwealth Edison officials and ICC hearings during July 1980, [

Ccxmenwealth Edison is presently engaged in a financial crisis. The cost of the Byron nuclear facility is presently estirated by Cczmenwealth Edison to be approxirately $2.4 billion. As of July 1980, Cc:menwealth Edison l advised the Illincls Ccr=arce ccmnission that Edison cannot increase its  ;

present const 2ction budget for 1980 and 1381 at all without " unjustifiable i r:.sks" and that itu budget is already "straine to the ut est." In light j t ,

! of this testimony by Edison, there is obviousiv no assurance that anv - - i a

safety changes recuired at the Byron facility can be implemented if con- i i

struction proceeds, and (as the NRC itself has recognized On numerous r

occasiens) the cost of making such changes is increased by the continuation of constru: tion. In this regard, MHS Technical Associates has estirated  :

l that if r g red safany changes are delayed un :.1 cons r :t(: if he l

l Byron facility is complete-which will occur in less than three years of I at least one Byron unit-the cost of making those changes will approx.mately l 1

double. Even if such changes were reglired " prior to completion of the f i

operating license review," as the Director suggests, that consequence may .

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well ocrar given the length of the operating license review process and i t

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the likelihocd t'ut Edison will litigate at length any change requirements t

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These ratters are plainly serious and dese:ve intned:, ate attention. Even if the NRC does not grant the petition for intnediate shutdcwn, there is no conceivable reascn why a prompt hearing is not held These ratters were never cen-to consider these matters at this time.

sidered at the ccnstructicn phase stage for the reascns that they wees igncred, unkncwn er not yet the subject of a definitive proposal by the m:nd, even applicant. By the time the operating license Pearing comes if the Atcmic Safety & Licensing Board has not barred consideration of generic issues in one way or another, the plant will be built with little or no chance for censideratiens of rajcr changes.

7. Restonsibility dic-ates that cur petinic- be nr.:ed.

Subscribed and sworn to before me this 27th day of January,1981. .

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Notary Public

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