ML19344A218

Responds to NRC 760927 Motion to Direct ACRS to Clarify Rept Re Ref to Other Problems. Suggests Request Include Court of Appeals Aeschliman Decision Language.Certificate of Svc Encl

ML19344A218
Person / Time
Site:	Midland
Issue date:	10/07/1976
From:	Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008060572
Download: ML19344A218 (6)

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY ~ COMMISSION i

.BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In'the Matter'of )

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CONSUMERS POWER COMPANY Docket Nos. ,

(Midland Plant, Units 1 & 2) )

CONSUMERS POWER COMPANY'S RESPONSE-TO STAFF MOTION TO DIRECT THE ADVISORY' COMMITTEE ON REACTOR SAFEGUARDS TO CLARIFY ITS REPORT on September 27, 1976 the NRC Staff moved that t

this Board "[p]ursuant to the decision in the United States' Court: of Appeals for the District of Columbia l

Circuit in Aeschliman v. NRC, Nos. 73-1776 and 73-1867

-(D. C,. Cir. July 21, 1976). . . return the ACRS report to the ACRS for clarification."b! The report referred

l/ .The_ caption of the-Staff's motion requests this Board

-to direct" the.ACRS.. The' body of the motion simply-

-requests'that the: report'be returned "to the ACRS for clarification." .Nothing-in the.Aeschliman opinion re-fers to a- direction. We assume.that in the circum-stances'a " request" would.be adequate'and that it is

'not necessary to address the question whether this

' Board'has the right to. issue a direction to the LACRS in. view of that:b.ody's~ " independent" and " unique" role in.the administrative' process established by the EAtomic Energy'Act. 'Aeschliman, Slip Op'., p. 20.

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w ta?is;the(letter.from_ Joseph M. Hendrie,-then ACRS iChairman',Tto Glenn T.:f Seaborg,;. -then Chairman of the

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Atomic Energy : Commission, ^ dated June' _18,.1970, which

> cisireproduced'in Appendix _B to.-the November 12, 1970,

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Safety _ Evaluation.,

Consumers Power Company does not object to -

a-return (ofJthe ACRS' report to the Committee'with a requestJforjclarification of what-At meant by its re-Eference'to "other problems" in its letter:of June 18, 1970. Indeed,; Consumers--Power Company believes that the.ACRS.should_be? requested to supply its answer as expeditiously as possible.

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-Consumars Power Company also believes that, Eboth as'a matter of comity and'irt order-to be of as much assistance as[possible to that body,7the;ACRS should be

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informed <of material already1on1the record in this pro-cecding bearing :upon the : nature of the "other problems" J

l fit.is being requested 1to clarify. -Conseguent y, we sug-'

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7 gest-(thatLthe' request.to.the ACRS be-accompanied'with a'-

(copyfof the: Courtjof . Appeals decision:in Aeschliman,

.Lwith?itsiatten, tion;specifically called t'o the following language Econtainedf in _.: the , opinion- (Slip _ op. , pp. 19-20) :

L..t"ThefACR'S,repor't in this case must be zevaluated'in:lighttof the' congressional pur-

' iposes. awhile;the reference _to-'other prob-

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1 .lems'Uldentifiedlin

previous ACRS reports s -

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<+*- a may havefbeen adequate;to give the.Com-

. mission-the' benefit of ACRS members' technical expertise, ~ it fell.short-of

performing'ths other equally important

. task whichl Congress gave ACRS: informing '

-tMe public of the hazards.- At a minimum, the ACRS report should~have provided a short explanation, understandable:to'a layman, of the additional matters of con-cern ' to the committee, and a cross-refer-ence to the previous reports in which those

-problems, and the measures proposed to solve ,

them,'were. developed in more detail. Other-wise, a concerned citizen would be unable

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to determine, as Congress intended, what other difficulties might be lurking in the proposed-reactor design. Since the ACRS-report.on its face did not. comply with the requirements of the statute, we believe the Licensing Board should have returned it sua sponte to ACRS for further.elabora-

. tion of the cryptic reference to 'other problems.' 18 18 Th'is is not to:say that.an ACRS re-port must contain detailed factual-findings

-of the kind.necessary-to aid judicial re-view. -Under Commission rules,E when ACRS-conclusions are controverted, a factual:

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record isLcompiled anew before the Licensing

-'- Board; See 10 C.F.R., pt. 2, App. A, V(f)

(1) (19 76).. " (Emphasis in original) 2/

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We-have t'oday_ received a mailgram from counsel for the-Intervenors in this proceeding ~ making a number oof suggestions (paragraphsLnumbered' 2,- 3 and 4) 'which appear to be contrary ' to + he Aeschliman holding (Slip Op. , pp.120-21). precluding discovery aga' inst the ACRS or with respect to ACRS. documents. Accordingly, we assume the Board':will not entertain theseLsuggestions at this. time-without affording.the parties an oppor-tunity to; address them. -

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- A copyfof each of theifAllowing documents, copies of

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whichLare attached hereto-for the Board's convenience,

'should alsoibe provided to the ACRS: .

(a) Motion and Supplement to Saginaw

. Valley, et al., Intervenor's Statement of Exceptionsito theJInitial~ Decision Filed on January 15, 1973, dated March 28, 1973, together_with the attachments there-to;-

(b) Answer of'AEC-Regulatory Staff-to 9aginaw Intervenors' Motion to' Supplement the Record en' Appeal; and (c) ' Opposition of Applicant, Consumers Power Company, to-Motion and Supplement Filed by the Saginaw Intervenors on March 28, 1973,. datec April 9, 1973.

- In addition,' the attention of -the ACRS should be called to the disposition of tl:e motion referred to-in item (a) ,

above, inLALAB-123, issued in this proceeding on May 23,

' 1973. -6.AEC 331,.343.

Respectfully submitted,

' Harold F. Re%s Lowenstein, Newman, Reis & Axelrad

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1025 Connecticut Avenue, N. W.

Washington, D. C.- 20036

.(202),833-8371 Counsel for Consumers Power Company-Dated: October-7,o 1976- __

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UNITEDJSTATES OF AMERICA NUCLEAR-REGULATORY COMMISSION BEFORE THE ATOMIC-CLFSTY AND' LICENSING BOARD In-the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 Midland Plant, Units 1 & 2) )

CERTIFICATE OF SERVICE I certify that copies of the attached " Con-sumers Power Company's Response to Staff Motion to Direct the Advisory Committee on Reactor Safeguards to Clarify Its Report", dated October 7, 1976, together with~ copies-of the three pleadings referred to therein, o were served upon the-following by deposit in the United States Mail,' postage prepaid and properly addressed, on the 7th day of October, 1976.

Mr. C. R..Stephens-

-Chief, Docketing-and Service Section l

Office of the-Secretary of the Commission

'U.S.-Nuclear Regulatory Commission Washington, D. C. 20555~ (

Richard = Brown,. Esquire Couns'el for~NRC Staff EU.S. - Nuclear Regulatory Commission

' Washington,:D. C. 20555 i~

Myron_M.. Cherry, Esquire

Suite 4501 One IBM Plaza Chicago, Illinois 60611 b -r - - < v

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James N. O'Connor', Esquire

The Dow Chemical Company 2030:Dow Center

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-Midland, Michigan 48640 Milton:R. Wessel,' Esquire 4 Little Lane.

White ~ Plains,.New York 10605

'Howard~J. Vogel, Esquire 2750 Dean Parkway liinneapolis ,1 Minnesota 55416

.The Honorable Curt'T. Schneider Attorney General 1st Floor, State Capitol Building Topeka, Kansas 66612

. Daniel M.-Head, Esquire, Chairman Atomic Safety,and Licensing Board Panel U.S. NuclearfRegulatory Commission Washington, D. C. 20555 Dr. Emmeth A. Luebke, Member

• Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory' Commission Washington, D. C. 20555

_~ =Dr._J.:Venn Leeds,-Jr., Member 10807 Atwell' Houston, Texas 77096 s

H'arold F. Reis Lowenstein,.Newman, Reis &'.Axelrad 1025 Connecticut Avenue,-N. W.

Washington,.D. C. 20036

_ (202) 833-8371 Counsel for Consumers Power Company Dated: October 7,-1976 6

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